Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DELANO MEDINA, a/k/a Medina Delano,
Petitioner - Appellant,
v. No. 24-1495 (D.C. No. 1:24-CV-02104-LTB-RTG) AUGUST BAUBY; JENNIFER HANSEN, (D. Colo.)
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Delano Medina, a Colorado state prisoner proceeding pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s order dismissing his habeas corpus
petition under 28 U.S.C. § 2241. Mr. Medina also moves for leave to proceed in forma
pauperis (“IFP”). For the reasons stated below, we deny Mr. Medina a COA, deny his
motion to proceed IFP, and dismiss this matter as frivolous.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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). Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 2
I. BACKGROUND
Mr. Medina, a state prisoner in the custody of the Colorado Department of
Corrections (CDOC), petitioned for a writ of habeas corpus under 28 U.S.C. § 2241,
challenging the calculation of his sentences for purposes of parole eligibility. At the
request of the district court, Respondents—CDOC’s Manager of Time and Release
Operations and the warden of the correctional facility at which Mr. Medina is
imprisoned—filed a preliminary response seeking dismissal of the petition for failure to
exhaust state court remedies. Mr. Medina had not satisfied the exhaustion requirement,
Respondents argued, because he was actively litigating the theory underlying the instant
federal petition in state post-conviction proceedings. Because Mr. Medina’s state post-
conviction proceeding had not reached final judgment in the state district court,
Respondents urged, he could not be said to have given the Colorado courts “a full and
fair opportunity to resolve [his] federal constitutional claims before those claims [were]
presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(explaining that to satisfy the exhaustion doctrine, a habeas petitioner must “invok[e] one
complete round of the State’s established appellate review process”).
In reply, Mr. Medina argued he had exhausted his constitutional claim with the
Colorado courts in two prior state post-conviction proceedings, one of which Mr. Medina
pursued through a complete round of state appellate review. Mr. Medina sought to
characterize the constitutional claim raised in this federal habeas petition as functionally
indistinguishable from the claims asserted in his two prior state post-conviction
proceedings, but he “acknowledge[d] that the Colorado Court of Appeals might still
2 Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 3
address” the constitutional claim in his still-pending state post-conviction case. ROA
at 254.
In November 2024, the magistrate judge recommended that Mr. Medina’s petition
be dismissed without prejudice for failure to exhaust state court remedies. The magistrate
judge reasoned that the habeas petition as pleaded raised a constitutional claim that was
not fairly presented in his two prior state post-conviction proceedings, and thus was not
exhausted. The magistrate judge further concluded that the exhaustion requirement was
not satisfied because Mr. Medina was “[a]ctively litigating” the relevant constitutional
claim in a pending state post-conviction proceeding. Id. at 265.
Over Mr. Medina’s objection, the district court adopted the recommendation in
full and dismissed the petition without prejudice. The district court further (1) denied
Mr. Medina a COA, and (2) denied his IFP motion, certifying “that any appeal from this
dismissal would not be taken in good faith.” Id. at 274.
II. STANDARD OF REVIEW
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
3 Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 4
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
meet this standard, Mr. Medina must demonstrate “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.”
United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003)). Because the district court denied his petition on
procedural grounds—failure to exhaust state court remedies—Mr. Medina 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 . . . whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III. DISCUSSION
In his application for a COA here, Mr. Medina attempts to litigate two issues that
were entirely absent from the district court proceedings in this case: (1) whether
42 U.S.C. § 1983
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Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DELANO MEDINA, a/k/a Medina Delano,
Petitioner - Appellant,
v. No. 24-1495 (D.C. No. 1:24-CV-02104-LTB-RTG) AUGUST BAUBY; JENNIFER HANSEN, (D. Colo.)
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Delano Medina, a Colorado state prisoner proceeding pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s order dismissing his habeas corpus
petition under 28 U.S.C. § 2241. Mr. Medina also moves for leave to proceed in forma
pauperis (“IFP”). For the reasons stated below, we deny Mr. Medina a COA, deny his
motion to proceed IFP, and dismiss this matter as frivolous.
* 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). Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 2
I. BACKGROUND
Mr. Medina, a state prisoner in the custody of the Colorado Department of
Corrections (CDOC), petitioned for a writ of habeas corpus under 28 U.S.C. § 2241,
challenging the calculation of his sentences for purposes of parole eligibility. At the
request of the district court, Respondents—CDOC’s Manager of Time and Release
Operations and the warden of the correctional facility at which Mr. Medina is
imprisoned—filed a preliminary response seeking dismissal of the petition for failure to
exhaust state court remedies. Mr. Medina had not satisfied the exhaustion requirement,
Respondents argued, because he was actively litigating the theory underlying the instant
federal petition in state post-conviction proceedings. Because Mr. Medina’s state post-
conviction proceeding had not reached final judgment in the state district court,
Respondents urged, he could not be said to have given the Colorado courts “a full and
fair opportunity to resolve [his] federal constitutional claims before those claims [were]
presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(explaining that to satisfy the exhaustion doctrine, a habeas petitioner must “invok[e] one
complete round of the State’s established appellate review process”).
In reply, Mr. Medina argued he had exhausted his constitutional claim with the
Colorado courts in two prior state post-conviction proceedings, one of which Mr. Medina
pursued through a complete round of state appellate review. Mr. Medina sought to
characterize the constitutional claim raised in this federal habeas petition as functionally
indistinguishable from the claims asserted in his two prior state post-conviction
proceedings, but he “acknowledge[d] that the Colorado Court of Appeals might still
2 Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 3
address” the constitutional claim in his still-pending state post-conviction case. ROA
at 254.
In November 2024, the magistrate judge recommended that Mr. Medina’s petition
be dismissed without prejudice for failure to exhaust state court remedies. The magistrate
judge reasoned that the habeas petition as pleaded raised a constitutional claim that was
not fairly presented in his two prior state post-conviction proceedings, and thus was not
exhausted. The magistrate judge further concluded that the exhaustion requirement was
not satisfied because Mr. Medina was “[a]ctively litigating” the relevant constitutional
claim in a pending state post-conviction proceeding. Id. at 265.
Over Mr. Medina’s objection, the district court adopted the recommendation in
full and dismissed the petition without prejudice. The district court further (1) denied
Mr. Medina a COA, and (2) denied his IFP motion, certifying “that any appeal from this
dismissal would not be taken in good faith.” Id. at 274.
II. STANDARD OF REVIEW
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
3 Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 4
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
meet this standard, Mr. Medina must demonstrate “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.”
United States v. Silva, 430 F.3d 1096, 1100 (10th Cir. 2005) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003)). Because the district court denied his petition on
procedural grounds—failure to exhaust state court remedies—Mr. Medina 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 . . . whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III. DISCUSSION
In his application for a COA here, Mr. Medina attempts to litigate two issues that
were entirely absent from the district court proceedings in this case: (1) whether
42 U.S.C. § 1983 is an appropriate vehicle to vindicate the constitutional violation he
asserts, and (2) whether the district court erred by denying a motion to reopen a separate
habeas petition. See Opening Br. at 9 (“This appeal should hold that [] procedural
challenges to parole eligibility and sentence calculation determinations . . . may
appropriately be brought under 42 U.S.C. § 1983.”); id. at 10 (asserting that the district
4 Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 5
court “disregarded a meritorious [Federal Rule of Civil Procedure] 60(b) motion to
reopen”).
These issues were relevant in two prior appeals brought by Mr. Medina from
dismissals of distinct lawsuits, and in resolving those appeals we considered and rejected
both arguments. See Medina v. Caley, No. 24-1289, 2024 WL 4369250, at *2 (10th Cir.
Oct. 2, 2024) (denying Mr. Medina a COA to appeal the denial of his motion under
Rule 60(b) to reopen a different § 2241 petition); Medina v. Murphy, No. 24-1029,
2024 WL 3289638, at *2 (10th Cir. July 3, 2024) (affirming the district court’s dismissal
of Mr. Medina’s § 1983 action because a “state prisoner’s ‘sole federal remedy is a writ
of habeas corpus’ when he ‘is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment’” (quoting Preiser v. Rodriguez,
411 U.S. 475, 500 (1973))), cert. dismissed, 145 S. Ct. 462 (2024). Here, however,
neither of these arguments was raised in the district court and they are therefore not
properly before us.
In this case, the only relevant issue is whether the district court properly concluded
that Mr. Medina’s § 2241 petition presented a constitutional claim that was unexhausted
with the state courts. Yet Mr. Medina’s brief makes no reference to that determination at
all. Without addressing the district court’s basis for dismissing this § 2241 petition
without prejudice, Mr. Medina has failed to show that a “jurist of reason would find it
debatable whether . . . the district court was correct in its procedural ruling.” Slack,
529 U.S. at 484. He is therefore not entitled to a COA.
5 Appellate Case: 24-1495 Document: 10-1 Date Filed: 04/01/2025 Page: 6
Finally, we turn to Mr. Medina’s IFP motion. 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 502, 505 (10th Cir. 1991).
Mr. Medina has failed to address the grounds upon which the district court dismissed his
§ 2241 action and he has thus not shown the “existence of a reasoned, nonfrivolous
argument.” Id.
IV. CONCLUSION
For the foregoing reasons, we DENY Mr. Medina’s application for a COA, DENY
his IFP motion, and DISMISS this matter as frivolous.
Entered for the Court
Carolyn B. McHugh Circuit Judge