Yellowbear v. Hill

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 26, 2022
• Docket: 22-8014
• Status: Unpublished

Opinion

Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 26, 2022 _________________________________ Christopher M. Wolpert Clerk of Court ANDREW JOHN YELLOWBEAR, JR.,

Petitioner - Appellant,

v. No. 22-8014 (D.C. No. 0:22-CV-00057-ABJ) BRIDGET HILL, Wyoming Attorney (D. Wyo.) General,

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before EID, BRISCOE, and ROSSMAN, Circuit Judges. _________________________________

Andrew John Yellowbear, Jr., a Wyoming prisoner, seeks a certificate of

appealability (COA) to appeal the district court’s order dismissing his 28 U.S.C. § 2254

habeas application.1 We deny him a COA and dismiss this matter.

In 2006, a Wyoming court sentenced Mr. Yellowbear to life in prison for murder.

After his direct appeal, in 2008, the trial court amended the judgment to reflect that he

had been convicted of one count rather than four, but he still must serve a life sentence.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Mr. Yellowbear represents himself, so we construe his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 2

After the trial court amended the judgment, Mr. Yellowbear filed a § 2254

application.2 See Yellowbear v. Att’y Gen. of Wyo., 380 F. App’x 740, 741 (10th Cir.

2010). Since that application’s failure, he has filed two motions, styled as motions for

relief under Federal Rule of Civil Procedure 60(b), that courts treated as second or

successive § 2254 applications. See Yellowbear v. Michael, 570 F. App’x 798, 799

(10th Cir. 2014); Yellowbear v. Hill, 859 F. App’x 295, 299 (10th Cir. 2021).

Earlier this year, Mr. Yellowbear filed the § 2254 application underlying this

matter. His application raised two claims. First, he argued that the trial court did not

properly resentence him when it amended the judgment. Second, he argued that the

decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), required the court to revisit his

earlier challenge to Wyoming’s jurisdiction to prosecute him. The district court

dismissed the application, concluding that it lacked jurisdiction to consider a second or

successive application without authorization from this court.

To obtain a COA, Mr. Yellowbear must show “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, 478 (2000). Mr. Yellowbear does not dispute that district

courts lack jurisdiction to address the merits of a second or successive § 2254 application

unless the appropriate court of appeals has authorized the application to be filed. See In

re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). He instead argues that his latest

2 We take judicial notice of Mr. Yellowbear’s § 2254 application, filed on July 11, 2008, in the United States District Court for the District of Wyoming, case number 06-CV-82. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007). 2 Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 3

application is not second or successive under Magwood v. Patterson, 561 U.S. 320

(2010). Magwood holds that an application may not be considered second or successive

if it is the first to challenge a particular judgment, even if the prisoner has previously filed

other applications challenging earlier judgments. See id. at 331–33. The trial court’s

2008 amended judgment is a new judgment, Mr. Yellowbear argues, so his most recent

§ 2254 application is not second or successive.

The problem with Mr. Yellowbear’s argument is that he has already filed § 2254

applications targeting the amended judgment.3 The trial court entered the amended

judgment in March 2008. About two weeks later, we reversed a federal district court’s

denial of a jurisdictional claim Mr. Yellowbear brought under 28 U.S.C. § 2241, and we

remanded his case to give him a chance to recharacterize the claim as one arising under

§ 2254. Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924–25 (10th Cir. 2008). In July

2008, Mr. Yellowbear filed a § 2254 application reasserting the jurisdictional claim. At

that point, the judgment authorizing his confinement was the amended judgment. So that

is the judgment he challenged in his July 2008 § 2254 application and his later motions

purportedly under Rule 60(b). In short, his latest § 2254 application is not the first to

challenge the amended judgment.

We reject Mr. Yellowbear’s argument “that none of the previous federal actions

should count against him until the state trial court properly sentences him for the”

amended judgment. COA Appl. at 2. This argument simply assumes that the state court

3 Because Mr. Yellowbear has already challenged the amended judgment, we will assume that it qualifies as a new judgment and that Magwood applies. 3 Appellate Case: 22-8014 Document: 010110689227 Date Filed: 05/26/2022 Page: 4

erred when it entered the amended judgment and, from that assumption, concludes that

the district court should have heard his latest challenge to the judgment. But any error in

the state court’s amended judgment would not affect our review of the district court’s

procedural ruling. The propriety of the district court’s procedural ruling depends on

whether Mr. Yellowbear has challenged the amended judgment before (he has) and

whether he received authorization to challenge it again in a second or successive § 2254

application (he did not).

Reasonable jurists could not debate whether the district court correctly concluded

that Mr. Yellowbear’s latest § 2254 application was a second or successive one or, as a

result, whether the court correctly dismissed the unauthorized application for lack of

jurisdiction. We deny Mr. Yellowbear a COA and dismiss this matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk