White v. Farris

Appellate Case: 21-7060 Document: 010110645282 Date Filed: 02/15/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 15, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
RICKEY WHITE,
Petitioner - Appellant,
v. No. 21-7060
(D.C. No. 6:21-CV-00281-RAW-KEW)
JIM FARRIS, (E.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, EID and CARSON, Circuit Judges.
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Rickey White, a pro se Oklahoma inmate, seeks a certificate of appealability
(COA) to challenge the dismissal of his 28 U.S.C. § 2254 petition as an unauthorized
second or successive habeas petition. We deny a COA and dismiss this matter.
Mr. White is currently serving a life sentence for first-degree murder. In 1985, the
Oklahoma Court of Criminal Appeals affirmed his conviction and sentence. See White v.
State, 702 P.2d 1058, 1063 (Okla. Crim. App. 1985). In 2003, the district court denied
federal habeas relief on statute-of-limitations grounds, and we denied a COA. Since then,
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 21-7060 Document: 010110645282 Date Filed: 02/15/2022 Page: 2
Mr. White has filed numerous habeas petitions and motions for authorization to file
second or successive habeas petitions, all of which have been denied.
In September 2021, Mr. White filed the underlying § 2254 petition in this case,
which primarily raised jurisdictional challenges to his conviction based on McGirt v.
Oklahoma, 140 S. Ct. 2452 (2020). The district court dismissed the petition as an
unauthorized second or successive § 2254 habeas petition. The court also denied a COA.
He now seeks to appeal from that dismissal.1
Mr. White must obtain a COA before he can appeal the district court’s dismissal.
See 28 U.S.C. § 2253(c)(1)(A). To do so, he 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) (emphasis added).
He has not met this burden.
An inmate may not file a second or successive § 2254 petition without first
obtaining an order from this court authorizing the district court to consider his petition.
See 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, “[a] district court does not
have jurisdiction to address the merits of a second or successive . . . § 2254 claim.”
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Because Mr. White did
1
On the same day that he filed his request for COA in this court, Mr. White also
separately moved this court for authorization to file a second or successive § 2254
petition to bring his McGirt claim. We denied his request. See In re White, No. 21-7062
(10th Cir. Dec. 13, 2021).
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Appellate Case: 21-7060 Document: 010110645282 Date Filed: 02/15/2022 Page: 3
not first obtain authorization to file his successive § 2254 petition, the district court’s
dismissal for lack of jurisdiction is not reasonably debatable. We therefore deny
Mr. White’s application for a COA and dismiss this matter. We grant his motion for
leave to proceed without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
3