                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 25, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 PAUL KEITH REYES,

               Plaintiff-Appellant,
                                                       No. 09-2043
 v.                                       (D.C. No. 1:09-CV-00070-KBM-WDS)
                                                        (D.N.M.)
 MAGGIE TOULOUSE OLIVER,

               Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      After a county clerk refused his voter registration application, convicted

felon Paul Keith Reyes sued for abuse of a position of trust and violation of the

Voting Rights Act of 1965 (the “VRA”), 42 U.S.C. § 1971 et seq. The district

court dismissed his suit for failure to state a claim. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

      This case stems from an encounter between Reyes and an individual

registering voters outside an Albuquerque-area Wal-Mart. When Reyes stated


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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. 32.1.
that he could not vote due to felony convictions, he was told that New Mexico

law had changed to permit felons to vote. Based on this information, Reyes

submitted a voter registration application to the Bernalillo County clerk.

Eventually, he received a letter informing him that his application could not be

processed because the “[clerk’s office’s] records show[ed] a felony conviction

against [him].”

      Reyes then filed a pro se complaint in the United States District Court for

the District of New Mexico, claiming that the clerk had “abuse[d] [a] position of

trust.” A magistrate judge, presiding by consent, reviewed Reyes’ complaint

pursuant to 28 U.S.C. § 1915(e)(2). Determining that New Mexico law prohibits

felons from voting subject to four exceptions, see N.M. Stat. § 31-13-1(A), the

magistrate judge granted Reyes an opportunity to amend his complaint to plead

that he fell within one of the exceptions. Reyes filed an amended complaint in

which he added a citation to the VRA but did not allege additional facts. Because

he did not claim that he met one of New Mexico’s exceptions to felon

disenfranchisement, the magistrate judge dismissed Reyes’ amended complaint

for failure to state a claim. In the same order, the magistrate judge denied Reyes

leave to proceed in forma pauperis.

      On appeal, Reyes advances the same arguments he made below.

Construing his complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520-21

(1972), we read it to raise two separate claims: (1) abuse of a position of trust,

                                        -2-
and (2) violation of the VRA. Even assuming he possesses a cause of action for

abuse of position of trust, 2 we agree with the magistrate judge that Reyes has not

pled such an abuse. The facts as alleged by Reyes show that the clerk’s actions

wholly comported with New Mexico law. 3

      Further, although the magistrate judge did not directly address Reyes’ VRA


      2
        Reyes cites “18 U.S.C. § 3B1.3” as the governing statute for this claim.
We understand him to be referring to United States Sentencing Guidelines
§ 3B1.3, which provides for a sentencing enhancement when a defendant “abused
a position of public or private trust . . . in a manner that significantly facilitated
the commission or concealment of the offense.”
      3
          N.M. Stat. § 31-13-1(A) provides:

      A person who has been convicted of a felony shall not be permitted
      to vote in any statewide, county, municipal or district election held
      pursuant to the provisions of the Election Code, unless the person:

      (1) has completed the terms of a suspended or deferred sentence
      imposed by a court;

      (2) was unconditionally discharged from a correctional facility under
      the jurisdiction of the corrections department or was conditionally
      discharged from a correctional facility under the jurisdiction of the
      corrections department and has completed all conditions of probation
      or parole;

      (3) was unconditionally discharged from a correctional facility under
      the jurisdiction of a federal corrections agency or was conditionally
      discharged from a correctional facility under the jurisdiction of a
      federal corrections agency and has completed all conditions of
      probation or parole; or

      (4) has presented the governor with a certificate verifying the
      completion of the sentence and was granted a pardon or a certificate
      by the governor restoring the person’s full rights of citizenship.

                                         -3-
claim, we conclude it too fails. Reyes cites 42 U.S.C. § 1971, but he does not

allege facts that would amount to a violation of that section: He does not contend

that the county clerk acted on the basis of race, color, or previous condition of

servitude. Indeed, Reyes does not even make mention of his own race. See §

1971(a)(1). 4 Further, as explained supra, Reyes has not claimed that he is

“qualified under [New Mexico] law or laws to vote in any election.” See

§ 1971(a)(2)(A); Farrakhan v. Washington, 338 F.3d 1009, 1022 (9th Cir. 2003).

Nor does Reyes plead a violation of other VRA provisions: New Mexico is not

subject to § 5 of the VRA, see 28 C.F.R. pt. 51, app., and Reyes does not claim

that New Mexico’s felon disenfranchisement law is “imposed or applied . . . in a

manner which results in a denial or abridgement of the right . . . to vote on

account of race or color, or [because of membership in a language minority

group]” in violation of § 1973.

      For the foregoing reasons, the dismissal of Reyes’ complaint is

AFFIRMED and his request to proceed in forma pauperis is DENIED.


                                       ENTERED FOR THE COURT


                                       Carlos F. Lucero
                                       Circuit Judge


      4
       Because the facts as alleged do not violate § 1971, we do not reach the
question of whether § 1971 supports a private right of action. See Schwier v.
Cox, 340 F.3d 1284, 1294-97 (11th Cir. 2003).

                                         -4-
