Sutton v. Mikesell ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 13, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JOSHUA LAMONT SUTTON,
Petitioner - Appellant,
v. No. 19-1479
(D.C. No. 1:19-CV-02008-LTB-GPG)
JASON MIKESELL, Sheriff, (D. Colo.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
The writ of habeas corpus vindicates inmates who are held in custody in
violation of the United States Constitution. 28 U.S.C. § 2241(c)(3). Alleging that he
is such an inmate, Joshua Sutton argues that the Colorado Parole Board (Board)
contravened his Fourteenth Amendment right to due process by deferring his
conditional grant of discretionary parole after it received false reports that
disqualified him for immediate release. As a remedy, Sutton asks us to credit the
additional time he spent incarcerated due to this alleged violation to reduce the three-
year mandatory period of parole that the sentencing judge included as part of his
*
This order is not binding precedent, except under the doctrines of law of the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.
sentence. Because Sutton’s request presents a live controversy concerning a
redressable injury, we disagree with the district court that his § 2241 petition is moot.
That said, because Sutton has no property or liberty interest in receiving discretionary
parole, he cannot show that the Board deprived him of any right protected by the
Fourteenth Amendment by deferring his parole date. Accordingly, we deny him a
certificate of appealability.
BACKGROUND
On May 3, 2013, the District Court of Pueblo County, Colorado, sentenced
Sutton to ten years in prison after he was convicted of second-degree assault. Sutton
v. Burtlow, No. 18-cv-01815-RM, slip op. at 1–2 (D. Colo. Jan. 07, 2019). As part of
that sentence, the court ordered that Sutton serve a mandatory period of parole
following his release from incarceration. That mandatory-parole period was not
unique to Sutton; in Colorado, all offenders who are convicted for certain felonies are
required, by statute, to serve a predefined period of mandatory parole. See Colo. Rev.
Stat. Ann. § 18-1.3-401(1)(a)(V)(A) (West 2020); People v. Johnson, 13 P.3d 309,
313 (Colo. 2000) (“Mandatory parole attaches to an offender’s sentence any time a
trial court sentences the offender to the [department of corrections], whether the
sentence is an initial sentence or a resentence.”). Because Sutton’s offense qualifies
as a Class Four crime under Colorado law and he was convicted between July 1993
and July 2018, his mandatory period of parole amounts to three years. See Colo. Rev.
2
Stat. Ann. § 18-1.3-401(1)(a)(V)(A) (West 2020); Response to Order to Show Cause,
Sutton v. Burtlow, No. 18-cv-01815-RM (D. Colo. Jan. 07, 2019), ECF No. 17-1.1
According to Sutton, on “about 8-9-2017,” “the Colorado Board of Parole
granted [him] early [discretionary] parole pending approval of bed space.” R. at 5.
But after doing so, the Board “received reports that [he] had been denied all bed
spaces and had been convicted of a Disciplinary Writeup (that were both False).” Id.
Sutton alleges that the Board failed to verify whether the reports were true and “took
[his] pending parole.” Id.
The Board soon changed course, Sutton claims, because it then received new
reports clarifying that, in fact, Sutton “hadn’t been denied bed space[].” Id. What is
more, Sutton had not “been convicted of a Disciplinary Writeup.” Id. Thus, the Board
granted Sutton discretionary parole on October 22, 2018.
On July 17, 2018, before the Board paroled Sutton, he filed a § 2241 petition
in the United States District Court for the District of Colorado. Sutton, slip op. at 1.
He claimed that the Board had violated his Fourteenth Amendment right to due
process and abused its discretion by deferring his discretionary parole. Id. at 2.
1
We take judicial notice of facts contained in litigation documents from
Sutton’s earlier habeas petition that are not in the record before us. Fed. R. Evid.
201(a)–(d); St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169,
1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate circumstances, may take
notice of proceedings in other courts, both within and without the federal judicial
system, if those proceedings have a direct relation to matters at issue.” (citations
omitted)).
3
The district court never reached those issues. It reasoned that because the
Board paroled Sutton on October 22, 2018, his habeas petition was moot. Id. at 5. As
a result, the court concluded that it lacked subject-matter jurisdiction to resolve
Sutton’s petition and therefore dismissed it without prejudice. Id. at 5–6.
On June 24, 2019, the Board revoked Sutton’s discretionary parole because he
had violated his conditions of supervision. So a few weeks later, on July 11, 2019,
Sutton filed a second § 2241 petition. This time, Sutton alleged that the Board had
violated his due-process rights by failing to credit toward his mandatory period of
parole the additional time he spent in prison while the Board deferred his
discretionary parole from August 2017 to October 2018.
Obtaining the case by referral from the district court, the magistrate judge first
explained that the question of mootness needed to be reconsidered as “a threshold
issue.” R. at 46. (internal quotation marks omitted) (quoting McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)). Even though Sutton’s
circumstances had changed (he was now incarcerated), the magistrate judge
concluded that the mootness problem was unchanged: “Mr. Sutton[’s] reincarceration
in June 2019 does not alter the determination of mootness made in his previous case.”
Id. As grounds, the magistrate judge reasoned that Sutton had no right to have his
mandatory-parole term recalculated—crediting his time spent in prison while the
Board deferred his parole between August 2017 and October 2018—because his
mandatory-parole term would not begin until he had completed his ten-year prison
sentence. Id. at 47 (“To the extent Applicant’s sentence includes a three-year
4
mandatory parole term, the mandatory parole term has not yet commenced.”). The
magistrate judge noted that Sutton could not “discharge” his “second-degree assault
conviction [until] June 16, 2021,” so he reasoned that any parole the Board granted
before that date was merely discretionary parole, not mandatory parole. Id. at 47–48.
As a result, the magistrate judge concluded that the “Board’s August 2017 decision to
defer discretionary parole until October 2018 fails to present a live case or
controversy under Article III of the Constitution” and recommended that the district
court dismiss Sutton’s petition for lack of subject-matter jurisdiction. Id. at 48.
Sutton filed a timely objection to the magistrate judge’s report and
recommendation. Without performing any independent analysis, the district court
accepted the magistrate judge’s report and recommendation, dismissing Sutton’s
§ 2241 petition as moot. Sutton now seeks a certificate of appealability to challenge
that ruling.2
2
On November 14, 2019, the district court entered its order and judgment.
Because Sutton did not file any post-judgment motions, he had until December 14,
2019, to file his notice of appeal. See Fed. R. App. P. 4(a)(1)(A), (a)(4)(A).
December 14 fell on a Saturday, so the deadline was extended until December 16,
2019. Fed. R. Civ. P. 6(a)(1)(C); Fed. R. App. P. 26(a)(1)(C). The Four Mile
Correctional Center, where Sutton is housed and from where he mailed his notice,
stamped the envelope for Sutton’s notice of appeal on December 15, 2019. And the
envelope shows that postage had been paid. Thus, Sutton’s appeal is timely. See
Fed. R. App. P. 25(a)(2)(A)(iii) (stating that a nonelectronic filing “is timely if it is
deposited in the institution’s internal mail system on or before the last day for filing
and” the inmate provides “evidence (such as a postmark or date stamp) showing that
the paper was so deposited and that postage was prepaid”).
5
DISCUSSION
I. The Certificate-of-Appealability Standard
State prisoners may appeal final district court orders resolving their § 2241
petitions only if “a circuit justice or judge issues a certificate of appealability.” 28
U.S.C. § 2253(c)(1)(A) (2020); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.
2000). Without a certificate of appealability, we “lack jurisdiction to rule on the
merits of appeals from [state] habeas petitioners.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). So before Sutton can invoke our jurisdiction to decide the merits of
his appeal, he must first show that he is entitled to a certificate of appealability.
Under 28 U.S.C. § 2253(c)(2), Sutton is entitled to a certificate of
appealability if he “has made a substantial showing of the denial of a constitutional
right.” Such a substantial showing is insufficient standing alone, however, when a
district court dismisses a habeas petition on procedural grounds. In that case, a
habeas petitioner must also show a debatable procedural error:
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in
its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, the district court concluded that it lacked subject-matter jurisdiction
because Sutton’s petition was moot; hence it dismissed Sutton’s petition on
procedural rather than substantive grounds. See, e.g., United States v. Springer, 875
6
F.3d 968, 982–83 (10th Cir. 2017) (describing a district court’s lack of subject-matter
jurisdiction as a “plain procedural bar” (internal quotation marks and citation
omitted)).3 The Court has instructed that when a district court’s decision rests on a
procedural bar, courts of appeals should adhere to the canon of constitutional
avoidance, “resolv[ing] procedural issues” before constitutional issues. Slack, 529
U.S. at 485 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring)).
Thus, we will first determine whether jurists of reason would debate the
correctness of the district court’s mootness ruling. If they could, we will then
determine whether Sutton has made a substantial showing of a denial of his right to
due process under the Fourteenth Amendment. In considering these questions, we
will liberally construe Sutton’s pro se petition but refrain from “act[ing] as his
advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019) (citing
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
3
Often, the exhaustion-of-state-remedies requirement is a plain procedural bar
in these cases. But in Colorado, a Board’s discretionary decision “is not subject to
judicial review.” White v. People, 866 P.2d 1371, 1373 (Colo. 1994). Thus, after the
Board denies parole, the proper procedure to challenge that decision is for an
individual to file a writ of habeas corpus in federal district court. Mahn v. Gunter,
978 F.2d 599, 600 n.3 (10th Cir. 1992) (citing Schuemann v. Colo. State Bd. of Adult
Parole, 624 F.2d 172, 173 (10th Cir. 1980)). At its core, Sutton’s challenge here is
directed at the Board’s discretionary decision to defer his parole, a decision that he
says deprived him of property and liberty interests. See discussion infra Part III. As a
result, the exhaustion requirement does not bar Sutton’s § 2241 petition.
7
II. The Correctness of the District Court’s Procedural Ruling Is Debatable.
By accepting the magistrate judge’s report and recommendation, the district
court adopted the magistrate judge’s conclusion that Sutton’s § 2241 petition was
moot. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for
purposes of Article III—when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome.” N.M. Health Connections v. U.S.
Dep’t of Health & Human Servs., 946 F.3d 1138, 1159 (10th Cir. 2019) (internal
quotation marks and citation omitted). We have explained that “[t]he crucial question
is whether granting a present determination of the issues offered will have some
effect in the real world.” Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868,
880 (10th Cir. 2019) (internal quotation marks omitted) (quoting Brown v. Buhman,
822 F.3d 1151, 1165–66 (10th Cir. 2016)). Mootness renders a case nonjusticiable
and deprives us of subject-matter jurisdiction, because “[i]n a moot case, a plaintiff
no longer suffers a redressable ‘actual injury.’” Id. (quoting Ind v. Colo. Dep’t of
Corrs., 801 F.3d 1209, 1213 (10th Cir. 2015)).
In the parole context, we have explained that a grant of parole moots a
prisoner’s challenge to a parole board’s “determinations that delayed his parole
date”—if parole has already been granted, an order granting parole will have no real-
world effect. Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th Cir. 1986) (per
curiam) (citations omitted). As an exception to this general rule, parolees may
overcome a mootness determination by showing they face “collateral consequences,”
the grant of parole notwithstanding. See id. (citations omitted); see also Dumas v.
8
U.S. Parole Comm’n, 397 F. App’x 492, 494 (10th Cir. 2010) (unpublished)
(“Because Mr. Dumas has already been released on parole, he bears the burden of
demonstrating that he is subject to continuing ‘collateral consequences’ as a result of
th[e] postponement [of his parole date].” (citations omitted)). Along these lines, we
have stated that an appeal is not moot, even if a habeas petitioner has “been released
from custody,” when a favorable decision “would affect the duration of [a] distinct
probationary period.” See Aragon v. Shanks, 144 F.3d 690, 691–92 & n.4 (10th Cir.
1998).4
The magistrate judge’s mootness conclusion hinged on two propositions: (1)
“[Sutton] was released on discretionary, not mandatory, parole,” and (2) that “any
period of mandatory parole has not yet commenced.” R. at 47–48. According to the
magistrate judge, the time Sutton spent awaiting discretionary parole while the Board
deferred its discretionary-parole decision—fourteen months—could not affect his
period of mandatory parole, because that period would not begin until after Sutton
had completely discharged his sentence and reached his “mandatory release date”—
June 16, 2021. Id. at 48 (internal quotation marks and citation omitted). Though the
magistrate judge was correct that Sutton was released on discretionary parole, the
4
Though Colorado classifies its mandatory post-confinement-supervision
period as mandatory parole—not probation—we have recognized that “[r]egardless,
violation of the terms of parole, probation, or Colorado’s mandatory parole can lead
to the re-incarceration of the parolee/probationer.” Gwinn v. Reid, 43 F. App’x 219,
221 n.1 (10th Cir. 2002) (unpublished).
9
magistrate judge incorrectly concluded that Sutton’s mandatory period of parole did
not commence upon the Board’s grant of discretionary parole.
Under Colorado law, a prisoner who is sentenced for a Class Four felony is
eligible for discretionary parole after having “served fifty percent of the sentence
imposed upon such person, less any time authorized for earned time.” Colo. Rev.
Stat. Ann. § 17-22.5-403(1) (West 2020). If the prisoner “is incarcerated for an
offense committed on or after July 1, 1993,” the prisoner can apply to “the state
board of parole” for discretionary parole. Id. § 17-22.5-403(7)(a). Considering
(among other things) the eleven factors listed in section 17-22.5-404(4)(a)(I)–(XI),
the Board then determines whether “the totality of the circumstances” warrants a
prisoner’s release for discretionary parole. Id. § 17-22.5-404(4)(a). If so, the Board
“shall set the length of the period of parole at the mandatory period of parole
established in section 18-1.3-401(1)(a)(V) or 18-1.3-401.5(2)(a).” Id. § 17-22.5-
403(7)(a).5 And if a parolee violates the conditions of parole, the Board may “revoke
the parole and order the return of the offender to a place of confinement designated
by the executive director for any period of time up to the period remaining on such
person’s mandatory period of parole.” Id. § 17-22.5-403(8)(a).6
5
Section 17-22.5-403(7)(a) includes exceptions for certain offenses described
in “section 17-2-201(5)(a), (5)(a.5), and (5)(a.7),” none of which are at issue here.
6
So when the Board revoked Sutton’s parole in June 2019, his original three-
year mandatory parole term would not have been replaced by some new parole term
commencing in 2019.
10
Thus, under these statutes, when the Board granted Sutton discretionary
parole, his period of mandatory parole immediately commenced and was fixed at
three years. This procedure complies with how the Colorado Supreme Court has
described the interplay between discretionary and mandatory parole in Colorado. See,
e.g., Diehl v. Weiser, 2019 CO 70, ¶ 3 (“Diehl was released from prison at the
discretion of the state board of parole on August 16, 2011, and he immediately began
serving a five-year period of mandatory parole.”); People v. Norton, 63 P.3d 339, 343
(Colo. 2003) (“Under the [1993] system, the length of the parole term is no longer
related to the unserved remainder of the sentence to confinement. Instead, all class
two through six felons are subject to a mandatory period of parole when their period
of incarceration terminates (either by its natural expiration or as a result of an early
release decision by the parole board).” (emphasis added) (citation omitted)); Craig v.
People, 986 P.2d 951, 958 (Colo. 1999) (“An offender is subject to mandatory parole
following discharge from imprisonment regardless of whether such discharge is
through some form of early release under the auspices of the state board of parole, or
as the result of the offender having served the entire period of confinement.” (citation
omitted)). And this interpretation complies with the facts of this case—the Board’s
release notice states that it granted Sutton discretionary parole and that his sentence
type was a three-year mandatory period of parole. Response to Order to Show Cause,
Sutton v. Burtlow, No. 18-cv-01815-RM (D. Colo. Jan. 07, 2019), ECF No. 17-2.
So contrary to the district court and magistrate judge’s conclusions, when the
Board paroled Sutton, his mandatory period of parole—three years per section 18-
11
1.3-401(1)(a)(V)—immediately commenced. Sutton now claims that the Board
should have credited toward that three-year period the time it deferred in granting
him discretionary parole. In other words, had the Board granted him parole in August
2017 rather than in October 2018 (as he claims it should have), Sutton argues he
could now trim fourteen months off his thirty-six-month mandatory period of parole.
If Sutton is entitled to such relief, then a favorable order “would affect the duration
of his distinct [parole] period.” Aragon, 144 at 692 n.4. And if Sutton is correct, such
a favorable order would “have some effect in the real world.” Prison Legal News,
944 F.3d at 880 (internal quotation marks omitted) (quoting Brown, 822 F.3d at
1165–66). Accordingly, we conclude that reasonable jurists could debate whether the
district court’s mootness ruling is correct.
III. Sutton Has Not Made a Substantial Showing of the Denial of a
Constitutional Right.
Having successfully shown a debatable procedural error, Sutton must now
make a substantial showing of the denial of a constitutional right. Neither the
magistrate judge nor the district court addressed the merits of Sutton’s due-process
claim; therefore, “our review is limited.” Gibson v. Klinger, 232 F.3d 799, 802–03
(10th Cir. 2000). Rather than a comprehensive review, “[w]e will only take a ‘quick’
look at the federal habeas petition to determine whether Mr. [Sutton] has ‘facially
allege[d] the denial of a constitutional right.’” Id. at 803 (final alteration in original)
(quoting Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000)).
12
Sutton’s habeas petition alleges that the Board violated his Fourteenth
Amendment right to due process. To elucidate on that, in his objection to the report
and recommendation, Sutton alleges that the Board “t[ook] back the grant” of
“‘property’ it had given [him] for good behavior.” R. at 51. He also claims that the
Board deprived him of “liberty” by not “compensating the 14 months extra [he] spent
in prison . . . to [his] 3 year mandatory parole period.” Id.A facially valid procedural-due-process claim7 is comprised of two elements:
“(1) a constitutionally protected liberty or property interest, and (2) a governmental
failure to provide an appropriate level of process.” Citizen Ctr. v. Gessler, 770 F.3d
900, 916 (10th Cir. 2014) (citing Couture v. Bd. of Educ. of Albuquerque Pub. Schs.,
535 F.3d 1243, 1256 (10th Cir. 2008); Colo. Dep’t of Pub. Health v. Bethell, 60 P.3d
779, 786 (Colo. App. 2002)). As for the first element, the Court has emphasized that
7
In Sutton’s objection to the magistrate judge’s report and recommendation,
he claims that the Board’s action “‘Shocks the Conscience’ of all 20 persons I told.”
R. at 51. By this language, Sutton could be raising a substantive-due-process claim:
“The Supreme Court has found substantive due process violations where government
action has infringed a ‘fundamental’ right without a ‘compelling’ government
purpose, as well as where government action deprives a person of life, liberty, or
property in a manner so arbitrary it ‘shocks the conscience.”’ Abdi v. Wray, 942 F.3d
1019, 1027 (10th Cir. 2019) (emphasis added) (internal citations omitted). As this
quote illustrates, however, the “shocks the conscience” test also entails a deprivation
of life, liberty or property. See, e.g., id.; Halley v. Huckaby, 902 F.3d 1136, 1153
(10th Cir. 2018) (citing Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). And
because Sutton cannot demonstrate such a deprivation, he cannot show that the Board
denied him a constitutional right, irrespective of whether his claim falls under
procedural or substantive due process. See Johnson v. Rodriguez, 110 F.3d 299, 308
(5th Cir. 1997) (“[B]ecause Texas prisoners have no protected liberty interest in
parole they cannot mount a challenge against any state parole review procedure on
procedural (or substantive) Due Process grounds.” (collecting cases)).
13
“[t]he requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty and
property.” Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).
Liberty or property interests require more than “a unilateral hope”; they
require “a legitimate claim of entitlement.” Ky. Dep’t of Corr. v. Thompson, 490 U.S.
454, 460 (1989) (internal quotation marks omitted) (quoting Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 465 (1981)). State law creates such an entitlement if “the
asserted right to property or liberty is mandated by state law when specified
substantive predicates exist.” Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir.
2012) (citing Roth, 408 U.S. at 577; Thompson, 490 U.S. at 460). When the right is
not mandated—that is, “if government officials may grant or deny it in their
discretion”—there is no protected entitlement. Martin Marietta Materials, Inc. v.
Kan. Dep’t of Transp., 810 F.3d 1161, 1178 (10th Cir. 2016) (internal quotation
marks omitted) (quoting Town of Castle Rock v. Gonzales, 545 U.S. 748, 756
(2005)).
In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442
U.S. 1, 7 (1979), the Court ruled that “[t]here is no constitutional or inherent right of
a convicted person to be conditionally released before the expiration of a valid
sentence.” And Colorado law does not supply such a right, either—under Colorado
law, individuals have no vested property or liberty interest in acquiring discretionary
parole. See, e.g., Colo. Rev. Stat. Ann. § 17-22.5-403(7)(a) (West 2020) (vesting the
Board with discretion to determine whether an offender should be granted
14
discretionary parole); Beylik v. Estep, 377 F. App’x 808, 812 (10th Cir. 2010)
(unpublished) (“[T]he grant of parole is wholly discretionary under Colorado’s
statutory parole scheme and thus does not create a legitimate expectation of release
on the part of Colorado state prisoners.” (citing Greenholtz, 442 U.S. at 10–11));
Nowak v. Suthers, 2014 CO 14, ¶¶ 38–39 (explaining that discretionary parole “is a
privilege, not a right,” and that “the parole board has the ultimate discretion to grant
or deny parole based on the totality of the circumstances, including but not limited to
the factors set forth in section 17–22.5–404(4)” (citation omitted)).
Here, Sutton alleges that in August 2017, the Board granted him “parole
pending approval of bed space.” R. at 5. He alleges that because the Board then
deferred finalizing his discretionary parole until October 2018, it deprived him of
property and liberty interests. But Sutton had no property interest, under either
federal or state law, in receiving discretionary parole. And if Sutton had no broad
right to discretionary parole, then the Board’s deferral of his discretionary-parole
date cannot implicate a protected liberty or property interest—any right to receiving
parole on a specific date would be simply a subset of the broader right to parole in
general. The Board had complete discretion to decide when (or if) to parole Sutton,
hence it had complete discretion to decide when his mandatory period of parole
commenced. Accordingly, the Board did not deprive Sutton of a property or liberty
interest by deferring his parole date, and his procedural-due process claim is thus
facially invalid.
15
CONCLUSION
We deny Sutton a certificate of appealability and dismiss this case because he
has not made a substantial showing of the denial of a constitutional right. We grant
his motion to proceed in forma pauperis.8
Entered for the Court
Gregory A. Phillips
Circuit Judge
8
Sutton has provided a financial affidavit showing he could not prepay the
filing fees, because he has no assets or income. He has also presented one
nonfrivolous argument on appeal—namely, his argument against mootness. Thus, we
rule that he is entitled to in forma pauperis status on appeal. See Johnson v.
Raemisch, 763 F. App’x 731, 735 (10th Cir. 2019) (unpublished) (granting an in
forma pauperis motion when the applicant was unable to pay the filing costs and
raised “at least one nonfrivolous argument on appeal”). That said, Sutton must make
partial payments until the filing fee is fully paid. 28 U.S.C. § 1915(b)(1)–(2).
16