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Burgess v. Daniels

United States Court of Appeals, Tenth Circuit

August 19, 2014

COREY BURGESS, Petitioner - Appellant,
v.
CHARLES A. DANIELS, Respondent - Appellee.

D.C. No. 1:13-CV-00293-BNB, D. Colo.

Before KELLY, HOLMES, and MATHESON, Circuit Judges.

ORDER AND JUDGMENT [*]

JEROME A. HOLMES Circuit Judge

Appellant Corey Burgess, proceeding pro se, [1] appeals the denial of his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He additionally appeals from the district court's denial of his motion to proceed in that court in forma pauperis ("IFP"). Finally, Mr. Burgess seeks leave to proceed IFP on appeal. For the reasons set forth below, we now affirm the district court's denial of Mr. Burgess's habeas application, dismiss as moot Mr. Burgess's appeal relating to the denial of IFP status in the district court, and deny Mr. Burgess's request to proceed IFP on appeal.

I

Mr. Burgess is a prisoner in federal custody. At the time he filed his habeas application, Mr. Burgess was incarcerated in the Special Management Unit ("SMU") at the United States Penitentiary in Florence, Colorado. Mr. Burgess filed his habeas application pro se on February 4, 2013, and concurrently sought leave from the district court to proceed IFP.

The district court initially determined that Mr. Burgess's motion to proceed IFP was deficient because Mr. Burgess had failed to provide a certified copy of his inmate trust fund account statement. See generally 28 U.S.C. § 1915(a)(2). On February 19, 2013, a certified copy of Mr. Burgess's inmate trust fund account statement was filed with the district court, curing the original deficiency. On the basis of this account statement, the district court determined that Mr. Burgess possessed sufficient funds to pay the filing fees associated with his case, and denied the motion to proceed IFP. Mr. Burgess filed a motion seeking reconsideration of this decision but subsequently paid the filing fee while the motion remained pending, and the district court accordingly denied the motion as moot. Although Mr. Burgess initially sought interlocutory review of the district court's denial of his motion to proceed IFP, we suspended briefing in that appeal and instructed Mr. Burgess to file an additional brief addressing whether or not his appeal was moot due to his having paid the filing fee. In light of Mr. Burgess's response, we ultimately consolidated Mr. Burgess's appeal regarding the denial of IFP status with his subsequently filed appeal from the district court's denial of his habeas application.

Mr. Burgess's habeas application stated three claims. First, Mr. Burgess argued that the Bureau of Prisons ("BOP") violated his constitutional rights and his rights under 18 U.S.C. § 3624(c) by failing to submit him for pre-release placement into a residential reentry center ("RRC").[2] Second, he claimed that his placement in the SMU further violated his rights under § 3624(c). Finally, Mr. Burgess argued that the imposition of a two-year term of supervised release as an aspect of his sentence violated the Double Jeopardy Clause of the Fifth Amendment. The district court dismissed Mr. Burgess's first and third claims without prejudice for failure to exhaust administrative remedies.[3] It dismissed his second claim without prejudice as inappropriately raised in a habeas action, finding that Mr. Burgess's claims regarding his SMU placement in fact challenged the conditions of his confinement, and thus should have been raised in a separate civil action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In its order dismissing Mr. Burgess's habeas application, the district court denied Mr. Burgess's motion for leave to proceed IFP on appeal, stating that "any appeal from this order would not be taken in good faith." R. at 284 (Order of Dismissal, .

II

A

We begin by considering Mr. Burgess's appeal from the district court's denial of IFP status. We need not address the merits of Mr. Burgess's arguments regarding whether the district court wrongfully denied him IFP status in the first instance. This is because, irrespective of those arguments, Mr. Burgess's request for IFP status, and his appeal from the district court's denial of that request, were rendered moot when he voluntarily paid his filing fee on March 11, 2013.[4]Indeed, panels of this court have uniformly held that payment of filing fees causes requests to proceed IFP to become moot. See, e.g., Schell v. Vaughn, 549 F.App'x 788, 791 n.2 (10th Cir. 2013) (dismissing application to proceed IFP on appeal as moot where appellate filing was paid); Perez-Castro v. Holder, 527 F.App'x 777, 781 (10th Cir. 2013) (same); Carbajal v. City & Cnty. of Denver, 502 F.App'x 715, 717 (10th Cir. 2012) (same); United States v. Dowell, 438 F.App'x 706, 710 (10th Cir. 2011) (same); United States v. Harris, 404 F.App'x 264, 267 (10th Cir. 2010) (same); Mitchell v. Oklahoma, 157 F.App'x 81, 84 (10th Cir. 2005) (same); see also Lipscomb v. Madigan, 221 F.2d 798, 798 (9th Cir. 1955) (per curiam) (same). Although Mr. Burgess has not specified what relief he seeks from this court, we might reasonably infer that he desires some form of refund to allow him (presumably, in a less onerous fashion) to make partial payments over time. However, Mr. Burgess has not offered us any authority to support such a request—or, for that matter, to justify any other relief that we can reasonably conceive of—nor have we found any. See Golden v. Kaiser, 1 F.App'x 841, 841 n.1 (10th Cir. 2001) (denying as moot appellant's request for refund of previously paid appellate filing fee and to be allowed to proceed IFP, noting that the appellant "has not identified any precedent supporting such a request and this court has not discovered any"). Therefore, we conclude that the district court properly denied Mr. Burgess's IFP request as moot.

B

We next consider the district court's denial of Mr. Burgess's habeas claims. In reviewing the denial of a habeas petition under § 2241, "we review legal questions de novo and factual findings for clear error." Standifer v. Ledezma, 653 F.3d 1276, 1278 (10th Cir. 2011); see al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir.) ("When reviewing the denial of a habeas petition under § 2241, we . . . accept [the district court's] factual findings unless clearly erroneous."), cert. denied, ___ U.S. ___, 134 S.Ct. 295 (2013); Butler v. Hamilton, 542 F.2d 835, 838 (10th Cir. 1976) ("The burden of demonstrating that findings are clearly erroneous is a heavy one and appellants must point out specifically where the findings of the trial court are clearly erroneous.").

With respect to Mr. Burgess's first claim, we conclude that the district court did not err in dismissing this claim on the basis that Mr. Burgess failed to properly exhaust his administrative remedies. The district court found that in each of Mr. Burgess's two administrative remedies concerning this claim, he was given the opportunity to correct defects with his submissions, but failed to do so. See R. at 279–81 (finding that Mr. Burgess was allowed fifteen days to resubmit appeals in administrative remedy numbers 695871 and 717106, but did so in neither). In his briefs, Mr. Burgess makes various arguments and assertions regarding these remedies, but none satisfy his heavy burden of demonstrating clear error—indeed, Mr. Burgess nowhere challenges the ...


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