United States v. Barnes

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 31, 2021
• Docket: 20-7073
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT March 31, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-7073 (D.C. No. 6:18-CR-00063-RAW-1) MICHAEL TALON BARNES, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

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

Defendant-Appellant Michael Talon Barnes, a federal inmate appearing pro se,

seeks a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C.

§ 2255 motion. In 2018, Mr. Barnes pled guilty to possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The

district court sentenced him to 238 months’ imprisonment.

On August 24, 2020, Mr. Barnes filed a pro se motion arguing that his

conviction is void for a lack of jurisdiction in light of the Supreme Court’s decision

in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The district court recharacterized

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. this as a § 2255 motion, concluded that Native Americans are not exempt from

generally applicable laws like § 924(c), and denied the motion. R. 50–51. Mr.

Barnes appealed. R. 53–54, 59. After an initial review, we directed a limited remand

so the district court could rule on a COA, United States v. Barnes, No. 20-7073 (10th

Cir. Feb. 11, 2021), which the district court denied, United States v. Barnes, No. CR-

18-063-RAW (E.D. Okla. Feb. 18, 2021). Thereafter, Mr. Barnes filed his combined

opening brief and application for a COA, which we now consider.

To obtain a COA, Mr. Barnes must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court rejected

Mr. Barnes’ arguments on the merits, he “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We do not think a reasonable

jurist would disagree that § 924(c) is a general federal criminal law that applies to

Native Americans on tribal lands just as it would apply to anyone nationwide. United

States v. Carpenter, 163 F. App’x 707, 709–10 (10th Cir. 2006); cf. United States v.

Gachot, 512 F.3d 1252, 1254 (10th Cir. 2008). Furthermore, McGirt did not address

this issue but rather considered whether specific land in Oklahoma was “Indian

country” under the Major Crimes Act (“MCA”), 18 U.S.C. § 1153. See 140 S. Ct. at

2459–60. The MCA — and therefore McGirt’s holding — are not relevant to general

federal criminal statutes like § 924(c) and would not invalidate Mr. Barnes’

conviction. See Gachot, 512 F.3d at 1254.

2 Instead of addressing McGirt or the district court’s ruling on the merits, Mr.

Barnes argues that the district court erred by not providing proper notice when it

construed his motion as a § 2255 motion. Mr. Barnes is correct that when a district

court recharacterizes a pro se litigant’s motion as a § 2255 motion, it must notify the

litigant of potential consequences and provide an opportunity for the litigant to

withdraw or amend the motion. See Castro v. United States, 540 U.S. 375, 383

(2003). It appears the district court did not provide Mr. Barnes with notice or an

opportunity to withdraw or amend. Therefore, the district court’s denial of the

recharacterized § 2255 motion should not count against Mr. Barnes for the purpose of

applying restrictions against “second or successive” § 2255 motions. Id.; see United

States v. Tucker, 642 F. App’x 926, 927 n.4 (10th Cir. 2016).

We DENY a COA, GRANT Mr. Barnes’ motion to proceed IFP, and DISMISS

the appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge