Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 29, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DARVIN W. GRAY,
Petitioner - Appellant,
v. No. 23-7065 (D.C. No. 6:23-CV-00045-JFH-GLJ) CARRIE BRIDGES, Warden, (E.D. Okla.)
Respondent - Appellee. _________________________________
ORDER * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Darvin Gray, an Oklahoma state prisoner proceeding pro se, seeks to
appeal the district court’s denial of his motion nominally denominated to be
premised under Federal Rule of Civil Procedure Rule 60(b). 1 Because this
motion is substantively a 28 U.S.C. § 2254 petition, we construe Gray’s appeal
as an application to file a second or successive habeas petition. Exercising
jurisdiction under 28 U.S.C. § 2244, we deny his application.
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Gray is proceeding pro se, we liberally construe his filings. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [pro se litigants’] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as [their] advocate.”). Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 2
BACKGROUND
I. State Conviction and Prior Habeas Proceedings
In 2013, Darvin Gray, an enrolled member of the Muscogee (Creek)
Nation, was convicted of rape by instrumentation, forced oral sodomy, and
lewd molestation of a minor. For these crimes, he was sentenced to 50 years’
imprisonment and two life terms, all to run concurrently. In 2016, after
unsuccessfully appealing his conviction and seeking state-postconviction relief,
he filed a petition under 28 U.S.C. § 2254. The district court denied the
petition, and we denied a COA. Gray v. Whitten, 815 F. App’x 240, 248 (10th
Cir. 2020) (unpublished).
That same year, the Supreme Court decided McGirt v. Oklahoma, 140 S.
Ct. 2452, 2482 (2020), in which it ruled that Congress has not disestablished
the Creek Reservation in Oklahoma, meaning that the Major Crimes Act, 18
U.S.C. § 1153, governs enumerated prosecutions against Indians who commit
crimes in Indian country. See McGirt, 140 S. Ct. at 2459–60; see also
§ 1153(a). After McGirt, Gray again sought postconviction relief in Oklahoma
state court, which the court denied on the grounds that McGirt didn’t apply
retroactively because it had announced a procedural rule. The Oklahoma Court
of Criminal Appeals affirmed. Gray v. Oklahoma, No. PC-2022-618, at 1 (Okla.
Crim. App. Aug. 26, 2022) (unpublished). Gray neither filed another § 2254
petition nor applied to us for an order authorizing such a petition.
2 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 3
II. Gray’s Rule 60(b) Motion
In February 2023, Gray filed the instant motion in federal district court
nominally denominated as one under Federal Rule of Civil Procedure 60(b)(4)
and (6), asserting that his state-court judgment is void because McGirt stripped
Oklahoma of criminal jurisdiction. 2 The district court dismissed the motion on
the merits, ruling that Rule 60(b) “is only applicable to federal judgments” “but
the judgment he is challenging is from a state court, not a federal court.”
R. vol. 1, at 10. But before dismissing the motion, the district court advised
Gray that he must file a petition under § 2254 to challenge his conviction.
Without doing so, Gray then filed a “Motion For Judicial Notice” in our court,
R. vol. 1, at 19, which we construed as “a misdirected notice of appeal,” id. at
25. 3
Gray didn’t file his motion in his prior habeas docket but instead 2
opened a new proceeding. His motion summarizes McGirt, and he claims that since 1987 he has been an enrolled member of the Muscogee (Creek) Nation with Creek Blood. But the motion lacks supporting facts—such as his state- court case number or whether he committed his crimes in Indian country. Yet the district court clarified that “he is serving two sentences of life without parole from Muskogee County District Court Case No. 2011-951.” R. vol. 1, at 10.
We forwarded the motion to the district court to prepare the preliminary 3
record, as required under 10th Cir. R. 3.2. 3 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 4
DISCUSSION
As discussed below, we view Gray’s Rule 60(b) motion as a second-or-
successive § 2254 petition, construe his “Motion For Judicial Notice” as an
application for authorization to file that petition, and deny his application.
I. Gray’s Rule 60(b) motion is in fact a second-or-successive § 2254 petition.
Our caselaw counsels that we must consider the “relief sought, not the
pleading’s title” to determine whether a filing is a habeas petition. In re Cline,
531 F.3d 1249, 1253 (10th Cir. 2008) (cleaned up). “[A] 60(b) motion is a
[habeas] petition if it in substance or effect asserts . . . a federal basis for relief
from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,
1215 (10th Cir. 2006). And a “claim that the state court lacked jurisdiction over
[a prisoner] is an attack on his conviction and sentence,” which must “be
brought under § 2254.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th
Cir. 2008).
We disagree with the district court that Gray presented a true Rule 60(b)
motion. In his motion, Gray argues that the State of Oklahoma lacked
jurisdiction to prosecute him for the charged state crimes, which he contends
voids his judgment. So though labeled as a Rule 60(b) motion, Gray’s motion is
in fact a § 2254 petition. See, e.g., Bird v. Wyo. Dep’t of Corr. State
Penitentiary Warden, 667 F. App’x 693, 694 (10th Cir. 2016) (unpublished)
4 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 5
(construing a Rule 60(b) motion as a § 2254 petition). And because Gray filed
his first § 2254 petition in 2016, the instant motion is his second petition.
II.
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Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 29, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DARVIN W. GRAY,
Petitioner - Appellant,
v. No. 23-7065 (D.C. No. 6:23-CV-00045-JFH-GLJ) CARRIE BRIDGES, Warden, (E.D. Okla.)
Respondent - Appellee. _________________________________
ORDER * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Darvin Gray, an Oklahoma state prisoner proceeding pro se, seeks to
appeal the district court’s denial of his motion nominally denominated to be
premised under Federal Rule of Civil Procedure Rule 60(b). 1 Because this
motion is substantively a 28 U.S.C. § 2254 petition, we construe Gray’s appeal
as an application to file a second or successive habeas petition. Exercising
jurisdiction under 28 U.S.C. § 2244, we deny his application.
* 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. 1 Because Gray is proceeding pro se, we liberally construe his filings. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [pro se litigants’] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as [their] advocate.”). Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 2
BACKGROUND
I. State Conviction and Prior Habeas Proceedings
In 2013, Darvin Gray, an enrolled member of the Muscogee (Creek)
Nation, was convicted of rape by instrumentation, forced oral sodomy, and
lewd molestation of a minor. For these crimes, he was sentenced to 50 years’
imprisonment and two life terms, all to run concurrently. In 2016, after
unsuccessfully appealing his conviction and seeking state-postconviction relief,
he filed a petition under 28 U.S.C. § 2254. The district court denied the
petition, and we denied a COA. Gray v. Whitten, 815 F. App’x 240, 248 (10th
Cir. 2020) (unpublished).
That same year, the Supreme Court decided McGirt v. Oklahoma, 140 S.
Ct. 2452, 2482 (2020), in which it ruled that Congress has not disestablished
the Creek Reservation in Oklahoma, meaning that the Major Crimes Act, 18
U.S.C. § 1153, governs enumerated prosecutions against Indians who commit
crimes in Indian country. See McGirt, 140 S. Ct. at 2459–60; see also
§ 1153(a). After McGirt, Gray again sought postconviction relief in Oklahoma
state court, which the court denied on the grounds that McGirt didn’t apply
retroactively because it had announced a procedural rule. The Oklahoma Court
of Criminal Appeals affirmed. Gray v. Oklahoma, No. PC-2022-618, at 1 (Okla.
Crim. App. Aug. 26, 2022) (unpublished). Gray neither filed another § 2254
petition nor applied to us for an order authorizing such a petition.
2 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 3
II. Gray’s Rule 60(b) Motion
In February 2023, Gray filed the instant motion in federal district court
nominally denominated as one under Federal Rule of Civil Procedure 60(b)(4)
and (6), asserting that his state-court judgment is void because McGirt stripped
Oklahoma of criminal jurisdiction. 2 The district court dismissed the motion on
the merits, ruling that Rule 60(b) “is only applicable to federal judgments” “but
the judgment he is challenging is from a state court, not a federal court.”
R. vol. 1, at 10. But before dismissing the motion, the district court advised
Gray that he must file a petition under § 2254 to challenge his conviction.
Without doing so, Gray then filed a “Motion For Judicial Notice” in our court,
R. vol. 1, at 19, which we construed as “a misdirected notice of appeal,” id. at
25. 3
Gray didn’t file his motion in his prior habeas docket but instead 2
opened a new proceeding. His motion summarizes McGirt, and he claims that since 1987 he has been an enrolled member of the Muscogee (Creek) Nation with Creek Blood. But the motion lacks supporting facts—such as his state- court case number or whether he committed his crimes in Indian country. Yet the district court clarified that “he is serving two sentences of life without parole from Muskogee County District Court Case No. 2011-951.” R. vol. 1, at 10.
