FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 30, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANTONE LAMANDINGO KNOX,
Petitioner - Appellant,
v. No. 15-6074
(D.C. No. 5:14-CV-00353-W)
ANITA TRAMMELL, Warden, (W.D. Okla.)
Respondent - Appellee.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Petitioner Antone Lamandingo Knox, a state prisoner proceeding pro se,
seeks a certificate of appealability (COA) to appeal the district court’s denial of his
Fed. R. Civ. P. 60(b) motion. His motion sought relief from a year-old district court
order dismissing Knox’s previously-filed Rule 60(b) motion. We deny the
application for a COA and dismiss the appeal.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. BACKGROUND
Knox pleaded guilty in 1995 to attempted robbery with a firearm after former
conviction of two or more felonies, pointing a firearm at another after former
conviction of two or more felonies, and possession of a firearm after former
conviction of two or more felonies. He has filed numerous § 2254 petitions
challenging his conviction, all of which were dismissed. See Knox v. Workman,
425 F. App’x 781, 783-84 (10th Cir. 2011) (affirming the dismissal of his petition as
time-barred); Knox v. Trammell, No. CIV-12-1393-W, 2013 WL 1908313, at *1
(W.D. Okla. May 7, 2013) (dismissing for lack of jurisdiction because petition was
an unauthorized second or successive petition); Knox v. Trammell,
No. CIV-13-925-W, 2013 WL 5460826, at *1 (W.D. Okla. Sept. 30, 2013)
(dismissing for lack of jurisdiction because petition was another unauthorized second
or successive petition), appeal dismissed, No. 13-6229 (10th Cir. Dec. 27, 2013).
On April 10, 2014, Knox filed an “Ex Parte Motion for [Rule] 60(b)(1) Thru
(6) [Relief].” R. at 4. The district court construed this filing as another unauthorized
second or successive § 2254 petition challenging his conviction. “A district court
does not have jurisdiction to address the merits of a second or successive . . . § 2254
claim until [the circuit] court has granted the required authorization.” In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). When presented with an
unauthorized second or successive application, the district court has the option to
transfer the application to this court if a transfer is in the interest of justice or dismiss
it for lack of jurisdiction. See id. at 1252. The district court determined it was not in
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the interest of justice to transfer Knox’s filing to this court for authorization, clearly
explaining that the claims Knox sought to raise were not based on either a new rule
of constitutional law or on any newly discovered evidence, as is required to file a
second or successive petition, see 28 U.S.C. § 2244(b)(2). Thus, it dismissed the
matter for lack of jurisdiction on May 14, 2014.
Knox did not file a timely appeal from the May 2014 dismissal order. Instead
he filed two motions on April 3, 2015. First, he filed a motion for transcripts,
claiming he needed copies of all the transcripts, magistrate reports and
recommendations, and court orders in all of his prior § 2254 proceedings so that he
could seek authorization from the Tenth Circuit to file a second or successive § 2254
petition. Second, he filed a Rule 60(b) motion, ostensibly filed “in support of” his
motion for transcripts. R. at 65. In the latter motion, Knox sought relief from the
May 2014 dismissal order under Rule 60(b)(6). He argued that he had raised
constitutional claims in his April 2014 motion that would satisfy the authorization
requirements and, thus, the district court should have transferred his 2014 filing to
the Tenth Circuit in the interest of justice.
The district court denied both motions in a single order. It denied Knox’s
transcript motion because the dockets in Knox’s previous § 2254 proceedings showed
Knox had been mailed copies of all the papers, pleadings and orders in each. It
denied his Rule 60(b) motion, reaffirming its decision that it was not in the interest of
justice to transfer the matter to the Tenth Circuit. The district court denied Knox’s
request to proceed in forma pauperis and denied him a COA to appeal.
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II. DISCUSSION
Knox’s COA application continues to assert arguments relating to the district
court’s May 2014 order and judgment of dismissal. We lack jurisdiction to review
that order, however, because Knox did not file a timely notice of appeal. See Bowles
v. Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice of appeal in a
civil case is a jurisdictional requirement.”). Judgment was entered on May 5, 2014,
and Knox did not file his notice of appeal until April 15, 2015. See Fed. R. App. P.
4(a)(1)(A) (providing that any notice of appeal in a civil case must be filed within
thirty days of entry of judgment). Knox’s Rule 60(b) motion did not toll the
applicable thirty-day period because that motion was not filed within twenty-eight
days of entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).
A COA is required for Knox to appeal the denial of his April 2015 Rule 60(b)
motion because that motion, in substance and effect, reasserted the same grounds for
relief from Knox’s underlying conviction as he raised in his April 2014 filing.
See United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). We will issue a
COA only if Knox has made “a substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(2). We deny a COA because reasonable jurists
would not debate the correctness of the district court’s ruling. The COA application
is frivolous.1
1
It is unclear from Knox’s garbled COA application if he also seeks to appeal
the denial of his motion for transcripts. To the extent he is seeking to appeal that
ruling, we conclude a COA is not required because the ruling on that motion did not
(continued)
4
Knox has filed a motion for sanctions, in which he asks this court to sanction
the Respondent for matters related to his prison mail and other prison conditions.
We have reviewed the motion and deny it.
We deny Knox’s request for a COA and his motion for sanctions and dismiss
the appeal. Appellant’s motion to proceed in forma pauperis is denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
dispose of the merits of Knox’s § 2254 habeas petition. See Harbison v. Bell,
556 U.S. 180, 183 (2009) (holding COA not required to exercise appellate
jurisdiction to review a district court’s final order that does not dispose of the merits
of the habeas petition). We have reviewed the motion and conclude the district court
did not abuse its discretion in denying Knox’s request for the transcripts, papers,
pleadings and orders in all of his § 2254 proceedings.
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