United States v. Klein , 589 F. App'x 909 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT November 4, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6165
(D.C. No. 5:05-CR-00101-C-1)
QUINN AARON KLEIN, (W.D. Oklahoma)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause 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*This order and judgment is not binding precedent, except under the doctrines of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.
Defendant Quinn Aaron Klein, proceeding pro se, appeals the district court’s
denial of his motion to revoke his supervised release. Exercising jurisdiction pursuant to
28 U.S.C. §1291, we affirm.
I. BACKGROUND
Mr. Klein pled guilty before the United States District Court for the Western
District of Oklahoma to one count of wire fraud. The district court sentenced him to 27
months’ imprisonment in a federal institution and 36 months of supervised release. After
Mr. Klein completed his 27 month term of imprisonment, he was transferred to the
custody of the Oklahoma Department of Corrections to serve sentences for independent
violations of state law. He remains incarcerated in state prison, and is scheduled to be
released in 2017.1
While incarcerated in state prison, Mr. Klein filed a motion in the district court
requesting that the court revoke his federal term of supervised release, “retrieve him from
[the] Oklahoma Dep[artment] of Corrections[,] and deliver him” into federal custody.
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The government has provided information related to Mr. Klein’s inmate status by
directing us to the Federal Bureau of Prison’s online Inmate Locator as well as the
Oklahoma Department of Corrections online Offender Lookup. Mr. Klein does not
dispute the accuracy of this information, and has confirmed he was incarcerated in an
Oklahoma state facility at the time he requested that the court revoke his supervised
release. Thus, we take judicial notice of Mr. Klein’s inmate status for the purposes of this
appeal. See 29 Am. Jur. 2d Evidence § 96 (2014) (explaining that courts may take judicial
notice of information publicly announced on a party’s website, “as long as the website’s
authenticity is not in dispute and it is capable of accurate and ready determination,” and
recognizing that courts have taken judicial notice of information on “prisoner locator”
websites).
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Before the government responded, and without a hearing, the district court denied Mr.
Klein’s motion “as without legal or factual foundation.”
Subsequently, Mr. Klein filed a motion with the district court to proceed in forma
pauperis on appeal. Pursuant to 28 U.S.C. § 1915(a)(3), the district court determined that
any appeal from its order would not be taken in good faith and denied Mr. Klein’s motion
on that basis. Mr. Klein timely filed an appeal of the district court’s denial of his motion
to revoke his supervised release and filed a renewed motion to proceed in forma pauperis
on appeal.
II. DISCUSSION
Mr. Klein challenges the district court’s denial of his motion to revoke his
supervised release, asserting the district court violated his due process rights by denying
his motion without a hearing because he “brought up very serious life or death issues.”
He also challenges the district court’s decision on equal protection grounds, claiming the
denial of the motion violated his right to be “equally protected,” and asserting the district
court’s decision was motivated by bias towards Mr. Klein’s sexual orientation.
Because Mr. Klein proceeds pro se, we construe his briefing liberally and hold
him to a less stringent standard than we would hold parties represented by counsel. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Nonetheless, we do not take on the responsibility of serving as Mr. Klein’s attorney in
constructing his arguments, searching the record, or performing the necessary legal
research. Id. at 840–41; see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir.
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1994) (noting that, even with a pro se litigant, “we are not required to fashion
Defendant’s arguments for him where his allegations are merely conclusory in nature and
without supporting factual averments”).
We address each of Mr. Klein’s arguments in turn, and conclude neither has merit.
We also deny his motion for leave to proceed in forma pauperis.
A. Due Process
The Due Process Clause applies when government action deprives a person of
liberty or property. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order for a person
to have a liberty interest entitled to protection, he must have a legitimate claim of
entitlement to it. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (“Since
[plaintiff] was not deprived of any liberty to which he was entitled, no particular process
was constitutionally due or required . . . .”). In the instant case, Mr. Klein’s due process
argument fails because he has identified no protectable liberty interest in having the term
of his supervised release proactively revoked so that he can be transferred from a state
institution into federal custody. Cf. Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding
that a prisoner does not have a constitutional liberty interest in being confined in any
particular institution because the Due Process Clause does not “in and of itself protect a
duly convicted prisoner against transfer from one institution to another within the state
prison system”). Accordingly, Mr. Klein’s due process argument is without merit.
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B. Equal Protection
Mr. Klein’s challenge to the district court’s denial of his motion on equal
protection grounds also fails. “The Fourteenth Amendment guarantee of equal protection
‘is essentially a direction that all persons similarly situated should be treated alike.’”
Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009) (quoting City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). To properly assert a
challenge to the district court’s decision on equal protection grounds, Mr. Klein must
identify different or less-beneficial treatment provided to him than to similarly-situated
individuals. See id.Here, even construing Mr. Klein’s brief liberally, his challenge to the district
court’s decision on equal protection grounds lacks merit. He identifies no similarly-
situated individuals the district court treated more favorably with respect to revocation of
supervised release. And he makes no factual assertions that would support his allegation
that the denial of his motion was the result of bias based on his sexual orientation. As
previously explained, the district court correctly denied Mr. Klein’s request to revoke his
supervised release because he has identified no protectable liberty interest in having the
term of his supervised release proactively revoked so that he can be transferred from a
state institution into federal custody. Therefore, we reject Mr. Klein’s challenge to the
district court’s decision on equal protection grounds.
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C. Motion for Leave to Proceed in Forma Pauperis
Finally, we deny Mr. Klein’s motion for leave to proceed in forma pauperis. Any
court of the United States can grant an indigent litigant pauper status so that the litigant
may commence, prosecute, defend, or appeal any civil or criminal action “without
prepayment of fees or security therefor.” 28 U.S.C. § 1915(a)(1). But § 1915 also
provides, “An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” Id. § 1915(a)(3). Despite this limitation, we
have held that “a party who seeks in forma pauperis status and is certified by the district
court as not appealing in good faith may nonetheless move this court for leave to proceed
on appeal in forma pauperis.” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077,
1079 (10th Cir. 2007) (internal quotation marks omitted). To do so, however, the
appellant must show not only “a financial inability to pay the required filing fees,” but
also “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).
As illustrated by our discussion of Mr. Klein’s due process and equal protection
claims, he has failed to demonstrate the existence of a nonfrivolous argument on appeal.
For this reason, we deny Mr. Klein’s motion to proceed in forma pauperis.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order denying
Mr. Klein’s motion to revoke his supervised release, and DENY his motion to proceed in
forma pauperis.
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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