We forwarded the motion to the district court to prepare the preliminary 3
record, as required under 10th Cir. R. 3.2. 3 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 4
DISCUSSION
As discussed below, we view Gray’s Rule 60(b) motion as a second-or-
successive § 2254 petition, construe his “Motion For Judicial Notice” as an
application for authorization to file that petition, and deny his application.
I. Gray’s Rule 60(b) motion is in fact a second-or-successive § 2254 petition.
Our caselaw counsels that we must consider the “relief sought, not the
pleading’s title” to determine whether a filing is a habeas petition. In re Cline,
531 F.3d 1249, 1253 (10th Cir. 2008) (cleaned up). “[A] 60(b) motion is a
[habeas] petition if it in substance or effect asserts . . . a federal basis for relief
from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,
1215 (10th Cir. 2006). And a “claim that the state court lacked jurisdiction over
[a prisoner] is an attack on his conviction and sentence,” which must “be
brought under § 2254.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th
Cir. 2008).
We disagree with the district court that Gray presented a true Rule 60(b)
motion. In his motion, Gray argues that the State of Oklahoma lacked
jurisdiction to prosecute him for the charged state crimes, which he contends
voids his judgment. So though labeled as a Rule 60(b) motion, Gray’s motion is
in fact a § 2254 petition. See, e.g., Bird v. Wyo. Dep’t of Corr. State
Penitentiary Warden, 667 F. App’x 693, 694 (10th Cir. 2016) (unpublished)
4 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 5
(construing a Rule 60(b) motion as a § 2254 petition). And because Gray filed
his first § 2254 petition in 2016, the instant motion is his second petition.
II. We construe Gray’s “Motion For Judicial Notice” as an application to file a second § 2254 petition and deny his application.
For a district court to have jurisdiction over a second or successive
§ 2254 petition, the petition must first be authorized by the appropriate circuit
court. 4 28 U.S.C. § 2244(b)(3)(A). Gray has never received our authorization to
file a second § 2254 petition, so the district court lacked jurisdiction to
consider the instant motion. See Cline, 531 F.3d at 1251. Thus, we exercise our
discretion to construe Gray’s “Motion For Judicial Notice” as an application to
file a second or successive § 2254 petition. See, e.g., United States v. Nelson,
465 F.3d 1145, 1149 (10th Cir. 2006) (“We will, however, treat Mr. Nelson’s
notice of appeal and appellate brief as an implied application to this court for
leave to file a second § 2255 motion.”); United States v. Williams, 790 F.3d
1059, 1077 (10th Cir. 2015) (“[W]e now exercise our discretion to treat his
appellate brief as a request for authorization to file a successive § 2255
motion.”).
4 A district court faced with an unauthorized second-or-successive § 2254 petition has “two options: it must either dismiss the motion or, if it is in the interests of justice, transfer the motion to the circuit court for authorization.” United States v. Springer, 875 F.3d 968, 972 (10th Cir. 2017); see also 28 U.S.C. § 1631. Here, the district court did neither, nor did Gray request such a transfer.
5 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 6
We may authorize a second-or-successive habeas claim if it “relies on a
new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.” 5 28 U.S.C.
§ 2244(b)(2)(A). Despite Gray’s arguments to the contrary, this court has
resolved that McGirt created no new constitutional rule. See Pacheco v. Habti,
62 F.4th 1233, 1246 (10th Cir. 2023). Rather, Gray’s claim hinges on the
constitutional right to be prosecuted in a court of competent jurisdiction. But
the Supreme Court recognized that right over a hundred years ago in Frank v.
Mangum, 237 U.S. 309, 326 (1915). Thus, Gray has not presented a claim based
on “a new rule of constitutional law . . . that was previously unavailable.” 28
U.S.C. § 2244(b)(2)(A). We deny his application to file a second or successive
§ 2254 petition. 6
5 We also authorize claims that rely on newly discovered evidence that show “but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). Gray has not presented newly discovered evidence proving his innocence. 6 “The denial of authorization is not appealable and ‘shall not be the subject of a petition for rehearing or for a writ of certiorari.’” In re Rains, 659 F.3d 1274, 1275–76 (10th Cir. 2011) (quoting § 2244(b)(3)(E)). 6 Appellate Case: 23-7065 Document: 010111056800 Date Filed: 05/29/2024 Page: 7
CONCLUSION
For these reasons, we dismiss this matter with instructions to the district
court to vacate its order and dismiss the habeas petition for lack of jurisdiction.
Entered for the Court
Gregory A. Phillips Circuit Judge