Yellowbear v. Hill

Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 26, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ANDREW JOHN YELLOWBEAR, JR.,
Petitioner - Appellant,
v. No. 22-8014
(D.C. No. 0:22-CV-00057-ABJ)
BRIDGET HILL, Wyoming Attorney (D. Wyo.)
General,
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before EID, BRISCOE, and ROSSMAN, Circuit Judges.
_________________________________
Andrew John Yellowbear, Jr., a Wyoming prisoner, seeks a certificate of
appealability (COA) to appeal the district court’s order dismissing his 28 U.S.C. § 2254habeas application.1 We deny him a COA and dismiss this matter.
In 2006, a Wyoming court sentenced Mr. Yellowbear to life in prison for murder.
After his direct appeal, in 2008, the trial court amended the judgment to reflect that he
had been convicted of one count rather than four, but he still must serve a life sentence.
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
Mr. Yellowbear represents himself, so we construe his filings liberally. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 2
After the trial court amended the judgment, Mr. Yellowbear filed a § 2254
application.2 See Yellowbear v. Att’y Gen. of Wyo., 380 F. App’x 740, 741 (10th Cir.
2010). Since that application’s failure, he has filed two motions, styled as motions for
relief under Federal Rule of Civil Procedure 60(b), that courts treated as second or
successive § 2254 applications. See Yellowbear v. Michael, 570 F. App’x 798, 799
(10th Cir. 2014); Yellowbear v. Hill, 859 F. App’x 295, 299 (10th Cir. 2021).
Earlier this year, Mr. Yellowbear filed the § 2254 application underlying this
matter. His application raised two claims. First, he argued that the trial court did not
properly resentence him when it amended the judgment. Second, he argued that the
decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), required the court to revisit his
earlier challenge to Wyoming’s jurisdiction to prosecute him. The district court
dismissed the application, concluding that it lacked jurisdiction to consider a second or
successive application without authorization from this court.
To obtain a COA, Mr. Yellowbear must show “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, 478 (2000). Mr. Yellowbear does not dispute that district
courts lack jurisdiction to address the merits of a second or successive § 2254 application
unless the appropriate court of appeals has authorized the application to be filed. See In
re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). He instead argues that his latest
2
We take judicial notice of Mr. Yellowbear’s § 2254 application, filed on July 11,
2008, in the United States District Court for the District of Wyoming, case number
06-CV-82. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
2
Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 3
application is not second or successive under Magwood v. Patterson, 561 U.S. 320(2010). Magwood holds that an application may not be considered second or successive
if it is the first to challenge a particular judgment, even if the prisoner has previously filed
other applications challenging earlier judgments. See id. at 331–33. The trial court’s
2008 amended judgment is a new judgment, Mr. Yellowbear argues, so his most recent
§ 2254 application is not second or successive.
The problem with Mr. Yellowbear’s argument is that he has already filed § 2254
applications targeting the amended judgment.3 The trial court entered the amended
judgment in March 2008. About two weeks later, we reversed a federal district court’s
denial of a jurisdictional claim Mr. Yellowbear brought under 28 U.S.C. § 2241, and we
remanded his case to give him a chance to recharacterize the claim as one arising under
§ 2254. Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924–25 (10th Cir. 2008). In July
2008, Mr. Yellowbear filed a § 2254 application reasserting the jurisdictional claim. At
that point, the judgment authorizing his confinement was the amended judgment. So that
is the judgment he challenged in his July 2008 § 2254 application and his later motions
purportedly under Rule 60(b). In short, his latest § 2254 application is not the first to
challenge the amended judgment.
We reject Mr. Yellowbear’s argument “that none of the previous federal actions
should count against him until the state trial court properly sentences him for the”
amended judgment. COA Appl. at 2. This argument simply assumes that the state court
3
Because Mr. Yellowbear has already challenged the amended judgment, we will
assume that it qualifies as a new judgment and that Magwood applies.
3
Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 4
erred when it entered the amended judgment and, from that assumption, concludes that
the district court should have heard his latest challenge to the judgment. But any error in
the state court’s amended judgment would not affect our review of the district court’s
procedural ruling. The propriety of the district court’s procedural ruling depends on
whether Mr. Yellowbear has challenged the amended judgment before (he has) and
whether he received authorization to challenge it again in a second or successive § 2254
application (he did not).
Reasonable jurists could not debate whether the district court correctly concluded
that Mr. Yellowbear’s latest § 2254 application was a second or successive one or, as a
result, whether the court correctly dismissed the unauthorized application for lack of
jurisdiction. We deny Mr. Yellowbear a COA and dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
4