(D.C. No. 1:10-CV-00821-ZLW) (D. Colo.).
The opinion of the court was delivered by: Terrence L. O'Brien United States Circuit Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.
Vincent E. Loggins, a patient in the custody of the Colorado Mental Health Institute, appears pro se*fn1 seeking to appeal from the dismissal, without prejudice, of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Because he has not "made a substantial showing of the denial of a constitutional right," we deny his request for a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(2).
In May 1990, while incarcerated in the Colorado Department of Corrections (CDOC) for sexual assault on a child,*fn2 Loggins attacked a correctional officer. He was prosecuted in state court for second degree assault on a peace office but pled not guilty by reason of insanity and was committed to the Colorado Mental Health Institute (CMHI).*fn3
While committed to the CMHI, his sentence for the sexual assault conviction remained pending. In 1994, a state trial court granted Loggins' petition for release from the CMHI commitment*fn4 and ordered his conditional return to the CDOC to finish serving his sexual assault sentence. The court imposed conditions upon his release,*fn5 including a requirement that he receive psychiatric treatment from the prison and "apply for and participate in the Sex Offenders Program for the duration of his stay at the Department of Corrections." (R. Vol. I at 45.) The order also required his return to the CMHI for further evaluation after completing his criminal sentence. Duringhis renewed incarceration with CDOC, Loggins was returned to the CMHI for approximately one month because he wrote a sexually explicit letter to a nurse and exhibited other violent and threatening behavior. Moreover, he enrolled in the Sex Offenders Program only "[d]uring the latter portion of his stay." (R. Vol. I at 92.)
After completing his sexual assault sentence, Loggins was returned to the CMHI on November 21, 1997, for evaluation pursuant to the state court's 1994 order. He was determined to pose a danger to himself and others and has since remained committed with CMHI.*fn6 While the record is incomplete, it appears his subsequent applications for release from CMHI have been denied and evaluations continue to report threatening and violent behavior and to conclude he is a danger to himself and others. For these reasons, and because it appears Loggins remains in the CMHI pursuant to court order,*fn7 we conclude he is in custody for purposes of the habeas statute. See Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.) (commitment to a mental institution may satisfy habeas corpus "in custody" requirement), cert. denied, 130 S.Ct. 1022 (2009); see also Parrish v. Colo., 78 F.3d 1473, 1474 (10th Cir. 1996) (considering the § 2254 petition of a patient in "the custody of the Colorado Mental Health Institute in Pueblo" under the same regulatory scheme after being found not guilty by reason of insanity).*fn8
On April 12, 2010, Loggins filed a pro se complaint which consisted of a Motion and Affidavit for Leave to Proceed In Forma Pauperis, 28 U.S.C. § 1915, a notice of change of address, an Application for a 28 U.S.C. § 2241 Writ of Habeas Corpus, and an Application for a 28 U.S.C. § 2254 Writ of Habeas Corpus. His pleadings were referred to a magistrate judge who concluded they were deficient. In doing so, the magistrate explained the deficiencies and directed Loggins to file a single amended pleading clearly stating his claims. The magistrate also directed the clerk of the district court to mail Loggins two copies of the appropriate forms. Additionally, Loggins was required to either pay the filing fee or file a motion seeking leave to proceed in forma pauperis (ifp). The magistrate warned Loggins that failure to cure the deficiencies within thirty days would result in dismissal of his case.
Loggins responded by paying the required fee and filing an amended 28 U.S.C. § 2254 petition for writ of habeas corpus. The amended petition challenged his second degree assault conviction and requested to be "discharged immediately . . . from the judicial & institutional fac[il]ities." (R. Vol. I at 35.) Loggins also attached over one hundred pages of miscellaneous documents which included paperwork concerning the offense, his version of the events leading to his commitment, and multiple psychiatric assessments and mental health evaluations. Nothing in his amended § 2254 application referenced any particular document or piece of information in the attachments.
The magistrate reviewed Loggins' amended petition and determined it remained deficient. He informed Loggins the amended application did not name a proper respondent and failed to provide a clear statement of the factual allegations. The magistrate specifically set forth what was missing from the application, explaining the requirements for habeas petitions are more stringent than ordinary civil actions. He then told Loggins: "Naked allegations of constitutional violations are not cognizable under § 2254." (R. Vol. I at 141-42.) He required Loggins to file a second amended application "provid[ing] specific factual allegations in support of each asserted claim." (Id. at 141.)
Loggins subsequently filed a second amended § 2254 petition. In the words of the district judge, this application also failed "to provide a clear statement of any federal constitutional claims" and "to allege facts in support of any of the claims being asserted."
(R. Vol. I at 173.) The court denied Loggins' petition and dismissed the action without prejudice. It also denied a certificate of appealability (COA) and his petition to proceed ifp on appeal. Loggins sought a COA and to proceed ifp on appeal with this Court. After we denied his request to ...