Martin v. Bear , 683 F. App'x 729 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 3, 2017
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Elisabeth A. Shumaker
Clerk of Court
DENNIS MARTIN,
Petitioner - Appellant,
v. No. 17-6019
(D.C. No. 5:16-CV-01170-D)
CARL BEAR, Warden, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
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Dennis Martin, appearing pro se, seeks a certificate of appealability (“COA”)
to appeal the district court’s dismissal of his 28 U.S.C. § 2241 petition. We deny a
COA and dismiss the appeal.
I
Martin is a state prisoner in Oklahoma. He asserts that he has been wrongfully
imprisoned for 34 years and that there are no records of his arrest, conviction, or
sentence. In 2016, Martin filed a § 2241 petition in the district court, asserting three
grounds for relief: (1) wrongful incarceration; (2) denial of access to courts, denial
*
This order is not binding precedent, except under the doctrines of law of the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.
of due process, and suspension of habeas corpus; and (3) violation of his rights under
the Oklahoma Constitution. The district court concluded that none of Martin’s
claims were cognizable under § 2241. It dismissed the petition without prejudice and
did not address whether to issue a COA. After the court denied Martin’s motion for
reconsideration, he filed an application for a COA with this court.
II
A state prisoner may not appeal the denial of habeas relief under § 2241
without a COA. Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We will
issue a COA only if Martin demonstrates “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)
(quotation omitted). Because Martin is proceeding pro se, we construe his filings
liberally. Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
Martin raises only one claim for relief on appeal: he argues that he has been
wrongfully incarcerated because he was never arrested, charged, tried, or convicted
of a crime. He asserts that there is no record of a criminal judgment or sentencing
order against him. That contention is false, and we take judicial notice of his 1985
state court conviction for first degree murder and accompanying life sentence. See
State v. Martin, No. CRF-84-169 (Okla. 15th Jud. Dist. Ct. Apr. 25, 1985)
(unpublished) (judgment and sentence on plea of guilty). To the extent that Martin
now challenges the validity of that conviction and sentence, § 2241 is not the
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appropriate avenue for relief. See Prost v. Anderson, 636 F.3d 578, 581 (10th Cir.
2011) (explaining that Ҥ 2241 petitions . . . are generally reserved for complaints
about the nature of a prisoner’s confinement, not the fact of his confinement”); Brace
v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (“A petition brought under 28
U.S.C. § 2241 typically attacks the execution of a sentence rather than its validity . . .
.” (quotation omitted)). Martin appears to have abandoned all other grounds for
relief asserted below. Accordingly, the district court’s dismissal of his wrongful
incarceration claim is not reasonably debatable.
III
For the foregoing reasons, we DENY Martin’s application for a COA and
DISMISS the appeal. Because Martin has not demonstrated the existence of a
reasoned, nonfrivolous argument on appeal, his motion to proceed in forma pauperis
is DENIED. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court
Carlos F. Lucero
Circuit Judge
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