Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ANDREW JOHN YELLOWBEAR, JR.,
Petitioner - Appellant,
v. No. 23-8055 (D.C. No. 2:06-CV-00082-ABJ) WYOMING ATTORNEY GENERAL; (D. Wyo.) FREMONT COUNTY SHERIFF,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
Andrew John Yellowbear, Jr., filed a motion, purportedly under Federal Rule of
Civil Procedure 60(b), seeking relief from an order denying his 28 U.S.C. § 2254 habeas
application. The district court denied the motion, and Mr. Yellowbear now applies for a
certificate of appealability.1 We deny his application because a plain procedural bar
prevents him from obtaining relief through his purported Rule 60(b) motion: The motion
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 2
was really an unauthorized second or successive § 2254 application, so the district court
lacked jurisdiction to hear it.
Background
A Wyoming court sentenced Mr. Yellowbear to life in prison for murder. On
appeal, the Supreme Court of Wyoming rejected his claim that the murder occurred in
Indian country and that, as a result, the state lacked jurisdiction to prosecute the crime.
See Yellowbear v. State, 174 P.3d 1270, 1284 (Wyo. 2008).
Mr. Yellowbear then took his jurisdictional claim to federal court in a § 2254
habeas application. In the habeas litigation, the parties disputed what standard the federal
court should use to review the Supreme Court of Wyoming’s jurisdictional ruling.
Mr. Yellowbear sought de novo review while the state sought the more deferential review
that § 2254(d) prescribes for claims already adjudicated on the merits in state court.2 The
district court sided with the state, applied § 2254(d)’s deferential review, and denied
Mr. Yellowbear’s jurisdictional claim on the merits.
Mr. Yellowbear pursued his argument about the proper standard of review on
appeal. We understood him “to suggest that § 2254(d)(1) is unconstitutional, at least as
applied to him in this case, and so his appeal must be reviewed de novo.” Yellowbear v.
Att’y Gen. of Wyo., 380 F. App’x 740, 742 (10th Cir. 2010). But we found it unnecessary
2 This deferential standard allows a federal court to grant habeas relief, as relevant here, only if state proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1).
2 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 3
to address that issue because Mr. Yellowbear failed to show that he should prevail even
under de novo review. See id. at 743.
Mr. Yellowbear raised the standard-of-review claim again years later in a motion
citing Rule 60(b). His motion argued that “the district court employed the wrong
standard of review when considering his first § 2254 habeas petition.” Yellowbear v.
Hill, 859 F. App’x 295, 297 (10th Cir. 2021). The district court concluded that this claim
did not fit under Rule 60(b) because it amounted to “a merits-based attack on the
disposition of his § 2254 petition.” Id. at 298 (internal quotation marks omitted). And
we held that conclusion was correct. Id.
Mr. Yellowbear raised a variant of the standard-of-review claim yet again in the
motion underlying these proceedings. Once again invoking Rule 60(b), he argued that
the “procedural bars” in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) “are unconstitutional because they unduly limited the scope under which the
Court could review his” claim that Wyoming lacked jurisdiction to prosecute him.
R. vol. 2 at 9 (internal quotation marks omitted). He argued more specifically that
applying § 2254(d)’s deferential standard to review his jurisdictional claim “poses
separation-of-powers and other serious constitutional problems.” Id.
The parties disagreed about how the district court should characterize
Mr. Yellowbear’s motion. Despite the motion’s title, the state argued that it was really a
second or successive § 2254 application. Mr. Yellowbear maintained, however, that his
motion should be considered a true Rule 60(b) motion. This dispute mattered because, if
the motion was really a second or successive § 2254 application, then the district court
3 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 4
lacked jurisdiction over the motion’s merits because Mr. Yellowbear never received
authorization from our court to file it. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (per curiam).
Well-established principles govern whether a motion like Mr. Yellowbear’s is a
second or successive § 2254 application or instead a true Rule 60(b) motion. Two of
those principles are relevant here. First, a motion is really a § 2254 application if it
“seeks to revisit the federal court’s denial on the merits of a claim for relief.” Gonzalez v.
