Thompson v. Workman ( 2010 )


Menu:
  •                                                                                    FILED
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 April 13, 2010
                                      TENTH CIRCUIT
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
    
    GARY R. THOMPSON,
    
          Petitioner – Appellant,                          Nos. 09-6128 & 09-6267
                                                                 (W.D. Okla.)
    v.                                                   (D.C. No. 5:97-CV-00286-L)
    
    RANDY WORKMAN, Warden, Oklahoma
    State Penitentiary,
    
          Respondent - Appellee.
    
    
    
                          ORDER DENYING APPLICATION FOR
                           CERTIFICATE OF APPEALABILITY
                              AND DISMISSING APPEALS
    
    
    Before TACHA, BRISCOE, and O'BRIEN, Circuit Judges.
    
    
          Gary R. Thompson, a state prisoner, filed a motion for relief from judgment under
    
    Rule 60(b) of the Federal Rules of Civil Procedure. The district court determined the
    
    motion was a “mixed motion,” containing two “true” Rule 60(b) claims and a second or
    
    successive 28 U.S.C. § 2254 claim. See Spitznas v. Boone, 
    464 F.3d 1213
    , 1215, 1217
    
    (10th Cir. 2006). The court denied the motion to the extent it contained true Rule 60(b)
    
    claims; it dismissed the second or successive 28 U.S.C. § 2254 claim for lack of
    
    jurisdiction. By a separate order, it also denied Thompson’s subsequent request for a
    
    certificate of appealability (COA) and sundry motions. Thompson seeks to appeal from
    these decisions.1 We deny a COA and dismiss these appeals.
    
                                     I.      BACKGROUND
    
           In 1993, Thompson was charged in Oklahoma state court with discharge of a
    
    firearm with intent to kill (Count I) and first degree murder (Count II). Both counts arose
    
    out of the 1991 murder of Alonzo Calloway. Thompson’s first jury trial resulted in an
    
    acquittal on Count I and a hung jury on Count II. On retrial of Count II, Thompson was
    
    found guilty and sentenced to life imprisonment. His conviction and sentence were
    
    affirmed on direct appeal by the Oklahoma Court of Criminal Appeals (OCCA).
    
    A.     First Round of Federal Issues
    
           In 1997, Thompson, represented by counsel, filed a § 2254 petition in federal
    
    district court alleging six grounds for relief: (1) prosecutorial misconduct, (2)
    
    insufficiency of the evidence, (3) denial of the right to a fair trial under Batson,2 (4)
    
    improper jury instructions, (5) failure to give a second degree murder jury instruction,
    
    and (6) ineffective assistance of trial counsel. The petition was referred to a magistrate
    
    judge who directed Workman3 to file an answer. In lieu of an answer, Workman filed a
    
    
    
           1
             Appeal No. 09-6128 addresses the district court’s resolution of his Rule 60(b)
    motion; Appeal No. 09-6267 addresses the court’s denial of his request for a COA and
    his other motions. While these appeals are not consolidated, they are being considered
    together because they arise out of the same district court proceeding.
           2
             Batson v. Kentucky, 
    476 U.S. 79
    , 89 (1986) (holding equal protection clause
    prohibits the prosecution from using a preemptory challenge to strike a potential juror
    “solely on account of [his] race or on the assumption that black jurors as a group will be
    unable impartially to consider Workman’s case against a black defendant”).
           3
          Respondent in this case is the warden of the Oklahoma State Penitentiary. Ron
    Ward was initially named Respondent; in December 2008, Randy Workman became the
    
                                                     -2-
    motion to dismiss the petition based on Thompson’s failure to exhaust his claims in state
    
    court. Thompson then filed a pro se motion to dismiss his petition without prejudice in
    
    order to allow him to return to state court to exhaust. The magistrate judge recommended
    
    denial of Workman’s motion to dismiss. She also concluded Thompson had abandoned
    
    his first four claims by failing to present facts and argument in support of them.
    
    Thompson did not object to the magistrate’s recommendation other than to note he was
    
    represented by counsel. He also filed another pro se motion to withdraw his § 2254
    
    petition.
    
           The district court adopted the magistrate’s recommendation and denied
    
    Workman’s motion to dismiss. It also denied Thompson’s first pro se motion to dismiss
    
    his habeas petition. The magistrate judge later struck the second pro se motion because
    
    Thompson was represented by counsel.
    
           Workman responded to the merits of the petition. Thompson filed a motion for
    
    leave to amend his petition to reassert an insufficiency of the evidence claim, which the
    
    magistrate judge granted. After reviewing the entire record, the magistrate recommended
    
    the petition be denied. She determined: (1) the evidence was sufficient to support the
    
    first degree murder conviction; (2) the evidence did not support the giving of a second
    
    degree murder instruction and such instruction would have been incompatible with his
    
    defense of innocence as well as his testimony that he did not fire his gun; and (3) trial
    
    counsel was not constitutionally ineffective. Therefore, the magistrate judge concluded
    
    warden and was substituted as the named Respondent. We will refer to the Respondent
    as Workman.
    
    
                                                    -3-
    the OCCA’s decision affirming Thompson’s conviction was neither “contrary to, or
    
    involved an unreasonable application of, clearly established Federal law, as determined
    
    by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), nor “based on an
    
    unreasonable determination of the facts in light of the evidence presented in the State
    
    court proceeding.” 28 U.S.C. § 2254(d)(2). Thompson filed an objection, arguing the
    
    magistrate’s recommendation was contrary to law as demonstrated by his previously
    
    raised arguments. Upon de novo review, the district court adopted the magistrate’s
    
    recommendation and denied the petition. Judgment was entered on March 7, 2000. We
    
    granted a COA and affirmed. See Thompson v. Ward, 13 Fed. Appx. 782 (10th Cir.
    
    2001) (unpublished).
    
    B.     Second Round of Federal Issues
    
           Over 7 years later, on January 22, 2009, Thompson, represented by new counsel,
    
    filed a motion to vacate the March 7, 2000 judgment pursuant to Rule 60(b)(4)-(6) of the
    
    Federal Rules of Civil Procedure.4 He alleged the district court: (1) improperly denied
    
    
           4
               Rule 60(b)(4)-(6) provides:
    
           On motion and just terms, the court may relieve a party . . . from a final
           judgment . . . for the following reasons:
    
                                                  ....
    
           (4) the judgment is void;
    
           (5) the judgment has been satisfied, released or discharged; it is based on an
           earlier judgment that has been reversed or vacated; or applying it
           prospectively is no longer equitable; or
    
           (6) any other reason that justifies relief.
    
    
                                                     -4-
    his pro se motion to dismiss/withdraw his § 2254 petition; (2) denied him due process of
    
    law by failing to address the merits of the four claims it erroneously determined had been
    
    abandoned; and (3) improperly rejected his ineffective assistance of counsel claim.
    
    Workman argued Thompson’s Rule 60(b) motion constituted a second or successive §
    
    2254 petition and therefore had to be transferred to this Court for the necessary
    
    authorization. See 28 U.S.C. § 2244(b)(3)(A).
    
           The district court determined the first two claims constituted true Rule 60(b)
    
    claims but were nevertheless untimely. It concluded the last claim (ineffective assistance
    
    of counsel) was a second or successive § 2254 claim and dismissed it for lack of
    
    jurisdiction because Thompson had not received the requisite authorization from this
    
    Court prior to filing it. In doing so, it determined the interests of justice would not be
    
    served by transferring the claim to this Court.
    
           Thompson responded by filing a notice of appeal (Appeal No. 09-6128). He then
    
    filed a 79-page application for a COA with the district court accompanied by a motion (1)
    
    for an order allowing limited discovery, (2) for an order directing enlargement of the
    
    record, (3) to amend and (4) for an evidentiary hearing. On the same day, he filed an
    
    application for a COA with this Court (in Appeal No. 09-6128). He has also refiled his
    
    sundry motions with this Court (also in Appeal No. 09-6128). Thereafter, the district
    
    court denied his request for a COA and his motions. With regard to the motions, the
    
    court determined it lacked jurisdiction to resolve them as the case was then on appeal;
    
    however, even if it had jurisdiction, it would deny the motions on the merits. Thompson
    
    filed a new notice of appeal from the court’s denial of a COA and his motions (Appeal
    
                                                      -5-
    No. 09-6267).5 He did not request a COA in Appeal No. 09-6267 but filed an appellate
    
    brief.
    
                                       II.      DISCUSSION
    
    A.       Rule 60(b) Claims
    
             A COA is required to appeal from the denial of a true Rule 60(b) motion.
    
