FILED

United States Court of Appeals

Tenth Circuit

October 31, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESUS A. JIMENEZ,

Petitioner - Appellant,

v.

STATE OF UTAH, 

Respondent - Appellee.

No. 16-4066

(D.C. No. 2:12-CV-01033-DAK)

(D. Utah)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, HOLMES, and MORITZ, Circuit Judges.

I

Pro se1

 state prisoner Jesus Jimenez appeals from the dismissal of his

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district

court dismissed the action after Mr. Jimenez failed to comply with several court

* This order is not binding precedent except under the doctrines of law of the

case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and

Tenth Circuit Rule 32.1.

1 We construe the filings of a pro se litigant liberally, see Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam), but our role is not to serve as his

advocate. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
orders. Mr. Jimenez now appeals and moves for leave to proceed in forma

pauperis (“IFP”). 

Construing Mr. Jimenez’s notice of appeal as a request for a COA and

exercising jurisdiction under 28 U.S.C. § 1291, we deny his request for a COA

and dismiss the matter.

II

In 2008, Mr. Jimenez was convicted of aggravated robbery and criminal

homicide in Utah state court. A one-year enhancement was added to his sentence

because his co-defendant used a gun during the course of the crime. He appealed

the robbery conviction and sentence enhancement in state court; the Utah Court of

Appeals and the Utah Supreme Court affirmed his conviction and sentence. Mr.

Jimenez then filed a petition for a writ of habeas corpus pursuant to § 2254 in the

U.S. District Court for the District of Utah.2

Mr. Jimenez’s petition brought three claims for relief: (1) ineffective

assistance of counsel, based on his attorney’s failure to move for dismissal of the

aggravated-robbery charge and failure to object to the state court’s jury

2 In his § 2254 petition, Mr. Jimenez erroneously lists the respondent as “the

State of Utah.” R. at 1. The correct respondent was the Warden of the Utah State

Prison, since the proper respondent in a habeas corpus action is always the

petitioner’s custodian. See, e.g., Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S.

484, 494–95 (1973) (“The writ of habeas corpus does not act upon the prisoner

who seeks relief, but upon the person who holds him in what is alleged to be

unlawful custody.”).

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instructions; (2) plain error, based on the state court’s failure to dismiss the

aggravated-robbery charge and the court’s jury instructions; and (3) manifest

injustice, based on the one-year sentence enhancement. The district court ordered

the State of Utah (the “State”) to respond to Mr. Jimenez’s petition. 

The State filed its answer on August 13, 2014. In that answer, the State

argued that Mr. Jimenez’s plain-error and manifest-injustice claims were both

procedurally barred because the Utah Supreme Court had denied relief on an

independent state-law basis. The State also argued that Mr. Jimenez had not

established any grounds for relief on his ineffective-assistance-of-counsel claim. 

Specifically, the State contended that Mr. Jimenez had failed to argue that the

state court, in rejecting that claim, had acted contrary to clearly-established

federal law. 

On December 7, 2015, the district court ordered the State to file a proposed

order of dismissal based on its response to Mr. Jimenez’s habeas petition. The

State complied with the order the same day, filing a proposed order of dismissal,

memorandum of the court, and order denying Mr. Jimenez a certificate of

appealability. 

After thirty days, Mr. Jimenez had filed no objections to the State’s

proposed order, so the district court ordered him to show cause for his failure to

object. On February 1, 2016, he filed a document styled, Motion to Deny

Opposing Petition of Writ of Habeas Corpus. But that filing did not address the

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district court’s Order to Show Cause; instead, it simply argued the merits of his

claims. 

Three days later, Mr. Jimenez asked for an extension to file objections to

the State’s proposed order. The district court granted that motion, giving him

until February 29, 2016, to file his objections. The February 29 deadline passed,

yet Mr. Jimenez still had not filed any objections to the proposed order. The

district court dismissed his petition the next month. In its dismissal order, the

district court invoked Rule 41(b) of the Federal Rules of Civil Procedure and

noted that Mr. Jimenez had “fail[ed] to obey . . . the Court’s order and to

prosecute this case.” R. at 534 (Dist. Ct. Order, dated Mar. 28, 2016). The court

did not rule on whether to grant a COA.

III

As a state prisoner proceeding under 28 U.S.C. § 2254, Mr. Jimenez must

receive a COA before we are authorized to resolve the merits of his appeal. See,

e.g., Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); see also Gonzalez v.

Thaler, --- U.S. ----, 132 S. Ct. 641, 649 (2012) (noting the “‘clear’ jurisdictional

language . . . in § 2253(c)(1)”). Mr. Jimenez has not expressly asked for a COA

in his brief. But pursuant to Rule 22(b)(2) of the Federal Rules of Appellate

Procedure, his notice of appeal “constitutes a request” for a COA. See Fed. R.

App. P. 22(b)(2).

“We may grant a COA only if the petitioner makes a ‘substantial showing

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of the denial of a constitutional right.’” Milton v. Miller, 812 F.3d 1252, 1263

(10th Cir. 2016) (quoting 28 U.S.C. § 2253(c)(2)). This requires a “showing that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

The issue becomes “somewhat more complicated” when a district court

denies a petition on procedural grounds. Id. In that situation, the petitioner must

also make a second showing: “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id; see also

Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (“If the application

was denied on procedural grounds, the applicant faces a double hurdle.”). 

Mr. Jimenez has not made a sufficient showing to warrant issuance of a

COA. His brief neither mentions the district court’s January 7, 2016 show-cause

order nor explains his own failure to respond to that order. Instead, he merely

restates his argument as to the merits of his petition. Without some argument as

to the district court’s dismissal order—which rested on procedural grounds—we

would be hard-pressed to conclude that reasonable jurists could debate the

correctness of the order. See, e.g., Luevano v. Clinton, 645 F. App’x 623, 624

(10th Cir. 2016) (unpublished) (rejecting COA where petitioner did not address

district court’s procedural grounds for denial of writ, but instead restated his

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request for relief on the merits); Blackfeather v. Boulder Cty. Combine Cts., 606

F. App’x 470, 471 (10th Cir. 2015) (unpublished) (“Petitioner makes no attempt

to excuse his failure to comply with the magistrate judge’s order to cure the

deficiencies or explain why it was impossible to do so.”). 

In any event, it is patent that the district court had ample reason to dismiss

Mr. Jimenez’s petition: he never objected to the State’s proposed dismissal order

and failed to respond to the court’s order to show cause. Adams v. Wiley, 298 F.

App’x 767, 769 (10th Cir. 2008) (unpublished) (“[I]t was not an abuse of

discretion for the district court to dismiss [the petitioner’s] action, as he had

failed to prosecute and to comply with the court’s orders.”). In light of Mr.

Jimenez’s repeated failures to comply with court orders, reasonable jurists could

not debate the correctness of the district court’s dismissal of his petition under

Rule 41(b). 

We also deny Mr. Jimenez’s motion to proceed IFP. To qualify for IFP

status, he “must comply with the filing requirements and demonstrate ‘a financial

inability to pay the required [filing] fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.’” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (alteration in

original) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997)). Though he easily meets the first two of these requirements, Mr.

Jimenez’s filings on appeal include no meaningful legal analysis. And without

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some argument about the court’s dismissal order, he cannot be said to have

presented a “reasoned . . . argument” to support his appeal. See, e.g., Thompson

v. Robison, 580 F. App’x 675, 677 (10th Cir. 2014) (unpublished) (denying IFP

request when the petitioner never “address[ed] the district court’s . . . order

dismissing his action for failure” to comply with earlier orders).

IV

For the foregoing reasons, we deny Mr. Jimenez’s request for a COA and

dismiss this matter.

Entered for the Court

JEROME A. HOLMES

Circuit Judge

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