FILED
United States Court of Appeals
Tenth Circuit
November 29, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
NELSON R. LYNCH,
Petitioner-Appellant,
No. 11-6142
v. (D.C. No. 5:11-CV-00158-HE)
(W.D. Okla.)
JANE STANDIFIRD, Warden,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, MURPHY, and HARTZ, Circuit Judges.
Nelson R. Lynch, an Oklahoma prisoner proceeding pro se, seeks to appeal
the district court’s dismissal of his application for a writ of habeas corpus as an
unauthorized second 28 U.S.C. § 2254 application. We deny a certificate of
appealability (COA) and dismiss this proceeding.
Mr. Lynch was sentenced to forty years of imprisonment for possession of
cocaine with intent to distribute after having been convicted of two or more
felonies. In 2006, he pursued relief from this conviction under § 2254.
*
This order is not binding precedent except under the doctrines of law of the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.
See Lynch v. Jones, 206 F. App’x 744, 745 (10th Cir. 2006) (denying a COA).
In 2011, using the federal district court’s form for habeas applications pursuant to
28 U.S.C. § 2241, he asserted that the state court committed plain error in
enhancing his sentence under an invalid habitual offender provision. The district
court concluded that the application attempted to assert unauthorized second or
successive § 2254 claims, see 28 U.S.C. § 2244(b) (restricting second or
successive applications under § 2254), and dismissed it for lack of jurisdiction,
see In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). The court
later denied both a COA and leave to proceed on appeal without prepayment of
costs and fees.
Mr. Lynch now seeks a COA from this court. To obtain one, he must show
both “that jurists of reason would find it debatable whether the petition 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). But this he cannot do.
Because Mr. Lynch attacked the validity of his habitual-offender sentence,
rather than the manner in which the sentence is being executed, the district court
correctly considered the application to be under § 2254 rather than § 2241. See
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions
under § 2241 are used to attack the execution of a sentence, in contrast to § 2254
habeas . . . proceedings, which are used to collaterally attack the validity of a
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conviction and sentence.” (citation omitted)). And because the 2011 application
was a second attempt to bring § 2254 claims challenging this sentence, under
§ 2244(b)(3) this court had to authorize the application before it could proceed in
district court. No reasonable jurist could debate any of these issues.
When presented with an unauthorized second or successive claim,
“the district court may transfer the matter to this court if it determines it is in
the interest of justice to do so under [28 U.S.C.] § 1631, or it may dismiss
the . . . petition for lack of jurisdiction.” Cline, 531 F.3d at 1252. The district
court concluded that it would not be in the interest of justice to transfer
Mr. Lynch’s application because it did not demonstrate that he could meet the
requirements for filing a second § 2254 application. See 28 U.S.C. § 2244(b)(2)
(providing that a second or successive § 2254 application can proceed only if it
relies on “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court” or new evidence of actual innocence of the
underlying offense). No reasonable jurist could debate this issue either.
Accordingly, we DENY a COA and DISMISS this matter. We also DENY
Mr. Lynch’s motion to proceed on appeal without prepayment of costs or fees.
The district court explained to Mr. Lynch that it could not consider his merits
arguments unless and until he meets the requirements of 28 U.S.C. § 2244(b).
But rather than attempting to confront the issues arising from § 2244(b) and the
fact that the 2011 habeas application was a second attempt to challenge his
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sentence under § 2254, Mr. Lynch again reargues the merits of his underlying
claims of sentencing error. Therefore, he has failed to advance “a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised” in this
proceeding. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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