White v. Farris

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 15, 2022
• Docket: 21-7060
• Status: Unpublished

Opinion

Appellate Case: 21-7060 Document: 010110645282 Date Filed: 02/15/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 15, 2022 _________________________________ Christopher M. Wolpert Clerk of Court RICKEY WHITE,

Petitioner - Appellant,

v. No. 21-7060 (D.C. No. 6:21-CV-00281-RAW-KEW) JIM FARRIS, (E.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before PHILLIPS, EID and CARSON, Circuit Judges. _________________________________

Rickey White, a pro se Oklahoma inmate, seeks a certificate of appealability

(COA) to challenge the dismissal of his 28 U.S.C. § 2254 petition as an unauthorized

second or successive habeas petition. We deny a COA and dismiss this matter.

Mr. White is currently serving a life sentence for first-degree murder. In 1985, the

Oklahoma Court of Criminal Appeals affirmed his conviction and sentence. See White v.

State, 702 P.2d 1058, 1063 (Okla. Crim. App. 1985). In 2003, the district court denied

federal habeas relief on statute-of-limitations grounds, and we denied a COA. Since then,

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-7060 Document: 010110645282 Date Filed: 02/15/2022 Page: 2

Mr. White has filed numerous habeas petitions and motions for authorization to file

second or successive habeas petitions, all of which have been denied.

In September 2021, Mr. White filed the underlying § 2254 petition in this case,

which primarily raised jurisdictional challenges to his conviction based on McGirt v.

Oklahoma, 140 S. Ct. 2452 (2020). The district court dismissed the petition as an

unauthorized second or successive § 2254 habeas petition. The court also denied a COA.

He now seeks to appeal from that dismissal.1

Mr. White must obtain a COA before he can appeal the district court’s dismissal.

See 28 U.S.C. § 2253(c)(1)(A). To do so, he must show “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) (emphasis added).

He has not met this burden.

An inmate may not file a second or successive § 2254 petition without first

obtaining an order from this court authorizing the district court to consider his petition.

See 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, “[a] district court does not

have jurisdiction to address the merits of a second or successive . . . § 2254 claim.”

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Because Mr. White did

1 On the same day that he filed his request for COA in this court, Mr. White also separately moved this court for authorization to file a second or successive § 2254 petition to bring his McGirt claim. We denied his request. See In re White, No. 21-7062 (10th Cir. Dec. 13, 2021).

2 Appellate Case: 21-7060 Document: 010110645282 Date Filed: 02/15/2022 Page: 3

not first obtain authorization to file his successive § 2254 petition, the district court’s

dismissal for lack of jurisdiction is not reasonably debatable. We therefore deny

Mr. White’s application for a COA and dismiss this matter. We grant his motion for

leave to proceed without prepayment of costs or fees.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk