Brown-Bey v. Ray , 55 F. App'x 508 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 27 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
STANLEY BROWN-BEY,
Petitioner - Appellant,
No. 02-1228
v.
D.C. No. 01-M-727
(D. Colorado)
MICKEY RAY; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Stanley Brown-Bey filed the instant 28 U.S.C. § 2254 habeas petition in
federal district court challenging his Colorado state conviction. The district court
recognized that the claim raised in Brown-Bey’s petition had been raised in a
previous § 2254 habeas petition and in a previous application to this court
pursuant to 28 U.S.C. § 2244(b)(3) to file a second or successive petition.
Because the claim had been previously raised, the district court denied the
petition and dismissed the action. The matter is now before this court on Brown-
Bey’s application for a certificate of appealability (“COA”).
Successive habeas petitions cannot be filed in district court until the
petitioner “move[s] in the appropriate court of appeals for an order authorizing
the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
Because Brown-Bey failed to obtain authorization from this court before filing
his successive § 2254 habeas petition, the district court lacked jurisdiction to
consider the motion. 1
Accordingly, we must vacate the district court’s order
denying the motion.
1
When the motion was filed without the required appellate court
authorization, it should have been transferred to this court. See Coleman v.
United States, 106 F.3d 339, 341 (10th Cir. 1997) (“[W]hen a second or
successive petition for habeas corpus relief under § 2254 . . . is filed in the
district court without the required authorization by this court, the district court
should transfer the petition or motion to this court in the interest of justice
pursuant to [28 U.S.C.] § 1631.”).
-2-
This court would ordinarily construe Brown-Bey’s application for a COA
and appellate brief as an application requesting authorization to file a second or
successive habeas petition. See Pease v. Klinger , 115 F.3d 763, 764 (10th Cir.
1997). As noted by the district court, however, Brown-Bey has already applied
for and been denied permission by this court to file a second or successive
petition relating to Colorado’s alleged violation of the Interstate Agreement on
Detainers. Accordingly, Brown-Bey’s filings are more akin to a petition for
rehearing of this court’s previous denial of permission to file a successive § 2254
petition. Such petitions for rehearing are prohibited by the Antiterrorism and
Effective Death Penalty Act of 1996. See 28 U.S.C. 2244(b)(3)(E). In these
circumstances, the appropriate course is to strike Brown-Bey’s filings pursuant to
§ 2244(b)(3)(E). Accordingly, this court VACATES the order of the district
court denying Brown-Bey’s petition and STRIKES the materials filed before this
court. Brown-Bey’s request to proceed in forma pauperis is DENIED as moot.
Brown-Bey is specifically reminded that this order is not “appealable and shall
not be the subject of a petition for rehearing or for a writ of certiorari.” 28
U.S.C. § 2244(b)(3)(E).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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