Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Tunson-Harrington v. Adams County Sheriff, et al.; Tunson-Harrington v. Ewing et al.
In these appeals, Jessie Tunson-Harrington appealed two orders from separate dockets in the District of Colorado. Both orders denied Tunson-Harrington’s motions to reopen. The 10th Circuit Court of Appeals affirmed.
In one appeal, Tunson-Harrington v. Ewing, Tunson-Harrington alleged in April 2018, police officers with the Aurora Police Department arrested him for violating a protective order. He asserted on April 20, 2018, while a pretrial detainee at the Adams County Jail, he was assaulted by Deputies Ewing and Shyrigh. Soundless video footage in the record shows as Tunson-Harrington left the jail’s showers, two guards rushed to restrain him and one guard tased him. Several guards then escorted a handcuffed Tunson-Harrington to a quiet room. Tunson-Harrington alleged this incident left him with a concussion and exacerbated his broken arm.
In the other appeal, Tunson-Harrington v. Adams County Sheriff, Tunson-Harrington alleged a separate, similar incident with Deputy Ewing and other guards at the Adams County Jail. He alleged on March 6, 2019, Deputy Ewing began punching him as he was leaving the jail’s showers. He claims the guards then tased him in the groin and kicked him while he was on the ground. Based on that, Tunson-Harrington alleged he suffered head trauma and mental anguish.
In December 2019, Tunson-Harrington filed his first complaint, based on his April 2018 detention. He alleged a false-arrest claim against the Aurora Police Department and an excessive-force claim against Adams County Jail and Deputies Ewing and Shyrigh. After two amended complaints, the district court permitted these claims to proceed. But Tunson-Harrington struggled to prosecute his case after that, the opinion noted. The record reflects he didn’t receive court orders due to his frequent address changes. Nor did he retain a pro bono attorney or contact the magistrate judge to set a scheduling conference. As a result, in July 2021, the district court dismissed Tunson-Harrington’s case without prejudice for failure to prosecute. More than a year later, Tunson-Harrington moved to reopen, which the district court denied because he hadn’t shown cause to reopen or a willingness to prosecute his case.
In May 2021, on a separate docket, Tunson-Harrington filed a second complaint, this time based on the alleged 2019 assault. He asserted an excessive-force claim against Adams County Jail and Deputy Ewing. The district court ordered Tunson-Harrington to correct deficiencies in the complaint, including alleging why his case wasn’t duplicative of his earlier action. It gave him 30 days to cure and warned him it would dismiss his case if he neglected to do so. Again, the record showed Tunson-Harrington didn’t receive court orders due to his changes in address, the opinion added. In July 2021, the district court dismissed the case without prejudice for failing to correct deficiencies, adding Tunson-Harrington hadn’t filed change-of-address notices under the district’s local civil rules. Tunson-Harrington moved to reopen more than a year later. The district court denied that motion, finding no grounds under Federal Rule of Civil Procedure 60 to relieve him from the court’s judgment.
Tunson-Harrington appealed these twin denials of his motions to reopen. The 10th Circuit construed both motions as requests to reopen under Rule 60(b)(6), which allows courts to relieve a party from judgment for “any other reason that justifies relief.” The 10th Circuit reviewed the denial of a Rule 60(b) motion to reopen for abuse of discretion, the opinion noted, citing the 10th Circuit decisions Johnson v. Spencer and Kile v. United States. And because Tunson-Harrington proceeded pro se, the 10th Circuit construed his pleadings liberally without serving as his advocate, citing the 10th Circuit decision Hall v. Bellmon.
According to the opinion, Tunson-Harrington didn’t show the district courts abused their discretion. Here, the district courts gave reasonable basis to not reopen Tunson-Harrington’s cases, the 10th Circuit explained, as the district court gave several reasons explaining the futility of reopening Tunson-Harrington v. Ewing.
The district court likewise articulated reasonable bases for refusing to reopen Tunson-Harrington v. Adams County Sheriff, including deficient allegations and Tunson-Harrington’s neglecting to file change-of-address notices under District of Colorado Local Civil Rule 5.1(c), the 10th Circuit noted.
Pro se litigants must prosecute their cases and follow the court’s rules, the opinion added, citing the 10th Circuit decision Petty v. Manpower, Inc. Tunson-Harrington didn’t meet his heavy burden to show the district courts abused their discretion in denying his Rule 60(b)(6) motions to reopen, the 10th Circuit continued.
The 10th Circuit affirmed and denied Tunson-Harrington’s motions to proceed in forma pauperis and all other pending motions.
Kassel, Jr. v. Attorney General State of Colorado
Michael Kassel, Jr., sought a certificate of appealability to appeal from the district court’s denial of his 28 U.S. Code 2254 habeas application. The 10th Circuit denied a certificate of appealability and dismissed this matter.
Kassel was charged in Colorado state court with multiple counts of sexual assault on a child and one count of attempted sexual assault allegedly committed against his stepdaughter, R.D., his step-niece, S.S., and his stepdaughter’s friend, A.B. At the conclusion of the trial, the jury acquitted him of the charges regarding R.D. and S.S. but convicted him of sexual assault on a child and sexual assault on a child as part of a pattern of abuse involving A.B. The trial court sentenced him to an indeterminate prison term of 16 years to life. The Colorado Court of Appeals affirmed Kassel’s convictions on appeal, and the Colorado Supreme Court denied his petition for a writ of certiorari.
Kassel sought state post-conviction relief. He then filed a 2254 habeas application in federal court, asserting seven claims for relief. The district court initially dismissed without prejudice claims 1, 2(b), 6 and 7 as not cognizable on federal habeas review. The court then ordered the state to respond to the remaining claims — claims 2(a), 3, 4 and 5. After considering the habeas application, the state’s answer, and Kassel’s reply, the district court issued a final order denying claims 2(a), 3, 4 and 5 on the merits. The district court also addressed Kassel’s motion to modify or amend his habeas application in which he argued the court should accept the previously dismissed claims as being exhausted. The court reiterated its determination claims 1, 2(b), 6 and 7 were not cognizable on federal habeas review. It also determined, even assuming the claims were cognizable, they were all procedurally defaulted. Kassel sought to appeal the district court’s decision.
Kassel must obtain a certificate of appealability to proceed with an appeal from a final order in a habeas proceeding, the 10th Circuit noted citing 28 U.S.C. 2253(c)(1)(A). The 10th Circuit explained to obtain a certificate of appealability where the court denied his claims on the merits, he must make “a substantial showing of the denial of a constitutional right,” citing 2253(c)(2), such that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” citing the U.S. Supreme Court decision Slack v. McDaniel. To obtain a certificate of appealability where the court dismissed a claim on procedural grounds, Kassel 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 that jurists of reason would find it debatable whether the district court was correct in its procedural ruling,” citing the Slack decision.
In his certificate of appealability application, Kassel identified three claims on which he sought a certificate of appealability — claims 1, 2 and 4. But then in the opening brief attached to his form application, he included arguments on claims 6 and 7.
After evaluation, the 10th Circuit denied a certificate of appealability, dismissed this matter and granted Kassel’s motion for leave to proceed without prepayment of costs or fees.