    Spitznas, 464 F.3d at 1218. We will issue a COA only if the petitioner “has made a
    
    substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
    
    Under this standard, a petitioner must demonstrate “reasonable jurists could debate
    
    whether (or, for that matter, agree that) the petition should have been resolved in a
    
    different manner or that the issues presented were adequate to deserve encouragement to
    
    proceed further.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations omitted).
    
    “When the district court denies a habeas petition on procedural grounds without reaching
    
    the prisoner’s underlying constitutional claim, a COA should issue when 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.
    
             The district court’s treatment of the first two claims as true Rule 60(b) claims is
    
    not reasonably debatable because the claims challenge “a procedural ruling of the habeas
    
             5
            Altogether Thompson had three appeals arising from the same underlying district
    court case—Appeal Nos. 09-6128, 09-6267 and 09-6273. He moved to consolidate the
    appeals and requested waiver of the filing fee for the third appeal. We determined
    Appeal No. 09-6273 was opened in error, closed that appeal and treated the notice of
    appeal used to open that appeal as an amended notice of appeal in Appeal No. 09-6267.
    We declined to consolidate 09-6128 and 09-6267 but informed the parties they would be
    considered together.
    
                                                      -6-
    court which precluded a merits determination of the habeas application” or “a defect in
    
    the integrity of the federal habeas proceeding.” Spitznas, 464 F.3d at 1216; see also
    
    Gonzalez v. Crosby, 
    545 U.S. 524
    , 532 & n.4 (2005). Nor is the court’s denial of these
    
    claims reasonably debatable. “Rule 60(b) allows a party to seek relief from a final
    
    judgment, and request reopening of his case, under a limited set of circumstances . . . .”
    
    Gonzalez, 545 U.S. at 528. “A motion under Rule 60(b)[(4)-(6)] must be made within a
    
    reasonable time . . . .” Fed. R. Civ. P. 60(c)(1). Thompson did not file his Rule 60(b)
    
    motion until over 8 years after the district court’s judgment and over 7 years after our
    
    decision affirming the denial of his § 2254 petition. Thompson does not explain the
    
    delay. Permitting his untimely filing would not be reasonable on this record.6 See West
    
    v. Champion, No. 09-7090, 
    2010 WL 358126
    , at *4 (10th Cir. Feb. 2, 2010)
    
    (unpublished) (Rule 60(b) motion filed more than 8 years after the district court’s
    
    judgment is not filed “within a reasonable time” under Rule 60(c)(1)); see also United
    
    States v. Taylor, 295 Fed. Appx. 268, 270 (2008) (unpublished) (10-year delay not
    
    reasonable).7
    
           We deny Thompson’s request for a COA in Appeal No. 09-6128 on the district
    
    court’s denial of the true Rule 60(b) claims.
    
    
    
           6
            The district court also summarily, but properly, determined the true Rule 60(b)
    claims lacked merit.
           7
            Unpublished decisions are not binding precedent. 10th Cir. R. 32.1(A). We
    mention West, Taylor, and the other unpublished decisions cited herein as we would any
    other non-precedential authority.
    
    
                                                    -7-
    B.     Second or Successive Claim
    
           Thompson must also obtain a COA to appeal from the district court’s dismissal of
    
    his unauthorized § 2254 claim. See United States v. Harper, 
    545 F.3d 1230
    , 1233 (10th
    
    Cir. 2008) (discussing the COA requirement for an unauthorized 28 U.S.C. § 2255
    
    motion); see also McKnight v. Dinwiddie, No. 09-5152, 
    2010 WL 257285
    , at *1 (10th
    
    Cir. Jan. 25, 2010) (unpublished) (§ 2254 petition). He has failed to make the requisite
    
    showing.
    
           The district court’s decision to construe his ineffective assistance of counsel claim
    
    as a second or successive claim is not reasonably debatable. A Rule 60(b) claim is a
    
    second or successive § 2254 claim “if it in substance or effect asserts or reasserts a
    
    federal basis for relief from the petitioner’s underlying conviction.” Spitznas, 464 F.3d at
    
    1215 (stating an example of a Rule 60(b) claim which should be treated as a second or
    
    successive § 2254 claim is a claim “seeking vindication of a habeas claim by challenging
    
    the habeas court’s previous ruling on the merits of that claim”) (quotations omitted); see
    
    also Gonzalez, 545 U.S. at 538 (a second or successive claim is one which asserts or
    
    reasserts a claim of error in the petitioner’s state court conviction). An ineffective
    
    assistance of counsel claim constitutes a federal basis for relief from an underlying state
    
    court conviction. In the first round of habeas review, the district court considered and
    
    decided Thompson’s ineffective assistance of counsel claim on the merits. This latest
    
    attempt to resurrect it is a second or successive claim.
    
