Lomack v. Farris

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 4, 2025
• Docket: 24-6217
• Status: Unpublished

Opinion

Appellate Case: 24-6217 Document: 18-1 Date Filed: 02/04/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 4, 2025 _________________________________ Christopher M. Wolpert Clerk of Court TERRY DALE LOMACK,

Petitioner - Appellant,

v. No. 24-6217 (D.C. No. 5:03-CV-01008-HE) JIM FARRIS, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

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

Terry Dale Lomack is serving sentences in an Oklahoma prison. In 2016, the

federal district court dismissed his 28 U.S.C. § 2254 habeas application. In 2024,

Mr. Lomack moved for relief from the 2016 judgment under Federal Rule of Civil

Procedure 60. The district court dismissed the motion, and Mr. Lomack seeks a

certificate of appealability so that he can appeal. 1 We deny his request.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

Mr. Lomack represents himself, so we construe his filings liberally. See Hall v. 1

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Appellate Case: 24-6217 Document: 18-1 Date Filed: 02/04/2025 Page: 2

Background

Mr. Lomack’s Rule 60 motion alleged that the attorney appointed to represent him

in the earlier habeas proceedings committed fraud on the court. Mr. Lomack posited that

the attorney, then the Federal Public Defender for the Western District of Oklahoma, had

not in fact been appointed to represent him. She had instead, the theory goes, dishonestly

claimed to have been appointed to represent him with the goal of getting the district court

to deny his habeas application. The foundation for this theory is a 2015 order appointing

the Federal Public Defender to represent the “defendant” while identifying Mr. Lomack

as the plaintiff:

Suppl. R. at 3.

2 Appellate Case: 24-6217 Document: 18-1 Date Filed: 02/04/2025 Page: 3

The district court resolved the Rule 60 motion on procedural grounds. Labelling

the motion an unauthorized second or successive habeas application, the court dismissed

it for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). And

even if the motion were not considered a second or successive habeas application, the

court concluded, it would be denied as untimely under Rule 60.

Discussion

To obtain a certificate of appealability, Mr. Lomack must show that reasonable

jurists could debate both whether he stated a valid constitutional claim and whether the

district court’s procedural rulings were correct. See Slack v. McDaniel, 529 U.S. 473,

484 (2000).

The district court’s procedural rulings are at least debatable. The court should not

have treated Mr. Lomack’s motion as an unauthorized habeas application because the

motion did not present a claim for relief from his Oklahoma judgment. See Gonzalez v.

Crosby, 545 U.S. 524, 530 (2005). It instead alleged a “defect in the integrity of the

federal habeas proceedings.” Id. at 532. And the timing of Mr. Lomack’s motion

presented no barrier to relief because it alleged fraud on the court, an issue not subject to

time limits. See United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002);

Fed. R. Civ. P. 60(d)(3).

But Mr. Lomack fails to show that a reasonable jurist could find a debatable

constitutional claim in his motion. The only specific constitutional right he mentions in

his brief is the Sixth Amendment right to obtain counsel of his choice. We understand

him to argue that this right was violated through the Federal Public Defender’s

3 Appellate Case: 24-6217 Document: 18-1 Date Filed: 02/04/2025 Page: 4

representing him in habeas proceedings. The right to counsel of one’s choice is a

corollary of the right to counsel itself. See United States v. Gonzalez-Lopez, 548 U.S.

140, 144 (2006). But there is no constitutional right to counsel in habeas proceedings.

See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Coronado v. Ward, 517 F.3d

1212, 1218 (10th Cir. 2008). Besides, the cornerstone of Mr. Lomack’s motion—his

claim that the district court never actually appointed counsel to represent him—is

meritless. The court obviously made a clerical error when it purported to appoint the

Federal Public Defender to represent the “defendant.” Suppl. R. at 3. Because

Mr. Lomack’s fundamental claim is plainly baseless, no valid constitutional claim could

come of it.

Disposition

We grant Mr. Lomack’s motion to proceed without prepaying costs or fees. We

deny his application for a certificate of appealability. We dismiss this matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk