IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02718-BNB

BURTON SANDLES,

Applicant,

v.

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondent.

ORDER OF DISMISSAL

Applicant, Burton Sandles, initiated this action by filing pro se a Petition for a

Federal Writ of Habeas Corpus Under 28 USC 2254 (Doc. #1). On November 15, 2011,

Mr. Sandles filed on the proper form an Application for a Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254 (Doc. #6). Mr. Sandles is challenging the validity of his

state court conviction and sentence in Arapahoe County District Court case number

98CR368. For the reasons stated below, the action will be dismissed for lack of

jurisdiction.

Mr. Sandles previously has sought habeas corpus relief in this Court pursuant to

28 U.S.C. § 2254 challenging the validity of the same state court conviction and

sentence. See Sandles v. Denver Downtown Correctional Facility, No. 10-cv01386-ZLW (D. Colo. Sept. 16, 2010). One of Mr. Sandles’ claims in 10-cv-01386-ZLW

was dismissed because it did not raise a cognizable federal constitutional issue. The

federal constitutional claims Mr. Sandles raised in 10-cv-01386-ZLW were dismissed

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because Mr. Sandles no longer was in custody for the purposes of the conviction under

attack, the claims were barred by the one-year limitation period, and the claims were

unexhausted and procedurally barred. Therefore, the Court finds that the instant

application is a second or successive application. See Henderson v. Lampert, 396

F.3d 1049, 1053 (9th Cir. 2005) (finding that § 2254 application denied on state

procedural default grounds constitutes a disposition on the merits, thus rendering a

subsequent § 2254 application second or successive); Schwartz v. Neal, 228 Fed.

App’x 814, 816 (10th Cir. 2007) (per curiam) (same); Brown v. Roberts, 177 F. App’x

774, 778 (10th Cir. 2006) (noting that “[d]ismissal of a petition as time barred operates as

a dismissal with prejudice, meaning that future applications will be treated as ‘second or

successive’ petitions subject to the heightened requirements of § 2244(b)”).

Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Sandles 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

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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).

Mr. Sandles does not allege that he has obtained authorization from the Tenth

Circuit to file a second or successive § 2254 application. Therefore, the Court must

either dismiss the application for lack of jurisdiction or, if it is in the interest of justice,

transfer the matter to the Tenth Circuit pursuant to 28 U.S.C. § 1631. In re 

Cline, 531 F.3d at 1252. The factors to be

considered in deciding whether a transfer is in the interest of

justice include whether the claims would be time barred if

filed anew in the proper forum, whether the claims alleged

are likely to have merit, and whether the claims were filed in

good faith or if, on the other hand, it was clear at the time of

filing that the court lacked the requisite jurisdiction.

Id. at 1251. When the claims being raised in the second or successive application

clearly do not meet the statutory requirements set forth in § 2244(b)(2), “a district court

does not abuse its discretion if it concludes it is not in the interest of justice to transfer

the matter.” See id. at 1252.

It is not clear exactly what federal constitutional claims Mr. Sandles intends to

pursue in this action. However, he fails to demonstrate that he intends to raise any

claim that is based on either a new rule of constitutional law or newly discovered

evidence as required pursuant to § 2244(b)(2). Therefore, the Court finds that a

transfer is not in the interest of justice for that reason alone. See id.

Consideration of the other relevant factors also supports this conclusion. 

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Although it appears that Mr. Sandles’ claims would be time-barred if filed anew in the

proper forum, the fact that 10-cv-01386-ZLW was dismissed as time-barred indicates

the instant action would be time-barred even if Mr. Sandles had sought proper

authorization prior to filing in this Court. There also is no indication that Mr. Sandles

seeks to pursue any claims that likely have merit. Finally, it was clear when the instant

action was filed that this Court lacks jurisdiction over Mr. Sandles’ claims because his

prior habeas corpus action challenging the validity of the same conviction was

dismissed for the reasons mentioned above. As a result, the Court finds that a transfer

of the instant action to the Tenth Circuit is not in the interest of justice. Instead, the

action will be dismissed for lack of jurisdiction. Accordingly, it is

ORDERED that the habeas corpus petition (Doc. #1) and the amended habeas

corpus application (Doc. #6) are denied and the action is dismissed for lack of

jurisdiction. It is

FURTHER ORDERED that no certificate of appealability will issue because

Applicant has not made a substantial showing of the denial of a constitutional right. It is

FURTHER ORDERED that the Motion to Transfer Exhibits (Doc. #2) filed on

October 27, 2011, is denied.

DATED at Denver, Colorado, this 22nd day of November , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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