McKinney v. Fairbairn

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 7, 2023
• Docket: 23-1004
• Status: Unpublished

Opinion

Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 7, 2023 _________________________________ Christopher M. Wolpert Clerk of Court KEVIN L. MCKINNEY,

Petitioner - Appellant, No. 23-1004 v. (D.C. No. 1:22-CV-02351-LTB-GPG) (D. Colo.) MARK FAIRBAIRN,

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

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

Kevin L. McKinney, a Colorado prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2241

application as an unauthorized second or successive 28 U.S.C. § 2254 habeas

application.1 We deny a COA.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Mr. McKinney sought an extension of time from the district court to file his notice of appeal. The district court granted the motion. Mr. McKinney’s notice of appeal filed January 3, 2023, is therefore timely. Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 2

I. Background

Following a jury trial, Mr. McKinney was convicted of multiple counts stemming

from an armed robbery of a grocery store in Arapahoe County, Colorado. He was

sentenced to 216 years in prison. The Colorado Court of Appeals affirmed the judgment

and the Colorado Supreme Court denied certiorari. Mr. McKinney then filed a § 2254

habeas corpus application, alleging a due process violation because he was convicted on

evidence seized as the result of an illegal vehicle stop. The district court denied relief,

and we denied a COA.

He subsequently filed an application purportedly seeking relief under § 2241. He

brought one claim for “ILLEGAL CUSTODY,” R. at 81, and argued the trial court

permitted evidence seized as a result of an illegal stop to be admitted as evidence, which

violated his Fourteenth Amendment right to due process. The magistrate judge

concluded that Mr. McKinney was challenging the validity of his state-court convictions,

not the execution of his sentence. The magistrate judge therefore concluded that

Mr. McKinney’s claim arose under § 2254. Because Mr. McKinney had already

challenged his convictions under § 2254 and had not obtained authorization to file a

second or successive § 2254 habeas application, the magistrate judge recommended

dismissing the application for lack of jurisdiction.

Mr. McKinney filed objections to the magistrate judge’s report and

recommendation. The district court overruled the objections, adopted the magistrate

judge’s report and recommendation, and dismissed the application. Mr. McKinney now

seeks a COA to appeal from that dismissal.

2 Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 3

II. Discussion

To obtain a COA where, as here, a district court has dismissed a filing on

procedural grounds, the movant 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). We need not

address the constitutional question if we conclude that reasonable jurists would not

debate the district court’s resolution of the procedural one. See id. at 485.

A prisoner may not file a second or successive § 2254 habeas application unless he

first obtains an order from the circuit court authorizing the district court to consider the

petition. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks

jurisdiction to address the merits of a second or successive § 2254 habeas application.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

In his COA application, Mr. McKinney contends that the state trial court

suppressed its ruling that was favorable to the defense and the jury was not properly

instructed, which led to a fundamentally unfair trial and violated his due process rights.

But he fails to adequately address the district court’s reasoning for construing his § 2241

application as a successive § 2254 application.

We have explained that “[s]ection § 2241 is a vehicle for challenging pretrial

detention, . . . or for attacking the execution of a sentence” and “[a] § 2254 petition, on

the other hand, is the proper avenue for attacking the validity of a conviction and

sentence.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008).

3 Appellate Case: 23-1004 Document: 010110822553 Date Filed: 03/07/2023 Page: 4

Mr. McKinney’s argument that his due process rights were violated due to alleged errors

during trial is an attack on the validity of his convictions and sentences. Such a claim is

properly brought in a § 2254 habeas application. He has therefore failed to show that

reasonable jurists could debate the district court’s procedural ruling to treat his § 2241

application as an unauthorized second or successive § 2254 habeas application and

dismiss it for lack of jurisdiction.

For the foregoing reasons, we deny a COA. We grant Mr. McKinney’s motion for

leave to proceed on appeal without prepayment of costs or fees.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk