McKinney v. Fairbairn

Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 7, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
KEVIN L. MCKINNEY,
Petitioner - Appellant,
No. 23-1004
v. (D.C. No. 1:22-CV-02351-LTB-GPG)
(D. Colo.)
MARK FAIRBAIRN,
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, EBEL, and McHUGH, Circuit Judges.
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Kevin L. McKinney, a Colorado prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2241application as an unauthorized second or successive 28 U.S.C. § 2254 habeas
application.1 We deny a COA.
*
This order is not binding precedent except under the doctrines of law of the case,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.
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Mr. McKinney sought an extension of time from the district court to file his
notice of appeal. The district court granted the motion. Mr. McKinney’s notice of appeal
filed January 3, 2023, is therefore timely.
Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 2
I. Background
Following a jury trial, Mr. McKinney was convicted of multiple counts stemming
from an armed robbery of a grocery store in Arapahoe County, Colorado. He was
sentenced to 216 years in prison. The Colorado Court of Appeals affirmed the judgment
and the Colorado Supreme Court denied certiorari. Mr. McKinney then filed a § 2254
habeas corpus application, alleging a due process violation because he was convicted on
evidence seized as the result of an illegal vehicle stop. The district court denied relief,
and we denied a COA.
He subsequently filed an application purportedly seeking relief under § 2241. He
brought one claim for “ILLEGAL CUSTODY,” R. at 81, and argued the trial court
permitted evidence seized as a result of an illegal stop to be admitted as evidence, which
violated his Fourteenth Amendment right to due process. The magistrate judge
concluded that Mr. McKinney was challenging the validity of his state-court convictions,
not the execution of his sentence. The magistrate judge therefore concluded that
Mr. McKinney’s claim arose under § 2254. Because Mr. McKinney had already
challenged his convictions under § 2254 and had not obtained authorization to file a
second or successive § 2254 habeas application, the magistrate judge recommended
dismissing the application for lack of jurisdiction.
Mr. McKinney filed objections to the magistrate judge’s report and
recommendation. The district court overruled the objections, adopted the magistrate
judge’s report and recommendation, and dismissed the application. Mr. McKinney now
seeks a COA to appeal from that dismissal.
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Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 3
II. Discussion
To obtain a COA where, as here, a district court has dismissed a filing on
procedural grounds, the movant must show both “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). We need not
address the constitutional question if we conclude that reasonable jurists would not
debate the district court’s resolution of the procedural one. See id. at 485.
A prisoner may not file a second or successive § 2254 habeas application unless he
first obtains an order from the circuit court authorizing the district court to consider the
petition. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks
jurisdiction to address the merits of a second or successive § 2254 habeas application.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
In his COA application, Mr. McKinney contends that the state trial court
suppressed its ruling that was favorable to the defense and the jury was not properly
instructed, which led to a fundamentally unfair trial and violated his due process rights.
But he fails to adequately address the district court’s reasoning for construing his § 2241
application as a successive § 2254 application.
We have explained that “[s]ection § 2241 is a vehicle for challenging pretrial
detention, . . . or for attacking the execution of a sentence” and “[a] § 2254 petition, on
the other hand, is the proper avenue for attacking the validity of a conviction and
sentence.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008).
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Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 4
Mr. McKinney’s argument that his due process rights were violated due to alleged errors
during trial is an attack on the validity of his convictions and sentences. Such a claim is
properly brought in a § 2254 habeas application. He has therefore failed to show that
reasonable jurists could debate the district court’s procedural ruling to treat his § 2241
application as an unauthorized second or successive § 2254 habeas application and
dismiss it for lack of jurisdiction.
For the foregoing reasons, we deny a COA. We grant Mr. McKinney’s motion for
leave to proceed on appeal without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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