Appellate Case: 21-4134 Document: 010110700627 Date Filed: 06/23/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 23, 2022 _________________________________ Christopher M. Wolpert Clerk of Court SEAN C. OWEN,
Plaintiff - Appellant,
v. No. 21-4134 (D.C. No. 2:18-CV-00434-DBB) UNITED STATES OF AMERICA; (D. Utah) STATE OF UTAH,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. _________________________________
Sean C. Owen is a prisoner in the custody of the State of Utah. Proceeding pro se,1
he seeks a certificate of appealability (“COA”) to appeal the district court’s denial of
what the court characterized as a 28 U.S.C. § 2254 petition for a writ of habeas corpus.
For the reasons explained below, we agree that portions of Mr. Owen’s submission are
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Owen is proceeding pro se, we liberally construe his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). Appellate Case: 21-4134 Document: 010110700627 Date Filed: 06/23/2022 Page: 2
properly characterized as a § 2254 petition but conclude the district court failed to follow
the required procedures to recharacterize it as such. Other portions of Mr. Owen’s claims,
however, are not properly characterized as a § 2254 petition. Therefore, we remand with
instructions to the district court to vacate the dismissal of Mr. Owen’s claims properly
characterized as a § 2254 petition. But to the extent Mr. Owen brings civil rights claims
against the United States and the State of Utah, we remand with instructions to the district
court to modify the dismissals of those claims as without prejudice for lack of subject
matter jurisdiction.
I. BACKGROUND2
The State of Utah charged Mr. Owen with violating three Utah statutes based on
the sexual abuse of his stepdaughter from the time she was fourteen to seventeen years
old. Mr. Owen was tried in Utah state court on five counts of first-degree rape pursuant to
§ 76-5-402 of the Utah Code, three counts of first-degree forcible sodomy pursuant to
§ 76-5-403(2) of the Utah Code, and two counts of second-degree forcible sexual abuse
pursuant to § 76-5-404 of the Utah Code. See State of Utah v. Owen, No. 111401870
(Utah Oct. 03, 2011).3
2 At this stage of the proceedings, we recount the facts as described in the pro se complaint, accepting the well-pleaded allegations as true. See Williams v. Kaiser, 323 U.S. 471, 473–74 (1945) (noting when a district court denies habeas petition “without giving petitioner an opportunity to prove his allegations,” the appellate court “must assume that the allegations of the petition are true”); see also Winkel v. Hammond, 704 F. App’x 735, 736 (10th Cir. 2017) (unpublished) (using the 12(b)(6) standard to review a § 1915A(b) dismissal for failure to state a claim). 3 Although the record on appeal does not include Mr. Owen’s state court records, we take judicial notice of the docket in his state conviction proceedings. See United 2 Appellate Case: 21-4134 Document: 010110700627 Date Filed: 06/23/2022 Page: 3
Mr. Owen filed a pro se motion seeking to represent himself. State of Utah v.
Owen, No. 111401870 (Utah Feb. 26, 2013). The trial court granted Mr. Owen’s motion
and allowed him to represent himself during his two-day jury trial. State of Utah v. Owen,
No. 111401870 (Utah May 7, 2013; June 26, 2013; June 27, 2013). Mr. Owen alleges he
“told [the judge] that [he] was not going to deny the sexual activity” with his minor
stepdaughter “but was instead going to present a defense that ‘the law was wrong.’” ROA
Vol. I at 10.
In support of this defense, Mr. Owen attempted to admit three pieces of evidence
demonstrating the sexual relationship with his victim was consensual and not abusive. He
alleges each was either improperly excluded or destroyed. First, Mr. Owen attempted to
admit a video interview of the victim denying allegations of sexual abuse. At trial, the
judge excluded the video evidence because in the video, the victim was not “asked if
[Mr. Owen had] sexually abused or raped her.” Id. at 11. Second, Mr. Owen attempted to
recover “pictures, videos, [and] documents” from his personal desktop, but the State
represented the items were unrecoverable because the computer would not turn on. Id.
Finally, he attempted to recover a video of his victim from his cellular telephone but
alleges the State had deleted it from the device after he described the contents of the
video. In the absence of the video, the trial court provided him with an opportunity to
States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a court may take judicial notice of docket information from another court); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“Although we are not obliged to do so, we may exercise our discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand.”). 3 Appellate Case: 21-4134 Document: 010110700627 Date Filed: 06/23/2022 Page: 4
describe to the jury what the video would have shown. Mr. Owen does not include any
allegations in his Complaint describing what the video would have depicted.
The two-day jury trial resulted in a guilty verdict for each count. State of Utah v.
Owen, No. 111401870 (Utah June 27, 2013). The state court sentenced Mr. Owen to an
indeterminate term of imprisonment with a minimum of ten years for his first-degree rape
charges. State of Utah v. Owen, No. 111401870 (Utah Sept. 10, 2013). The court also
sentenced him to an indeterminate term of imprisonment with a minimum of ten years for
his forcible sodomy charges. Id. Finally, the court sentenced Mr. Owen to an
indeterminate term of not less than one year and not more than fifteen years
imprisonment for each forcible sexual abuse charge. Id. Mr. Owen did not file a direct
appeal.4
Mr. Owen filed a Complaint in the federal district court for the District of Utah on
June 25, 2018. Liberally construed, Mr. Owen brought claims against the United States
and the State of Utah seeking a declaratory judgment to invalidate laws prohibiting
sexual activity between adults and post-pubescent children under the age of eighteen,
arguing these laws violate the Due Process and Equal Protection Clauses of the
Constitution. Mr. Owen’s claim against the United States challenges Concurrent
Resolution 107, which was approved by the 106th Congress in 1999. The concurrent
resolution Mr. Owen challenges generally rejects an academic article suggesting sexual
relationships between adults and “willing” children were less harmful than believed.
4 Mr. Owen contends he filed a state post-conviction motion on June 24, 2014. This motion is not reflected in the state criminal docket. 4 Appellate Case: 21-4134 Document: 010110700627 Date Filed: 06/23/2022 Page: 5
H.R. Con. Res. 107, 106th Cong. (1999). Mr. Owen’s claim against the State of Utah
challenges various criminal laws distinguishing between sexual assault of adults and
children. Specifically, he challenges the constitutionality of his statutes of conviction as
well as two other sexual offenses of which he was not charged, Utah Code Ann. §§ 76-5-
401, 76-5-401.2, and “perhaps other similar statutes [of which he is] unaware.” ROA
Vol. I at 5.
The district court notified Mr. Owen it intended to construe his Complaint as a
§ 2254 petition for habeas corpus. Construing the Complaint as a § 2254 petition, the
court ordered Mr. Owen to cure three deficiencies: (1) name his custodian as the
respondent, (2) submit the petition on a court-approved form, and (3) “specify a clear
timeline regarding exhaustion of claim(s) in the appeals and post-conviction process in
the state courts and whether they have been concluded in the Utah Supreme Court.” ROA
Vol. II at 7. Mr. Owen did not amend his pleading and instead objected to the court’s
construction of his Complaint as a habeas petition, reiterating that he was challenging the
constitutional validity of various Utah laws and the federal concurrent resolution.
Thereafter, the district court ordered Mr. Owen to show cause why the action should not
be dismissed for failure to cure the deficiencies in what the court construed as a § 2254
petition. Mr. Owen again objected to the court’s construction of his Complaint as a
§ 2254 petition and instead intended to “litigate the constitutionality of the statutes [and]
congressional resolution.” ROA Vol. II at 19.
The district court again ordered Mr. Owen to amend his pleading, notifying him
the court was characterizing his Complaint as a deficient § 2254 petition. The court
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explained it was construing Mr. Owen’s claims as being brought under § 2254 because
they “primarily appear[ed] to challenge the constitutionality of the state laws under which
[Mr. Owen’s] sexual behavior was deemed criminal,” and from the Complaint “it
appear[ed] that [Mr. Owen was] most likely asking to be released from custody based on
the unconstitutionality of criminal laws under which he was convicted.” ROA Vol. II at
21. Based on this construction, the district court again ordered Mr. Owen to amend his
deficient petition, noting Mr. Owen did not ask for a remedy, name a respondent, address
the standard to grant a writ of habeas corpus, or submit the petition on a court-approved
form. Mr. Owen again objected to the district court’s characterization of his Complaint
and did not amend his pleading.
Finally, the district court entered an order denying what it characterized as
Mr. Owen’s § 2254 petition. The district court first concluded the petition was frivolous
after screening the petition. Next, the district court denied it on the merits, concluding
Mr. Owen had not identified any constitutional violation to sustain a § 2254 petition. The
district court dismissed Mr. Owen’s petition with prejudice, denied a COA, and granted
Mr. Owen’s motion for leave to appeal in forma pauperis.5 Mr. Owen now seeks a COA
5 “[I]n order to succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005) (emphasis added). After dismissing Mr. Owen’s petition based on a conclusion that the claims therein were frivolous, the district court granted Mr. Owen’s motion to proceed IFP on appeal after assessing only his ability to pay the required filing fees. Thus, this standard requires an assessment of both the movant’s ability to pay and the arguments supporting the issues raised. 6 Appellate Case: 21-4134 Document: 010110700627 Date Filed: 06/23/2022 Page: 7
from this court to challenge the district court’s conclusion and characterization of his
Complaint.
II. DISCUSSION
Mr. Owen argues the district court incorrectly characterized his Complaint as a
§ 2254 petition. This court looks to the avenues of relief pursued by a pro se pleading to
properly characterize the claims. Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005).
We construe Mr. Owen’s pro se Complaint as containing four claims: two seeking
declaratory judgment and two seeking habeas relief. First, Mr. Owen seeks a declaration
that Concurrent Resolution 107 violates the Due Process and Equal Protection Clauses of
the Constitution. Second, Mr. Owen seeks a declaration that several Utah state statutes,
under which he was not charged, also violate the Due Process and Equal Protection
Clauses. Liberally construing Mr. Owen’s Complaint, he seeks declaratory judgment for
these claims pursuant to 42 U.S.C. § 1983. Third, Mr. Owen challenges the constitutional
validity of the statutes of his conviction. Because the goal of invalidating the statutes of
conviction is Mr. Owen’s release from prison, this claim is one for habeas relief pursuant
to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 486, 489 (1973) (holding a
habeas petition is “the specific instrument” to challenge “the fact or duration” of a state
prisoner’s confinement). Finally, Mr. Owen alleges his constitutional rights were violated
during his state trial because of the exclusion of evidence. Habeas relief pursuant to 28
U.S.C. § 2254 is also the exclusive remedy for this claim because Mr. Owen seeks to
invalidate his conviction due to the alleged evidentiary errors. See Duvall v. Reynolds,
139 F.3d 768, 787 (10th Cir. 1998) (noting habeas relief is available for “[s]tate court
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rulings on the admissibility of evidence” that “render the trial so fundamentally unfair as
to constitute a denial of federal constitutional rights”).
Having identified the claims asserted by Mr. Owen under a liberal reading of his
Complaint, we now proceed with our analysis in two parts. We first address Mr. Owen’s
standing to bring the two claims we construe as seeking declaratory relief pursuant to 42
U.S.C. § 1983. We then turn to Mr. Owen’s claims properly construed as seeking habeas
relief pursuant to § 2254.
A. Declaratory Judgment Claims
“[E]very federal appellate court has a special obligation to ‘satisfy itself not only
of its own jurisdiction, but also that of the lower courts in a cause under review.’” Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer,
293 U.S. 237, 244 (1934)). This is because “‘[f]ederal courts are courts of limited
jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn
v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)). Article III of the Constitution limits federal jurisdiction to
“Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. This limitation requires “that
litigants have standing.” California v. Texas, 141 S. Ct. 2104, 2113 (2021). To have
standing to assert his claim against the United States, Mr. Owen must establish three
things: (1) he “suffered an ‘injury in fact’—an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical”; (2) the injury is “fairly traceable to the challenged action of the
defendant”; and (3) it is likely the injury will be “redressed by a favorable decision.”
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Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and
citations omitted). Mr. Owen bears the burden of sufficiently pleading each of these
elements for each claim. Id. at 561. Mr. Owen has not sufficiently pleaded an injury for
his claims against the United States or the State of Utah.
In his claim against the United States challenging Concurrent Resolution 107,
Mr. Owen argues this resolution violates the Due Process and Equal Protection Clauses
of the Constitution. Concurrent resolutions do not “make[] . . . binding policy; [they are]
‘a means of expressing fact, principles, opinions, and purposes of the two Houses,’ and []
do[] not need to be presented to the President.” Bowsher v. Synar, 478 U.S. 714, 756
(1986) (Stevens, J. concurring) (quoting Jefferson’s Manual and Rules of the House of
Representatives 176 (1983)). Indeed, the concurrent resolution at issue here is not binding
policy but rather expresses the opinion of Congress rejecting the conclusion of an
academic article suggesting sexual relationships between adults and “willing” children
are less harmful than they are for “unwilling” children. H.R Con. Res. 107, 106th Cong.
(1999). Specifically, the resolution—
(1) condemns and denounces all suggestions in the article “A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples” that indicate that sexual relationships between adults and “willing” children are less harmful than believed and might be positive for “willing” children (Psychological Bulletin, vol. 124, No. 1, July 1998); (2) vigorously opposes any public policy or legislative attempts to normalize adult-child sex or to lower the age of consent; (3) urges the President likewise to reject and condemn, in the strongest possible terms, any suggestion that sexual relations between children and adults—regardless of the child’s frame of mind—are anything but abusive, destructive, exploitive, reprehensible, and punishable by law; and (4) encourages competent investigations to continue to research the effects of child sexual abuse using the best methodology, so that the public, and public policymakers, may act upon accurate information.
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Id. Mr. Owen does not identify any sustained or prospective injury resulting from this
opinion of Congress. Without identifying an injury, Mr. Owen has not demonstrated his
standing to challenge the Concurrent Resolution 107 in federal court. Accordingly, the
district court lacked jurisdiction over Mr. Owen’s declaratory judgment claim against the
United States.
Mr. Owen also has not sufficiently pleaded an injury sufficient for standing to
sustain his declaratory judgment claim against the State of Utah. With this claim,
Mr. Owen attempts to challenge certain Utah statutes criminalizing sexual conduct under
which he was neither charged nor convicted. “When a plaintiff challenges the validity of
a criminal statute under which he has not been prosecuted, he must show a ‘real and
immediate threat’ of his future prosecution under that statute to satisfy the injury in fact
requirement” for standing under Article III of the Constitution. D.L.S. v. Utah, 374 F.3d
971, 974 (10th Cir. 2004) (quotation marks omitted).
Mr. Owen seeks a declaration that two Utah statutes violate the Due Process and
Equal Protection Clauses. The first statute criminalizes certain sexual conduct with “an
individual who is 14 years of age or older, but younger than 16 years of age, at the time
the sexual activity described [therein] occurred.” Utah Code Ann. § 76-5-401. Similarly,
the second challenged statute criminalizes certain sexual conduct with “an individual who
is 16 years old or older, but younger than 18 years of age, at the time the sexual conduct
described [therein] occurred.” Utah Code Ann. § 76-5-401.2. In his Complaint, Mr. Owen
does not allege that after being released from prison, he will be under a “real and
immediate threat” of future prosecution under either challenged statute. Regardless,
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where he is serving a minimum of twenty-two years with the possibility of life
imprisonment, it is speculative that he is under an “immediate threat” of future
prosecution of violating Utah statutes related to sexual conduct with a minor. Without
any demonstration of a “real and immediate threat” of future prosecution under either of
the challenged statutes, Mr. Owen has failed to establish standing required for an action
pursuant to 42 U.S.C. § 1983 against the State of Utah.
Accordingly, the district court lacked jurisdiction over Mr. Owen’s declaratory
judgment claims against the State of Utah and the United States. Although the district
court properly dismissed these claims, it did so with prejudice. Because we resolve these
claims based on the lack of standing, rather than on the merits, we remand to the district
court to vacate its dismissal with prejudice as to these claims and to instead enter an order
dismissing both claims without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d
1213, 1216 (10th Cir. 2006) (“Since standing is a jurisdictional mandate, a dismissal with
prejudice for lack of standing is inappropriate, and should be corrected to a dismissal
without prejudice.”).
B. 28 U.S.C. § 2254 Claims
Mr. Owen argues the district court erred by converting his Complaint into a
petition filed under § 2254. Federal courts may properly determine how a particular pro
se filing should be treated, independent of the label the prisoner applies to it. See Castro
v. United States, 540 U.S. 375, 381–82 (2003) (“Federal courts sometimes will ignore the
legal label that a pro se litigant attaches to a motion and recharacterize the motion in
order to place it within a different legal category. They may do so in order . . . to create a
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better correspondence between the substance of a pro se motion’s claim and its
underlying legal basis.”) (citations omitted). However, when recharacterizing a claim as
one seeking habeas relief pursuant to § 2254, certain safeguards apply. In this context,
even where a petitioner’s “claim should have been brought under § 2254, he may prefer
to have his claim dismissed rather than be recharacterized as a § 2254 claim because of
the potential consequences with respect to any § 2254 claim he may file in the future.”
Davis v. Roberts, 425 F.3d 830, 834–35 (10th Cir. 2005). These consequences include the
strict limitations the Antiterrorism and Effective Death Penalty Act places on second or
successive claims. Id. at 835 (citing 28 U.S.C. §§ 2244(b), 2255). Because of these
consequences, we have recognized “certain procedures” a district court must follow
“before recharacterizing pro se pleadings” as a § 2254 petition:
The district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on “second or successive” motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has. Id. (quoting Castro, 540 U.S. at 383) (applying these requirements in the context of
construing pro se pleadings under § 2254).
Here, the district court omitted part of this procedure. The district court properly
notified Mr. Owen of its intent to recharacterize his Complaint as a § 2254 petition twice,
providing him with an opportunity to amend the deficient petition. The district court also
explained it was recharacterizing Mr. Owen’s pleading as a § 2254 petition “because it
primarily appear[ed] to challenge the constitutionality of the state laws under which
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[Mr. Owen’s] sexual behavior was deemed criminal.” ROA Vol. II at 21. However,
neither order from the district court warned Mr. Owen that the recharacterization would
restrict any later attempt to file a petition pursuant to § 2254.
Generally, the remedy for a district court’s failure to follow these procedures “is to
vacate the court’s order . . . and remand the case.” United States v. Martin, 357 F.3d
1198, 1200 (10th Cir. 2004) (internal quotation marks omitted); see also Clark v. Bruce,
159 F. App’x 853, 857 n.3 (10th Cir. 2005) (unpublished) (applying the rule in the
context of a § 2254 petition). Remanding in this context allows a pro se plaintiff the
opportunity to make all habeas claims pursuant to § 2254 in one petition, “alleviating the
adverse consequence of having a subsequent § 225[4] motion being barred as
successive.” Martin, 357 F.3d at 1200.
We agree with the district court’s determination that a habeas petition pursuant to
§ 2254 is the exclusive remedy for Mr. Owen’s claims seeking relief by invalidating the
statutes of his conviction and evidentiary rulings by the state trial court. Preiser, 411 U.S.
at 500 (holding that when a state prisoner seeks “a determination that he is entitled to
immediate release or a speedier release . . . , his sole federal remedy is a writ of habeas
corpus”). Because a habeas petition is the exclusive remedy for these claims, Mr. Owen
cannot seek declaratory relief invalidating the statutes of his conviction pursuant to 42
U.S.C. § 1983. Id. However, because the district court omitted part of the required
procedure to notify Mr. Owen of the consequences of recharacterizing his claims, we
remand with instructions to vacate the district court’s order dismissing Mr. Owen’s
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petition to allow him the opportunity to withdraw his Complaint or amend the submission
to bring all his potential § 2254 claims in one petition.6
III. CONCLUSION
For the foregoing reasons, we REMAND with instructions to the district court to
VACATE the dismissal with prejudice for Mr. Owen’s claims pursuant to 42 U.S.C.
§ 1983 against the United States and the State of Utah and to enter an order dismissing
those claims without prejudice. We further REMAND with instructions to the district
court to VACATE the dismissal of Mr. Owen’s claims properly construed as seeking
habeas relief pursuant to § 2254 so that he may bring all of his habeas claims in a single
petition or withdraw those claims.
Entered for the Court
Carolyn B. McHugh Circuit Judge
6 Because the district court did not warn Mr. Owen of the consequences of recharacterizing his Complaint, that submission “cannot be considered to have become a § 225[4] [petition] for purposes of applying to later [petitions] the law’s ‘second or successive’ restrictions.” Castro v. United States, 540 U.S. 375, 383 (2003); Clark v. Bruce, 159 F. App’x 853, 857 n.3 (10th Cir. 2005) (unpublished) (citing the rule in the context of a § 2254 petition). 14