United States v. Caraway

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 13, 2019
• Docket: 19-3110
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT August 13, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3110 (D.C. No. 5:06-CR-40138-DDC-1) THOMAS GUY CARAWAY, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before BRISCOE, HARTZ, and MORITZ, Circuit Judges. _________________________________

Thomas Guy Caraway, a federal prisoner proceeding pro se, seeks to appeal the

district court’s dismissal in part and denial in part of a post-judgment motion he

captioned Motion to Dismiss Void March 6, 2019, Memorandum and Order of Court or

in Alternative Motion for Reconsideration of Order (hereafter, “Motion to Dismiss”).

We deny a certificate of appealability (“COA”) and dismiss the matter.

Caraway was convicted in 2007 of causing an explosive device to be delivered by

U.S. Mail and possessing an explosive device during and in relation to a crime of

violence. He was sentenced to 30 years’ imprisonment. This court affirmed. Caraway

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. filed his first 28 U.S.C. § 2255 motion in 2009. The district court denied relief, and we

denied a COA. Caraway filed a second § 2255 motion in 2016, which the district court

dismissed for lack of jurisdiction.

Earlier this year, Caraway filed a motion captioned Motion to Reopen Closed

Case, in which he asserted that no proper warrant existed for his arrest in 2006. In a

March 6 order, the district court dismissed that motion for lack of jurisdiction as an

unauthorized second or successive § 2255 motion. In response, Caraway filed his Motion

to Dismiss. In a May 8 order, the district court held this motion was an unauthorized

second or successive § 2255 motion to the extent it sought relief from Caraway’s

convictions based upon an invalid arrest warrant. After declining to transfer the

successive portion of Caraway’s motion to this court under 28 U.S.C. § 1631, the court

dismissed that portion of his motion for lack of jurisdiction.

Caraway’s Motion to Dismiss also challenged the district court’s jurisdiction to

enter its March 6 order denying his Motion to Reopen Closed Case and argued that the

court failed to liberally construe that previous pro se motion. The court liberally

construed these contentions as properly brought under Fed. R. Civ. P. 60(b) because

Caraway raised defects in the integrity of its March 6 order. The district court rejected

both of Caraway’s contentions, holding that the administrative closure of his § 2255

proceedings did not divest the court of jurisdiction to issue its March 6 order and that

Caraway did not support his claim regarding the court’s failure to liberally construe his

previous motion. The district court therefore denied relief under Rule 60(b). Finally, the

2 court denied a COA as to all of Caraway’s claims in his Motion to Dismiss. Caraway

filed a notice of appeal only as to the district court’s May 8 order. See R. at 433.

Caraway must obtain a COA to pursue an appeal. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008); Spitznas v. Boone, 464 F.3d 1213, 1217-18

(10th Cir. 2006) (holding a COA is required to appeal from the denial of a Rule 60(b)

motion in a habeas case); see also 28 U.S.C. § 2253(c)(1)(B). We liberally construe

Caraway’s pro se opening brief and application for a COA. See Hall v. Scott, 292 F.3d

1264, 1266 (10th Cir. 2002). Because the district court’s rulings rested on procedural

grounds, Caraway must show both “that jurists of reason would find it debatable whether

the [motion] 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 deny a COA. In his Motion to Dismiss, Caraway once again challenged the

validity of the arrest warrant. Thus, because he asserted a federal basis for relief from his

conviction, reasonable jurists would not debate the district court’s holding that this

portion of his motion was an unauthorized second or successive § 2255 motion over

which the court lacked jurisdiction. See United States v. Nelson, 465 F.3d 1145, 1147

(10th Cir. 2006). Nor would reasonable jurists debate the district court’s ruling that

Caraway failed to show a procedural error in the previously conducted § 2255

proceeding, specifically in the court’s March 6 order denying his Motion to Reopen

Closed Case. Finally, Caraway fails to show that reasonable jurists would debate

3 whether the district court abused its discretion in declining to transfer the successive

portion of his motion to this court under § 1631.

Accordingly, we deny Caraway’s application for a COA and dismiss the matter.

We grant Caraway’s application to proceed without prepayment of fees and costs.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk