Chiras v. Marshall

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 4, 2021
• Docket: 20-1277
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS January 4, 2021 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

SKYLER CHIRAS,

Plaintiff - Appellant,

v. No. 20-1277 (D.C. No. 1:20-CV-00682-LTB-GPG) JILL MARSHALL, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges. _________________________________

Skyler Chiras is in state custody at the Colorado Mental Health Institute at Pueblo.

Appearing pro se, he seeks a certificate of appealability (“COA”) to challenge the district

court’s denial of his application for relief under 28 U.S.C. § 2241. See 28 U.S.C.

§ 2253(c)(1)(A); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (requiring state

prisoners bringing a § 2241 claim to obtain a COA before being heard on the merits of

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. the appeal). Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss

this matter. We also deny his request to proceed in forma pauperis (“ifp”).1

I. BACKGROUND

Mr. Chiras pled not guilty by reason of insanity to assault charges. In his § 2241

application, he alleged violations of his (1) Sixth Amendment right to a speedy trial; (2)

Eighth Amendment rights due to denial of requested diet, harassment, theft of property,

and other claims; and (3) Fourteenth Amendments rights due to harassment and mail

tampering.

The magistrate judge recommended dismissal because his (1) first claim

challenged the validity of his conviction and should have been brought under 28 U.S.C.

§ 2254, and (2) second and third claims concerned his conditions of confinement and

should have been brought under 42 U.S.C. § 1983.

The district court, noting that Mr. Chiras had not objected to the magistrate

judge’s recommendation, dismissed the § 2241 application without prejudice, denied a

COA, and denied ifp status on appeal.

In response to a show-cause order from this court to address whether he had

waived his right to appellate review by failing to object to the magistrate judge’s

recommendation, Mr. Chiras appeared to say he did not receive the recommendation.

1 We construe Mr. Chiras’s pro se filings liberally, but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

2 II. DISCUSSION

Under this court's “firm waiver rule,” failure to timely object to a magistrate

judge's findings and recommendations “waives appellate review of both factual and legal

questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (quotations

omitted). We may grant relief from the rule “in the interests of justice.” Id. (quotations

omitted). We have considered as factors “the force and plausibility of the explanation for

his failure to comply and the importance of the issues raised.” Id. (quotations and

alterations omitted).

Even if we accept Mr. Chiras’s explanation for his failure to object, he faces

another waiver problem: His brief fails to address whether the substantive reasons for

denial of his application were valid. As a general rule, a party's failure to address an

issue in the opening brief results in that issue being deemed waived, and we will decline

to reach the merits of waived issues. See Wyo. v. Livingston, 443 F.3d 1211, 1216 (10th

Cir. 2006) (“Wyoming did not address this issue in its opening appellate brief. The issue

is therefore waived.”); accord LifeWise Master Funding v. Telebank, 374 F.3d 917, 927

n.10 (10th Cir. 2004). This rule applies equally to pro se litigants. See Toevs v. Reid, 685

F.3d 903, 911 (10th Cir. 2012).

Beyond these problems, the magistrate judge and district court correctly

determined that Mr. Chiras’s speedy trial claim should have been brought under

28 U.S.C. § 2254, and his Eighth and Fourteenth Amendment conditions-of-confinement

claims should have been brought under 42 U.S.C. § 1983. A § 2241 application

ordinarily attacks the execution of a sentence rather than its validity. See Brace v. United

3 States, 634 F.3d 1167, 1169 (10th Cir. 2011). Mr. Chiras needed to file a § 2254

application “to collaterally attack the validity of a conviction and sentence.” McIntosh v.

U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (citations omitted). And “[i]t is

well-settled law that prisoners who wish to challenge only the conditions of their

confinement . . . must do so through civil rights lawsuits . . . not through federal habeas

proceedings.” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (omissions

in original) (quotation omitted).

Before we may exercise jurisdiction over Mr. Chiras’s appeal, he must obtain

COAs for the issues he wishes to raise. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). “At the

COA stage, the only question is whether the applicant has shown that ‘jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement to

proceed further.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003)).

4 III. CONCLUSION

For the foregoing reasons, we conclude that Mr. Chiras has not made the showing

required for a COA. We therefore affirm the dismissal of his § 2241 application and

deny his request to proceed ifp.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge