Green v. Reynolds ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
October 1, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RICKKE L. GREEN,
Petitioner-Appellant,
v.
No. 08-7024
MARTY SIRMONS, Warden, (D.C. No. CV-07-254-RAW-KEW)
(E.D. Okla.)
Respondent-Appellee.
RICKKE L. GREEN,
Petitioner-Appellant,
v.
No. 08-6063
DAN REYNOLDS; ATTORNEY (D.C. No. CV-93-702-D)
GENERAL OF THE STATE OF (W.D. Okla.)
OKLAHOMA,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
*
This order is not binding precedent except under the doctrines of law of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.
Rickke Leon Green is a prisoner in the Oklahoma State Penitentiary. He
has filed applications for a certificate of appealability (“COA”) in the two above-
captioned matters that we have consolidated for decision. Because Mr. Green is
proceeding pro se, we construe his filings liberally. Andrews v. Heaton, 483 F.3d
1070, 1076 (10th Cir. 2007). 1
1. Green v. Sirmons, No. CV-07-254 (E.D. Okla. Feb. 19, 2008). In this
action, Mr. Green sought to challenge his imprisonment in a 28 U.S.C. § 2254
petition. The district court denied his petition and he now seeks a COA before us.
Before the district court, Mr. Green alleged that an Oklahoma state district
judge and the Oklahoma Court of Criminal Appeals obstructed his filing of post-
conviction petitions in the Oklahoma state courts. He asked that the federal court
“entertain and adjudicate on the merits” his state post-conviction cases. The
district court explained that, despite any alleged difficulties Mr. Green might have
experienced in the Oklahoma state court system, he did not state any violations of
his federal constitutional rights as a habeas petitioner must. Accordingly, the
district court dismissed the petition.
1
Accompanying both applications for COA, Mr. Green has filed an
identical motion requesting that the entire Tenth Circuit Court of Appeals be
disqualified from deciding cases to which he is a party. We construe this as a
motion made under 28 U.S.C. § 455. This is not the first such motion Mr. Green
has made to this court. See Green v. Franklin, 1994 WL 266761 (10th Cir. 1994).
We remind Mr. Green that judges cannot recuse themselves based on
“unsupported, irrational, or highly tenuous speculation.” Hinman v. Rogers, 831
F.2d 937, 939 (10th Cir. 1987). Because we find his allegations to fall into that
category, we deny the motions with respect to both applications for COA.
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We may only issue a COA if the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard,
Mr. Green must demonstrate 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) (quotations
omitted). In his request for COA, Mr. Green has not addressed the district court
decision or provided additional reasons for COA to be granted. In view of Mr.
Green’s pro se status, we have nonetheless reviewed the district court’s decision
with care, but we find that reasonable jurists could not debate its decision.
Accordingly, we must deny his request for COA for substantially the same
reasons given by the district court. 2
2. Green v. Reynolds, No. CV-93-702 (W.D. Okla. March 7, 2008). Mr.
Green originally brought this particular habeas action in 1993, challenging a 1971
Oklahoma state conviction. After the district court denied relief, this court
reversed on Mr. Green’s remaining claim that he was denied due process because
he was not properly certified as an adult prior to trial. Green v. Reynolds, 57 F.3d
956 (10th Cir. 1995). On that claim, this court directed the district court to issue
a writ of habeas corpus unless “the state holds a constitutionally adequate
2
We note that the district court granted Mr. Green’s request to proceed in
forma pauperis in this matter (No. 08-7024).
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[retroactive adult certification] hearing and validly concludes that petitioner
would have been prosecuted as an adult had proper, timely certification
procedures been employed.” Id. at 961 (emphasis omitted). After the state held
such a hearing, the federal district court determined that the hearing was
constitutionally adequate and that petitioner would have been prosecuted as an
adult had timely certification procedures been used; accordingly, it dismissed the
petition in a 1996 order. Mr. Green did not appeal this decision, but twelve years
later filed a Fed. R. Civ. P. Rule 60(b) motion on the grounds that the federal
district court lacked jurisdiction to issue its decision. He now seeks a COA
before us to challenge the denial of his Rule 60(b) motion.
As with Mr. Green’s first application for COA, we may only issue it if
reasonable jurists could debate whether the district court resolved the matter
correctly. Slack, 529 U.S. at 484. Layered on top of the Slack inquiry in this
application are other standards of review that stand as significant hurdles to Mr.
Green obtaining a COA in this matter. See Fleming v. Evans, 481 F.3d 1249,
1254-55 (10th Cir. 2007) (applying Slack test in conjunction with appropriate
standard of review). First, denials of Rule 60(b) motions are reviewed only for
abuse of discretion. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242
(10th Cir. 2006). Moreover, the relief afforded by Rule 60(b) is “extraordinary
and may only be granted in exceptional circumstances.” Id. Accordingly, we
may only grant COA if we find that it is debatable whether the district court
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abused its discretion by denying a form relief that is only available in
extraordinary and exceptional circumstances. This is a difficult hurdle that Mr.
Green cannot overcome.
Mr. Green argues that his Rule 60(b) motion should be granted based on
his contention that the federal district court lacked jurisdiction to deny his habeas
petition because the retroactive adult certification hearing was improperly held in
a state juvenile court rather than in a state district court. Finding no legal
authority to suggest that the retroactive adult certification hearing could not be
held in a state juvenile court or that it lacked jurisdiction, the federal district
court denied his 60(b) motion. Mr. Green has not addressed the district court
decision or reasoning in his application for COA. Mindful of Mr. Green’s pro se
status, we have reviewed the matter carefully, but we do not believe it debatable
that the district court abused its discretion in this matter. Accordingly, we deny
COA.
Finally, Mr. Green seeks leave to proceed in this court in forma pauperis in
this matter (No. 08-6063). Because Mr. Green has failed to raise any “reasoned,
nonfrivolous argument” in his appeal we deny this motion. See DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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