Dopp v. Martin

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 24, 2018
• Docket: 18-5070
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT October 24, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court RICHARD LYNN DOPP,

Petitioner - Appellant,

v. No. 18-5070 (D.C. No. 4:18-CV-00152-CVE-FHM) JIMMY MARTIN, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

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

Richard Lynn Dopp seeks a certificate of appealability (COA) to appeal the

district court’s dismissal of his successive habeas application under 28 U.S.C. § 2254 for

lack of jurisdiction and its denial of his motion to alter or amend the judgment under

Fed. R. Civ. P. 59(e). We deny a COA and dismiss this appeal.

I. Background

Dopp is an Oklahoma state prisoner proceeding pro se. After a jury trial in 1998,

he was convicted of drug and firearms offenses and sentenced to life imprisonment

without the possibility of parole. Following an unsuccessful direct appeal, he filed a

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. § 2254 habeas application in 2002.1 The district court denied relief, and this court denied

a COA. Dopp v. Ward, 198 F. App’x 791, 792 (10th Cir. 2006). Dopp filed another

§ 2254 application in 2012. The district court held that filing was second or successive

and unauthorized, and dismissed it for lack of jurisdiction. We denied a COA. Dopp v.

Workman, 502 F. App’x 797, 798, 801 (10th Cir. 2012). Dopp has also twice sought

authorization from this court to file a second or successive § 2254 application. In both

instances, we denied authorization. See id. at 801; Dopp v. Jones, No. 07-5058, slip op.

at 4 (10th Cir. May 7, 2007) (unpublished).

In 2018, Dopp filed his fourth-in-time § 2254 application. The district court held

that this latest filing was once again successive and unauthorized, and dismissed it for

lack of jurisdiction. The court also declined to exercise its discretion to transfer the

matter to this court for authorization under 28 U.S.C. § 2244(b)(3). Dopp filed a motion

to alter or amend pursuant to Rule 59(e), which the district court denied. He now seeks

to appeal the district court’s judgment and its order denying his Rule 59(e) motion. We

deny a COA and dismiss this appeal.

II. Discussion

Dopp must obtain a COA to pursue his appeal. See Montez v. McKinna, 208 F.3d

862, 866-67 (10th Cir. 2000) (holding a state prisoner must obtain a COA to appeal a

final order in a habeas corpus proceeding); cf. Spitznas v. Boone, 464 F.3d 1213, 1218

1 Dopp’s original § 2254 application, filed in 1999, was dismissed without prejudice for failure to exhaust administrative remedies. Dopp v. Saffle, 28 F. App’x 859, 860 (10th Cir. 2001). 2 (10th Cir. 2006) (holding a COA is required to appeal from the denial of a motion under

Fed. R. Civ. P. 60(b) filed in a habeas case); United States v. Harper, 545 F.3d 1230,

1233 (10th Cir. 2008) (holding a federal prisoner must obtain a COA to appeal a district

court’s dismissal of an unauthorized second or successive motion under 28 U.S.C. § 2255

for lack of jurisdiction).

Because the district court’s rulings rested on procedural grounds, Dopp must show

both “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). We liberally construe Dopp’s pro se application

for a COA. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002).

As construed by the district court, Dopp’s latest § 2254 application asserted two

claims: (1) “the Ottawa County District Court lacked jurisdiction to enter judgment and

sentence against him because he committed his crimes of conviction within ‘Indian

Country,’ specifically within the boundaries of the Seneca-Cayuga Tribe reservation,”

and (2) “the State of Oklahoma violated his equal protection rights by prosecuting him

but not prosecuting similarly situated individuals who also commit crimes within the

reservation’s boundaries.” R. at 62. Because these claims attempted to assert or reassert

federal bases for relief from Dopp’s underlying conviction, the district court concluded

that his latest § 2254 application was successive and unauthorized, and dismissed it for

lack of jurisdiction. See Spitznas, 464 F.3d at 1215-16; In re Cline, 531 F.3d 1249, 1252

(10th Cir. 2008). The district court also declined to transfer the matter to this court for

3 authorization under § 2244(b)(3). Finally, the court held that Dopp’s Rule 59(e) motion

failed to demonstrate any reason to alter or amend the judgment. The district court

denied a COA as to all issues.

A. Reasonable Jurists Would Not Debate That Dopp’s § 2254 Application Was Successive and Required This Court’s Authorization

Dopp does not dispute that he previously filed a § 2254 application. He instead

argues that his claim challenging the state trial court’s jurisdiction is not second or

successive because (1) a jurisdictional claim can be brought at any time and cannot be

waived or forfeited, and (2) that claim was not ripe until this court issued its decision in

Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted, 138 S. Ct. 2026 (2018).

Dopp also contends that the district court abused its discretion in declining to transfer the

matter to this court for authorization.2

Contrary to his assertion, Dopp’s jurisdictional challenge is not exempt from

authorization under § 2244(b). In Cline, we rejected a prisoner’s contention that a

jurisdictional claim can be raised at any time in a motion under Rule 60(b). 531 F.3d at

1253. We held that the prisoner’s motion challenging the trial court’s jurisdiction was a

second or successive § 2255 motion and was therefore subject to the authorization

requirement in § 2255(h). Id. The same rule applies to a successive § 2254 application

asserting a jurisdictional defect. In fact, “this court has barred a state prisoner convicted

2 Dopp further asserts that the district court misconstrued his equal protection claim and erred in failing to decide that claim on the merits. This contention ignores the district court’s basis for its dismissal of Dopp’s § 2254 application: lack of jurisdiction to reach the merits of his claims. See Cline, 531 F.3d at 1251. 4 of murder and sentenced to death by the wrong sovereign from bringing a successive

collateral attack to contest his conviction on this [jurisdictional] basis.” Prost v.

Anderson, 636 F.3d 578, 592 (10th Cir. 2011). As we explained in Prost, “[t]his is

because . . . lack of jurisdiction is not one of the two authorized grounds upon which a

successive § 2254 motion may be filed.” Id.; see also § 2244(b)(2) (setting forth the

statutory bases for authorization of a second or successive § 2254 habeas application).

Thus, the jurisdictional nature of Dopp’s claim does not exempt his § 2254 application

from dismissal for lack of jurisdiction as a successive and unauthorized application.

Dopp also argues that his claims are not second or successive because they were

not ripe until this court issued its decision in Murphy. In that case, we considered

whether the land on which a crime occurred was Indian Country as defined in 18 U.S.C.

§ 1151. 875 F.3d at 904. After holding that Congress had not disestablished the Creek

Reservation, we granted the prisoner’s application for habeas relief under § 2254 because

the state court lacked jurisdiction to try him for a murder committed in Indian Country.

Id. at 966.

Dopp is correct that a successive § 2254 application does not require this court’s

authorization if the claim asserted was not ripe at the time the prisoner filed his first

habeas application. See In re Weathersby, 717 F.3d 1108, 1111 (10th Cir. 2013) (holding

that a claim is not second or successive if the basis for the claim did not exist when prior

proceedings under § 2255 were ongoing). To the extent Dopp contends that he did not

discover the factual predicate underlying his jurisdictional claim until this court’s

decision in Murphy, a recent discovery of facts is not sufficient to establish that a claim

5 was previously unripe. See United States v. Williams, 790 F.3d 1059, 1068 (10th Cir.

2015). In Williams we explained that the exception to the bar on unauthorized successive

§ 2255 motions applies “where the factual basis for a claim does not yet exist—not where

it has simply not yet been discovered—at the time of a defendant’s first motion.” Id.

Here, Dopp does not identify any facts underlying his jurisdictional claim that did not

exist in 2002 when he filed his first § 2254 application.

Nor was Dopp’s jurisdictional claim unripe due to the unsettled state of the law

regarding the boundaries of the Seneca-Cayuga Reservation. The law was likewise not

settled when the prisoner in Murphy argued that his crime was committed in Indian

Country. See 875 F.3d at 937 (applying the Supreme Court’s framework to decide

whether Congress has disestablished the Creek Reservation). Nothing prevented Dopp

from asserting in his first § 2254 application a claim that the Oklahoma state court lacked

jurisdiction because the crime he committed occurred in Indian Country. The fact that

he, unlike the prisoner in Murphy, did not identify that argument does not establish that

he could not have done so. Cf. Prost, 636 F.3d at 588-89 (holding prisoner could have

included in his first § 2255 motion a statutory construction argument that the Supreme

Court later vindicated in another prisoner’s § 2255 proceeding).3 We therefore reject

3 Moreover, contrary to Dopp’s assertion, he does not now stand in the same shoes as the prisoner in Murphy, who raised his jurisdictional claim in his first § 2254 application. See 875 F.3d at 910 (noting the prisoner amended his first § 2254 application to add a claim challenging Oklahoma’s jurisdiction). Thus, unlike Dopp, the prisoner in Murphy did not have to satisfy the authorization requirement for a successive § 2254 application.

6 Dopp’s assertion that his jurisdictional claim was not ripe at the time of his initial § 2254

proceedings.

B. Reasonable Jurists Would Not Debate the District Court’s Discretionary Decision to Dismiss Rather than Transfer Dopp’s Successive and Unauthorized § 2254 Application

“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 under [28 U.S.C.] § 1631, or it

may dismiss the . . . petition for lack of jurisdiction.” Cline, 531 F.3d at 1252.

Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction. Id. at 1251. Here, the district court declined to transfer because Dopp’s latest filing was

his fourth § 2254 application attacking the same judgment; he has twice sought

authorization to file a second or successive § 2254 application, demonstrating his

familiarity with that process; and it was clear from Dopp’s application that his claims

remained pending in state court and are therefore unexhausted. In denying Dopp’s

Rule 59(e) motion, the district court advised him “that the dismissal without prejudice

does not prevent him from seeking authorization from the Tenth Circuit Court of Appeals

to file a successive habeas petition in [the district court].” R. at 83-84.

We note, initially, that Dopp may be confused regarding the purpose of a transfer

to this court. Section 1631 permits transfer to a “court in which the action or appeal

could have been brought at the time it was filed or noticed.” This court has jurisdiction to

7 consider a motion for authorization to file a second or successive § 2254 application.

28 U.S.C. § 2244(b)(3). To the extent Dopp believes that we would rule on the merits of

his claims following a transfer, he is mistaken.

Dopp argues that the district court should have transferred this matter because

recent developments in his sentence may result in him being no longer “in custody” for

purposes of his standing to file a § 2254 application.4 But any urgency in obtaining

authorization to file his successive claims is belied by Dopp’s failure to seek

authorization directly from this court. Despite his familiarity with the process, and the

district court’s admonition that he could do so, Dopp has not filed a motion for

authorization to file the claims that he asserted in the district court. The district court’s

decision not to transfer the matter for the purpose of seeking that authorization did not, as

Dopp asserts, leave him no choice but to file this appeal.

Dopp also contends that the matter should have been transferred because he cannot

exhaust his claims in state court. He asserts that he is subject to filing restrictions under

which the state court will not rule on his claims until he has paid the filing fee in full.

And he maintains that he is unable to do so. But exhaustion is not one of the factors this

court would consider in deciding whether to authorize a successive § 2254 application.

Thus, even if Dopp could ultimately establish in the district court that exhaustion of his

claims is excused, reasonable jurists still would not debate the district court’s exercise of

4 Dopp states that his life-without-parole sentence was commuted to 30 years’ and that he was paroled in May 2018. He further states that recent legislation may also discharge his 30-year sentence. 8 its discretion not to transfer his successive and unauthorized § 2254 application for

authorization by this court.

III. Conclusion

Because Dopp has not demonstrated that jurists of reason would find it debatable

whether the district court was correct in its procedural rulings, we deny a COA and

dismiss this appeal.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk