Bird v. Wyoming Attorney General ( 2019 )


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  •                                                                                       FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                              Tenth Circuit
    TENTH CIRCUIT                                 July 3, 2019
    Elisabeth A. Shumaker
    Clerk of Court
    CHESTER L. BIRD,
    Petitioner - Appellant,
    v.                                                           No. 19-8035
    (D.C. No. 2:16-CV-00320-NDF)
    WYOMING ATTORNEY GENERAL;                                   (D. Wyoming)
    MICHAEL PACHECO, Wyoming
    Department of Corrections State
    Penitentiary Warden,
    Respondents - Appellees.
    ORDER DENYING
    CERTIFICATE OF APPEALABILITY *
    Before McHUGH, KELLY, and MORITZ, Circuit Judges.
    Mr. Chester Bird, proceeding pro se,1 seeks a certificate of appealability (“COA”)
    to appeal the district court’s denial of his Rule 60(b) motion. We deny a COA and
    dismiss his appeal.
    *
    This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
    1
    Because Mr. Bird is pro se, “we liberally construe his filings, but we will not act
    as his advocate.” James v. Wadas, 
    724 F.3d 1312
    , 1315 (10th Cir. 2013).
    BACKGROUND
    Mr. Bird is serving two concurrent life sentences in a Wyoming state prison for
    rape and kidnapping. Due to his life sentences, Mr. Bird is not eligible for parole. See
    Wyo. Stat. § 7-13-402(a). Despite his ineligibility, Wyoming law requires that ten percent
    of his prison-work income be placed in a personal savings account until the account
    balance reaches $1,000. 
    Id. § 7-16-205(a)(i).
    The balance of the mandatory savings
    accounts is distributed “to the prisoner upon parole or final discharge.” 
    Id. In 2015,
    Mr. Bird sued “the Wyoming Board of Parole . . . and the Wyoming
    Department of Corrections” in Wyoming state court. Bird v. Wyoming Bd. of Parole, 
    382 P.3d 56
    , 60 (Wyo. 2016). Relevant here, Mr. Bird claimed the Wyoming statutes violated
    his right to equal protection under the Fourteenth Amendment because the statutes
    exempted other non-parole eligible prisoners—those serving death sentences or sentences
    of life without parole—for the personal savings account requirement and thus treated
    similarly situated prisoners differently. See 
    id. at 60–63.
    The Wyoming Supreme Court
    rejected that argument, concluding there was a rational basis for the distinction between
    excepted and non-excepted prisoners. 
    Id. at 63.
    The court reasoned that the prisoners
    serving a life sentence, unlike the prisoners sentenced to death or life without parole, are
    eligible to have their sentences commuted at the discretion of the governor and that the
    governor considers commutation requests “upon the recommendation of the [Wyoming
    Board of Parole].” 
    Id. Thus, the
    court explained, the personal savings account
    requirement provided an “incentive to prisoners for good behavior” which “enhance[s]
    the possibility of leaving the prison system before the end of their lives.” 
    Id. 2 Mr.
    Bird then filed a habeas petition under 28 U.S.C. § 2241, again challenging
    the Wyoming statutes as a violation of his equal protection rights. The district court
    denied his petition and we denied him a COA on appeal, concluding: “We see no equal-
    protection violation in Wyoming’s decision . . . . No reasonable jurist could debate
    otherwise.” Bird v. Wyoming Attorney Gen., 712 F. App’x 742, 745 (10th Cir. 2017),
    cert. denied sub nom. Bird v. Pacheco, 
    138 S. Ct. 746
    (2018).
    Dissatisfied with our decision, Mr. Bird filed a motion under Rule 60(b)(6), asking
    the district court to set aside its order due to “extraordinary circumstances.” ROA, Vol. II
    at 3. In particular, he argued that a subsequent opinion from the Wyoming Supreme
    Court— Davis v. State, 
    415 P.3d 666
    (Wyo. 2018)—“directly impeaches [the court’s]
    view on a point of law in deciding [Mr.] Bird’s parole eligibility equal protection claim.”
    
    Id. at 4.
    The district court denied Mr. Bird’s motion. It concluded that there were “no
    exceptional circumstances justifying relief in this case” because “nothing in Davis
    changed the previous analysis on [Mr.] Bird’s claim related to either the mandatory
    savings account or his ineligibility for parole.” 
    Id. at 12–13.
    The district court
    subsequently denied Mr. Bird a COA.
    Mr. Bird timely appealed, and we once again consider whether he is entitled to a
    COA.
    ANALYSIS
    Before reaching the merits of Mr. Bird’s appeal, we must first address the
    threshold question of our own jurisdiction. Because the district court denied a COA, we
    lack jurisdiction over Mr. Bird’s appeal unless we issue a COA of our own. See 28
    3
    U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 
    537 U.S. 322
    , 327 (2003); see also
    Dulworth v. Jones, 
    496 F.3d 1133
    , 1135 (10th Cir. 2007) abrogated on other grounds by
    Harbison v. Bell, 
    556 U.S. 180
    (2009) (“[A] state prisoner seeking to appeal the denial of
    habeas relief in a § 2241 proceeding must obtain a COA to appeal”). When, as here, “the
    district court denies a habeas petition on procedural grounds,” the petitioner may obtain a
    COA by “show[ing], 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.”
    Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). Mr. Bird cannot make either showing.
    Under Rule 60(b)(6), a court may relieve a movant from a final judgment or the
    effects of an order for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
    “Relief under Rule 60(b) is discretionary and is warranted only in exceptional
    circumstances.” Van Skiver v. United States, 
    952 F.2d 1241
    , 1243 (10th Cir. 1991). We
    review the district court’s decision to grant or deny a Rule 60(b) motion for abuse of
    discretion. 
    Id. at 1242–43.
    Thus, taking the relevant standards together, the question here
    is whether a jurist of reason would find it debatable that the district court abused its
    discretion when it concluded that the Wyoming Supreme Court’s ruling in Davis did not
    constitute an exceptional circumstance justifying relief under Rule 60(b)(6). We answer
    that question in the negative.
    As noted, Mr. Bird argues that Davis undermines the basis for the Wyoming
    Supreme Court decision in his case and that the district court abused its discretion when it
    failed to conclude that Davis constitutes an exceptional circumstance. Pet’r’s Br. at 3–4.
    4
    In Davis, the Wyoming Supreme Court held “life without parole is,” “more likely than
    not,” “a disproportionate sentence” for juvenile defendants and that the trial court had
    “abused its discretion by weighing [the juvenile defendant’s] youth as an aggravating
    instead of mitigating 
    factor.” 415 P.3d at 695
    –96. But Mr. Bird points to language in the
    opinion describing a sentence of life without parole as a “denial of hope” and as
    “mean[ing] that good behavior and character improvement are immaterial.” ROA, Vol. II
    at 5 (quoting 
    Davis, 415 P.3d at 693
    ). Construing his arguments liberally, Mr. Bird is
    arguing the Wyoming Supreme Court changed the law in Davis, leaving the Wyoming
    statutory scheme without a rational basis.
    Regardless of the merits of Mr. Bird’s claim, our precedent forecloses relief on
    procedural grounds. We have already held that even where there has been a “change in
    the law or in the judicial view of an established rule of law,” if that change “did not arise
    in a related case,” the movant lacks the extraordinary circumstances necessary to justify
    relief. Van 
    Skiver, 952 F.2d at 1245
    (quotation marks omitted). This is precisely
    Mr. Bird’s argument: In Davis, a case unrelated to his own, the Wyoming Supreme Court
    changed the law. Thus, it is beyond debate that the district court did not abuse its
    discretion.
    5
    CONCLUSION
    For the reasons stated, we deny Mr. Bird a COA and dismiss his appeal.2
    Entered for the Court
    Carolyn B. McHugh
    Circuit Judge
    2
    We also deny Mr. Bird’s motion to proceed in forma pauperis.
    6
    

Document Info

Docket Number: 19-8035

Filed Date: 7/3/2019

Precedential Status: Non-Precedential

Modified Date: 7/3/2019