FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 2, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID BRIAN MORGAN,
Petitioner - Appellant,
v. No. 19-6099
(D.C. No. 5:19-CV-00171-F)
STATE OF OKLAHOMA; FEDERAL (W.D. Okla.)
BUREAU OF PRISONS (BOP),
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY *
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Before LUCERO, PHILLIPS, and EID, Circuit Judges.
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David Morgan, an Oklahoma prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254
motion. We deny a COA and dismiss the appeal.
I
In 2011, Morgan was convicted in Oklahoma state court on thirteen counts—
including rape, molestation, kidnapping, and weapons possession—for which he is
serving a life sentence. Morgan has since brought multiple challenges to his
conviction, including an initial habeas petition in 2014 and several subsequent
*
This order is not binding precedent, except under the doctrines of law of the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.
actions the district court has construed as unauthorized successive habeas petitions.
This is his ninth challenge to his conviction.
Morgan styled the instant action as a “Writ of Qui Tam” and a “Writ of Ad
Subjudiciendum.” He filed the action on a 28 U.S.C. § 2241 form but changed the
form’s title to read “Private Attorney General.” A magistrate judge issued a report
and recommendation (“R&R”) recommending that the district court construe
Morgan’s filing as an unauthorized second or successive § 2254 petition and dismiss
it without prejudice. Morgan filed a “Motion to Appeal Report and
Recommendation,” which the district court construed as a notice of appeal rather than
an objection to the R&R. We dismissed that appeal for lack of jurisdiction. The
district court adopted the R&R, concluding it lacked jurisdiction over the
unauthorized successive petition. It declined to grant a COA. Morgan now seeks a
COA from this court.
II
We may issue a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
Morgan must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
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We agree with the district court that Morgan’s filing is an unauthorized
successive § 2254 petition. 1 Under 28 U.S.C. § 2244(b), “[t]he filing of a second or
successive § 2254 application is tightly constrained.” Case v. Hatch, 731 F.3d 1015,
1026 (10th Cir. 2013). Before a court can consider a successive petition, an applicant
must first “move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). This
requirement is jurisdictional in nature; it “speaks to the power of the court to
entertain the application, rather than any procedural obligation of the parties.” Case,
731 F.3d at 1027. Section 2244(b) accordingly mandates that a successive habeas
application “shall be dismissed” unless the statute’s jurisdictional requirement is met.
Id.
We agree with the district court that the instant action arises under § 2254.
Morgan challenges the validity of his conviction and seeks release from confinement.
See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (“The
fundamental purpose” of a § 2254 petition is “an attack by a person in custody upon
the legality of that custody, and . . . the traditional function of the writ is to secure
release from illegal custody.”). Morgan filed his first § 2254 petition in 2014. He
subsequently filed several successive habeas petitions between 2015 and 2017. The
1
We question whether Morgan’s “Motion to Appeal Report and
Recommendation” can be construed as a timely objection to the R&R. Under the
firm waiver rule, a failure to timely object to a magistrate judge’s recommendation
generally “waives appellate review of both factual and legal questions.” Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotation omitted). Even if we
construe Morgan’s filing as an objection, however, he is not entitled to a COA.
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instant action is Morgan’s latest attempt to file yet another habeas petition under a
different guise. Because Morgan did not obtain an order from this court authorizing
the district court to consider this successive habeas petition, the district court lacked
jurisdiction to entertain Morgan’s claims.
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Morgan’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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