Stryker v. Bear ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 16, 2018
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
_________________________________ Clerk of Court
TERRY J. STRYKER,
Petitioner - Appellant,
v. No. 17-6220
(D.C. No. 5:17-CV-00695-W)
WARDEN BEAR, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Applicant Terry Stryker seeks a certificate of appealability (COA) to appeal the
dismissal of his application for relief under 28 U.S.C. § 2241. See Dulworth v. Jones,
496 F.3d 1133, 1135 (10th Cir. 2007) (“[A] state prisoner seeking to appeal the denial of
habeas relief in a § 2241 proceeding must obtain a COA to appeal.”). Because no
reasonable jurist could debate the correctness of the district court’s decisions, we deny
Applicant’s request for a COA and dismiss the appeal.
In 1975, Applicant was convicted in Oklahoma state court of robbery with a
firearm, and was sentenced to life in prison. His direct appeal of his conviction and
sentence was unsuccessful as were his two attempts at postconviction relief from the state
courts. He was granted parole in 2004, but that parole was revoked in 2008. Following
that revocation, he again unsuccessfully sought postconviction relief in Oklahoma state
court.
As noted by the magistrate judge below, Applicant’s § 2241 application is
a challenge to understand. But construing the pro se pleading “liberally,”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted), he
read the application as raising three claims: (1) a life sentence in Oklahoma has
been defined as a sentence of 45 years’ imprisonment and, having served that
long, Applicant is entitled to release; (2) the United States Supreme Court has
somehow determined that his conviction is void; and (3) Oklahoma denied him
access to the courts, denied him equal protection and due process, suspended
habeas corpus, and violated his rights under the Americans with Disabilities Act
(ADA). The magistrate judge recommended denial of relief on all claims, and the
district court adopted the recommendation.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.
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In our view, no reasonable jurist could debate that the district court erred
on the issues before us. Applicant does not challenge the district court’s
characterization of his claims below and makes no challenge to the disposition of
his first claim. As for his second claim, he does cite the Supreme Court decision
in Solem v. Bartlett, 465 U.S. 463 (1984); but that opinion hardly declared his
conviction void, and it is far too old to be the proper predicate for relief in a
habeas proceeding initiated in 2017. See 28 U.S.C. § 2244(d)(1)(C) (barring
§ 2254 claims brought more than one year after Supreme Court recognizes a
constitutional right). And the district court was undisputedly correct in denying
relief on the third claim, which was supported only by allegations regarding the
conduct of state postconviction proceedings. See United States v. Dago, 441 F.3d
1238, 1248 (10th Cir. 2006) (“[D]ue process challenges to post-conviction
procedures fail to state constitutional claims cognizable in a federal habeas
proceeding.”); see also Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010)
(“Our precedent makes clear that the district court did not err in dismissing
claims that related only alleged errors in the post-conviction proceedings.”). We
also note that although Applicant complains that his mental disability was the
basis of improper conduct by the state courts, he does not identify any specific
such misconduct.
Finally, although Applicant argues some new claims in this court, we do not
consider issues not raised below. See United States v. Viera, 674 F.3d 1214, 1220 (10th
Cir. 2012).
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We recognize that some, perhaps most, of Applicant’s claims are not
appropriate claims under § 2241, which is limited to challenging the execution of
a sentence. See Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 924 (10th Cir.
2008) (Ҥ 2241 is a vehicle for challenging pretrial detention, or for attacking the
execution of a sentence. A § 2254 petition, on the other hand, is the proper
avenue for attacking the validity of a conviction and sentence.” (internal citations
omitted)). For example, his second claim is a challenge to his conviction. But
we need not determine whether we should recharacterize some claims as being
brought under § 2254 or should dismiss them for lack of jurisdiction, because the
denial of the request for a COA deprives this court of jurisdiction in any event.
See Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (“A COA is a
jurisdictional prerequisite to our review of the petition for writ of habeas
corpus.”).
We DENY Applicant’s request for a COA and DISMISS the appeal. We DENY
Applicant’s request to proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
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