FILED

United States Court of Appeals

Tenth Circuit

February 28, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN MICHAEL BROADUS,

Petitioner-Appellant,

v.

SUSAN JONES; ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents-Appellees.

No. 10-1454

(D.C. No. 1:10-CV-02174-ZLW)

(D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.

John Michael Broadus, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his

28 U.S.C. § 2254 habeas application for lack of jurisdiction to hear a second or

successive § 2254 application. Exercising jurisdiction under 28 U.S.C. §§ 1291

and 2253(a), we conclude that Mr. Broadus has not shown that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling or whether his application states a valid claim of the denial of a

constitutional right. Thus, we deny a COA and dismiss this matter.
1 The facts regarding Mr. Broadus’s convictions are stated as he represented

them in his habeas applications.

2

 See North Carolina v. Alford, 400 U.S. 25, 37 (1970).

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Procedural Background1

A jury convicted Mr. Broadus of first degree assault and reckless

endangerment in case No. 98CR5098 in El Paso County, Colorado. In addition,

as part of a plea deal, Mr. Broadus admitted the habitual offender counts in the

same case (No. 98CR5098) and entered an Alford plea2

 to an aggravated robbery

charge in a separate case (No. 97CR4183).

In 2009, he filed a § 2254 application challenging his assault and reckless

endangerment convictions in case No. 98CR5098. Focusing on the trial of those

counts, he argued that he was deprived of his right to conflict-free counsel and his

right to the effective assistance of counsel. The district court held that the

application was barred by the one-year limitation period in 28 U.S.C. § 2244(d). 

This court denied a COA and dismissed Mr. Broadus’s appeal. Broadus v.

Hartley, 345 F. App’x 345, 350 (10th Cir. 2009).

In 2010, Mr. Broadus filed another § 2254 application in district court. In

this application, he again listed No. 98CR5098 as the case number for the

convictions under attack, which he described as first degree assault, crime of

violence, reckless endangerment and habitual offender. Noting the 2009

habeas application, the district court held that the 2010 application was a second
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or successive application. Because this court had not authorized the filing of the

2010 application, the district court dismissed it for lack of jurisdiction. See

28 U.S.C. § 2244; In re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008) (per

curiam). Mr. Broadus appeals.

Discussion

When a district court dismisses a § 2254 habeas application for lack of

jurisdiction as an unauthorized second or successive application, the applicant

must obtain a COA to appeal. See generally Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003) (“Before an appeal may be entertained, a prisoner who was denied

habeas relief in the district court must first seek and obtain a COA from a circuit

justice or judge.”); see also United States v. Harper, 545 F.3d 1230, 1233

(10th Cir. 2008) (concluding that a COA was required to appeal from the

dismissal of an unauthorized successive § 2255 motion). Where a district court’s

ruling rests on procedural grounds, a petitioner 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 would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). 

“A district court does not have jurisdiction to address the merits of a

second or successive . . . § 2254 claim until this court has granted the required

authorization.” In re Cline, 531 F.3d at 1251. When presented with an
3 Contrary to Mr. Broadus’s assertion on appeal, there is no indication that

the 2010 habeas application intended to challenge the judgment in the aggravated

robbery case, No. 97CR4183.

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unauthorized second or successive habeas application, the district court may

transfer the application to this court if it is in the interest of justice to do so or

dismiss it for lack of jurisdiction. See id. at 1252. Mr. Broadus contends that the

2010 habeas application was not an unauthorized second application because it

challenged his robbery and habitual offender convictions, not his assault and

reckless endangerment convictions (the subjects of the 2009 habeas application).

It does not appear that the district court erred in its procedural ruling,

however, because the proper question is which judgment did the 2009 and 2010

applications attack, not which convictions. See Magwood v. Patterson, 130 S. Ct.

2788, 2797 (2010) (“[B]oth § 2254(b)’s text and the relief it provides indicate

that the phrase ‘second or successive’ must be interpreted with respect to the

judgment challenged.”). Both applications list the judgment in No. 98CR5098 as

the judgment under attack.3

 Thus, the 2010 application is a second application

challenging the judgment in No. 98CR5098.

But even if reasonable jurists could debate the procedural ruling,

Mr. Broadus also must show “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right.” 

Slack, 529 U.S. at 484. This he cannot do. His 2010 habeas application asserts 
4 The district did not reach the issue of whether the 2010 habeas application

was timely filed, so we do not consider that issue. But we note that the 2009

application was denied as time-barred. 

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Fifth, Sixth, and Fourteenth Amendment violations because “the statutes he was

charged, tried[,] convicted and sentenced under are not the laws of the State of

Colorado” in that “the ‘Session Laws,’ not the ‘Colorado Revised Statutes,’ are

the legislative laws of the State of Colorado.” Record on Appeal at 8-9. This is

because, he asserts, the Colorado Revised Statutes do not contain the enacting

clauses required by the Colorado Constitution. 

The Colorado Court of Appeals, however, has held that “the omission of

the enacting clause from the Colorado Revised Statutes does not render the

statutes unconstitutional.” People v. Washington, 969 P.2d 788, 790 (Colo. App.

1998). Washington upheld the conviction of a prisoner making the same type of

allegations as Mr. Broadus. Id. at 789-90. Mr. Broadus has not met his burden of

showing a debatable, valid constitutional claim.4

The motion to proceed in forma pauperis is DENIED because there is no

non-frivolous argument for appeal. The application for a COA is DENIED and

this matter is DISMISSED. 

Entered for the Court

Bobby R. Baldock

Circuit Judge