Hess v. Quick

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 12, 2024
• Docket: 24-5064
• Status: Unpublished

Opinion

Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DARYL A. HESS,

Petitioner - Appellant,

v. No. 24-5064 (D.C. No. 4:10-CV-00517-CVE-FHM) CHRISTE QUICK, Warden, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

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

Daryl A. Hess, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to appeal from the district court’s determination that his recent filing

was an unauthorized second or successive 28 U.S.C. § 2254 habeas application that it

lacked jurisdiction to consider. We deny a COA and dismiss this matter.

An Oklahoma jury found Mr. Hess guilty of robbery with a dangerous weapon

after his former conviction of two or more felonies. After the Oklahoma Court of

Criminal Appeals affirmed his conviction, Mr. Hess unsuccessfully pursued a federal

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Mr. Hess represents himself, we construe his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 2

habeas application under § 2254. See Hess v. Trammell, 535 F. App’x 765 (10th Cir.

2013). To commence this case, he recently filed a “Motion to Reopen Case Fed. R. Civ.

P. 59(e); Rule 60(b) Memorandum and/or Motion to Relate back to Original Petition.”

R. at 169. The district court determined that Mr. Hess’s filing was an unauthorized

second or successive § 2254 application and dismissed it. He now seeks to appeal the

dismissal.

To appeal, Mr. Hess must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(A).

And to obtain a COA, he 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). Mr. Hess has not

satisfied this standard.

A district court lacks jurisdiction over the merits of an unauthorized second or

successive § 2254 application. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)

(per curiam). The district court determined that it lacked jurisdiction to consider

Mr. Hess’s filing because it was a second or successive § 2254 application and this court

had not authorized it. Reasonable jurists could not debate the correctness of the district

court’s procedural ruling.

2 Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 3

Accordingly, we deny Mr. Hess’s application for a COA and dismiss this matter.

We deny as moot Mr. Hess’s Motion to Withdraw Appeal Without Prejudice.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk