Harrison v. Barr ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 23, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KEVIN K. HARRISON,
Petitioner - Appellant,
v. No. 18-1314
(D.C. No. 1:18-CV-01180-LTB)
WILLIAM P. BARR, United States (D. Colo.)
Attorney General; KEVIN K.
McALEENAN, Acting Secretary of
Department of Homeland Security;**
LANSING W. TYLER, U.S. ICE Field
Officer Director for the Colorado Field
Office;*** WARDEN OF IMMIGRATION
DETENTION FACILITY,
Respondents - Appellees.
_________________________________
ORDER AND JUDGMENT****

In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, William P. Barr is substituted for Jefferson B. Sessions, III, as the
respondent in this action.
**
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Kevin K. McAleenan is substituted for Kirstjen Nielsen, as the respondent
in this action.
***
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Lansing W. Tyler is substituted for Jeffrey D. Lynch, as the respondent in
this action.
****
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
_________________________________
Before HARTZ, MATHESON, and CARSON, Circuit Judges.
_________________________________
Kevin Harrison is in the custody of U.S. Immigration and Customs
Enforcement (ICE). Appearing pro se, he appeals the district court’s denial of his
28 U.S.C. § 2241 habeas petition. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.1
Mr. Harrison filed the § 2241 habeas petition to challenge his immigration
detention. After multiple orders to cure pleading and form deficiencies, and, in
particular, to identify the specific constitutional right allegedly violated, Mr. Harrison
filed an amended § 2241 petition on July 13, 2018. It explained that ICE first
detained him in December 2014. He bonded out in March 2015, but after pleading no
contest to disorderly conduct in Las Vegas in April 2017, his bond was revoked, and
he was detained again. The district court construed Mr. Harrison’s amended § 2241
petition as attempting to allege a double jeopardy violation based on his detention in
2017 for the same offense as his original detention in 2014. The district court denied
the amended petition.
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Harrison is in immigration custody, he does not need a certificate of
appealability to appeal the district court’s denial of his § 2241 petition. Aguilera v.
Kirkpatrick, 241 F.3d 1286, 1291-92 (10th Cir. 2001).
2
Mr. Harrison filed a notice of appeal to this court and a motion to reconsider
with the district court. This appeal was abated pending the district court’s ruling on
the motion to reconsider. In his motion, Mr. Harrison referenced cases involving due
process challenges to prolonged immigration detention. He did not address the
district court’s double jeopardy ruling. The district court denied reconsideration. It
noted that Mr. Harrison may be able to pursue a habeas claim raising a due process
challenge to his detention under Zadvydas v. Davis, 533 U.S. 678, 701 (2001), but he
had not provided adequate factual allegations to support such a claim in this case.
Upon notification that the district court had denied reconsideration, the abatement of
this appeal was lifted.
We have carefully reviewed Mr. Harrison’s opening brief and liberally
construed his arguments. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir.
2010). Mr. Harrison has not addressed the district court’s construction of his
amended § 2241 petition as asserting a double jeopardy violation or the district
court’s denial of his habeas petition. An appellant must “explain what was wrong
with the reasoning that the district court relied on in reaching its decision.” Nixon v.
City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). Mr. Harrison’s failure
to explain why the district court’s decision was wrong waives any argument for
reversal. See Jordan v. Bowen, 808 F.2d 733, 736 (10th Cir. 1987) (noting that
issues not raised in the opening brief are waived).2
2
Mr. Harrison did not file a new or amended notice of appeal to bring the
district court’s denial of his motion to reconsider within the scope of this appeal.
3
We affirm the judgment of the district court and, because Mr. Harrison has not
raised any arguments challenging the order on appeal, we deny his motion for leave
to proceed in forma pauperis. See DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991) (noting that appellant seeking leave to proceed ifp must show “the
existence of a reasoned, nonfrivolous argument on the law and facts in support of the
issues raised on appeal”).
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
Fed. R. App. P. 4(a)(4)(B)(ii) (providing that a party intending to challenge the
disposition of a motion to reconsider, “must file a notice of appeal, or an amended
notice of appeal—in compliance with Rule 3(c)—within the time prescribed by
[Rule 4(a)]”). Nor does he mention his motion to reconsider or the district court’s
order denying reconsideration in his opening brief such that it could be considered
the functional equivalent of a notice of appeal. See Kimzey v. Flamingo Seismic Sols.
Inc., 696 F.3d 1045, 1050 (10th Cir. 2012) (treating opening brief as functional
equivalent of notice of appeal because it, inter alia, referred to the order challenged
on appeal). Accordingly, we do not review the district court’s denial of
Mr. Harrison’s motion to reconsider.
4