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Lewis v. Thaler

United States Court of Appeals, Tenth Circuit

June 25, 2013

ALAN LEWIS, Petitioner-Appellant,
RICK THALER, Custodian: Director of Texas Department of Criminal Justice; and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees.

D. Colorado (D.C. No. 1:11-CV-02552-RBJ)

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.


Stephen H. Anderson Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Petitioner Alan Lewis, proceeding pro se, seeks a certificate of appealability ("COA") to enable him to appeal the dismissal of his 28 U.S.C. § 2254 petition asserting that he had been denied due process regarding his rights under the Interstate Agreement on Detainers ("IADA"), and that his trial counsel had been ineffective. Finding that he has failed to meet the standard for the issuance of a COA, we deny Mr. Lewis a COA and dismiss this matter.


Mr. Lewis is currently incarcerated in Texas on charges unrelated to the convictions whose validity he challenges in the instant habeas proceeding. In particular, Mr. Lewis challenges his Morgan County, Colorado, convictions which relate to an incident in October 1999, when Mr. Lewis entered the home of an eighty-two-year-old woman on the pretense of wanting to purchase her home. While there, he attempted to sexually assault her, and he physically assaulted her when she resisted. On January 28, 2000, Mr. Lewis was charged in Morgan County with three charges of assault. At the time those charges were filed, Mr. Lewis was in fact in custody in Texas on different and unrelated charges, for which he was convicted in July 2002. He was also charged with crimes in an unrelated case in Mesa County, Colorado.

There began a series of communications and exchanges of information between Mr. Lewis and authorities in Morgan County, Mesa County and in Texas. In September 2002, Mr. Lewis (while in Texas) wrote a letter to the Morgan County District Attorney inquiring about any charges pending against him in Morgan County. In October 2002, Mesa County authorities lodged a detainer against Mr. Lewis with prison authorities in Texas. Because of that detainer, Mr. Lewis was transported from Texas to Mesa County. Before he was returned to Texas, Mr. Lewis was taken to Morgan County in January 2003 and advised of the charges against him there. In connection with this transfer from Mesa to Morgan County, the Morgan County Sheriff wrote a letter to the Morgan County prosecutor referencing a "detainer" dating from January 2000. As explained more fully below, the Colorado state courts determined that no such "detainer" existed at that time. Subsequently, in September 2003, after Mr. Lewis had been returned to Texas, Morgan County authorities lodged an actual detainer against him with the prison authorities in Texas.

Mr. Lewis then filed a request for disposition of the September 2003 detainer filed by Morgan County and he was returned to Morgan County in November 2003, where he remained until his trial there in September 2004. The delay between the issuance of the detainer in September 2003 and Mr. Lewis's trial in September 2004 was occasioned by a number of defense motions to continue the proceedings. Thus, as explained infra, there is no IADA problem with that time period.

Following a jury trial, Mr. Lewis was convicted in the Morgan County case of attempted first degree sexual assault of an at-risk adult by use of force, third degree sexual assault of an at-risk adult, and third degree assault of an at-risk adult. On direct appeal, the Colorado Court of Appeals affirmed the judgment of conviction but remanded for resentencing on the third degree sexual assault conviction. See People v. Lewis, No. 05CA0976 (Colo. Ct. App. Feb. 22, 2007) (unpublished) ("Lewis I"). The trial court then sentenced Mr. Lewis to concurrent prison terms of twenty years to life on the attempted first degree sexual assault conviction, twenty-four years to life on the third degree sexual assault conviction, and two years on the third degree assault convictions.

Following his direct appeal, Mr. Lewis filed two motions seeking post-conviction relief pursuant to Colo. R. Crim. P. 35(c) in the Morgan County case. On October 30, 2008, the trial court denied those motions without a hearing. That order was affirmed on appeal. People v. Lewis, No. 08CA2523 (Colo. Ct. App. Feb. 17, 2011) (unpublished) ("Lewis II"). On June 6, 2011, the Colorado Supreme Court denied Mr. Lewis's petition for a writ of certiorari.

Mr. Lewis subsequently filed the instant 28 U.S.C. § 2254 petition in district court, arguing two claims in connection with his Morgan County conviction: (1) he was denied due process and his rights under Article IV(c) and (e) of the IADA were violated; and (2) one of his trial attorneys, Stuart Crespin, was ineffective. Applying the appropriate standards under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the district court denied Mr. Lewis relief on either claim and dismissed his case with prejudice. It also denied Mr. Lewis a COA because he had not made a substantial showing of the denial of a constitutional right. Mr. Lewis seeks a COA from our court to enable him to appeal that denial and dismissal.


"A COA is a prerequisite to appellate jurisdiction in a habeas action." Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected . . . constitutional claims on the[ir] merits, " the applicant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a district court's ruling rests on procedural grounds, the applicant must show both "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason ...

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