                                                              FILED
                                                  United States Court of Appeals
                      UNITED STATES COURT OF APPEALS      Tenth Circuit

                                   TENTH CIRCUIT                        September 1, 2010

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
VINCENT E. LOGGINS,

       Petitioner - Appellant,                                 No. 10-1256

v.                                                             (D. Colo.)
                                                    (D.C. No. 1:10-CV-00821-ZLW)
DR. JOHN DEQUADO; MR. JOHN
SUTHERS, Attorney General of the State
of Colorado,

       Respondents - Appellees.




                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Vincent E. Loggins, a patient in the custody of the Colorado Mental Health

Institute, appears pro se1 seeking to appeal from the dismissal, without prejudice, of his

28 U.S.C. § 2254 petition for writ of habeas corpus. Because he has not “made a

substantial showing of the denial of a constitutional right,” we deny his request for a

certificate of appealability (COA). See 28 U.S.C. § 2253(c)(2).




       1
        We liberally construe Loggins’ pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
                                   I.   BACKGROUND

       In May 1990, while incarcerated in the Colorado Department of Corrections

(CDOC) for sexual assault on a child,2 Loggins attacked a correctional officer. He was

prosecuted in state court for second degree assault on a peace office but pled not guilty by

reason of insanity and was committed to the Colorado Mental Health Institute (CMHI).3

While committed to the CMHI, his sentence for the sexual assault conviction remained

pending. In 1994, a state trial court granted Loggins’ petition for release from the CMHI

commitment4 and ordered his conditional return to the CDOC to finish serving his sexual

assault sentence. The court imposed conditions upon his release,5 including a

requirement that he receive psychiatric treatment from the prison and “apply for and

participate in the Sex Offenders Program for the duration of his stay at the Department of

Corrections.” (R. Vol. I at 45.) The order also required his return to the CMHI for

further evaluation after completing his criminal sentence. During his renewed

incarceration with CDOC, Loggins was returned to the CMHI for approximately one

       2
        The assault on a minor occurred on February 22, 1988. The record is unclear
whether Loggins was imprisoned in 1989 or 1990. The assault on the corrections officer
occurred on May 23, 1990.
       3
        Colorado law requires: “If the trier of fact finds the defendant not guilty by
reason of insanity, the court shall commit the defendant to the custody of the department
of human services until such time as he is found eligible for release.” Colo. Rev. Stat. §
16-8-105(4).
       4
        In Colorado, “acquittal by reason of insanity supports an inference of continuing
mental illness and dangerousness.” People v. Garlotte, 958 P.2d 469, 474 (Colo. Ct.
App. 1997). The burden of proving entitlement to release is upon the defendant. Id.
       5
         Even if a defendant meets his burden and shows an entitlement to release, a court
may nonetheless impose terms and conditions upon release if they are in the best interest
of the defendant and the community. See Colo. Rev. Stat. § 16-8-115(3)(a).

                                           -2-
month because he wrote a sexually explicit letter to a nurse and exhibited other violent

and threatening behavior. Moreover, he enrolled in the Sex Offenders Program only

“[d]uring the latter portion of his stay.” (R. Vol. I at 92.)

       After completing his sexual assault sentence, Loggins was returned to the CMHI

on November 21, 1997, for evaluation pursuant to the state court’s 1994 order. He was

determined to pose a danger to himself and others and has since remained committed

with CMHI.6 While the record is incomplete, it appears his subsequent applications for

release from CMHI have been denied and evaluations continue to report threatening and

violent behavior and to conclude he is a danger to himself and others. For these reasons,

and because it appears Loggins remains in the CMHI pursuant to court order,7 we

conclude he is in custody for purposes of the habeas statute. See Mays v. Dinwiddie, 580

F.3d 1136, 1139 (10th Cir.) (commitment to a mental institution may satisfy habeas

corpus “in custody” requirement), cert. denied, 130 S. Ct. 1022 (2009); see also Parrish

v. Colo., 78 F.3d 1473, 1474 (10th Cir. 1996) (considering the § 2254 petition of a patient

in “the custody of the Colorado Mental Health Institute in Pueblo” under the same



       6
         Loggins does not challenge the commitment statute under which he remains in
the custody of CMHI. See United States v. Comstock, 130 S. Ct. 1949, 1955 (2010)
(upholding the constitutionality of a federal statute allowing the continued commitment
of prisoners that “had engaged in sexually violent conduct or child molestation in the
past, and that . . . suffered from a mental illness that made [them] sexually dangerous to
others.”).
       7
        Previously, a panel of this Court denied Loggins a certificate of appealability
from the district court’s dismissal of a separate habeas corpus petition. In doing so, the
panel noted Loggins appeared to be an outpatient at the CMHI. See Loggins v. DeQuado,
345 Fed. Appx. 332, 332(10th Cir. 2009) (unpublished). He is, at least now, an inpatient.

                                             -3-
regulatory scheme after being found not guilty by reason of insanity).8

       On April 12, 2010, Loggins filed a pro se complaint which consisted of a Motion

and Affidavit for Leave to Proceed In Forma Pauperis, 28 U.S.C. § 1915, a notice of

change of address, an Application for a 28 U.S.C. § 2241 Writ of Habeas Corpus, and an

Application for a 28 U.S.C. § 2254 Writ of Habeas Corpus. His pleadings were referred

to a magistrate judge who concluded they were deficient. In doing so, the magistrate

explained the deficiencies and directed Loggins to file a single amended pleading clearly

stating his claims. The magistrate also directed the clerk of the district court to mail

Loggins two copies of the appropriate forms. Additionally, Loggins was required to

either pay the filing fee or file a motion seeking leave to proceed in forma pauperis (ifp).

The magistrate warned Loggins that failure to cure the deficiencies within thirty days

would result in dismissal of his case.

       Loggins responded by paying the required fee and filing an amended 28 U.S.C. §

2254 petition for writ of habeas corpus. The amended petition challenged his second

degree assault conviction and requested to be “discharged immediately . . . from the

judicial & institutional fac[il]ities.” (R. Vol. I at 35.) Loggins also attached over one

hundred pages of miscellaneous documents which included paperwork concerning the

offense, his version of the events leading to his commitment, and multiple psychiatric



       8
         Notably, Colorado has separate mental health commitment and release
procedures for criminal defendants found not guilty by reason of insanity and individuals
subject to civil commitment. See generally People v. Chavez, 629 P.2d 1040, 1051-54
(Colo. 1981) (rejecting an equal protection challenge to differences between commitment
and release procedures).

                                            -4-
assessments and mental health evaluations. Nothing in his amended § 2254 application

referenced any particular document or piece of information in the attachments.

       The magistrate reviewed Loggins’ amended petition and determined it remained

deficient. He informed Loggins the amended application did not name a proper

respondent and failed to provide a clear statement of the factual allegations. The

magistrate specifically set forth what was missing from the application, explaining the

requirements for habeas petitions are more stringent than ordinary civil actions. He then

told Loggins: “Naked allegations of constitutional violations are not cognizable under §

2254.” (R. Vol. I at 141-42.) He required Loggins to file a second amended application

“provid[ing] specific factual allegations in support of each asserted claim.” (Id. at 141.)

       Loggins subsequently filed a second amended § 2254 petition. In the words of the

district judge, this application also failed “to provide a clear statement of any federal

constitutional claims” and “to allege facts in support of any of the claims being asserted.”

(R. Vol. I at 173.) The court denied Loggins’ petition and dismissed the action without

prejudice. It also denied a certificate of appealability (COA) and his petition to proceed

ifp on appeal. Loggins sought a COA and to proceed ifp on appeal with this Court. After

we denied his request to proceed ifp, Loggins paid the required fees. We now address his

request for a COA.

                                    II.   DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

                                             -5-
right.” 28 U.S.C. § 2253(c)(2). The district court correctly determined Loggins failed to

provide a coherent constitutional claim supported by record facts.9 Loggins’ request for a

COA provides the following statement of his case:

       Appellant petitioned the court for records & recordings (Documents
       Enclosed) prove; day, dates, and times are conflicting from two sep[a]rate
       judges. An illegal sentence, Double Jeopardy, and Due Process was nao-
       facto. Constitutional rights is [sic] in direct v[i]olation.

(Application for COA at 2.) His opening brief fares no better. A solicitous review of the

record reveals no basis for any claim let alone one detailing a constitutional violation.

       We DENY Loggins’ request for a COA and DISMISS this matter. We DENY his

Rule 30 motions filed on July 19 and July 28, 2010, as well as his motion for discovery

filed on August 10, 2010.

                                           Entered by the Court:


                                           Terrence L. O’Brien
                                           United States Circuit Judge




       9
        Loggins’ claim appears to be based on the 1990 proceedings. Because of the
passage of time, the statute of limitations might bar them regardless of their possible
merit.

                                            -6-
