Hayes v. Bear ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 28, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LEROY HAYES,
Petitioner - Appellant,
v. No. 18-6048
(D.C. No. 5:18-CV-00083-D)
WARDEN BEAR; STATE OF (W.D. Okla.)
OKLAHOMA,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
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Mr. Leroy Hayes is an Oklahoma state prisoner who seeks habeas
relief under 28 U.S.C. § 2241, claiming that state courts failed to enforce
Supreme Court precedent, failed to protect his federal rights, suspended
habeas corpus, and impeded court access. The district court denied habeas
relief, reasoning that (1) the petition had been improperly filed under 28
U.S.C. § 2241 instead of § 2254 and (2) the underlying allegations had not
stated a valid claim for relief under § 2241. Hayes v. Bear, No. CIV-18-83-
D, 2018 WL 1309858, at *1 (W.D. Okla. Mar. 13, 2018). Mr. Hayes seeks a
certificate of appealability and leave to proceed in forma pauperis. We
deny a certificate of appealability but grant leave to proceed in forma
pauperis.
I. Certificate of Appealability
This court will grant a certificate of appealability “‘only if the
applicant has made a substantial showing of the denial of a constitutional
right.’” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012) (quoting
28 U.S.C. § 2253(c)(2)). To make this showing, Mr. Hayes “must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Mr. Hayes contends that 28 U.S.C. § 2241 1 provides a proper vehicle
for him to seek habeas relief. This contention lacks reasonable support
under our case law. As the district court correctly noted, § 2254 and
§ 2241 petitions provide relief for different types of claims. For state
prisoners, “[p]etitions under § 2241 are used to attack the execution of a
sentence . . . in contrast to § 2254 habeas . . . proceedings, which are used
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Mr. Hayes appears to reiterate his claim that he was deprived of his
rights because of state processes. Appellant’s Combined Opening Br. and
Appl. for a Certificate of Appealability at 6 (arguing that he suffered a
“denial of due process and equal protection of law”). But he did not object
to the part of the magistrate judge’s proposed conclusion that these claims
had been based only on state law. Hayes v. Bear, No. CIV-18-83-D, 2018
WL 1309858, at *1 n.1 (W.D. Okla. Mar. 13, 2018); Hayes v. Bear, No.
CIV-18-83-D, 2018 WL 1311211, at *2 (W.D. Okla. Mar. 2, 2013) (R. &
R.). Thus, this issue is considered waived. Duffield v. Jackson, 545 F.3d
1234, 1237 (10th Cir. 2008)
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to collaterally attack the validity of a conviction and sentence.” McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (internal
citations omitted).
Mr. Hayes challenges only the validity of his conviction, arguing that
state courts lack jurisdiction over crimes committed “by an Indian,
[against] an Indian . . . inside a sovereign Indian Reservation.” Appellant’s
Combined Opening Br. and Appl. for a Certificate of Appealability at 3. He
is not challenging the execution of his sentence. Thus, § 2254 provides the
sole source of habeas relief.
Mr. Hayes argues that § 2254 provides an inadequate remedy. If the
remedy is inadequate, the writ of habeas corpus could be considered
suspended in violation of the Constitution. Miller v. Marr, 141 F.3d 976,
977 (10th Cir. 1998). But even if the remedy in § 2254 were inadequate,
Mr. Hayes could not pursue his habeas claims through a § 2241 petition.
His arguments are jurisdictional and do not attack “the nature of [Mr.
Hayes’s] confinement.” Prost v. Anderson, 636 F.3d 578, 581 (10th Cir.
2011) (emphasis in original). Thus, his claims cannot be brought under
§ 2241. In light of the unavailability of a remedy through § 2241, we deny
Mr. Hayes’s motion for a certificate of appealability and dismiss the
appeal.
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II. Leave to Proceed in Forma Pauperis
Notwithstanding the dismissal of the appeal, we must address Mr.
Hayes’s motion for leave to proceed in forma pauperis. See Clark v.
Oklahoma, 468 F.3d 711, 715 (10th Cir. 2006) (stating that a petitioner
remains obligated to pay the filing fee after denial of a certificate of
appealability). To obtain leave to proceed in forma pauperis, Mr. Hayes
must show that he
 lacks money to prepay the filing fee and
 brings the appeal in good faith.
28 U.S.C. § 1915(a)(1), (a)(3).
He satisfies both requirements. He lacks the money to prepay the
filing fee, and we have no reason to question Mr. Hayes’s good faith even
though his underlying appeal points are not reasonably debatable. See
Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997) (per curiam) (stating
that the petitioner’s burden for a certificate of appealability “is
considerably higher” than the burden of “good faith” for leave to proceed
in forma pauperis). As a result, we grant leave to proceed in forma
pauperis. See Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)
(granting leave to proceed in forma pauperis notwithstanding the denial of
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a certificate of appealability); Yang v. Archuleta, 525 F.3d 925, 931 & n.10
(10th Cir. 2008) (same).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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