Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 17, 2025 _________________________________ Christopher M. Wolpert Clerk of Court BILLY BROWN,
Petitioner - Appellant,
v. No. 25-5101 (D.C. No. 4:17-CV-00651-CVE-CDL) DAVID ROGERS, Warden, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Billy Brown, an Oklahoma state prisoner, seeks a certificate of appealability
(“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 application for a
writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the
final order in a habeas corpus proceeding in which the detention complained of arises out
of process issued by a State court”). His counsel filed an Anders brief and a motion to
withdraw, stating Mr. Brown has no non-frivolous grounds for appeal. After careful
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 2
review, we agree. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we grant
counsel’s motion to withdraw, deny a COA, and dismiss this matter.
I. BACKGOUND
A. Procedural History
Mr. Brown is serving a life sentence without the possibility of parole for
first-degree murder. The Oklahoma Court of Criminal Appeals affirmed his conviction
and sentence on direct appeal. It also denied his appeals of two unsuccessful applications
for post-conviction relief.
Mr. Brown applied for federal habeas relief under § 2254, alleging four claims.
ROA, Vol. 1 at 7-16. The district court denied his claims and denied a COA. Id.
at 365-79. After filing a notice of appeal on behalf of Mr. Brown, his counsel filed an
Anders brief. This court notified Mr. Brown that he could file a response, but he has not
done so.
B. COA and Anders
A COA is a jurisdictional pre-requisite to our review. Miller–El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA only if Mr. Brown makes a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
showing, he must establish that “reasonable jurists could debate whether . . . the petition
should have been resolved [by the district court] 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). We review the district court’s
2 Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 3
factual findings for clear error and its legal conclusions de novo. English v. Cody,
241 F.3d 1279, 1282 (10th Cir. 2001).
Anders v. California provides that:
[I]f counsel finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. . . . [T]he court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal . . . .
386 U.S. 738, 744 (1967). When counsel submits an Anders brief, we review the record
de novo. United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016).
II. DISCUSSION
The Anders brief addresses the four claims that the district court denied and
concludes that Mr. Brown has no non-frivolous arguments for appeal. Based on our
de novo review, we agree. We have not detected any other viable appeal issues. We
further conclude that reasonable jurists would not debate the district court’s decision, so
we deny a COA. The following addresses the four claims.
A. Indian Country Jurisdiction
Mr. Brown claimed the state court, which found the victim was an Indian and the
murder occurred in Indian country, lacked jurisdiction over his prosecution. As the
district court noted, the parties eventually agreed that Mr. Brown is not an Indian, ROA,
Vol. 1 at 373, so the court concluded that he cannot rely on McGirt v. Oklahoma,
591 U.S. 894 (2020) and 18 U.S.C. § 1153(a), which concern Indian country prosecutions
3 Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 4
when the defendant and the victim are both Indians, id. The court further concluded that
Mr. Brown’s jurisdiction argument fails under Oklahoma v. Castro-Huerta, 597 U.S. 629
(2022), which held that state and federal courts “have concurrent jurisdiction to prosecute
crimes committed by non-Indians against Indians in Indian country.” Id. at 633. Based
on Castro-Huerta, Mr. Brown has no non-frivolous argument to challenge the state
court’s jurisdiction.
B. Grand Jury Indictment
Mr. Brown claimed that the state court lacked jurisdiction because the State failed
to advise him of his federal right to a state grand jury indictment. The district court
denied this claim based on procedural default and on the merits. On the latter, it pointed
to Lem Woon v. State of Oregon, 229 U.S. 586 (1913), which said the federal constitution
does not require a state to charge a criminal case by grand jury indictment and that a state
may use an information to do so. Id. at 589-90. We agree with the Anders brief that a
challenge to the district court’s ruling would be frivolous.
C. Due Process
Mr. Brown claimed generally that the state courts deprived him of due process by
failing to comply with state and federal law and because he is actually innocent. The
district court denied this claim. It said that Mr. Brown’s “vague and conclusory
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Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 17, 2025 _________________________________ Christopher M. Wolpert Clerk of Court BILLY BROWN,
Petitioner - Appellant,
v. No. 25-5101 (D.C. No. 4:17-CV-00651-CVE-CDL) DAVID ROGERS, Warden, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Billy Brown, an Oklahoma state prisoner, seeks a certificate of appealability
(“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 application for a
writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the
final order in a habeas corpus proceeding in which the detention complained of arises out
of process issued by a State court”). His counsel filed an Anders brief and a motion to
withdraw, stating Mr. Brown has no non-frivolous grounds for appeal. After careful
* 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. Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 2
review, we agree. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we grant
counsel’s motion to withdraw, deny a COA, and dismiss this matter.
I. BACKGOUND
A. Procedural History
Mr. Brown is serving a life sentence without the possibility of parole for
first-degree murder. The Oklahoma Court of Criminal Appeals affirmed his conviction
and sentence on direct appeal. It also denied his appeals of two unsuccessful applications
for post-conviction relief.
Mr. Brown applied for federal habeas relief under § 2254, alleging four claims.
ROA, Vol. 1 at 7-16. The district court denied his claims and denied a COA. Id.
at 365-79. After filing a notice of appeal on behalf of Mr. Brown, his counsel filed an
Anders brief. This court notified Mr. Brown that he could file a response, but he has not
done so.
B. COA and Anders
A COA is a jurisdictional pre-requisite to our review. Miller–El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA only if Mr. Brown makes a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
showing, he must establish that “reasonable jurists could debate whether . . . the petition
should have been resolved [by the district court] 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). We review the district court’s
2 Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 3
factual findings for clear error and its legal conclusions de novo. English v. Cody,
241 F.3d 1279, 1282 (10th Cir. 2001).
Anders v. California provides that:
[I]f counsel finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. . . . [T]he court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal . . . .
386 U.S. 738, 744 (1967). When counsel submits an Anders brief, we review the record
de novo. United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016).
II. DISCUSSION
The Anders brief addresses the four claims that the district court denied and
concludes that Mr. Brown has no non-frivolous arguments for appeal. Based on our
de novo review, we agree. We have not detected any other viable appeal issues. We
further conclude that reasonable jurists would not debate the district court’s decision, so
we deny a COA. The following addresses the four claims.
A. Indian Country Jurisdiction
Mr. Brown claimed the state court, which found the victim was an Indian and the
murder occurred in Indian country, lacked jurisdiction over his prosecution. As the
district court noted, the parties eventually agreed that Mr. Brown is not an Indian, ROA,
Vol. 1 at 373, so the court concluded that he cannot rely on McGirt v. Oklahoma,
591 U.S. 894 (2020) and 18 U.S.C. § 1153(a), which concern Indian country prosecutions
3 Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 4
when the defendant and the victim are both Indians, id. The court further concluded that
Mr. Brown’s jurisdiction argument fails under Oklahoma v. Castro-Huerta, 597 U.S. 629
(2022), which held that state and federal courts “have concurrent jurisdiction to prosecute
crimes committed by non-Indians against Indians in Indian country.” Id. at 633. Based
on Castro-Huerta, Mr. Brown has no non-frivolous argument to challenge the state
court’s jurisdiction.
B. Grand Jury Indictment
Mr. Brown claimed that the state court lacked jurisdiction because the State failed
to advise him of his federal right to a state grand jury indictment. The district court
denied this claim based on procedural default and on the merits. On the latter, it pointed
to Lem Woon v. State of Oregon, 229 U.S. 586 (1913), which said the federal constitution
does not require a state to charge a criminal case by grand jury indictment and that a state
may use an information to do so. Id. at 589-90. We agree with the Anders brief that a
challenge to the district court’s ruling would be frivolous.
C. Due Process
Mr. Brown claimed generally that the state courts deprived him of due process by
failing to comply with state and federal law and because he is actually innocent. The
district court denied this claim. It said that Mr. Brown’s “vague and conclusory
assertions” do not state “a cognizable habeas claim.” ROA, Vol. 1 at 376. It also cited
Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th Cir. 2019) (stating the Supreme Court
“has never recognized freestanding actual innocence claims as a basis for federal habeas
relief”), ROA, Vol. 1 at 377. The Anders brief states, “Counsel for Mr. Brown cannot, on
4 Appellate Case: 25-5101 Document: 25 Date Filed: 12/17/2025 Page: 5
appeal, identify any specific claim that can be presented to this Court.” Anders Br. at 9.
We discern no non-frivolous arguments to challenge the district court’s denial of this
claim.
D. Discrimination
Mr. Brown claimed that, because he is “disabled, incompetent, poor [and]
[B]lack,” the state discriminated against him and denied him equal protection and due
process by treating him unfairly throughout trial and appeal and because appellate
counsel raised fewer issues than should have been raised in the direct appeal. ROA,
Vol. 1 at 16. Similarly as to the third claim, the district court dismissed this claim as a
“blanket attack” that failed to “identify any specific constitutional defects.” Id. at 377
(quotations omitted). The Anders brief states, “These claims furnish present appellate
counsel no reasonable basis to challenge the ruling denying habeas relief.” Anders Br.
at 9. We see no reason to conclude otherwise.
III. CONCLUSION
Our independent review of the record reveals no non-frivolous grounds for a
COA. We grant counsel’s motion to withdraw, deny a COA, and dismiss this matter.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge