FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 22, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court VIRGIL F. RICE,
Plaintiff - Appellant,
v. No. 17-1009 (D.C. No. 1:16-CV-2104-LTB) PRESIDENT DONALD J. TRUMP,* (D. Colo.)
Defendant. _________________________________
ORDER AND JUDGMENT** _________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges. _________________________________
Virgil F. Rice appeals pro se the district court’s dismissal of his motion to
compel, which the district court construed as being a complaint in the nature of
mandamus. Rice has filed a motion under 28 U.S.C. § 1915 seeking leave to proceed
on appeal in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. § 1291,
we deny his motion for leave to proceed IFP and dismiss his appeal as frivolous.
* In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Donald J. Trump is substituted for Barack Obama as the defendant in this action. ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Rice is serving a sixty-year sentence in the Colorado Department of
Corrections following his conviction for sexually assaulting his two guardian
daughters and one biological daughter while they were minors. Rice admits that he
fled the country prior to trial, which led to him being extradited from Spain. The
Colorado Court of Appeals affirmed Rice’s convictions and sentence, and the
Colorado Supreme Court denied his petition for a writ of certiorari. Rice then filed a
state post-conviction motion seeking relief from his sentence, which the trial court
denied.
After these unsuccessful attempts to challenge his conviction and sentence,
Rice filed two more state post-conviction motions, and also filed in federal district
court a “Motion to Compel United States President Barack Obama to Discharge His
Duty Pursuant to 18 USC § 3192 and Request for Relief.” He subsequently filed an
amended motion to compel. His amended motion alleged that the State of Colorado
perpetrated acts of “lawless violence”1 against him by incarcerating him “not in
accordance with state and federal law” and by denying him “both constitutional and
civil rights protections” while he has been imprisoned. R. at 134. Rice requested
that the district court order the President to intervene and protect Rice from these
1 This language comes from the statutory provision under which Rice sought relief. It provides that: “Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any offense of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such offenses . . . .” 18 U.S.C. § 3192 (emphasis added). 2 “state sponsored acts of lawless violence.” Id. at 136; see also id. at 133 (seeking
intervention from the district court to compel the President to “supervise the conduct
of both the Colorado courts and its Department of Corrections to insure that further
violations of the law are not permitted in this matter”).
Rice also specifically requested that the district court not construe his motion
as one seeking habeas relief pursuant to 28 U.S.C. § 2254 because he had not yet
exhausted his state court remedies. Similarly, he requested that the district court not
construe his motion as an action pursuant to 42 U.S.C. § 1983 because he had not
exhausted his administrative remedies through the prison grievance process.
The district court construed Rice’s amended motion to compel as a complaint
in the nature of mandamus, concluded that the action should be dismissed as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), and denied IFP status on appeal after
determining that any appeal from the order would not be taken in good faith. Rice
then filed a motion for reconsideration, which the district court denied. Rice now
seeks to appeal.
When a prisoner is seeking to proceed IFP on appeal, we must sua sponte
dismiss the appeal if we determine that it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).
“An appeal is frivolous when the result is obvious, or the appellant’s arguments of
error are wholly without merit.” Olson v. Coleman, 997 F.2d 726, 728 (10th Cir.
1993) (internal quotation marks omitted).
In determining that Rice’s motion to compel was frivolous, the district court
noted, among other things, that: mandamus is an extraordinary remedy, Rice had
3 other remedies to pursue his claims, and Rice had failed to demonstrate that those
alternative remedies were not adequate. As the court explained: “To the extent
[Rice] claims he was convicted in violation of his rights under the United States
Constitution or a treaty of the United States, he may pursue his claims in state court
and, if unsuccessful, file a federal application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 after exhausting available state remedies.” R. at 194. Likewise,
the court explained: “To the extent [Rice] claims the conditions of his confinement
violate his constitutional rights, he may pursue those claims in an action pursuant to
42 U.S.C. § 1983.” Id.
Rice, of course, knew of these remedies, but in an attempt to circumvent
these procedurally proper vehicles to collaterally attack his conviction and his
conditions of confinement, he filed his motion to compel. He appears to have done
so due to his belief that the State of Colorado is moving at a “glacial pace” in
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 22, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court VIRGIL F. RICE,
Plaintiff - Appellant,
v. No. 17-1009 (D.C. No. 1:16-CV-2104-LTB) PRESIDENT DONALD J. TRUMP,* (D. Colo.)
Defendant. _________________________________
ORDER AND JUDGMENT** _________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges. _________________________________
Virgil F. Rice appeals pro se the district court’s dismissal of his motion to
compel, which the district court construed as being a complaint in the nature of
mandamus. Rice has filed a motion under 28 U.S.C. § 1915 seeking leave to proceed
on appeal in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. § 1291,
we deny his motion for leave to proceed IFP and dismiss his appeal as frivolous.
* In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Donald J. Trump is substituted for Barack Obama as the defendant in this action. ** 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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Rice is serving a sixty-year sentence in the Colorado Department of
Corrections following his conviction for sexually assaulting his two guardian
daughters and one biological daughter while they were minors. Rice admits that he
fled the country prior to trial, which led to him being extradited from Spain. The
Colorado Court of Appeals affirmed Rice’s convictions and sentence, and the
Colorado Supreme Court denied his petition for a writ of certiorari. Rice then filed a
state post-conviction motion seeking relief from his sentence, which the trial court
denied.
After these unsuccessful attempts to challenge his conviction and sentence,
Rice filed two more state post-conviction motions, and also filed in federal district
court a “Motion to Compel United States President Barack Obama to Discharge His
Duty Pursuant to 18 USC § 3192 and Request for Relief.” He subsequently filed an
amended motion to compel. His amended motion alleged that the State of Colorado
perpetrated acts of “lawless violence”1 against him by incarcerating him “not in
accordance with state and federal law” and by denying him “both constitutional and
civil rights protections” while he has been imprisoned. R. at 134. Rice requested
that the district court order the President to intervene and protect Rice from these
1 This language comes from the statutory provision under which Rice sought relief. It provides that: “Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any offense of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such offenses . . . .” 18 U.S.C. § 3192 (emphasis added). 2 “state sponsored acts of lawless violence.” Id. at 136; see also id. at 133 (seeking
intervention from the district court to compel the President to “supervise the conduct
of both the Colorado courts and its Department of Corrections to insure that further
violations of the law are not permitted in this matter”).
Rice also specifically requested that the district court not construe his motion
as one seeking habeas relief pursuant to 28 U.S.C. § 2254 because he had not yet
exhausted his state court remedies. Similarly, he requested that the district court not
construe his motion as an action pursuant to 42 U.S.C. § 1983 because he had not
exhausted his administrative remedies through the prison grievance process.
The district court construed Rice’s amended motion to compel as a complaint
in the nature of mandamus, concluded that the action should be dismissed as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), and denied IFP status on appeal after
determining that any appeal from the order would not be taken in good faith. Rice
then filed a motion for reconsideration, which the district court denied. Rice now
seeks to appeal.
When a prisoner is seeking to proceed IFP on appeal, we must sua sponte
dismiss the appeal if we determine that it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).
“An appeal is frivolous when the result is obvious, or the appellant’s arguments of
error are wholly without merit.” Olson v. Coleman, 997 F.2d 726, 728 (10th Cir.
1993) (internal quotation marks omitted).
In determining that Rice’s motion to compel was frivolous, the district court
noted, among other things, that: mandamus is an extraordinary remedy, Rice had
3 other remedies to pursue his claims, and Rice had failed to demonstrate that those
alternative remedies were not adequate. As the court explained: “To the extent
[Rice] claims he was convicted in violation of his rights under the United States
Constitution or a treaty of the United States, he may pursue his claims in state court
and, if unsuccessful, file a federal application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 after exhausting available state remedies.” R. at 194. Likewise,
the court explained: “To the extent [Rice] claims the conditions of his confinement
violate his constitutional rights, he may pursue those claims in an action pursuant to
42 U.S.C. § 1983.” Id.
Rice, of course, knew of these remedies, but in an attempt to circumvent
these procedurally proper vehicles to collaterally attack his conviction and his
conditions of confinement, he filed his motion to compel. He appears to have done
so due to his belief that the State of Colorado is moving at a “glacial pace” in
determining the lawfulness of his detention, id. at 133, and also due to his desire to
avoid exhausting his grievances through the prison administrative process as he
contends he has “fil[ed] 120 such grievances without success,” id. at 127. But his
dissatisfaction with the pace of the Colorado state court system and his lack of
success in filing grievances does not justify the filing of a frivolous action seeking
the extraordinary and unprecedented remedy of compelling the President to intervene
in Rice’s state court proceedings and in the Colorado Department of Correction’s
administration of its prison system.
4 The district court reminded Rice that he had other available remedies to obtain
the relief he sought, dismissed his action as frivolous, and stated that an appeal would
not be taken in good faith, but Rice persisted in filing in appeal. We conclude that
this appeal is frivolous. Rice is knowingly seeking to evade or circumvent the
appropriate means of both challenging his conviction and raising claims related to his
conditions of confinement, and therefore the result of his appeal is obvious. He
offers no reasoned argument addressing how the district court erred in concluding
that he has alternate remedies that he should be pursuing.
We deny Rice’s motion to proceed IFP and dismiss his appeal. Our dismissal
will count as a second strike. See Jennings v. Natrona Cty. Det. Ctr., 175 F.3d 775,
780 (10th Cir. 1999), overruled in part on other grounds by Coleman v. Tollefson,
135 S. Ct. 1759 (2015) (“If we dismiss as frivolous the appeal of an action the district
court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”).
Rice is reminded that he must make immediate payment of the unpaid balance of his
appellate filing fee in this case.
We also deny Rice’s motion for injunctive relief filed on June 6, 2017, as it
appears to seek relief related to a new claim complaining about his conditions of
confinement. To the extent the motion seeks injunctive relief pending appeal
pursuant to Fed. R. App. P. 8, we deny it as moot as this appeal is now terminated.
Entered for the Court
Nancy L. Moritz Circuit Judge