Hornsby v. Evans, Jr.

FILED
United States Court of Appeals
Tenth Circuit
May 13, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
HAROLD D. HORNSBY,
Petitioner-Appellant, No. 08-5178
v. (N.D. of Okla.)
EDWARD EVANS, (D.C. No. CV-95-940-JHP)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Harold D. Hornsby, a state prisoner proceeding pro se, 1 has spent the last
thirteen-and-a-half years in federal court attempting to invalidate his state-law
convictions for larceny from a person, larceny of merchandise, robbery by fear,
and robbery by firearms. After several years of litigation, the district court
*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Because Hornsby proceeds pro se on appeal, we are required to construe
his filings liberally. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
However, Hornsby’s pro se status does not excuse him from complying with the
fundamental requirements of the federal procedural rules. Id.denied Hornsby’s habeas petition, and we declined to grant a certificate of
probable cause. See Hornsby v. Kaiser, No. 98-5192, 1999 WL 590746 (10th Cir.
Aug. 6, 1999).
Hornsby, however, continued his legal barrage, filing a litany of non-
meritorious or outrightly frivolous motions in the district court and appealing
each time they were denied. See, e.g., Hornsby v. Sirmons, No. 07-5057 (10th
Cir. June 28, 2007). This abuse of the federal judicial process led the district
court to enter a docket management order requiring Hornsby to obtain permission
before filing any additional papers in his habeas case. We affirmed that order,
Hornsby v. Evans, No. 07-5174 (10th Cir. June 3, 2002), and later imposed our
own procedural limitation, directing that “any further applications, motions or
other filings by Mr. Hornsby collaterally attacking his convictions . . . will be
deemed denied on the thirtieth calendar day after filing unless this court otherwise
orders,” Hornsby v. Sirmons, No. 07-5057, slip op. at 5 (10th Cir. June 28, 2007).
We further cautioned that “[i]f Mr. Hornsby persists in filing additional § 2254
petitions, additional motions or applications for leave to file second or successive
§ 2254 petitions, or other filings challenging these convictions, we may consider
imposing monetary sanctions.” Id.
The subject of the current appeal is Hornsby’s latest motion, which requests
under Federal Rule of Civil Procedure 60(b) that the district court vacate its prior
judgment denying habeas relief. Unsurprisingly, Hornsby failed to obtain
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permission from the district court before filing the Rule 60(b) motion, and the
court struck the motion from its docket. Hornsby appeals, but presents no
explanation for his failure to comply with the district court’s unambiguous docket
management order. Instead, he embarks on a lengthy and irrelevant discussion of
why the Supreme Court’s decision in Gonzales v. Crosby, 545 U.S. 524 (2005),
required the district court to address the merits of his Rule 60(b) motion.
We may not review the district court’s Rule 60(b) decision unless Hornsby
shows he is entitled to a certificate of appealability. See Spitznas v. Boone, 464
F.3d 1213, 1217–18 (10th Cir. 2006). Because here the “decision appealed from
involves a procedural ruling of the district court [i.e., the district court’s decision
to strike Hornsby’s Rule 60(b) motion], a COA may only issue if ‘the prisoner
shows, at least, 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.’” Id. at 1225 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))
(emphasis added). The Supreme Court has encouraged us to resolve cases like
this one on procedural grounds and to reach a habeas petitioner’s constitutional
claims only if necessary. See Slack, 529 U.S. at 485.
The power of district courts to manage their dockets is deeply ingrained in
our jurisprudence, and a district court’s exercise of that power is reviewed only
for abuse of discretion. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 630–31
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(1962) (holding that a trial court’s power to dismiss for lack of prosecution “has
generally been considered an ‘inherent power,’ governed not by rule or statute but
by the control necessarily vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases”); United States v.
Nicholson, 983 F.2d 983, 988 (10th Cir. 1993) (“District courts generally are
afforded great discretion regarding trial procedure applications (including control
of the docket and parties), and their decisions are reviewed only for abuse of
discretion.”).
Given the history of this case and the fact that Hornsby has “already
received more than [his] fair share of scarce judicial resources,” Hornsby v.
Sirmons, No. 07-5057, slip op. at 5 (10th Cir. June 28, 2007), we hold that the
district court acted well within its discretion in striking Hornsby’s motion to
vacate. Hornsby has failed to show that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling,” Slack, 529 U.S. at
484, and we decline to grant him a certificate of appealability.
As a final matter, we have previously warned Hornsby that we would
consider imposing monetary sanctions if he persisted in filing frivolous and
abusive motions or pleadings relating to his habeas petition. This appeal certainly
qualifies as frivolous, and Hornsby’s pro se status does not insulate him from
such sanctions. See Kyler v. Everson, 442 F.3d 1251, 1253 (10th Cir. 2006)
(“[P]ro se litigants are subject to the same minimum litigation requirements that
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bind all litigants and counsel before all federal courts.”). Another abusive filing
will require us to impose monetary sanctions.
For the foregoing reasons, we DENY Hornsby a certificate of appealability.
We further DENY Hornsby’s motion to proceed in forma pauperis and DENY his
motion to supplement the record on appeal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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