Case 1:13-cv-02555-BNB Document 3 Filed 09/19/13 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02555-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
LOU ARCHULETA, and
JOHN SUTHERS, Attorney General of the State of Colorado,
ORDER TO CURE DEFICIENCY
Applicant, Manuel DePineda, has submitted an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his state court criminal
conviction and sentence. Mr. DePineda previously has sought habeas corpus relief in
the District of Colorado pursuant to § 2254 challenging the validity of the same state
court conviction and sentence. See DePineda v. McKenna, No. 90-cv-01443-SGF-DEA
(D. Colo. Oct. 17, 1990), appeal dismissed, No. 90-1312, 1991 WL 65066 (10th Cir. Apr.
24, 1991); DePineda v. Gunter, No. 91-cv-00977-DBS-RMB (D. Colo. Aug. 5, 1991),
appeal dismissed, No. 91-1294, 1991 WL 268841 (10th Cir. Dec. 11, 1991); DePineda v.
Cooper, No. 92-cv-01400-LTB (D. Colo. Nov. 16, 1992), aff’d, No. 93-1212, 1993 WL
482907 (10th Cir. Nov. 22, 1993); DePineda v. Gunter, No. 93-cv-00446-EWN (D. Colo.
Apr. 30, 1994); DePineda v. Zavaras, No. 93-cv-02665-LTB (D. Colo. Jan. 20, 1994),
aff’d, No. 94-1052, 1994 WL 475019 (10th Cir. Sept. 1, 1994); DePineda v. Golder, No.
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03-cv-01106-ZLW (D. Colo. July 1, 2003); DePineda v. Ortiz, No. 04-cv-01199-ZLW (D.
Colo. July 20, 2004); DePineda v. Ortiz, No. 05-cv-00691-ZLW (D. Colo. Apr. 22, 2005);
DePineda v. Milyard, No. 09-cv-02009-ZLW (D. Colo. Sept. 16, 2009), appeal
dismissed, No. 09-1424 (10th Cir. Dec. 10, 2009); DePineda v. Milyard, No. 09-cv-
02594-ZLW (D. Colo. Nov. 20, 2009), appeal dismissed, No. 09-1540 (10th Cir. Feb. 11,
2010); DePineda v. Clements, No. 12-cv-02066-LTB (D. Colo. Aug. 14, 2012);
DePineda v. Clements, No. 12-cv-03089-LTB (D. Colo. Nov. 30, 2012), appeal
dismissed, No. 12-1489 (10th Cir. Jan. 9, 2013); DePineda v. Medina, No. 13-cv-00152-
LTB (D. Colo. Mar. 8, 2013), appeal dismissed, No. 13-1105 (10th Cir. Apr. 3, 2013);
Depineda v. Archuleta, No. 13-cv-02181-LTB (D. Colo. Aug. 19, 2013). One of these
prior actions was dismissed without prejudice for failure to exhaust state remedies. See
92-cv-01400-LTB. Four of these prior actions were dismissed on the merits. See 93-
cv-02665-LTB; 93-cv-00446-EWN; 91-cv-00977-DBS-RMB; 90-cv-01443-SGF-DEA.
Three other actions were transferred to the Tenth Circuit because Mr. DePineda had not
obtained authorization from that court to file a second or successive application. See
05-cv-00691-ZLW; 04-cv-01199-ZLW; 03-cv-01106-ZLW. Mr. DePineda’s most recent
habeas corpus actions challenging the validity of his conviction and sentence were
dismissed for lack of jurisdiction because he had not obtained the necessary
authorization to file a second or successive application. See 13-cv-02181-LTB; 13-cv-
00152-LTB; 12-cv-03089-LTB; 12-cv-02066-LTB; 09-cv-02594-ZLW; 09-cv-02009-ZLW.
Although Mr. DePineda fails to list all of these prior actions in the application (see
ECF No. 1 at 7), the court may take judicial notice of its own records and files that are
part of the court’s public records, see St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
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Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). The court has examined the records for
the cases listed above and finds that Mr. DePineda previously has challenged the
validity of his conviction and sentence. Therefore, the instant application is a second or
Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. DePineda must apply to the United
States Court of Appeals for the Tenth Circuit for an order authorizing this court to
consider his second or successive habeas corpus application. See In re Cline, 531
F.3d 1249, 1252 (10th Cir. 2008) (per curiam). In the absence of such authorization, the
court lacks jurisdiction to consider the merits of the claims asserted in a second or
successive § 2254 application. See id. at 1251. An applicant seeking authorization to
file a second or successive application for a writ of habeas corpus pursuant to § 2254
must demonstrate that any claim he seeks to raise is based on “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable,” 28 U.S.C. § 2244(b)(2)(A); or that “the factual
predicate for the claim could not have been discovered previously through the exercise
of due diligence” and “the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).
Although Mr. DePineda alleges that he has obtained authorization from the Tenth
Circuit to file a second or successive § 2254 application (see ECF No. 1 at 7), he fails to
provide proof of such authorization to the court. Therefore, Mr. DePineda will be
ordered to cure this deficiency by submitting to the court documentary evidence that he
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has received authorization from the Tenth Circuit to file a second or successive habeas
corpus application challenging the validity of his conviction and sentence. Accordingly,
ORDERED that, within fourteen (14) days from the date of this order,
Applicant shall submit to the court proof that he has obtained authorization from the
United States Court of Appeals for the Tenth Circuit to file a second or successive
habeas corpus application.
DATED September 19, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge