05-1395 -- York v. McCulley -- 06/08/2006

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH L. YORK,

Petitioner-Appellant,

JUANITA A. McCULLEY,

Respondent-Appellee.

No. 05-1395

(D.C. No. 05-CV-1250-ZLW)

(D. Colo.)

ORDER AND JUDGMENT^(*)

Before KELLY, MCKAY, and LUCERO, Circuit Judges.

Kenneth L. York, a federal prisoner proceeding pro se, appeals the dismissal without prejudice of his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because York is a federal prisoner and this proceeding arises under § 2241, he does not need a certificate of appealability. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). We review the district court's decision de novo, see Patterson v. Knowles, 162 F.3d 574, 575 (10th Cir. 1998), and AFFIRM for substantially the same reasons set forth by the district court.

York filed a petition under § 2241 that failed to identify any constitutional violations or facts giving rise to a constitutional violation. A magistrate judge ordered York to file an amended habeas corpus petition clarifying his claims. The district court reviewed the amended petition and found that York again failed to allege which of his constitutional rights had been violated and how they had been violated. Having reviewed the record, this determination is clearly correct. Although he does argue that the United States Department of Defense needs to accept responsibility for his previous convictions, but is willing to concede that the Central Intelligence Agency was "not much of a problem," York's petition, even when construed liberally because he is proceeding pro se, does not even hint at what constitutional violations may have taken place with regard to the execution of his sentence. As such, the district court's decision dismissing the petition is AFFIRMED. Further, because York does not raise "a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal," McIntosh, 115 F.3d at 812, we DENY his motion to proceed in forma pauperis. His letters, construed as motions, filed March 6, March 14, and May

22, 2006, are also DENIED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES
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^*.The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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