Pierce v. Waddington ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 27, 2015
Elisabeth A. Shumaker
Clerk of Court
CHRISTOPHER PIERCE,
Petitioner - Appellant,
v. No. 15-3056
(D.C. No. 5:15-CV-03029-SAC-DJW)
DOUGLAS WADDINGTON; KANSAS (D. Kan.)
ATTORNEY GENERAL,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, KELLY and McHUGH, Circuit Judges.
Christopher Pierce, a Kansas prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254habeas corpus application for lack of jurisdiction. Exercising jurisdiction under
28 U.S.C. §§ 1291 and 2253(a), we deny a COA and dismiss the appeal.
In July 1993, Mr. Pierce pleaded guilty in Wyandotte County to kidnapping
and aggravated robbery and was sentenced to consecutive fifteen-year terms.
See Pierce v. Nelson, D.C. No. 5:00-cv-03240-DES, Doc. 9, at 2, 5 (D. Kan. Jan. 31,
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2001). In 2000, he filed two habeas petitions under 28 U.S.C. § 2254 that were
consolidated for decision and denied on the merits. See Nelson, D.C.
No. 5:00-cv-03240-DES, Doc. 9, at 3-5. He sought to appeal, but we denied his
application for a COA and dismissed his appeal. See Pierce v. Nelson, slip op.
(10th Cir. Aug. 14, 2001) (No. 01-3032) (unpublished).
In his most recent petition, Mr. Pierce asserted in a single paragraph that he
had presented documentation in Pierce v. Waddington, D.C. No. 5:15-cv-03002-
SAC-DJW showing that he was actually innocent and should be released from
custody. D.C. Doc. 1, at 14-15. The district court determined that the petition was
an unauthorized successive petition and dismissed it for lack of jurisdiction. Id.Doc. 7, at 1. The court did not address COA in its dismissal order, but a COA is a
jurisdictional prerequisite to our review of the district court’s decision under
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We will issue a COA “only if
[Mr. Pierce] has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Because the district court denied his habeas application on
procedural grounds, we will grant a COA only if the district court’s procedural ruling
is reasonably debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We conclude that it is not debatable. Because the habeas applications
Mr. Pierce filed in 2000 were adjudicated on their merits, the recent application he
presented to the district court claiming actual innocence was second or successive,
and he was required to obtain this court’s authorization to file it. See 28 U.S.C.
-2-
§ 2244(b)(3)(A). But he did not do so. In his current request for a COA, Mr. Pierce
does not provide a basis for granting a COA. And contrary to his suggestion, his
claim that he was actually innocent is properly viewed as a challenge to the validity
of his conviction falling under § 2254, not a challenge to the execution of his
sentence falling under 28 U.S.C. § 2241 (which does not require a COA for appeal or
this court’s authorization for the district court to proceed). See Dulworth v. Evans,
442 F.3d 1265, 1268 (10th Cir. 2006).
“A district court does not have jurisdiction to address the merits of a second or
successive . . . § 2254 claim until this court has granted the required authorization.”
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). When presented with
an unauthorized second or successive application, the district court has the option to
transfer the application to this court if a transfer is in the interest of justice or dismiss
it for lack of jurisdiction. See id. at 1252. The district court decided to dismiss.
Nothing before us indicates that any reasonable jurist would disagree with that
decision.
Accordingly, we deny the application for a COA and dismiss this
appeal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-3-