Wyatt v. Crow ( 2023 )

Appellate Case: 22-6180 Document: 010110808502 Date Filed: 02/06/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 6, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
CARL DEAN WYATT, JR.,
Petitioner - Appellant,
v. No. 22-6180
(D.C. No. 5:22-CV-00740-R)
SCOTT CROW, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before TYMKOVICH, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Carl Dean Wyatt, Jr., is an Oklahoma prisoner serving a life sentence for a
murder committed in 1997. He has filed multiple unsuccessful 28 U.S.C. § 2254petitions challenging his conviction.
In August 2022, Wyatt filed a new § 2254 petition alleging new DNA
evidence, and new evidence of prosecutorial misconduct. In October 2022, the
district court dismissed that petition for lack of jurisdiction because it fell within the
definition of “second or successive” and this court had not authorized Wyatt to bring
his new claims. See 28 U.S.C. § 2244(b)(3)(A). Wyatt then filed a notice of appeal,
*
This order is not binding precedent except under the doctrines of law of the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.
Appellate Case: 22-6180 Document: 010110808502 Date Filed: 02/06/2023 Page: 2
resulting in this proceeding (No. 22-6180). He also filed a motion for authorization
to file his new § 2254 petition, creating another proceeding (No. 22-6201).
In December 2022, we denied Wyatt’s motion for authorization, thus
terminating No. 22-6201. But this proceeding remains, and the question before us is
whether to issue a certificate of appealability (COA) so Wyatt may challenge the
district court’s decision to dismiss his § 2254 petition for lack of jurisdiction.
To merit a COA, Wyatt “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). And he must make an extra showing
in this circumstance because the district court resolved his motion on a procedural
basis, namely, lack of jurisdiction. So he must also show that “jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Id.Jurists of reason would not find the district court’s procedural ruling
debatable. This was not a situation where a prisoner filed a motion invoking some
authority other than § 2254, thus requiring the district court to discern whether the
motion was an attempt to avoid the statutory restrictions on second or successive
§ 2254 petitions. Wyatt explicitly filed a new § 2254 petition, yet without
authorization. “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).
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Appellate Case: 22-6180 Document: 010110808502 Date Filed: 02/06/2023 Page: 3
Wyatt does not argue otherwise. His application for a COA instead argues the
substance of the claims he hopes to bring. Effectively, it is another motion for
authorization, but on the same grounds we considered in No. 22-6201. It does not
address the district court’s procedural decision to dismiss for lack of jurisdiction.
For these reasons, we deny a COA. We grant Wyatt’s motion to proceed
without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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