McElhaney v. Bear

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 26, 2018
• Docket: 18-6037
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 26, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court ALBERT McELHANEY,

Petitioner - Appellant,

v. No. 18-6037 (D.C. No. 5:18-CV-00030-HE) WARDEN BEAR; STATE OF (W.D. Okla.) OKLAHOMA,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________

Applicant Albert McElhaney, a prisoner in the custody of the Oklahoma

Department of Corrections, seeks a certificate of appealability (COA) to appeal the denial

of his application for relief under 28 U.S.C. § 2241 by the United States District Court for

the Western District of Oklahoma. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to

appeal final order in a habeas proceeding in which the detention complained of arises out

of process issued by a state court). The district court dismissed two of Applicant’s claims

because they were not properly brought under § 2241 and dismissed the other two claims

because they had been raised and denied in a previous § 2241 proceeding. We deny a

COA and dismiss the appeal. Because Applicant appears pro se, we construe his pleadings liberally, but “the

court cannot take on the responsibility of serving as the litigant’s attorney in constructing

arguments and searching the record.” Garrett v. Selby Conner Maddux & Janer, 425

F.3d 836, 840 (10th Cir. 2005). We have tried to decipher his various claims and

arguments but can only do so much.

We grant a COA on a claim only if the applicant “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)–(3). When, as here, a

claim has been dismissed on a procedural ground, the applicant faces a “double hurdle”;

“[n]ot only must the 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.” Coppage v. McKune, 534 F.3d 1279,

1281 (10th Cir. 2008) (internal quotation marks omitted). “Where a plain procedural bar

is present and the district court is correct to invoke it to dispose of the case, a reasonable

jurist could not conclude either that the district court erred in dismissing the [application]

or that the [applicant] should be allowed to proceed further.” Slack v. McDaniel, 529

U.S. 473, 484 (2000).

Applicant’s first two claims in his § 2241 application were (1) that Oklahoma

improperly prosecuted him because it lacks jurisdiction over American Indians who

commit crimes in Indian Country and (2) the state violated his due-process right to be

prosecuted only upon a grand-jury indictment. Both these claims challenge the validity

of his conviction and sentence, not their execution, so they should have been brought

under 28 U.S.C. § 2254 rather than § 2241. See Leatherwood v. Allbaugh, 861 F.3d

2 1034, 1042 (10th Cir 2017) (application under § 2241 generally addresses the execution

of a sentence rather than its validity, whereas application under § 2254 may properly

attack the validity of an underlying conviction or sentence). No reasonable jurist could

debate the correctness of the district court’s dismissal of these two claims.

Applicant's remaining two claims were that Oklahoma had suspended his habeas

rights and that Oklahoma had neglected its duty to protect his federal rights. The district

court dismissed these two claims on the ground that he had unsuccessfully raised them in

a prior § 2241 application. Applicant’s pleadings in this court do not dispute the factual

predicate of the district court’s ruling. But even if there is some difference between his

claims now and his claims in the prior § 2241 proceeding, dismissal of his present claims

is not debatable. These two claims are directed at the state’s habeas proceedings; and

because a challenge to state postconviction proceedings “represents an attack on a

proceeding collateral to detention of [the applicant] and not on the detention itself,” such

a challenge “fail[s] to state constitutional claims cognizable in a federal habeas

proceeding.” United States v. Dago, 441 F.3d 1238, 1248–49 (10th Cir. 2006) (internal

quotation marks omitted). Again, no reasonable jurist could debate the correctness of the

dismissal of the two claims.

3 We DENY a COA and dismiss the appeal. We also DENY Applicant’s request to

proceed in forma pauperis.

Entered for the Court

Harris L Hartz Circuit Judge