Brown v. McCollum ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
April 21, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LYLE Q. BROWN,
Petitioner - Appellant,
No. 14-6234
v. (D.C. No. 5:14-CV-01137-R)
(W.D. Okla.)
TRACY McCOLLUM,
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
Oklahoma prisoner Lyle Brown brought a habeas petition in federal district
court under 28 U.S.C. § 2241. But because it challenged his conviction’s validity
and not his sentence’s execution, the district court held that it properly arose
under 28 U.S.C. § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.
2000). Observing that Mr. Brown has previously and unsuccessfully challenged
the same conviction in an earlier federal habeas petition, see Brown v. McCollum,
515 F. App’x 759 (10th Cir. 2013), the district court concluded that the current
petition was a successive one that Mr. Brown could not pursue without first
*
This order is not binding precedent except under the doctrines of law of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.
seeking and obtaining this court’s permission. See 28 U.S.C. § 2244(b)(3)(A).
Because Mr. Brown hadn’t sought or secured that much, the district court
dismissed the petition for lack of jurisdiction and concluded that the interests of
justice did not warrant its transfer to this court. See, e.g., In re Cline, 531 F.3d
1249, 1251-52 (10th Cir. 2008); Pease v. Klinger, 115 F.3d 763, 764 (10th Cir.
1997). It is this decision Mr. Brown now asks us to revisit.
But before Mr. Brown may appeal any adverse decision under § 2241 or
§ 2254 arising from a state court conviction Congress requires him to obtain a
certificate of appealability. See Montez, 208 F.3d at 867. To win a COA, a
petitioner must show that “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). And this much Mr. Brown has not done: he does not address
the district court’s procedural decision and for our own part we see no error in it.
Moreover, even were we to exercise our discretion to reformulate this appeal as a
request for leave to file a successive § 2254 application, something we may but
need not do, see Spitznas v. Boone, 464 F.3d 1213, 1219 n.8 (10th Cir. 2006), we
do not see how it might satisfy the standards 28 U.S.C. § 2244(b)(2) imposes on
such requests.
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The COA request is denied, as are the motions for appointed counsel and
leave to proceed in forma pauperis, and the appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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