Parker v. Reno ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 17 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
ALVIN PARKER,
Petitioner-Appellant, No. 00-6171
v. W.D. Okla.
JANET RENO, Attorney General of (D.C. No. CIV-99-1993-T)
the United States and UNITED
STATES DEPARTMENT OF
JUSTICE,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **
Alvin Parker, a prisoner in the custody of the State of Oklahoma
proceeding pro se, filed this action seeking a declaratory judgment that the
*
This order and judgment is not binding precedent, except under the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.
**
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.
provision of the Antiterrorism and Effective Death Penalty Act governing second
or successive habeas corpus petitions, 28 U.S.C. § 2241(b)(1), violates his due
process rights. According to Mr. Parker, § 2241(b)(1) “creates an irrebuttable
presumption that the prior decision was on the merits, which is neither
necessarily nor universally true, and preclude [sic] individualized determination
of facts upon which substantial rights or obligations may depend.” Rec. doc. 2,
at 4.
Adopting the recommendation of the magistrate judge, the district court
dismissed Mr. Parker’s complaint for lack of subject matter jurisdiction. The
court reasoned that, in prior habeas actions filed by Mr. Parker, the issue raised
in Mr. Parker’s complaint had already been determined.
In 1990, Mr. Parker was convicted in Oklahoma County District Court of
second degree murder after former conviction of a felony and sentenced to 199
years’ imprisonment. 1
The Oklahoma Court of Criminal Appeals affirmed his
conviction on direct appeal. Mr. Parker then filed three habeas petitions in the
United States District Court for the Western District of Oklahoma. The district
court dismissed the first two petitions on the grounds that they contained
unexhausted claims.
1
Initially, Mr. Parker was convicted of first degree murder. That
conviction was reversed on direct appeal. See Parker v. Champion , 148 F.3d
1219,1220 (10th Cir. 1998) .
2
In the third petition, Mr. Parker argued that he had received ineffective
assistance because his appellate counsel had failed to raise a due process notice
issue arising out of the fact that he was charged with first degree murder but
convicted of second degree murder. The district court denied the petition, and
this court affirmed. See Parker v. Champion , 148 F.3d 1219, 1222 (10th Cir.
1998). We reasoned that in light of the doctrine of invited error, any appeal
based on Mr. Parker’s due process notice argument would not have been
successful. “Even if the trial court erred in giving the second-degree felony
murder instruction, Parker invited the error by requesting this instruction at trial.
This invited error precludes the reversal of Parker’s conviction, as well as the
grant of any habeas relief, on the basis of the alleged improper instruction.” Id.
Following our decision, Mr. Parker filed a Motion for Leave to File a
Second or Successive Habeas Petition. We denied that motion in August 1999.
In his complaint in the instant case, Mr. Parker argues that the district
court and this circuit erred by relying on the doctrine of invited error.
Characterizing the doctrine as a kind of procedural bar, he states that the state
court declined to apply it and instead decided the case on the merits. According
to Mr. Parker, because the state court reached the merits of the case, the federal
courts may do so as well. Because this court applied 28 U.S.C. § 2241(b)(1) to
deny his Motion for Leave to File a Second or Successive Habeas Petition, Mr.
3
Parker maintains that he has been deprived of a decision on the merits of his
habeas petition in violation of the Due Process Clause.
We agree with the district court that we lack jurisdiction over Mr. Parker’s
complaint for declaratory relief. As the magistrate judge observed, the Supreme
Court has held that the Declaratory Judgment Act may not be used to resolve a
collateral legal issue governing certain aspects of a habeas proceeding. See
Calderon v. Ashmus , 523 U.S. 740, 745-49 (1998). Morever, circuit courts have
held that “‘the Declaratory Judgment Act may not be used as a substitute for
‘habeas corpus, coram nobis, or other such procedures.’’” United States v.
Gutierrez , 116 F.3d 412, 415 (9th Cir. 1997) (quoting Benson v. State Bd. of
Pardon & Probation , 384 F.2d 238, 239 (9th Cir. 1967) (quoting United States ex
rel. Bennett v. Illinois , 356 F.2d 878, 879 (7th Cir. 1966) (per curiam))); accord
Chatman-Bey v. Thornburgh , 864 F.2d 804, 808-10 (D.C. Cir. 1988) (en banc)
(rejecting argument that a federal prisoner could use a declaratory judgment
action to contest the computation of his sentence). Here, Mr. Parker seeks to use
the Declaratory Judgment Act to resolve issues that were actually addressed or
that could have been addressed in the prior habeas actions. The Declaratory
Judgment Act does not allow such collateral challenges. See Calderon , 523 U.S.
at 745-49.
We therefore AFFIRM the district court’s dismissal of Mr. Parker’s
4
complaint. 2
Entered for the Court,
Robert H. Henry
United States Circuit Judge
2
Mr. Parker has filed two motions: (1) a Motion to Expedite Cause and
(2) a Motion to Incorporate Record on Former Appeal. In light of the issuance of
this order and judgment, we DENY Mr. Parker’s Motion to Expedite Cause as
moot. Because the record on appeal in the prior case is not necessary to resolve
the legal issues presented here, we also DENY Mr. Parker’s Motion to
Incorporate Record on Former Appeal.
5