Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 22, 2021 _________________________________ Christopher M. Wolpert Clerk of Court TYRONE LESLIE FARRIS,
Petitioner - Appellant,
v. No. 21-6077 (D.C. No. 5:18-CV-00738-R) JIMMY MARTIN, Warden of North Fork (W.D. Okla.) Corrections; JOE ALLBAUGH, Director of the Department of Corrections,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, KELLY, and McHUGH, Circuit Judges. _________________________________
Tyrone Leslie Farris, an Oklahoma state inmate proceeding pro se, seeks a
certificate of appealability (COA) to contest the district court’s denial of his motion under
Federal Rule of Civil Procedure 60(b) to set aside the dismissal of his application for
relief under 28 U.S.C. § 2241. We deny a COA, as no reasonable jurist could have
concluded that the district court abused its discretion in declining to reopen the judgment.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 2
I. BACKGROUND
Mr. Farris is serving a 99-year sentence for his 1985 conviction for rape. In this
§ 2241 proceeding Mr. Farris asserted that the Oklahoma Department of Corrections
improperly denied him various sentencing credits. The United States District Court for
the Western District of Oklahoma dismissed the § 2241 application as untimely.
Although Mr. Farris filed a notice of appeal, we dismissed the appeal as untimely. See
Farris v. Martin, No. 21-6037, 2021 WL 4467565, at *1 (10th Cir. May 28, 2021)
(unpublished).
After the district court dismissed his application, Mr. Farris filed a “Motion for
Reconsideration” invoking Federal Rule of Civil Procedure 60(b)(6), which allows for
relief from a final judgment for “any other reason that justifies relief.” The motion
asserted that the denial of his § 2241 application was improper because the district judge
and magistrate judge should have disqualified themselves for bias, and it re-argued the
merits of his § 2241 application. The district court denied the motion and declined to
grant a COA.
II. DISCUSSION
This court held in Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000), that the
COA requirement of 28 U.S.C. § 2253(c)(1)(A) applies “whenever a state prisoner
habeas petition relates to matters flowing from a state court detention order,” including in
a proceeding under § 2241. With respect to a prisoner’s challenge to a district court’s
denial of a Rule 60(b)(6) motion, the Supreme Court has accepted a formulation of the
relevant COA standard as “whether a reasonable jurist could conclude that the District
2 Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 3
Court abused its discretion in declining to reopen the judgment.” Buck v. Davis, 137 S.
Ct. 759, 777 (2017).1
That standard has not been satisfied in this case. Because Mr. Farris’s filings were
submitted pro se, they are “entitled to a liberal construction,” Childers v. Crow, 1 F.4th
792, 798 (10th Cir. 2021), but we “cannot take on the responsibility of serving as [his]
attorney in constructing arguments and searching the record,” Lankford v. Wagner, 853
F.3d 1119, 1122 (10th Cir. 2017) (internal quotation marks omitted).
We first address Mr. Farris’s bias claim.2 The Rule 60(b) motion makes various
allegations of favoritism, bias, and prejudice by both the district and magistrate judges.
1 In a proceeding under 28 U.S.C. § 2254 or § 2255, an additional step is necessary before determining whether to consider a motion under Rule 60(b) or whether to grant a COA to review a ruling on such a motion. A district court lacks authority to grant relief on a second-or-successive petition under § 2254 or § 2255 unless permission is granted by a court of appeals, see 28 U.S.C. § 2244(b) (§ 2254 applications); id. § 2255(h) (§ 2255 motions). Because some matters raised in motions under Rule 60(b) in habeas proceedings may be properly viewed as second-or-successive petitions, such matters cannot be considered by a district court without prior approval by the court of appeals; that is, the district court can address only matters that are termed, in this context, “true” Rule 60(b) motions because they concern only “some defect in the integrity of the federal habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005); see United States v. Nelson, 465 F.3d 1145, 1147–49 (10th Cir. 2006) (applying Gonzalez in a § 2255 case). The prior-approval requirement for second-or-successive habeas petitions does not apply, however, in proceedings under § 2241. See Stanko v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010) (“[T]he requirement for prior circuit authorization . . . does not apply to habeas petitions brought under § 2241.”); see id. at 1268–69 (explaining this conclusion). There are significant limitations on § 2241 applications under long-standing restrictions on successive habeas petitions and under the abuse-of- the-writ doctrine, see id. at 1269–70 & n.7; but the district court has authority to address them without prior approval from the court of appeals. Thus, we need not determine whether any part of Mr. Farris’s motion is or is not a “true” Rule 60(b) motion. 2 We recognize that at least two unpublished opinions of this court have stated that a COA is not required to seek review in this court of an order denying recusal in a habeas 3 Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 4
But the sole support for the bias claims is that the judges issued various adverse rulings.
It is well-settled law that “adverse rulings cannot in themselves form the appropriate
grounds for disqualification.” United States v. Wells, 873 F.3d 1241, 1252 (10th Cir.
2017) (internal quotation marks omitted); see Willner v. Univ. of Kansas, 848 F.2d 1023,
1028 (10th Cir. 1988) (“[A] motion to recuse cannot be based solely on adverse
rulings.”). No reasonable jurist could conclude that the district court abused its discretion
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Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 22, 2021 _________________________________ Christopher M. Wolpert Clerk of Court TYRONE LESLIE FARRIS,
Petitioner - Appellant,
v. No. 21-6077 (D.C. No. 5:18-CV-00738-R) JIMMY MARTIN, Warden of North Fork (W.D. Okla.) Corrections; JOE ALLBAUGH, Director of the Department of Corrections,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, KELLY, and McHUGH, Circuit Judges. _________________________________
Tyrone Leslie Farris, an Oklahoma state inmate proceeding pro se, seeks a
certificate of appealability (COA) to contest the district court’s denial of his motion under
Federal Rule of Civil Procedure 60(b) to set aside the dismissal of his application for
relief under 28 U.S.C. § 2241. We deny a COA, as no reasonable jurist could have
concluded that the district court abused its discretion in declining to reopen the judgment.
* 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: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 2
I. BACKGROUND
Mr. Farris is serving a 99-year sentence for his 1985 conviction for rape. In this
§ 2241 proceeding Mr. Farris asserted that the Oklahoma Department of Corrections
improperly denied him various sentencing credits. The United States District Court for
the Western District of Oklahoma dismissed the § 2241 application as untimely.
Although Mr. Farris filed a notice of appeal, we dismissed the appeal as untimely. See
Farris v. Martin, No. 21-6037, 2021 WL 4467565, at *1 (10th Cir. May 28, 2021)
(unpublished).
After the district court dismissed his application, Mr. Farris filed a “Motion for
Reconsideration” invoking Federal Rule of Civil Procedure 60(b)(6), which allows for
relief from a final judgment for “any other reason that justifies relief.” The motion
asserted that the denial of his § 2241 application was improper because the district judge
and magistrate judge should have disqualified themselves for bias, and it re-argued the
merits of his § 2241 application. The district court denied the motion and declined to
grant a COA.
II. DISCUSSION
This court held in Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000), that the
COA requirement of 28 U.S.C. § 2253(c)(1)(A) applies “whenever a state prisoner
habeas petition relates to matters flowing from a state court detention order,” including in
a proceeding under § 2241. With respect to a prisoner’s challenge to a district court’s
denial of a Rule 60(b)(6) motion, the Supreme Court has accepted a formulation of the
relevant COA standard as “whether a reasonable jurist could conclude that the District
2 Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 3
Court abused its discretion in declining to reopen the judgment.” Buck v. Davis, 137 S.
Ct. 759, 777 (2017).1
That standard has not been satisfied in this case. Because Mr. Farris’s filings were
submitted pro se, they are “entitled to a liberal construction,” Childers v. Crow, 1 F.4th
792, 798 (10th Cir. 2021), but we “cannot take on the responsibility of serving as [his]
attorney in constructing arguments and searching the record,” Lankford v. Wagner, 853
F.3d 1119, 1122 (10th Cir. 2017) (internal quotation marks omitted).
We first address Mr. Farris’s bias claim.2 The Rule 60(b) motion makes various
allegations of favoritism, bias, and prejudice by both the district and magistrate judges.
1 In a proceeding under 28 U.S.C. § 2254 or § 2255, an additional step is necessary before determining whether to consider a motion under Rule 60(b) or whether to grant a COA to review a ruling on such a motion. A district court lacks authority to grant relief on a second-or-successive petition under § 2254 or § 2255 unless permission is granted by a court of appeals, see 28 U.S.C. § 2244(b) (§ 2254 applications); id. § 2255(h) (§ 2255 motions). Because some matters raised in motions under Rule 60(b) in habeas proceedings may be properly viewed as second-or-successive petitions, such matters cannot be considered by a district court without prior approval by the court of appeals; that is, the district court can address only matters that are termed, in this context, “true” Rule 60(b) motions because they concern only “some defect in the integrity of the federal habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005); see United States v. Nelson, 465 F.3d 1145, 1147–49 (10th Cir. 2006) (applying Gonzalez in a § 2255 case). The prior-approval requirement for second-or-successive habeas petitions does not apply, however, in proceedings under § 2241. See Stanko v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010) (“[T]he requirement for prior circuit authorization . . . does not apply to habeas petitions brought under § 2241.”); see id. at 1268–69 (explaining this conclusion). There are significant limitations on § 2241 applications under long-standing restrictions on successive habeas petitions and under the abuse-of- the-writ doctrine, see id. at 1269–70 & n.7; but the district court has authority to address them without prior approval from the court of appeals. Thus, we need not determine whether any part of Mr. Farris’s motion is or is not a “true” Rule 60(b) motion. 2 We recognize that at least two unpublished opinions of this court have stated that a COA is not required to seek review in this court of an order denying recusal in a habeas 3 Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 4
But the sole support for the bias claims is that the judges issued various adverse rulings.
It is well-settled law that “adverse rulings cannot in themselves form the appropriate
grounds for disqualification.” United States v. Wells, 873 F.3d 1241, 1252 (10th Cir.
2017) (internal quotation marks omitted); see Willner v. Univ. of Kansas, 848 F.2d 1023,
1028 (10th Cir. 1988) (“[A] motion to recuse cannot be based solely on adverse
rulings.”). No reasonable jurist could conclude that the district court abused its discretion
in declining to reopen the judgment on this ground.
The remainder of Mr. Farris’s Rule 60(b) motion does nothing more than reargue
the merits of his original § 2241 application. But the district court has no obligation to
repeat what it has already ruled on the same issues. See Allender v. Raytheon Aircraft
Co., 439 F.3d 1236, 1242 (10th Cir. 2006). The district court did not abuse its discretion
in declining to reopen the judgment on this ground. No reasonable jurist would hold
otherwise.
case. See Vreeland v. Zupan, 801 F. App’x 629, 632 (10th Cir. 2020) (citing Harbison v. Bell, 556 U.S. 180, 183 (2009)); United States v. McIntosh, 723 F. App’x 613, 616 (10th Cir. 2018) (citing Harbison). But the procedural posture of those cases was unlike the posture here. In both of those cases the prisoner was appealing the denial of the motion to recuse, seeking to require the accused judges to no longer participate in the case. That is not the relief sought by Mr. Farris. His motion seeks to set aside the denial of his § 2241 application. It therefore comes squarely within the requirement of § 2253(c)(1)(A) that a COA be obtained before appealing from a “final order in a habeas corpus proceeding.” 4 Appellate Case: 21-6077 Document: 010110622655 Date Filed: 12/22/2021 Page: 5
III. CONCLUSION
We DENY Mr. Farris’s application for a COA, DENY his motion to proceed in
forma pauperis, and DISMISS this matter.
Entered for the Court
Harris L Hartz Circuit Judge