Crosby, 545 U.S. 524, 534 (2005). Second, a motion qualifies as a true Rule 60(b)
motion, by contrast, if it attacks “not the substance of the federal court’s resolution of a
claim on the merits, but some defect in the integrity of the federal habeas proceedings.”
Id. at 532.
The district court agreed with Mr. Yellowbear that his motion alleged a defect in
the integrity of the habeas proceedings and therefore fell under Rule 60(b). That was so,
the court concluded, because the motion challenged “the standard of review used to
evaluate” Mr. Yellowbear’s claim rather than the habeas court’s “ultimate holding that he
failed to prove the State of Wyoming lacked jurisdiction to prosecute him.” R. vol. 2
at 44. But the district court still denied relief, holding that the motion did not warrant
relief under Rule 60(b).3
3 The district court noted that Mr. Yellowbear’s motion would not succeed as a second or successive § 2254 application because he lacked authorization to file it.
4 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 5
Discussion
Mr. Yellowbear cannot appeal unless we issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(1)(A); Laurson v. Leyba, 507 F.3d 1230
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Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ANDREW JOHN YELLOWBEAR, JR.,
Petitioner - Appellant,
v. No. 23-8055 (D.C. No. 2:06-CV-00082-ABJ) WYOMING ATTORNEY GENERAL; (D. Wyo.) FREMONT COUNTY SHERIFF,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before HARTZ, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
Andrew John Yellowbear, Jr., filed a motion, purportedly under Federal Rule of
Civil Procedure 60(b), seeking relief from an order denying his 28 U.S.C. § 2254 habeas
application. The district court denied the motion, and Mr. Yellowbear now applies for a
certificate of appealability.1 We deny his application because a plain procedural bar
prevents him from obtaining relief through his purported Rule 60(b) motion: The motion
* 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: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 2
was really an unauthorized second or successive § 2254 application, so the district court
lacked jurisdiction to hear it.
Background
A Wyoming court sentenced Mr. Yellowbear to life in prison for murder. On
appeal, the Supreme Court of Wyoming rejected his claim that the murder occurred in
Indian country and that, as a result, the state lacked jurisdiction to prosecute the crime.
See Yellowbear v. State, 174 P.3d 1270, 1284 (Wyo. 2008).
Mr. Yellowbear then took his jurisdictional claim to federal court in a § 2254
habeas application. In the habeas litigation, the parties disputed what standard the federal
court should use to review the Supreme Court of Wyoming’s jurisdictional ruling.
Mr. Yellowbear sought de novo review while the state sought the more deferential review
that § 2254(d) prescribes for claims already adjudicated on the merits in state court.2 The
district court sided with the state, applied § 2254(d)’s deferential review, and denied
Mr. Yellowbear’s jurisdictional claim on the merits.
Mr. Yellowbear pursued his argument about the proper standard of review on
appeal. We understood him “to suggest that § 2254(d)(1) is unconstitutional, at least as
applied to him in this case, and so his appeal must be reviewed de novo.” Yellowbear v.
Att’y Gen. of Wyo., 380 F. App’x 740, 742 (10th Cir. 2010). But we found it unnecessary
2 This deferential standard allows a federal court to grant habeas relief, as relevant here, only if state proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1).
2 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 3
to address that issue because Mr. Yellowbear failed to show that he should prevail even
under de novo review. See id. at 743.
Mr. Yellowbear raised the standard-of-review claim again years later in a motion
citing Rule 60(b). His motion argued that “the district court employed the wrong
standard of review when considering his first § 2254 habeas petition.” Yellowbear v.
Hill, 859 F. App’x 295, 297 (10th Cir. 2021). The district court concluded that this claim
did not fit under Rule 60(b) because it amounted to “a merits-based attack on the
disposition of his § 2254 petition.” Id. at 298 (internal quotation marks omitted). And
we held that conclusion was correct. Id.
Mr. Yellowbear raised a variant of the standard-of-review claim yet again in the
motion underlying these proceedings. Once again invoking Rule 60(b), he argued that
the “procedural bars” in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) “are unconstitutional because they unduly limited the scope under which the
Court could review his” claim that Wyoming lacked jurisdiction to prosecute him.
R. vol. 2 at 9 (internal quotation marks omitted). He argued more specifically that
applying § 2254(d)’s deferential standard to review his jurisdictional claim “poses
separation-of-powers and other serious constitutional problems.” Id.
The parties disagreed about how the district court should characterize
Mr. Yellowbear’s motion. Despite the motion’s title, the state argued that it was really a
second or successive § 2254 application. Mr. Yellowbear maintained, however, that his
motion should be considered a true Rule 60(b) motion. This dispute mattered because, if
the motion was really a second or successive § 2254 application, then the district court
3 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 4
lacked jurisdiction over the motion’s merits because Mr. Yellowbear never received
authorization from our court to file it. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (per curiam).
Well-established principles govern whether a motion like Mr. Yellowbear’s is a
second or successive § 2254 application or instead a true Rule 60(b) motion. Two of
those principles are relevant here. First, a motion is really a § 2254 application if it
“seeks to revisit the federal court’s denial on the merits of a claim for relief.” Gonzalez v.
Crosby, 545 U.S. 524, 534 (2005). Second, a motion qualifies as a true Rule 60(b)
motion, by contrast, if it attacks “not the substance of the federal court’s resolution of a
claim on the merits, but some defect in the integrity of the federal habeas proceedings.”
Id. at 532.
The district court agreed with Mr. Yellowbear that his motion alleged a defect in
the integrity of the habeas proceedings and therefore fell under Rule 60(b). That was so,
the court concluded, because the motion challenged “the standard of review used to
evaluate” Mr. Yellowbear’s claim rather than the habeas court’s “ultimate holding that he
failed to prove the State of Wyoming lacked jurisdiction to prosecute him.” R. vol. 2
at 44. But the district court still denied relief, holding that the motion did not warrant
relief under Rule 60(b).3
3 The district court noted that Mr. Yellowbear’s motion would not succeed as a second or successive § 2254 application because he lacked authorization to file it.
4 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 5
Discussion
Mr. Yellowbear cannot appeal unless we issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(1)(A); Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007).
We may deny a certificate of appealability if a plain procedural bar prevents habeas
relief, even if the district court did not rely on that bar. See United States v. Springer,
875 F.3d 968, 981 (10th Cir. 2017).
A plain procedural bar prevents relief here. Mr. Yellowbear’s motion argued that
applying AEDPA deference to his jurisdictional habeas claim violated the Constitution.
The argument reduces to a claim that the habeas court applied the wrong standard of
review. And that amounts to an attack against the habeas court’s decision on the merits
of the jurisdictional claim. Indeed, we have already held as much in an earlier
proceeding. See Yellowbear v. Hill, 859 F. App’x at 298. At bottom, the argument seeks
“a second chance” to have a federal court review his jurisdictional claim de novo rather
than under AEDPA’s deferential standard. Gonzalez, 545 U.S. at 532 n.5. Because
Mr. Yellowbear’s latest motion sought to revisit the habeas court’s denial of his
jurisdictional claim on the merits, the motion was really a second or successive § 2254
application. See id. at 534. But Mr. Yellowbear did not have authorization to file another
§ 2254 application. And so the district court lacked jurisdiction to hear his motion. See
In re Cline, 531 F.3d at 1251. That lack of jurisdiction amounts to a plain procedural bar
to relief. See Springer, 875 F.3d at 983.
5 Appellate Case: 23-8055 Document: 010110980528 Date Filed: 01/09/2024 Page: 6
Disposition
We deny Mr. Yellowbear’s application for a certificate of appealability. We
dismiss this matter with instructions to the district court to vacate its order denying
Mr. Yellowbear’s motion on the merits. See id.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk