Bird v. Pacheco ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
September 20, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CHESTER L. BIRD,
Petitioner - Appellant,
v. No. 18-8038
(D.C. No. 2:17-CV-00053-ABJ)
MICHAEL PACHECO, Warden, (D. Wyo.)
Wyoming State Penitentiary, Wyoming
Department of Corrections;
WYOMING ATTORNEY GENERAL,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
This matter is before the court on Chester Bird’s pro se request for a
certificate of appealability (“COA”). We deny his request for a COA and dismiss
this appeal.
On March 24, 2017, Bird filed a 28 U.S.C. § 2241 application challenging
the outcome of a Wyoming state prison disciplinary proceeding in which Bird was
found guilty of disseminating pornographic material. The district court denied
Bird’s § 2241 petition, concluding Bird’s disciplinary proceeding complied with
the dictates of the Fourteenth Amendment’s Due Process Clause. Bird then
sought to bring an appeal to this court. We denied Bird a COA and dismissed his
appeal. Bird v. Pacheco, 729 F. App’x 627 (10th Cir. 2018). In so doing, this
court concluded “no jurist could reasonably assert” that Bird’s disciplinary
hearing did not comply with the “minimal procedural requirements” for such
proceedings. Id. at 630.
Bird then filed the instant Fed. R. Civ. P. Rule 60(b) motion in district
court seeking to challenge the district court’s determination, in the order denying
Bird’s § 2241 petition, “that there was no genuine dispute of material fact with
regard to whether Bird requested witnesses in advance of his . . . disciplinary
hearing.” The district court denied Bird’s motion, concluding it was nothing
more than a blatant attempt to relitigate issues previously addressed by the court.
See, e.g., Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)
(“We . . . have held that Rule 60(b)(1) is not available to allow a party merely to
reargue an issue previously addressed by the court when the reargument merely
advances new arguments or supporting facts which were available for presentation
at the time of the original petition.”). The district court further concluded that
nothing in Bird’s Rule 60(b) motion demonstrated the kind of “extraordinary
circumstances” necessary to justify relief under Rule 60(b)(6). See Buck v. Davis,
137 S. Ct. 759, 772 (2017).
Bird seeks a COA so he can appeal the district court’s denial of his Rule
60(b) motion. Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding
-2-
that state prisoners proceeding under § 2241 must obtain a COA to proceed on
appeal); Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2006) (holding that
when a district court denies a “true” 60(b) motion, this court “will require the
movant to obtain a [COA] before proceeding with his . . . appeal”). To obtain a
COA, Bird must make a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. 2253(c)(2). Under that standard, this court will not issue a
COA unless “the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and 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). As a further overlay on this standard, this court reviews the district
court’s denial of a Rule 60(b) motion for abuse of discretion. Okla. Radio Assocs.
v. FDIC, 987 F.2d 685, 697 (10th Cir. 1993).
Having reviewed the entire record on appeal, the district court order
denying Bird’s Rule 60(b) motion, and Bird’s appellate brief, we conclude Bird is
not entitled to a COA. There is simply no doubt Bird’s Rule 60(b) motion
attempts to relitigate issues already resolved in his § 2241 proceeding.
Furthermore, Bird has failed to show extraordinary circumstances because the
very issue he seeks to raise in his Rule 60(b) motion, the correctness of the
district court’s conclusion in the underlying litigation that he did not request
witnesses at his disciplinary hearing, is simply not material. In this court’s order
-3-
denying Bird a COA and dismissing his appeal from the denial of his § 2241
petition, we noted there was a serious question as to the correctness of the district
court’s conclusion that Bird did not request any witnesses for his disciplinary
hearing. Bird, 729 F. App’x at 630. Bird concluded the evidentiary dispute was
irrelevant, however, because
a prisoner cannot maintain a due process claim for failure to permit
witness testimony unless he also shows that the testimony would
have affected the outcome of his case. Here, there is no indication
that the testimony of unnamed staff witnesses at the disciplinary
hearing would have altered the outcome of the proceeding. As such,
Bird has failed to show that the denial of witnesses—assuming for
the sake of argument that Bird was denied staff witnesses—was a due
process violation. Simply put, a denial of witnesses is not a per se
violation of due process in the context of prison disciplinary
proceedings.
Id. at 630-31 (quotations and citations omitted). All this being the case, no
reasonable judge could conclude the district court abused its discretion in denying
Bird’s Rule 60(b) motion and, thus, Bird has not made a substantial showing of
the denial of a constitutional right. Bird’s request for a COA is DENIED and this
appeal is DISMISSED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-