FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 6, 2020 _________________________________ Christopher M. Wolpert Clerk of Court MICHAEL DON LEATHERWOOD,
Petitioner - Appellant, No. 20-6106 v. (D.C. No. 5:19-CV-01140-HE) (W.D. Okla.) JEORLD BRAGGS, JR.,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before HARTZ, BALDOCK, and CARSON, Circuit Judges. _________________________________
Michael Leatherwood, a state prisoner proceeding pro se, requests a certificate of
appealability (COA) to appeal the dismissal by the United States District Court for the
Western District of Oklahoma of his application for relief under 28 U.S.C. § 2241. See
28 U.S.C. § 2253(c)(1)(A) (requiring COA for state prisoner to appeal); Dulworth v.
Jones, 496 F.3d 1133, 1135 (10th Cir. 2007) (“[A] state prisoner seeking to appeal the
denial of habeas relief in a § 2241 proceeding must obtain a COA to appeal.”), abrogated
in part on other grounds by Harbison v. Bell, 556 U.S. 180 (2009). We deny the request
for a COA and dismiss the appeal.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. In 2009 Mr. Leatherwood pleaded guilty to six counts of rape in Oklahoma state
court and was sentenced to 20 years in prison, with all but 90 days to be suspended.
After Mr. Leatherwood violated a condition of his probation prohibiting him from having
a romantic relationship with any person who has minor children, Judge Kenneth Watson
revoked five years of the suspended sentence. Several months later, in August 2010,
another Oklahoma state judge revoked the remaining 15 years of Mr. Leatherwood’s
suspended sentence because Mr. Leatherwood had continued to maintain a relationship
with a person who had minor children.
In 2013 Mr. Leatherwood filed his first application for habeas relief under 28
U.S.C. § 2241, challenging the second revocation of his suspended sentence—the one for
15 years. The district court denied the application, and we affirmed. See Leatherwood v.
Allbaugh, 861 F.3d 1034, 1051 (10th Cir. 2017).
On December 6, 2019, Mr. Leatherwood filed a second application for habeas
relief under § 2241. He raised three claims in his application: (1) he was denied due
process when the state court based the revocation of his suspended sentence on violations
of the conditions of his probation while he was incarcerated; (2) his counsel at the
revocation hearing was constitutionally ineffective; and (3) the state courts violated his
right to due process in improperly disposing of his claims during postconviction
proceedings. Recognizing that this court had ruled against him on his first application
under § 2241, Mr. Leatherwood contends that his second application is justified by three
pieces of new evidence: (1) a 2015 affidavit of Justin Jones, former director of the
Oklahoma Department of Corrections, stating his opinion that Mr. Leatherwood would
2 not have been subject to conditions of probation while in prison; (2) a 2016 affidavit of
Judge Watson attesting that the judge did not warn Mr. Leatherwood that his probation
conditions would apply while Mr. Leatherwood was incarcerated; and (3) a “concession”
by counsel for Oklahoma made during the March 23, 2017 oral argument in Mr.
Leatherwood’s first appeal to this court that two cases upon which the State had
previously relied did not unequivocally hold that a probation condition can apply to an
incarcerated individual.
The district court concluded that Mr. Leatherwood’s second application was
untimely, dismissed the application, and declined to grant a COA. Mr. Leatherwood then
filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b),
which concerned the timeliness of his § 2241 application. It was denied by the district
court. Mr. Leatherwood now seeks a COA from this court with respect to both the initial
dismissal of his application and the denial of his Rule 60(b) motion.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id. If the application was denied on procedural
grounds, as was the case here, the applicant faces a double hurdle. Not only must the
3 applicant make a substantial showing of the denial of a constitutional right, but he must
also show “that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
We deny Mr. Leatherwood’s request for a COA, although our reasons do not
precisely track those of the district court. See Davis v. Roberts, 425 F.3d 830, 834 (10th
Cir. 2005) (“[W]e have discretion to affirm on any ground adequately supported by the
record.”).
A. Due Process
Mr. Leatherwood asserts that his due-process rights were violated when the
Oklahoma court revoked the remaining 15 years of his suspended sentence, because he
did not receive notice that he was subject to conditions of probation while he was in
prison. He raised this same claim in his initial § 2241 application, and we rejected it on
the merits, largely because of statements made by Judge Watson at the first revocation
hearing. See Leatherwood, 861 F.3d at 1046–48. We do so once again. Mr.
Leatherwood’s “new evidence” does not undermine the reasoning of our prior opinion.
The affidavit of Judge Watson regarding what he did not say at the revocation hearing is
of no moment, because we had, and relied on, a transcript of the hearing during our prior
review. As for the Jones affidavit and the State’s concession at oral argument, Mr.
Leatherwood suggests that they prove that he could not have known he was subject to
those conditions. But they prove no such thing. They are irrelevant to what Mr.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 6, 2020 _________________________________ Christopher M. Wolpert Clerk of Court MICHAEL DON LEATHERWOOD,
Petitioner - Appellant, No. 20-6106 v. (D.C. No. 5:19-CV-01140-HE) (W.D. Okla.) JEORLD BRAGGS, JR.,
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before HARTZ, BALDOCK, and CARSON, Circuit Judges. _________________________________
Michael Leatherwood, a state prisoner proceeding pro se, requests a certificate of
appealability (COA) to appeal the dismissal by the United States District Court for the
Western District of Oklahoma of his application for relief under 28 U.S.C. § 2241. See
28 U.S.C. § 2253(c)(1)(A) (requiring COA for state prisoner to appeal); Dulworth v.
Jones, 496 F.3d 1133, 1135 (10th Cir. 2007) (“[A] state prisoner seeking to appeal the
denial of habeas relief in a § 2241 proceeding must obtain a COA to appeal.”), abrogated
in part on other grounds by Harbison v. Bell, 556 U.S. 180 (2009). We deny the request
for a COA and dismiss the appeal.
* 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. In 2009 Mr. Leatherwood pleaded guilty to six counts of rape in Oklahoma state
court and was sentenced to 20 years in prison, with all but 90 days to be suspended.
After Mr. Leatherwood violated a condition of his probation prohibiting him from having
a romantic relationship with any person who has minor children, Judge Kenneth Watson
revoked five years of the suspended sentence. Several months later, in August 2010,
another Oklahoma state judge revoked the remaining 15 years of Mr. Leatherwood’s
suspended sentence because Mr. Leatherwood had continued to maintain a relationship
with a person who had minor children.
In 2013 Mr. Leatherwood filed his first application for habeas relief under 28
U.S.C. § 2241, challenging the second revocation of his suspended sentence—the one for
15 years. The district court denied the application, and we affirmed. See Leatherwood v.
Allbaugh, 861 F.3d 1034, 1051 (10th Cir. 2017).
On December 6, 2019, Mr. Leatherwood filed a second application for habeas
relief under § 2241. He raised three claims in his application: (1) he was denied due
process when the state court based the revocation of his suspended sentence on violations
of the conditions of his probation while he was incarcerated; (2) his counsel at the
revocation hearing was constitutionally ineffective; and (3) the state courts violated his
right to due process in improperly disposing of his claims during postconviction
proceedings. Recognizing that this court had ruled against him on his first application
under § 2241, Mr. Leatherwood contends that his second application is justified by three
pieces of new evidence: (1) a 2015 affidavit of Justin Jones, former director of the
Oklahoma Department of Corrections, stating his opinion that Mr. Leatherwood would
2 not have been subject to conditions of probation while in prison; (2) a 2016 affidavit of
Judge Watson attesting that the judge did not warn Mr. Leatherwood that his probation
conditions would apply while Mr. Leatherwood was incarcerated; and (3) a “concession”
by counsel for Oklahoma made during the March 23, 2017 oral argument in Mr.
Leatherwood’s first appeal to this court that two cases upon which the State had
previously relied did not unequivocally hold that a probation condition can apply to an
incarcerated individual.
The district court concluded that Mr. Leatherwood’s second application was
untimely, dismissed the application, and declined to grant a COA. Mr. Leatherwood then
filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b),
which concerned the timeliness of his § 2241 application. It was denied by the district
court. Mr. Leatherwood now seeks a COA from this court with respect to both the initial
dismissal of his application and the denial of his Rule 60(b) motion.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id. If the application was denied on procedural
grounds, as was the case here, the applicant faces a double hurdle. Not only must the
3 applicant make a substantial showing of the denial of a constitutional right, but he must
also show “that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
We deny Mr. Leatherwood’s request for a COA, although our reasons do not
precisely track those of the district court. See Davis v. Roberts, 425 F.3d 830, 834 (10th
Cir. 2005) (“[W]e have discretion to affirm on any ground adequately supported by the
record.”).
A. Due Process
Mr. Leatherwood asserts that his due-process rights were violated when the
Oklahoma court revoked the remaining 15 years of his suspended sentence, because he
did not receive notice that he was subject to conditions of probation while he was in
prison. He raised this same claim in his initial § 2241 application, and we rejected it on
the merits, largely because of statements made by Judge Watson at the first revocation
hearing. See Leatherwood, 861 F.3d at 1046–48. We do so once again. Mr.
Leatherwood’s “new evidence” does not undermine the reasoning of our prior opinion.
The affidavit of Judge Watson regarding what he did not say at the revocation hearing is
of no moment, because we had, and relied on, a transcript of the hearing during our prior
review. As for the Jones affidavit and the State’s concession at oral argument, Mr.
Leatherwood suggests that they prove that he could not have known he was subject to
those conditions. But they prove no such thing. They are irrelevant to what Mr.
Leatherwood had been informed of; he could have known nothing of the affidavit or the
concession when he violated the conditions of probation. They may be relevant to the
4 state of the law in Oklahoma at the time of his violations, but that is not at issue. The
Oklahoma courts have resolved against Mr. Leatherwood his claim that the revocation of
his probation was contrary to state law. The only question is whether he was adequately
apprised of what the law was. And we have no reason to change our analysis on that
issue from what we decided in Mr. Leatherwood’s earlier appeal.
B. Ineffective Assistance of Counsel
Mr. Leatherwood’s second claim is that his counsel was constitutionally
ineffective in two respects at the August 2010 revocation hearing. First, relying on the
State’s “concession,” he alleges that his attorney was ineffective because the attorney
“stipulated to the State’s argument on the case law, which the State now concedes is
incorrect.” Aplt. Br. at 39. But in affirming Mr. Leatherwood’s sentence after the second
revocation, the Oklahoma Court of Criminal Appeals in effect held that his counsel had
stipulated to a correct statement of the law. Counsel is not ineffective for failure to
advance a legally incorrect argument. See Miller v. Mullin, 354 F.3d 1288, 1298 (10th
Cir. 2004) (“[O]f course, if the issue is meritless, its omission [by counsel] will not
constitute deficient performance.”).
Mr. Leatherwood’s second basis for alleging ineffective assistance of counsel is
that his attorney was ineffective for failing to call Mr. Jones and Judge Watson to testify
at the August 2010 revocation hearing. But in arguing that his second § 2241 application
is not untimely, Mr. Leatherwood has asserted that the evidence provided in the Jones
and Watson affidavits only became “available subsequent to the [2015] resignation of
Judge Watson, and subsequent to the [2013] resignation of Justin Jones as Director of the
5 Oklahoma Department of Corrections.” Aplt. App., Vol. I. at 24. Of course, if, as Mr.
Leatherwood contends, Mr. Jones and Judge Watson were not available to give evidence
until several years after the August 2010 revocation hearing, then Mr. Leatherwood’s
attorney could not have been ineffective for failing to call them as witnesses at that
hearing.
C. Due Process II
Mr. Leatherwood’s third claim for habeas relief is that the Oklahoma courts
violated his due-process rights when they rejected his postconviction claims as barred by
res judicata without adequately considering his new evidence. But this is not a proper
claim for federal habeas relief. “[B]ecause the constitutional error [Mr. Leatherwood]
raises focuses only on the State’s post-conviction remedy and not the judgment which
provides the basis for his incarceration, it states no cognizable federal habeas claim.”
Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998).
D. Rule 60(b) Motion
In light of our ruling on the merits of the § 2241 application, the denial of the Rule
60(b) motion was also correct.
For the above reasons, we conclude that reasonable jurists could not debate
whether Mr. Leatherwood’s § 2241 application or Rule 60(b) motion should have been
6 resolved in a different manner by the district court. Accordingly, we DENY a COA and
DISMISS the appeal.
Entered for the Court
Harris L Hartz Circuit Judge