FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2016
Elisabeth A. Shumaker
Clerk of Court
ANTHONY LEROY DAVIS,
Petitioner - Appellant,
No. 16-3010
v. (D.C. No. 5:14-CV-03144-SAC-DJW)
(D. Kan.)
SAM BROWNBACK, Governor;
DEREK SCHMIDT, Attorney General of
the State of Kansas,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
Petitioner Anthony Leroy Davis seeks a certificate of appealability (COA) to
appeal from a district court order dismissing, for various procedural reasons, all of
the claims he asserted in the underlying habeas action. Because we conclude that
“jurists of reason would [not] find it debatable whether the district court was correct
in its procedural ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (stating
standard governing COA in cases involving procedural rulings), we deny a COA and
dismiss this 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This order is not binding precedent except under the doctrines of law of the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.
In 1989, Davis was convicted by a Kansas jury of first-degree felony murder,
aggravated robbery, and aggravated arson. See State v. Davis, 802 P.2d 541
(Kan. 1990) (affirming conviction). After unsuccessfully seeking habeas relief with
respect to his 1989 convictions on prior occasions, he filed the instant petition once
again challenging them under 28 U.S.C. § 2254. He also asserted claims focused on
other matters, such as actions taken by the state parole board, prison officials’
calculation of the expiration date of his sentence, and the conditions at his
correctional facility. The magistrate judge screened the petition and issued Davis an
order to show cause why the matter should not be dismissed because (1) the § 2254
claims were second or successive and had not been authorized by this court under
28 U.S.C. § 2244(b)(3); (2) the claims regarding the parole board and the calculation
of the expiration date of his sentence (a) involved the execution of his sentence and
thus were not properly brought under § 2254 and (b) were not, in any event,
supported by adequately stated factual and legal bases; and (3) the claims regarding
conditions at Davis’ prison had to be brought in an action under 42 U.S.C. § 1983
rather than a habeas proceeding.
Davis responded with several filings that failed to meaningfully address any of
the above deficiencies. The district court dismissed the action, adopting the
magistrate judge’s analysis of Davis’ claims. 1 After the district court disposed of
1
In a motion to amend filed in response to the show-cause order Davis seems
to have been attempting to drop the non-§ 2254 claims while adding some allegations
(continued)
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several post-judgment filings, Davis filed a notice of appeal followed by a combined
opening brief and motion for a COA.
Davis purports to raise three issues for appeal, though his terse and cryptic
briefing obscures the thrust of his argument. We have endeavored to construe his
brief liberally while not manufacturing arguments for him. See Walters v. Wal-Mart
Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013).
His first issue, directed at the district court’s determination that his second or
successive habeas claims were subject to dismissal for lack of authorization under
§ 2244(b)(3), states that “his 28 U.S.C. [§] 2254 Amended-Petition completely
supersedes the or[i]ginal petition” and that § 2254 is a bill of attainder because it
deprives him of his liberty and property without due process and without a trial.
Aplt. Br. at 3 (internal quotation marks omitted). While the thrust of the second
point seems fairly clear (and patently frivolous), it is not clear what Davis means by
his amended petition superseding an original petition. He may be contending the
amendment he tried to make in response to the show cause order superseded the
original petition in this case, or he may be contending the petition in this case
to an unauthorized § 2254 claim alleging prosecutorial use of false testimony. The
district court denied the motion as futile, because the amendment did not cure the
deficiencies noted by the magistrate judge. Davis does not argue on appeal that the
district court should have granted a voluntary dismissal of his non-§ 2254 claims
(rather, he appears to argue they should not have been dismissed). In any event,
given that the district court dismissed all claims without prejudice, whether it should
have considered and granted voluntary dismissal of the non-§ 2254 claims is
immaterial.
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superseded an earlier petition and somehow thereby became non-successive. Neither
contention has any debatable merit. As to the former, even overlooking the fact that
the district court denied the amendment, it would have had no effect on the
disposition of the petition because it did not cure the operative lack of authorization.
As to the latter contention, a second or successive petition does not supersede a prior
non-successive petition for purposes of § 2244(b)(3)—if it did, each new habeas
petition would supersede those that came before and thereby evade the authorization
requirement, rendering the statute meaningless.
Davis’ second issue concerns his claim that the expiration date of his sentence
has not been calculated correctly under Kan. Stat. Ann. § 21-4608(g), a now-repealed
statute that specified, for crimes committed before July 1, 1993, the manner in which
consecutive definite and indefinite terms were to be combined for service by a
prisoner. He asserts that a violation of this statute is correctable at any time.
Whether or not that is an accurate statement of Kansas law (the only authority cited
for it is an Illinois decision), it does not undercut the district court’s reason for
dismissing the claim in this § 2254 proceeding. The district court held that the claim
challenged the execution of Davis’ sentence and thus must be brought under
28 U.S.C. § 2241. The district court refused to consider the claim in this case,
because it deemed Davis’ use of a § 2254 proceeding as a catch-all to include § 2241
and civil rights claims to be an improper attempt to avoid properly filing and paying
for three distinct cases. Davis does not challenge that determination on appeal, and
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he expressly acknowledges that his § 21-4608 claim “attacks . . . the execution of his
sentences.” Aplt. Br. at 4 (internal quotation marks omitted). Under the
circumstances, Davis has not raised a debatable basis for reversing the district court’s
dismissal of the claim.2
Davis’ final issue on appeal consists of three statements. The first is that he
was deprived of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963).
But any Brady claim would fall under § 2254 and thus have been properly dismissed
for lack of authorization. The second statement suggests he was denied a transcript
contrary to Britt v. North Carolina, 404 U.S. 226 (1971), which addressed when
states must provide free transcripts for indigent defendants. This claim would also
involve an attack on the state criminal proceedings under § 2254 and hence have been
subject to dismissal for lack of authorization. The last statement is that Davis made a
showing of actual innocence allowing him to avoid the time bar in § 2244(d) under
McQuiggin v. Perkins, ___ U.S. ___, 133 S. Ct. 1924 (2013). But that is irrelevant to
the fatal deficiency in his second or successive habeas claims, which was lack of
authorization by this court under § 2244(b)(3), not untimeliness.
If the actual-innocence doctrine is relevant at all, it would be as part of a
challenge to the district court’s discretionary decision to dismiss the habeas claims
rather than transfer them to this court for possible authorization. See In re Cline,
2
We note that if the claim were somehow construed as relating to the
imposition rather than execution of sentence, it would be a § 2254 claim subject, like
Davis’ other § 2254 claims, to dismissal for lack of authorization under § 2244(b)(3).
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531 F.3d 1249, 1251 (10th Cir. 2008) (noting factors relevant to decision whether to
dismiss or transfer successive claim include whether it would be time-barred). But
Davis makes no challenge to that aspect of the district court’s order. Nor would such
a challenge succeed in any event. We have repeatedly held that when “a party is
aware or should be aware that [his] unauthorized second or successive motion cannot
be heard in the district court, transfer may be denied on the basis that the filing was
not made in good faith.” United States v. Johnson, ___ F. App’x ___, 2016 WL
1381247, at *2 (10th Cir. Apr. 7, 2016) (internal quotation marks omitted) (citing
cases). Davis, who has already had a prior second or successive habeas petition
dismissed for lack of authorization, is clearly subject to this principle here. See id.
Accordingly, we deny a COA and dismiss the appeal. We grant Davis’ motion
to proceed in forma pauperis on appeal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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