Nunn v. Kastner

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT September 11, 2014
Elisabeth A. Shumaker
TYRON NUNN, a/k/a Tyrone Nunn Clerk of Court
Petitioner – Appellant,
No. 14-6066
v. (D.C. No. 5:13-CV-01100-C)
PAUL KASTNER, Warden, Federal (W.D. Okla.)
Transfer Center, Oklahoma City, OK,
Respondent – Appellee.
ORDER AND JUDGMENT 
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Tyron Nunn is a federal prisoner currently in custody in Oklahoma City. On June 25,
2013, Nunn filed a pro se petition under 18 U.S.C. § 2241 in the Western District of
Oklahoma, arguing that jurisdiction was initially improper in his criminal prosecution.1 A
magistrate judge issued a report and recommendation, recommending that the petition be
dismissed because Nunn was challenging the legality of his conviction and was therefore
required to file under § 2255 in the Middle District of Alabama, where his conviction was
 After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist this appeal, so the case is
ordered submitted without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). This order and judgment is not binding precedent except under the doctrines of
law of the case, claim preclusion, and issue preclusion. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.
1
This petition is not the subject of this appeal. See Order and Judgment, Nunn v.
Kastner, No. 13-6186 (10th Cir. Sept. 24, 2013).
entered. The district court adopted the recommendation, and it dismissed the petition
without prejudice. Nunn appealed to this court.
On appeal, we affirmed the district court, holding that Nunn’s motion challenging the
jurisdiction of his criminal prosecution was a § 2255 motion and that it had to be brought
in the district where Nunn was convicted—the Middle District of Alabama. We noted that
Nunn had already filed at least forty-seven other challenges to his conviction, citing to a
number of these cases. We advised Nunn that if he continued to file “repetitive claims
under the wrong statutes or in the wrong jurisdictions, after being cautioned against such
conduct . . . that the district courts of this circuit, as well as our court, are empowered to
impose filing restrictions or other sanctions on him to curtail such practices.”
This brings us to the present appeal. On October 11, 2013, Nunn submitted another
pro se2 filing in the Western District of Oklahoma, entitled “Great Writ of Habeas
Corpus.” On October 21, 2013, the district court found that “[b]ased on [Nunn’s] lengthy
history of abusive filings, the . . . imposition of filing restrictions is warranted.” The court
entered an order striking the “Great Writ of Habeas Corpus” and imposed filing
restrictions on Nunn. Going forward, Nunn was “prohibited from filing another case in
this district against this defendant, unless he is represented by counsel or, if he proceeds
pro se, provides a notarized affidavit that verifies with particularity that the new action is
commenced on grounds that are distinguishable from those previously dismissed.” The
2
As we explained in our previous Order and Judgment, because Nunn is proceeding
pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
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district court explained that, other than a Notice of Appeal, all further filings would be
returned. Nunn filed a Notice of Appeal with the district court.
To this court, Nunn makes two arguments: first, that the court “refused to exercise
jurisdiction of the habeas case”; and second, that the court “denied [Nunn] his substantive
common right to demand the writ of habeas corpus . . . .”3 We read both of these
arguments as together being an appeal of the district court’s order striking Nunn’s “Great
Writ of Habeas Corpus” and imposing filing restrictions.
“Federal courts have the inherent power to regulate the activities of abusive litigants
by imposing carefully tailored restrictions under appropriate circumstances.” Ysais v.
Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). “Injunctions restricting further filing
are appropriate where (1) the litigant’s lengthy and abusive history is set forth; (2) the
court provides guidelines as to what the litigant must do to obtain permission to file an
action; and (3) the litigant received notice and an opportunity to oppose the court’s order
3
Nunn filed a motion seeking judicial notice, under F.R.E. 201(a)–(f), that
“[a]ppellate courts cannot look outside the record” and that “the record before this court
is devoid of the original writ [and/or] summons.” We evaluate each proposed fact
separately. This court can only take judicial notice of adjudicative facts, not legislative
facts. F.R.E. 201(a). “Adjudicative facts are simply the facts of the particular case.
Legislative facts, on the other hand, have relevance to legal reasoning and the lawmaking
process; they are established truths, facts or pronouncements that do not change from
case to case but apply universally.” United States v. Wolny, 133 F.3d 758, 764 (10th Cir.
1998) (internal citations and quotations omitted). Also, the party requesting judicial
notice must supply the court with the necessary information. F.R.E. 201(c)(2). We
conclude that neither fact proposed by Nunn can be properly noted under F.R.E. 201.
First, whether appellate courts are prohibited from looking outside the record is a
legislative fact, and thus, it is not subject to F.R.E. 201. Second, we hold that Nunn has
failed to provide the necessary information for us to take judicial notice that the record
lacks the original writ and summons. Even further, the record before this court does
include the original writ filed by Nunn below. See R. vol. 1, at 3–18. Because we cannot
take judicial notice of either fact proposed by Nunn, his motion is denied.
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before it is instituted.” Id. (internal quotations omitted); see also Andrews v. Heaton, 483
F.3d 1070, 1077 (10th Cir. 2007) (modifying the filing restrictions to cover only those
filings related to the same subject matter as the defendant’s previous federal lawsuits).
We previously warned Nunn in our earlier Order and Judgment that were he to raise
another repetitive claim under the wrong statute or in the wrong court, any such court
would have the power to impose filing restrictions. Order and Judgment, Nunn v.
Kastner, No. 13-6186 (10th Cir. Sept. 24, 2013). We repeat that warning here. However,
while the district court’s order established Nunn’s history of abusive filings and provided
guidelines as to what Nunn must do to obtain permission to submit future filings, the
record before us does not show that Nunn was given an opportunity to oppose the
limitations before they were imposed. See, e.g., Tripati v. Beaman, 878 F.2d 351, 352–54
(10th Cir. 1989) (“[The defendant] is entitled to notice and an opportunity to oppose the
court’s order before it is instituted.”); Andrews, 483 F.3d at 1077 (“[I]njunctions
restricting further filings are appropriate where . . . the litigant receives notice and an
opportunity to oppose the court’s order before it is implemented.”); In re Winslow, 17
F.3d 314, 316–17 (10th Cir. 1994) (allowing the defendants “ten days from the date of
this order to file written objections to these proposed sanctions” in accordance with
Tripati, 878 F.2d at 352–54). Our cases have consistently held that litigants need notice
and an opportunity to oppose filing limitations, even if they are simply permitted to file
written objections. See, e.g., In re Winslow, 17 F.3d at 316–17.
We conclude that the district court failed to provide Nunn with notice and an
opportunity to oppose the filing restrictions. Accordingly, we vacate and remand for
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further proceedings consistent with this Order and Judgment. We affirm the district
court’s order in all other respects. We grant Nunn’s motion to proceed on appeal in forma
pauperis.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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