Clark v. Braggs

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 30, 2019
• Docket: 19-6105
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 30, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court HERMAN TRACY CLARK,

Petitioner - Appellant, No. 19-6105 v. (D.C. No. 5:19-CV-00360-D) (W.D. Okla.) JEROLD BRAGGS, Warden,

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges. _________________________________

Petitioner-Appellant Herman Tracy Clark seeks to appeal from the district court’s

dismissal of his 28 U.S.C. § 2241 petition without prejudice. Clark v. Braggs, 2019 WL

2476751 at *2 (W.D. Okla. June 13, 2019). The magistrate judge assigned recommended

denial of the petition concluding that Mr. Clark lacks a protected property or liberty

interest in discretionary parole, Clark v. Braggs, 2019 WL 2477634 at *3 (W.D. Okla.

May 9, 2019). See Burnett v. Fallin, 754 F. App’x 696, 702-03 (10th Cir. 2018). The

district court agreed, but also construed the petition as challenging the validity of Mr.

Clark’s life sentence. The district court denied it reasoning that Mr. Clark would need

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. authorization from this court to file a second or successive 28 U.S.C. § 2254 petition.

28 U.S.C. § 2244(b)(3); Clark, 2019 WL 2476751 at *2. The district court also denied a

certificate of appealability (COA), 28 U.S.C. § 2253(c)(2).

Mr. Clark is subject to filing restrictions in this court. In re Clark, 13-6053 (10th

Cir. Mar. 15, 2013) (order) (“[W]e direct that any further applications, motions, or other

filings collaterally attacking Mr. Clark’s 1975 Oklahoma murder conviction will be

deemed denied on the fifteenth calendar day after filing unless this court otherwise

orders.”). On July 18, 2019, we ordered Mr. Clark to show cause why these filing

restrictions do not apply to this appeal.

Mr. Clark argues that the filing restrictions apply only to second or successive

§ 2254 applications, not petitions under § 2241. We are not persuaded, but regardless,

the district court observed that this proceeding is an attempt to challenge the validity of

Mr. Clark’s life sentence by a different procedural vehicle. Clark, 2019 WL 2476751

at *1. We agree. Indeed, Mr. Clark’s petition states that he is challenging “[t]he validity

of [his] conviction or sentence as imposed.” R. 4.

Mr. Clark also seeks to proceed in forma pauperis (IFP). He must show (1) that

the appeal is taken in good faith, and (2) that he is unable to pay the required fees.

McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). In view

of our determination that this proceeding is barred by the filing restrictions, we conclude

that Mr. Clark fails to show that this appeal was taken in good faith. We also conclude

that none of Mr. Clark’s papers show a “reasoned, nonfrivolous argument on the law and

2 facts in support of the issues raised on appeal.” Caravalho v. Pugh, 177 F.3d 1177, 1179

(10th Cir. 1999).

We DENY a COA, DENY IFP, and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge