Yellowbear, Jr. v. Attorney General of Wyoming , 440 F. App'x 677 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSNovember 3, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ANDREW JOHN YELLOWBEAR, JR.,
Petitioner - Appellant, No. 11-8035
v. (D.C. No. 2:06-CV-00082-ABJ)
ATTORNEY GENERAL OF THE D. Wyoming
STATE OF WYOMING; SKIP
HORNECKER, in his official capacity
as Supervisor, Fremont County
Detention Center,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
Andrew John Yellowbear, Jr., an Oklahoma state prisoner, was convicted of
first degree murder and sentenced to life imprisonment. Yellowbear v. Att’y Gen.
of Wyo., 380 F. App’x 740, 740 (10th Cir. 2010). Yellowbear’s challenge to the
jurisdiction of the state court was rejected by the Wyoming Supreme Court on
direct appeal and by the federal courts, including this court, in Yellowbear’s
subsequent 28 U.S.C. § 2254 habeas proceeding. Id. at 740-41.
Ten months after this court affirmed the district court’s denial of habeas
relief on Yellowbear’s jurisdictional claim, he filed a Fed. R. Civ. P. 60(b)
motion with the United States District Court for the District of Wyoming, arguing
he was entitled to relief from the judgment because the district judge fell asleep
during the hearing on his § 2254 petition. In a comprehensive order, the district
court denied Yellowbear’s 60(b) motion. The court concluded Yellowbear failed
to show extraordinary circumstances justifying relief because he failed to
establish that an erroneous legal judgment would be left uncorrected if his motion
was not granted. Specifically, the court noted that Yellowbear’s jurisdictional
claim had been fully considered and rejected on the merits by the Wyoming
Supreme Court. After Yellowbear was granted a certificate of appealability, this
court also considered the claim on the merits, concluding the state court’s
adjudication was neither “an objectively unreasonable application of Supreme
Court precedent” nor “incorrect.” Id. at 743.
Yellowbear now seeks a certificate of appealability (“COA”) to challenge
the district court’s denial of his Rule 60(b) motion. See Spitznas v. Boone, 464
F.3d 1213, 1217-18 (10th Cir. 2006) (holding a COA is required to appeal the
denial of Rule 60(b) relief from a habeas judgment). To be entitled to a COA,
Yellowbear must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must
demonstrate “that 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.”
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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In
evaluating whether Yellowbear has satisfied his burden, this court undertakes “a
preliminary, though not definitive, consideration of the [legal] framework”
applicable to each of his claims. Id. at 338; see also LaFleur v. Teen Help, 342
F.3d 1145, 1153 (10th Cir. 2003) (reviewing the denial of a Rule 60(b)(6) motion
for abuse of discretion). Although Yellowbear need not demonstrate his appeal
will succeed to be entitled to a COA, he must “prove something more than the
absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at
336 (quotations omitted).
This court has reviewed Yellowbear’s appellate brief and application for
COA, the district court’s well-reasoned order, and the entire record on appeal
pursuant to the framework set out by the Supreme Court in Miller-El and
concludes Yellowbear is not entitled to a COA. Accordingly, we deny his request
for a COA and dismiss this appeal. Because Yellowbear’s motion to proceed in
forma pauperis indicates he is able to pay the costs associated with pursuing this
appeal, his request to proceed in forma pauperis is denied and he is ordered to
pay any remaining balance of the appellate filing fee. All additional outstanding
motions are denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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