           The court’s dismissal of the ineffective assistance of counsel claim for lack of
    
    jurisdiction is not reasonably debatable. A state prisoner must receive authorization from
    
                                                    -8-
    this Court prior to filing a second or successive § 2254 petition. See 28 U.S.C. §
    
    2244(b)(3)(A). “A district court does not have jurisdiction to address the merits of a
    
    second or successive . . . 28 U.S.C. § 2254 claim until this court has granted the required
    
    authorization.” In re Cline, 
    531 F.3d 1249
    , 1251 (10th Cir. 2008). “When a second or
    
    successive § 2254 . . . claim is filed in the district court without the required authorization
    
    from this court, the district court may transfer the matter to this court if it determines it is
    
    in the interest of justice to do so . . . or it may dismiss the motion or petition for lack of
    
    jurisdiction.” Id. at 1252. Among the factors relevant in determining whether a transfer
    
    is in the interest of justice include “whether the claims alleged are likely to have merit.”
    
    Id. at 1251.
    
           Thompson did not receive authorization from this Court prior to filing the
    
    ineffective assistance of counsel claim. Therefore, the district court lacked jurisdiction
    
    over it. The court also properly exercised its discretion in dismissing the claim for want
    
    of jurisdiction rather than transferring it to this Court because the claim is clearly without
    
    merit. See id. at 1252 (“Where there is no risk that a meritorious successive claim will be
    
    lost absent a . . . transfer, a district court does not abuse its discretion if it concludes it is
    
    not in the interest of justice to transfer the matter to this court for authorization.”). As the
    
    district court concluded, trial counsel was not ineffective for failing to request a second
    
    degree murder instruction as such instruction would have been inconsistent with
    
    Thompson’s defense and the evidence did not warrant such instruction.
    
           We deny Thompson’s request for a COA in Appeal No. 09-6128 on the district
    
    court’s dismissal of the ineffective assistance of counsel claim (second or successive §
    
                                                       -9-
    2254 claim) for lack of jurisdiction.
    
           Thompson also filed a notice of appeal from the district court’s denial of a COA
    
    and his sundry motions. Filing a notice of appeal from the court’s denial of a COA was
    
    unnecessary; he simply needed to request a COA from this Court, which he did in Appeal
    
    No. 09-6128. See Fed. R. App. P. 22(b)(1) (“If the district judge has denied the
    
    certificate, the applicant may request a circuit judge to issue it.”). The district court also
    
    properly denied his motions for lack of jurisdiction as the case was already on appeal.
    
    See Marrese v. Am. Acad. of Orthopaedic Surgeons, 
    470 U.S. 373
    , 379 (1985) (“In
    
    general, filing of a notice of appeal confers jurisdiction on the court of appeals and
    
    divests the district court of control over those aspects of the case involved in the
    
    appeal.”); see also Garcia v. Burlington N. R.R. Co., 
    818 F.2d 713
    , 721 (10th Cir. 1987)
    
    (in general, the timely filing of a notice of appeal transfers the matter from the district
    
    court to the court of appeals, divesting the district court of jurisdiction and rendering any
    
    subsequent action by the court null and void).8
    
    
    
    
           8
               There are exceptions to the rule. “In collateral matters not involved in the appeal
    . . . the district court retains jurisdiction. Thus, when an interlocutory appeal is taken, the
    district court retains jurisdiction to proceed with matters not involved in that appeal.”
    Garcia, 818 F.2d at 721 (citations omitted). For example, even after a timely notice of
    appeal is filed, a district court retains jurisdiction to determine a motion for attorneys’
    fees. Id. The motions involved here do not pertain to collateral matters.
    
    
                                                    - 10 -
            We DENY a COA and DISMISS these appeals. Thompson’s motions filed in
    
    Appeal No. 09-6128 (Motion to Amend, Motion for Order Allowing Limited Discovery,
    
    Motion for Order Directing Enlargement of Record, Amended Motion to Amend and
    
    Motion to Direct District Court to Conduct Evidentiary Hearing) are DENIED.
    
    Appellant’s motion for leave to file a supplemental brief and appendix is DENIED as
    
    moot.
    
    
                                            Entered by the Court:
    
                                            Terrence L. O’Brien
                                            United States Circuit Judge
    
    
    
    
                                                - 11 -