Cowan v. Crow ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DONALD RAY COWAN,
Petitioner - Appellant,
v. No. 19-5112
(D.C. No. 4:19-CV-00639-JED-FHM)
SCOTT CROW, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before HOLMES, KELLY, and MATHESON, Circuit Judges.
_________________________________
Donald Ray Cowan, proceeding pro se, seeks a certificate of appealability (COA)
to appeal the district court’s decision dismissing for lack of jurisdiction his 28 U.S.C.
§ 2254 habeas petition as an unauthorized second or successive § 2254 habeas petition.
We deny a COA and dismiss this matter.
A jury found Mr. Cowan guilty of first-degree manslaughter. He was sentenced to
serve four years in prison, the minimum sentence permitted under Oklahoma law. On
direct appeal, the Oklahoma Court of Criminal Appeals affirmed Mr. Cowan’s judgment

This order is not binding precedent except under the doctrines of law of the case,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.
and sentence. He then filed a § 2254 habeas petition in 2010. The district court denied
relief1 and we denied Mr. Cowan’s request for a COA.
In July 2019, Mr. Cowan filed a motion in this court seeking authorization to file a
second or successive § 2254 habeas petition. We denied his request for authorization.
Despite our denial, he proceeded to file a second § 2254 habeas petition in district court
in November 2019.
The district court explained in its decision, “a second-in-time federal habeas
petition is ‘second or successive’ under 28 U.S.C. § 2244(b) if a petitioner has ‘twice
brought claims contesting the same custody imposed by the same judgment of a state
court.’” R., Doc. 3 at 6 (quoting Burton v. Stewart, 549 U.S. 147, 153 (2007)
(per curiam)). And the court observed that Mr. Cowan’s second habeas petition
challenged the same state-court judgment that he challenged in his 2010 habeas petition.
The district court therefore dismissed the second § 2254 habeas petition for lack of
jurisdiction because Mr. Cowan had not obtained authorization from this court to file a
second or successive § 2254 habeas petition.2 He now seeks a COA to appeal from that
decision.
1
Mr. Cowan was released from prison in May 2011 while his § 2254 habeas
petition was pending in district court.
2
The district court alternatively determined that it lacked jurisdiction over the
second § 2254 habeas petition because Mr. Cowan failed to show he could satisfy the
“in custody” requirement in 28 U.S.C. § 2254(a). We need not review this alternative
holding because we conclude the district court properly dismissed Mr. Cowan’s habeas
petition for lack of jurisdiction as an unauthorized second or successive § 2254 habeas
petition.
2
To obtain a COA from the district court’s procedural ruling, Mr. Cowan must
show “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). We need not address the constitutional question if
we conclude that reasonable jurists would not debate the district court’s resolution of the
procedural one. Id. at 485.
Mr. Cowan did not obtain this court’s authorization to file a second or successive
§ 2254 habeas petition as 28 U.S.C. § 2244(b)(3)(A) requires.3 And “[a] district court
does not have jurisdiction to address the merits of a second or successive . . . § 2254
claim until this court has granted the required authorization.” In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008) (per curiam). Other than making the conclusory assertion that the
district court “improperly characterized [his § 2254 habeas petition] as a Successive
Petition,” COA App. at 3, Mr. Cowan offers no argument as to how the district court
erred in its procedural ruling dismissing his habeas petition as an unauthorized second or
successive § 2254 habeas petition. Instead, he continues to attack the validity of his
state-court judgment, claiming it was void for lack of jurisdiction, he was denied due
3
Section 2244(b)(3)(A) states: “Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.” As we noted earlier, Mr. Cowan did file a motion seeking authorization to
file a second or successive § 2254 habeas petition, but we denied his request.
3
process, and he received ineffective assistance of counsel.4 He has therefore failed to
demonstrate that reasonable jurists could debate the correctness of the district court’s
procedural ruling.
Accordingly, we deny a COA and dismiss this matter. We also deny Mr. Cowan’s
motion for leave to proceed without prepayment of costs and fees. Mr. Cowan is
obligated to pay the filing fee in full.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
4
Mr. Cowan also argues that “if this Court [a]pplies [28 U.S.C. § 2244(b)] in a
manner that prohibits me from having a hearing on the . . . issues as laid out in this
brief[,] the statute itself is [u]nconstitutional” both on its face and as applied to his case.
COA App. at 2. But he offers no further argument as to how § 2244(b) is facially
unconstitutional or how it has been unconstitutionally applied to the facts of his case. We
nevertheless note that the Supreme Court has held that the restrictions on successive
petitions in § 2244(b) do not violate the Suspension Clause of the United States
Constitution. See Felker v. Turpin, 518 U.S. 651, 663-64 (1996).
4