UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

DELANO MEDINA, 

 Petitioner - Appellant, 

v. 

EDDIE CALEY, Warden of Colorado 

Territorial Correctional Facility, 

JENNIFER MURPHY, Manager of 

Time/Release Operations, COLORADO 

PAROLE BOARD, and PHILIP WEISER, 

Attorney General of the State of Colorado, 

 Respondents - Appellees. 

No. 24-1289

(D.C. No. 23-CV-01042-LTB-SBP)

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY* 

_________________________________ 

Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges. 

_________________________________ 

Delano Medina, a Colorado state prisoner proceeding pro se,1 seeks a certificate of 

appealability (“COA”) to challenge the district court’s denial of his motion under Federal 

Rule of Civil Procedure 60(b) that sought to reopen his 28 U.S.C. § 2241 petition. 

Mr. Medina also moves to proceed in forma pauperis (“IFP”). ECF No. 16. Because 

*

 This order is not binding precedent except under the doctrines of law of the case, res 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

 Because Mr. Medina proceeds pro se, “we liberally construe his filings, but we will not 

act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 2, 2024

Christopher M. Wolpert 

Clerk of Court

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2

Mr. Medina has failed to satisfy the standards for issuance of a COA, we deny his 

application for a COA. We also deny his motion to proceed IFP and dismiss this matter. 

I. BACKGROUND

Mr. Medina filed the instant § 2241 petition in the United States District Court for 

the District of Colorado, contending that the Colorado Department of Corrections 

improperly computed his parole eligibility date. After a magistrate judge recommended 

that the petition be dismissed without prejudice for failure to fully exhaust state court 

remedies, Mr. Medina filed a document titled Medina’s Response to Magistrate’s 

Recommendation and Agreement to Dismiss Without Prejudice, in which he “agree[d] 

this case should be dismissed without prejudice and [did] not object to the 

recommendation.” ROA at 178. That response stated that he “agree[d] with the 

recommendation” because his “further research” led him to conclude that “42 U.S.C. 

[§] 1983 is the proper vehicle to address this claim,” noting that he had “recently filed” 

such an action. Id. at 177–78. 

The district court construed Mr. Medina’s response as a notice of voluntary 

dismissal under Federal Rule of Civil Procedure 41(a)(1)(A). In the alternative, the 

district court reviewed the substance of the recommendation and found no error. 

Accordingly, the district court dismissed the action without prejudice on September 11, 

2023. 

More than nine months later, on June 14, 2024, Mr. Medina filed a Motion to 

Reopen Petition for Writ of Habeas Corpus Pursuant to Fed. R. Civ. P. 60(b). On July 3, 

2024, the district court denied the motion for two reasons. First, that Mr. Medina’s 

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voluntary dismissal was entered without prejudice, which disposition “divests the district 

court of subject-matter jurisdiction to consider a Rule 60(b) motion.” ROA at 206 

(quoting Waetzig v. Halliburton Energy Servs., Inc., 82 F.4th 918, 920 (10th Cir. 2023)). 

And second, that Mr. Medina had not presented “extraordinary or exceptional 

circumstances to justify relief under Rule 60(b),” in part because “[i]t remain[ed] the case 

that any claim [Mr. Medina] presents in a federal habeas application must first be 

exhausted in state court.” ROA at 207–08. 

Mr. Medina filed a timely notice of appeal, followed by an application for a COA 

and a motion to proceed IFP on appeal. ECF Nos. 14, 16. 

II. DISCUSSION 

Before we may exercise jurisdiction over Mr. Medina’s case, he must obtain a 

COA. See 28 U.S.C. § 2253(c)(1)(A) (“Unless a circuit justice or judge issues a 

certificate of appealability, an appeal may not be taken to the court of appeals from 

. . . the final order in a habeas corpus proceeding in which the detention complained of 

arises out of process issued by a State court.”); Montez v. McKinna, 208 F.3d 862, 869 

(10th Cir. 2000) (“[T]his court reads § 2253(c)(1)(A) as applying whenever a state 

prisoner habeas petition relates to matters flowing from a state court detention order. This 

includes . . . challenges related to the incidents and circumstances of any detention 

pursuant to state court process under § 2241.”). 

Under 28 U.S.C. § 2253(c)(2), “[a] certificate of appealability may issue . . . only 

if the applicant has made a substantial showing of the denial of a constitutional right.” To 

satisfy this standard, the applicant must “show [] that reasonable jurists could debate 

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whether (or, for that matter, agree that) 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)). 

Mr. Medina has failed to satisfy this standard and is thus not entitled to a COA. In 

his opening brief, Mr. Medina claims the district court erred in denying his Rule 60(b) 

motion to reopen his § 2241 petition, but instead of identifying any supposed error in the 

district court’s disposition of that motion, Mr. Medina merely argues the merits of his 

petition and emphasizes that similar claims for miscalculated release dates are generally 

appropriate under habeas corpus.2 But the instant COA application is necessarily limited 

to the denial of his Rule 60(b) motion; indeed, the time to appeal the district court’s 

2 Mr. Medina further complains that he voluntarily dismissed his § 2241 petition in 

accordance with “the courts [sic] instructions to seek relief in a § 1983” action, claiming, 

without citation, that the district court’s dismissal order concluded “that he should have 

filed his claim under 42 U.S.C. § 1983.” Opening Br. at 1, 3. Mr. Medina claims he has 

been ensnared in a “Catch-22,” id. at 3, after we affirmed the dismissal of his § 1983 

action because his request for “speedier release from confinement” was “cognizable only 

in a habeas corpus action.” Medina v. Murphy, No. 24-1029, 2024 WL 3289638, at *1 

(10th Cir. July 3, 2024) (unpublished). But the premise of this grievance fails in the first 

instance: that is, neither the magistrate judge nor the district court suggested in any 

measure that Mr. Medina should seek the same relief requested in his § 2241 petition in a 

§ 1983 action. Rather, the magistrate judge recommended dismissal for the sole reason 

that Mr. Medina had “fail[ed] to exhaust state remedies,” ROA at 176, and the district 

court dismissed the petition on the basis of Mr. Medina’s request for dismissal and his 

express agreement with the magistrate judge’s conclusion. Indeed, the record in this case 

discloses that the only allusion to § 1983—express or otherwise—appears in 

Mr. Medina’s response to the magistrate judge’s recommendation, in which Mr. Medina 

requested dismissal of his petition and stated that his research convinced him that 

“[§] 1983 is the proper vehicle to address this claim.” ROA at 177.

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dismissal of his § 2241 petition—embodied in a final judgment entered on September 28, 

2023—has long since run. See Fed. R. App. P. 4(a)(1)(A). 

Mr. Medina does not address the district court’s reasons for denying the Rule 

60(b) motion—that his voluntary dismissal divested the court of subject matter 

jurisdiction and that he had not pointed to exceptional circumstances justifying relief. 

Mr. Medina has thus not shown that reasonable jurists could debate whether his Rule 

60(b) motion “should have been resolved in a different manner.” Slack, 529 U.S. at 484.

Finally, Mr. Medina’s IFP motion must be denied. To succeed in his motion, 

Mr. Medina must “show 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.” DeBardeleben v. Quinlan, 937 F.2d 5 02, 505 (10th Cir. 1991). 

Mr. Medina has failed to address the grounds upon which the district court denied his 

Rule 60(b) motion and has thus not shown the “existence of a reasoned, nonfrivolous 

argument.” Id. 

III. CONCLUSION 

We DENY Mr. Medina's request for a COA and his motion for leave to proceed 

IFP and DISMISS this matter. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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