United States v. Dowell

FILED
United States Court of Appeals
Tenth Circuit

March 23, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 15-1017
JACK DOWELL, (D.C. Nos. 1:07-CV-02002-RPM &
1:01-CR-00395-RPM-3)
Defendant - Appellant. (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL

Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.

Jack Dowell, a federal prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of a motion he made to the district court

under Fed. R. Civ. P. 60(b)(4). Dowell also asks to proceed in forma pauperis. For

the following reasons, we deny Dowell’s application for a COA, deny his motion for

leave to proceed on appeal in forma pauperis as moot, and dismiss his appeal.

The solution here is simple, but the background is a bit lengthy. In 1997, an

arson seriously damaged an Internal Revenue Service (IRS) office in Colorado

Springs. Six years later, in connection with that incident, a federal jury convicted

Dowell of (1) destruction of government property, and (2) forcible interference with

employees and administration of the IRS. The district court then sentenced him to
30 years in jail. We rejected his challenges to his convictions and sentence on direct

appeal. See United States v. Dowell, 430 F.3d 1100 (10th Cir. 2005).

In 2007, Dowell filed a pro se motion under 28 U.S.C. § 2255, asking the

district court to vacate his sentence. He raised over a dozen claims of ineffective

assistance of counsel. The court appointed counsel for Dowell, held an evidentiary

hearing, and denied the motion (as well as a COA). We affirmed. See Dowell, 388

F. App’x 781 (10th Cir. 2010) (unpublished). Dowell then filed, along with other

motions, a motion under Fed. R. Civ. P. 60(b) asking the district court to set aside,

on jurisdictional grounds, the order denying his habeas petition. The court declined

to do so and again denied a COA. On appeal, in a September 9, 2011 order, we re-

characterized Dowell’s COA application as a request for authorization to file a

second habeas petition and denied this request, along with several other motions.

See Dowell, 438 F. App’x 706 (10th Cir. 2011) (unpublished).

In 2013, Dowell filed a pro se request directly with us, asking for

authorization to file a second or successive § 2255 motion. In part, Dowell

complained the district court had failed to consider and rule on seven claims from

his original § 2255 motion. In an order issued on May 22, 2013, we agreed the court

did “not seem to have specifically addressed the [alleged] procedural errors” in

question. Moreover, we held, redressing this omission did not require our

authorization, as correcting errors in a § 2255 motion does not require a second or

successive habeas petition. We therefore dismissed Dowell’s motion, as it pertained

2
to the unaddressed claims, as unnecessary. Dowell thereafter filed a number of

related motions with the district court, under Fed. R. Civ. P. 60(b), requesting a new

appointment of counsel, an evidentiary hearing, and a declaration that the court’s

original order denying his § 2255 motion was void.

The district court did none of these things. Rather, on July 19, 2013, the court

issued an order addressing all seven of the disputed claims and denying Dowell’s

§ 2255 motion in its entirety. The court dismissed three of the claims with just one

sentence apiece—two for having “no legal merit” and one for being conclusory and

without support in the record. Once again, the court declined to issue a COA.

And once again, Dowell appealed to us. In this appeal, he did not challenge

the district court’s disposition of the seven claims. Rather, he made procedural

arguments, claiming the court had inappropriately handled his motions by not

granting him new counsel or an evidentiary hearing. On April 8, 2014, we denied

Dowell’s COA application, stating that the court had “granted Dowell the only relief

possible—correction of [its earlier] procedural error by the adjudication of the seven

ineffective assistance claims that were overlooked.” Several months later, Dowell

filed another Rule 60(b)(4) motion with the district court, raising identical

procedural arguments. On July 7, 2014, the court denied the motion, noting that our

April 8 order resolved the issues in question. Dowell then appealed to us, and we

denied a COA on October 23, 2014. As part of this denial, we again noted that the

district court had addressed the seven claims in question.

3
This brings us to the present dispute. On December 18, 2014, Dowell filed yet

another Rule 60(b)(4) motion with the district court. This time, in addition to

arguing the same procedural errors as before, he also contended the court gave short

shrift to the claims it dismissed with one sentence apiece. On these specific issues,

he asserted, the court failed in its duty to “make findings of fact and conclusions of

law.” 28 U.S.C. § 2255(b). The court again denied the motion and a COA, writing

that the “claims sought to be raised in this motion have been fully adjudicated.”

Dowell now asks us for a COA, making the same arguments. And, although

we construe pro se filings liberally, see Garza v. Davis, 596 F.3d 1198, 1201 n.2

(10th Cir. 2010), we again deny a COA. To begin, the claims Dowell brought in his

prior Rule 60(b)(4) motions clearly fail, for the obvious reason that we have twice

explicitly dismissed them. That said, Dowell has thrown a wrinkle into this most

recent motion with his argument concerning the brevity of the court’s ruling on

several specific issues. This wrinkle, though, does him no better. Although Dowell

apparently did not make this argument in his prior appeals, our prior orders plainly

hinged on our belief that the district court had corrected its earlier procedural error

“by the adjudication of the seven ineffective assistance claims that were overlooked.”

We are bound by our prior decisions in this case, so Dowell cannot prevail by

challenging an adjudication that we previously approved. See Rishell v. Jane

Phillips Episcopal Mem’l Med. Ctr., 94 F.3d 1407, 1410 (10th Cir. 1996) (“[L]aw

of the case applies to issues that are resolved implicitly . . . .”).

4
Moreover, Dowell misreads § 2255(b), which requires a district court to “make

findings of fact and conclusions of law” unless “the motion and the files and records

of the case conclusively show that the prisoner is entitled to no relief.” Here, the

court apparently believed the claims in question did not require extensive fact

findings or legal analysis—i.e., the record conclusively showed Dowell was not

entitled to relief—and Dowell provides nothing to undermine this conclusion.

Dowell does cite, inter alia, United States v. Marr, 856 F.2d 1471 (10th Cir. 1988),

where we remanded a § 2255 appeal and told the district court to produce a

“reasoned decision.” Id. at 1473. But there, the court had denied the prisoner’s

habeas claim with no explanation whatsoever; indeed, nothing indicated the court

had even “reviewed the files and records of the case.” Id. at 1471–72. Here, to the

contrary, the court issued a reasoned, seven-page order in which it dismissed four

claims with longer explanations and three claims with shorter explanations. And one

of the shorter explanations explicitly says the court could find no support in the

record for the claim, indicating the court had reviewed the record. This suffices.

5
As such, we DENY Dowell’s motion for a COA, DENY his motion to proceed

in forma pauperis as moot, and DISMISS his appeal. 1

Entered for the Court,

Bobby R. Baldock
United States Circuit Judge

1
Given this appeal’s background, we also caution Dowell that future frivolous
appeals on this matter may result in summary disposition without discussion or an
order requiring him to show cause to avoid appellate filing restrictions or sanctions.