Stout v. Wager, 10th Cir. (2008)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
November 25, 2008
Elisabeth A. Shumaker
Clerk of Court
CHARLES J. STOUT,
Petitioner - Appellant,
v.
RON WAGER, (Acting Warden); JOHN
SUTHERS, Attorney General of the State
of Colorado,
No. 08-1311
(D. Ct. No. 08-CV-01358-ZLW)
(D. Colo.)
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Petitioner-Appellant Charles J. Stout, a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (COA) to appeal from the dismissal of his habeas
petition under 28 U.S.C. 2254. We take jurisdiction under 28 U.S.C. 1291, DENY
Mr. Stouts request for a COA, and DISMISS this appeal.
I. BACKGROUND
Mr. Stout pleaded guilty to one count, naming eight victims, of sexual assault on a
child by one in a position of trust. Under the terms of the plea agreement, he was
sentenced to sixteen years to life in prison. He later sought to vacate his conviction and
sentence under Colorado Rule of Criminal Procedure 35, contending that his conviction
was invalid because it was based on his uncorroborated confession and that he should be
resentenced because (1) he had been identified as a sexually violent predator for future
sex offender registration purposes based on an incomplete sex offender evaluation and (2)
his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Blakely v. Washington, 552 U.S. 296 (2004). The trial court denied Mr. Stouts Rule
35 motion, and the Colorado Court of Appeals affirmed. The court of appeals held that
Mr. Stout did not raise the confession issue on appeal, that his sex-offender argument was
time-barred, and that Apprendi and Blakely were inapplicable as his sentence did not
exceed the applicable statutory sentence of life in prison. The Colorado Supreme Court
denied a writ of certiorari.
Mr. Stout then filed a 2254 petition in federal district court. The magistrate
judge ordered him to file an amended petition clarifying his claims. He did so, but the
district court nonetheless determined, even after construing the amended petition
liberally, that he had failed to identify clearly any federal constitutional claims.
Specifically, the district court reasoned that Rule 4 of the Rules Governing Section 2254
Cases in the United States District Court requires more than notice pleading, and that Mr.
Stout had not alleged facts in support of his bare constitutional violations. The district
court dismissed the petition without prejudice and denied a COA. Mr. Stout now seeks a
COA from this court.
II. DISCUSSION
Mr. Stout may not appeal from the district courts dismissal of his petition without
-2-
first obtaining a COA. 28 U.S.C. 2253(c)(1). We will issue a COA only if the
applicant has made a substantial showing of the denial of a constitutional right. Id.
2253(c)(2). When the district court denies the petitioners claim on the merits, [t]he
petitioner must demonstrate that reasonable jurists would find the district courts
assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484 (2000). When the petition is denied on procedural grounds, the petitioner must
demonstrate 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. Id.
Reasonable jurists could not disagree with the district courts assessment of Mr.
Stouts amended petition. That petition lists the following claims: (1) Not all test were
complete that was required for the sexual evaluation (2) sentance aggravated by the Judge
and not a Jury (3) sentanced on my confession only. As supporting facts, the petition
refers to an attached page from Colorados Sex Offender Treatment and Monitoring
Program Manual describing the penile plethysmograph and Able Screen, and to attached
pages from the transcript of Mr. Stouts plea hearing in which his attorney informs the
court that Mr. Stout confessed to the count of conviction in that he admitted he had sexual
contact, including intercourse, with the named victims. As the district court concluded,
the petition does not identify specific constitutional claims and does not allege facts in
support of the claims it does identify. Moreover, even if we construe the petition as
raising a Sixth Amendment claim under Apprendi and Blakely, it is clear that such a claim
-3-
is meritless. In Blakely, the Supreme Court held that Apprendi prohibits a court from
enhancing a defendants sentence beyond the maximum sentence supported by facts
found by the jury or admitted by the defendant. See Blakely, 542 U.S. at 303 ([T]he
statutory maximum for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.). In this case, however, Mr. Stout both stipulated to a sixteen-year-to-life
sentence and admitted the facts underlying his conviction and sentence. Apprendi and
Blakely are therefore inapplicable.
III. CONCLUSION
Because Mr. Stout has not demonstrated that jurists of reason would find it
debatable whether his 2254 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 correctly
dismissed the petition on procedural grounds, we DENY his application for a COA. We
GRANT his request to proceed in forma pauperis on appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha

Circuit Judge
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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

November 25, 2008

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before TACHA, KELLY, and McCONNELL, Circuit Judges.

Petitioner-Appellant Charles J. Stout, a Colorado state prisoner proceeding pro se,

Deanell Reece Tacha

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