FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 13, 2019
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3110
(D.C. No. 5:06-CR-40138-DDC-1)
THOMAS GUY CARAWAY, (D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before BRISCOE, HARTZ, and MORITZ, Circuit Judges.
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Thomas Guy Caraway, a federal prisoner proceeding pro se, seeks to appeal the
district court’s dismissal in part and denial in part of a post-judgment motion he
captioned Motion to Dismiss Void March 6, 2019, Memorandum and Order of Court or
in Alternative Motion for Reconsideration of Order (hereafter, “Motion to Dismiss”).
We deny a certificate of appealability (“COA”) and dismiss the matter.
Caraway was convicted in 2007 of causing an explosive device to be delivered by
U.S. Mail and possessing an explosive device during and in relation to a crime of
violence. He was sentenced to 30 years’ imprisonment. This court affirmed. Caraway
This order is not binding precedent except under the doctrines of law of the case,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.
filed his first 28 U.S.C. § 2255 motion in 2009. The district court denied relief, and we
denied a COA. Caraway filed a second § 2255 motion in 2016, which the district court
dismissed for lack of jurisdiction.
Earlier this year, Caraway filed a motion captioned Motion to Reopen Closed
Case, in which he asserted that no proper warrant existed for his arrest in 2006. In a
March 6 order, the district court dismissed that motion for lack of jurisdiction as an
unauthorized second or successive § 2255 motion. In response, Caraway filed his Motion
to Dismiss. In a May 8 order, the district court held this motion was an unauthorized
second or successive § 2255 motion to the extent it sought relief from Caraway’s
convictions based upon an invalid arrest warrant. After declining to transfer the
successive portion of Caraway’s motion to this court under 28 U.S.C. § 1631, the court
dismissed that portion of his motion for lack of jurisdiction.
Caraway’s Motion to Dismiss also challenged the district court’s jurisdiction to
enter its March 6 order denying his Motion to Reopen Closed Case and argued that the
court failed to liberally construe that previous pro se motion. The court liberally
construed these contentions as properly brought under Fed. R. Civ. P. 60(b) because
Caraway raised defects in the integrity of its March 6 order. The district court rejected
both of Caraway’s contentions, holding that the administrative closure of his § 2255
proceedings did not divest the court of jurisdiction to issue its March 6 order and that
Caraway did not support his claim regarding the court’s failure to liberally construe his
previous motion. The district court therefore denied relief under Rule 60(b). Finally, the
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court denied a COA as to all of Caraway’s claims in his Motion to Dismiss. Caraway
filed a notice of appeal only as to the district court’s May 8 order. See R. at 433.
Caraway must obtain a COA to pursue an appeal. See United States v. Harper,
545 F.3d 1230, 1233 (10th Cir. 2008); Spitznas v. Boone, 464 F.3d 1213, 1217-18
(10th Cir. 2006) (holding a COA is required to appeal from the denial of a Rule 60(b)
motion in a habeas case); see also 28 U.S.C. § 2253(c)(1)(B). We liberally construe
Caraway’s pro se opening brief and application for a COA. See Hall v. Scott, 292 F.3d
1264, 1266 (10th Cir. 2002). Because the district court’s rulings rested on procedural
grounds, Caraway must show both “that jurists of reason would find it debatable whether
the [motion] states a valid claim of the denial of a constitutional right and 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, 484 (2000).
We deny a COA. In his Motion to Dismiss, Caraway once again challenged the
validity of the arrest warrant. Thus, because he asserted a federal basis for relief from his
conviction, reasonable jurists would not debate the district court’s holding that this
portion of his motion was an unauthorized second or successive § 2255 motion over
which the court lacked jurisdiction. See United States v. Nelson, 465 F.3d 1145, 1147
(10th Cir. 2006). Nor would reasonable jurists debate the district court’s ruling that
Caraway failed to show a procedural error in the previously conducted § 2255
proceeding, specifically in the court’s March 6 order denying his Motion to Reopen
Closed Case. Finally, Caraway fails to show that reasonable jurists would debate
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whether the district court abused its discretion in declining to transfer the successive
portion of his motion to this court under § 1631.
Accordingly, we deny Caraway’s application for a COA and dismiss the matter.
We grant Caraway’s application to proceed without prepayment of fees and costs.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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