Winfrey v. Harding

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 3, 2025
• Docket: 25-5003
• Status: Unpublished

Opinion

Appellate Case: 25-5003 Document: 10-1 Date Filed: 04/03/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 3, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DWAYNE WINFREY,

Petitioner - Appellant,

v. No. 25-5003 (D.C. No. 4:22-CV-00117-CVE-SH) RANDY HARDING, Warden, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

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

Dwayne Winfrey, proceeding pro se, filed a 28 U.S.C. § 2254 application

challenging three Oklahoma criminal judgments on the ground that the State did not have

jurisdiction to convict and sentence him for crimes that occurred within the boundaries of

the Creek Nation Reservation. The district court dismissed the application for lack of

jurisdiction as to two of the judgments and denied it on the merits as to the third.

Winfrey now requests a certificate of appealability (COA) so he can appeal from the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(A). We deny a COA and dismiss

this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 25-5003 Document: 10-1 Date Filed: 04/03/2025 Page: 2

To obtain a COA, Winfrey must make “a substantial showing of the denial of a

constitutional right.” § 2253(c)(2). “Where a district court has rejected the constitutional

claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The

petitioner 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). But where a “district court denies a habeas petition on

procedural grounds,” the petitioner must show that reasonable jurists “would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and . . . whether the district court was correct in its procedural ruling.” Id. Because

Winfrey proceeds pro se, we construe his filings liberally, but we do not act as his

attorney. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

No. CF-2004-4732. The district court dismissed the application as to Tulsa

County District Court case no. CF-2004-4732 for lack of jurisdiction because Winfrey

had already served his sentence and was not “in custody” on that conviction.

See Calhoun v. Att’y Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir. 2014)

(“Section 2254(a) requires a petitioner to be in custody pursuant to the judgment of a

State court in violation of the Constitution or laws or treaties of the United States. The

custody requirement is jurisdictional.” (ellipsis and internal quotation marks omitted)).

Winfrey does not make any argument regarding that determination. He thus fails to show

that reasonable jurists would find the district court’s procedural ruling to be debatable.

No. CF-2005-5770. The district court dismissed the application as to Tulsa

County District Court case no. CF-2005-5770 for lack of jurisdiction as an unauthorized

2 Appellate Case: 25-5003 Document: 10-1 Date Filed: 04/03/2025 Page: 3

second or successive § 2254 application. See 28 U.S.C. § 2244(b)(3)(A) (requiring

circuit-court authorization to bring a second or successive § 2254 application); In re

Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) (holding that the district court

lacks jurisdiction to decide an unauthorized second or successive § 2254 application).

Winfrey does not make any argument regarding that determination. He thus fails to show

that reasonable jurists would find the district court’s procedural ruling to be debatable.

No. CF-2018-1119. The district court denied the application on the merits as to

Tulsa County District Court case no. CF-2018-1119. It held that Winfrey failed to

present any evidence that he is an Indian for purposes of federal law, and his arguments

were unpersuasive. Therefore, he did not show that the State lacked jurisdiction to

prosecute him, even though the crimes occurred in Indian country. See Oklahoma v.

Castro-Huerta, 597 U.S. 629, 637 (2022) (“States have jurisdiction to prosecute crimes

committed by non-Indians against non-Indians in Indian country.”); id. at 656 (“[T]he

Federal Government and the State have concurrent jurisdiction to prosecute crimes

committed by non-Indians against Indians in Indian country.”). Before this court,

Winfrey generally discusses nationality and citizenship, and he asserts the descendants of

African-American freedmen should be recognized as Indians. But he does not show that

he presented to the district court any evidence that he is an Indian for purposes of federal

law, and his arguments as to why he should be considered an Indian are patently

unpersuasive. Accordingly, no reasonable jurist would debate the district court’s

determination that Winfrey failed to show the State lacked jurisdiction to prosecute him.

3 Appellate Case: 25-5003 Document: 10-1 Date Filed: 04/03/2025 Page: 4

We deny a COA and dismiss this matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk