CLINTON T. ELDRIDGE, Petitioner - Appellant,
U.S. PAROLE COMMISSION; WARDEN KLEIN, ADX, Respondents - Appellees.
No. 1:18-CV-00797-LTB (D. Colo.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy, Circuit Judge.
Eldridge, a prisoner in custody of the Federal Bureau of
Prisons, seeks a certificate of appealability
("COA") so he can appeal from the district court
dismissal, as successive, of his 28 U.S.C. § 2241 habeas
corpus petition.Eldridge also seeks permission to proceed
on appeal in forma pauperis. Because Eldridge has not made a
"substantial showing of the denial of a constitutional
right," 28 U.S.C. 2253(c)(2), this court
denies his request for a COA and
dismisses this appeal.
1984, Eldridge was convicted of several felony counts,
including rape and robbery, and was sentenced to consecutive
prison terms totaling forty to one-hundred-and-forty years.
In 2010, 2013, and 2016, Eldridge was considered for parole
by the United States Parole Commission, which denied parole
each time. His next parole hearing is scheduled for February
2019. Eldridge filed the instant § 2241 petition in
district court asserting the following three claims: (1) the
Parole Commission acted arbitrarily and capriciously by
failing to apply D.C. Parole Guidelines at his parole
hearings in 2010 and 2013; (2) the Commission did not
recommend sex offender treatment programming at his 2010 and
2013 hearings and, at his 2016 hearing, denied his requests
to transfer to a facility that offered that treatment; and
(3) in denying parole, the Commission relied on prison
records containing "false allegations by
Respondent." The district court issued an order to show
cause why the petition should not be dismissed because it
raised the same claims that had previously been litigated in
Eldridge v. Oliver, No. 16-cv-00690, 2017 WL 2812824
(D. Colo. June 29, 2017), COA denied and appeal
dismissed, 710 Fed.Appx. 348 (10th Cir. 2018). In
response, Eldridge did not contest that he had previously
raised the instant claims, but asserted the district court
should reach the merits because the prior case was decided
incorrectly. The district court dismissed Eldridge's
petition as frivolous or malicious. See 28 U.S.C.
§ 1915(e)(2)(B); see also Stanko v. Davis, 617
F.3d 1262, 1269-70 (10th Cir. 2010) (holding that common law
doctrines of successive and abusive writs grant district
courts discretion to refuse to consider § 2241 petitions
that (1) relitigate previously resolved claims or (2) raise
claims that could have been brought in a previous petition).
the decision appealed involves a procedural ruling, this
court will not issue a COA unless "the prisoner shows,
at least, 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 would find it
debatable whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000). Because the district court's procedural
ruling is indisputably correct, Eldridge is not entitled to a
COA. There is simply no doubt the arguments raised in the
instant petition are successive and, therefore, frivolous and
malicious. Furthermore, because Eldridge has failed to
present a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal, he is not
entitled to proceed in forma pauperis. DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Eldridge is
reminded that he must, therefore, immediately remit the full
appellate filing fee.
those reasons set out above, Eldridge's request to
proceed in forma pauperis is DENIED, his
request for a COA is DENIED, and this appeal
 Although Eldridge is in
federal custody, he needs a COA to appeal the district
court's decision because his relevant convictions were
entered in the District of Columbia Superior Court. In
Eldridge v. Berkebile, 791 F.3d 1239, 1241, 1243-44
(10th Cir. 2015), this court held that when a prisoner is
challenging a conviction entered in the District of Columbia
Superior Court, the prisoner is a "state prisoner"
for purposes of 28 U.S.C. § 2253. State prisoners
proceeding under § 2241 must obtain a COA to proceed on
appeal. Montez v. McKinna, 208 F.3d 862, 869 (10th
In his brief on appeal, Eldridge seems to suggest that some
aspects of the claims presented in the instant petition are
not exactly the same as those resolved in the prior
litigation. Even assuming this cursory assertion were to be
credited by the court, it is not nearly enough for him to
overcome the frivolous and malicious nature of the instant
litigation. "Under the abuse of the writ doctrine, if a
second or subsequent petition raises a claim that could have
been raised in an earlier petition, the petitioner must
establish that the omission was not the result ...