Stryker v. Bear

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 16, 2018
• Docket: 17-6220
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 16, 2018 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker _________________________________ Clerk of Court TERRY J. STRYKER,

Petitioner - Appellant,

v. No. 17-6220 (D.C. No. 5:17-CV-00695-W) WARDEN BEAR, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges. _________________________________

Applicant Terry Stryker seeks a certificate of appealability (COA) to appeal the

dismissal of his application for relief under 28 U.S.C. § 2241. See 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.”). Because no

reasonable jurist could debate the correctness of the district court’s decisions, we deny

Applicant’s request for a COA and dismiss the appeal.

In 1975, Applicant was convicted in Oklahoma state court of robbery with a

firearm, and was sentenced to life in prison. His direct appeal of his conviction and

sentence was unsuccessful as were his two attempts at postconviction relief from the state

courts. He was granted parole in 2004, but that parole was revoked in 2008. Following that revocation, he again unsuccessfully sought postconviction relief in Oklahoma state

court.

As noted by the magistrate judge below, Applicant’s § 2241 application is

a challenge to understand. But construing the pro se pleading “liberally,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted), he

read the application as raising three claims: (1) a life sentence in Oklahoma has

been defined as a sentence of 45 years’ imprisonment and, having served that

long, Applicant is entitled to release; (2) the United States Supreme Court has

somehow determined that his conviction is void; and (3) Oklahoma denied him

access to the courts, denied him equal protection and due process, suspended

habeas corpus, and violated his rights under the Americans with Disabilities Act

(ADA). The magistrate judge recommended denial of relief on all claims, and the

district court adopted the recommendation.

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.

2 In our view, no reasonable jurist could debate that the district court erred

on the issues before us. Applicant does not challenge the district court’s

characterization of his claims below and makes no challenge to the disposition of

his first claim. As for his second claim, he does cite the Supreme Court decision

in Solem v. Bartlett, 465 U.S. 463 (1984); but that opinion hardly declared his

conviction void, and it is far too old to be the proper predicate for relief in a

habeas proceeding initiated in 2017. See 28 U.S.C. § 2244(d)(1)(C) (barring

§ 2254 claims brought more than one year after Supreme Court recognizes a

constitutional right). And the district court was undisputedly correct in denying

relief on the third claim, which was supported only by allegations regarding the

conduct of state postconviction proceedings. See United States v. Dago, 441 F.3d

1238, 1248 (10th Cir. 2006) (“[D]ue process challenges to post-conviction

procedures fail to state constitutional claims cognizable in a federal habeas

proceeding.”); see also Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010)

(“Our precedent makes clear that the district court did not err in dismissing

claims that related only alleged errors in the post-conviction proceedings.”). We

also note that although Applicant complains that his mental disability was the

basis of improper conduct by the state courts, he does not identify any specific

such misconduct.

Finally, although Applicant argues some new claims in this court, we do not

consider issues not raised below. See United States v. Viera, 674 F.3d 1214, 1220 (10th

Cir. 2012).

3 We recognize that some, perhaps most, of Applicant’s claims are not

appropriate claims under § 2241, which is limited to challenging the execution of

a sentence. See Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 924 (10th Cir.

2008) (Ҥ 2241 is a vehicle for challenging pretrial detention, or for attacking the

execution of a sentence. A § 2254 petition, on the other hand, is the proper

avenue for attacking the validity of a conviction and sentence.” (internal citations

omitted)). For example, his second claim is a challenge to his conviction. But

we need not determine whether we should recharacterize some claims as being

brought under § 2254 or should dismiss them for lack of jurisdiction, because the

denial of the request for a COA deprives this court of jurisdiction in any event.

See Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (“A COA is a

jurisdictional prerequisite to our review of the petition for writ of habeas

corpus.”).

We DENY Applicant’s request for a COA and DISMISS the appeal. We DENY

Applicant’s request to proceed in forma pauperis.

Entered for the Court

Harris L Hartz Circuit Judge