Wyatt v. Crow

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 6, 2023
• Docket: 22-6180
• Status: Unpublished

Opinion

Appellate Case: 22-6180 Document: 010110808502 Date Filed: 02/06/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 6, 2023 _________________________________ Christopher M. Wolpert Clerk of Court CARL DEAN WYATT, JR.,

Petitioner - Appellant,

v. No. 22-6180 (D.C. No. 5:22-CV-00740-R) SCOTT CROW, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before TYMKOVICH, KELLY, and ROSSMAN, Circuit Judges. _________________________________

Carl Dean Wyatt, Jr., is an Oklahoma prisoner serving a life sentence for a

murder committed in 1997. He has filed multiple unsuccessful 28 U.S.C. § 2254

petitions challenging his conviction.

In August 2022, Wyatt filed a new § 2254 petition alleging new DNA

evidence, and new evidence of prosecutorial misconduct. In October 2022, the

district court dismissed that petition for lack of jurisdiction because it fell within the

definition of “second or successive” and this court had not authorized Wyatt to bring

his new claims. See 28 U.S.C. § 2244(b)(3)(A). Wyatt then filed a notice of appeal,

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-6180 Document: 010110808502 Date Filed: 02/06/2023 Page: 2

resulting in this proceeding (No. 22-6180). He also filed a motion for authorization

to file his new § 2254 petition, creating another proceeding (No. 22-6201).

In December 2022, we denied Wyatt’s motion for authorization, thus

terminating No. 22-6201. But this proceeding remains, and the question before us is

whether to issue a certificate of appealability (COA) so Wyatt may challenge the

district court’s decision to dismiss his § 2254 petition for lack of jurisdiction.

To merit a COA, Wyatt “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). And he must make an extra showing

in this circumstance because the district court resolved his motion on a procedural

basis, namely, lack of jurisdiction. So he must also show that “jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Id.

Jurists of reason would not find the district court’s procedural ruling

debatable. This was not a situation where a prisoner filed a motion invoking some

authority other than § 2254, thus requiring the district court to discern whether the

motion was an attempt to avoid the statutory restrictions on second or successive

§ 2254 petitions. Wyatt explicitly filed a new § 2254 petition, yet without

authorization. “A district court does not have jurisdiction to address the merits of a

second or successive . . . § 2254 claim until this court has granted the required

authorization.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

2 Appellate Case: 22-6180 Document: 010110808502 Date Filed: 02/06/2023 Page: 3

Wyatt does not argue otherwise. His application for a COA instead argues the

substance of the claims he hopes to bring. Effectively, it is another motion for

authorization, but on the same grounds we considered in No. 22-6201. It does not

address the district court’s procedural decision to dismiss for lack of jurisdiction.

For these reasons, we deny a COA. We grant Wyatt’s motion to proceed

without prepayment of costs or fees.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk