Farris v. Martin

Appellate Case: 21-6077     Document: 010110622655          Date Filed: 12/22/2021     Page: 1
                                                                                       FILED
                                                                           United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                              Tenth Circuit

                              FOR THE TENTH CIRCUIT                            December 22, 2021
                          _________________________________
                                                                              Christopher M. Wolpert
                                                                                  Clerk of Court
  TYRONE LESLIE FARRIS,

        Petitioner - Appellant,

  v.                                                            No. 21-6077
                                                         (D.C. No. 5:18-CV-00738-R)
  JIMMY MARTIN, Warden of North Fork                            (W.D. Okla.)
  Corrections; JOE ALLBAUGH, Director
  of the Department of Corrections,

        Respondents - Appellees.
                       _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY*
                    _________________________________

 Before HARTZ, KELLY, and McHUGH, Circuit Judges.
                   _________________________________

        Tyrone Leslie Farris, an Oklahoma state inmate proceeding pro se, seeks a

 certificate of appealability (COA) to contest the district court’s denial of his motion under

 Federal Rule of Civil Procedure 60(b) to set aside the dismissal of his application for

 relief under 28 U.S.C. § 2241. We deny a COA, as no reasonable jurist could have

 concluded that the district court abused its discretion in declining to reopen the judgment.




        *
          This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 21-6077       Document: 010110622655          Date Filed: 12/22/2021     Page: 2



    I.       BACKGROUND

          Mr. Farris is serving a 99-year sentence for his 1985 conviction for rape. In this

 § 2241 proceeding Mr. Farris asserted that the Oklahoma Department of Corrections

 improperly denied him various sentencing credits. The United States District Court for

 the Western District of Oklahoma dismissed the § 2241 application as untimely.

 Although Mr. Farris filed a notice of appeal, we dismissed the appeal as untimely. See

 Farris v. Martin, No. 21-6037, 2021 WL 4467565, at *1 (10th Cir. May 28, 2021)

 (unpublished).

          After the district court dismissed his application, Mr. Farris filed a “Motion for

 Reconsideration” invoking Federal Rule of Civil Procedure 60(b)(6), which allows for

 relief from a final judgment for “any other reason that justifies relief.” The motion

 asserted that the denial of his § 2241 application was improper because the district judge

 and magistrate judge should have disqualified themselves for bias, and it re-argued the

 merits of his § 2241 application. The district court denied the motion and declined to

 grant a COA.

    II.      DISCUSSION

          This court held in Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000), that the

 COA requirement of 28 U.S.C. § 2253(c)(1)(A) applies “whenever a state prisoner

 habeas petition relates to matters flowing from a state court detention order,” including in

 a proceeding under § 2241. With respect to a prisoner’s challenge to a district court’s

 denial of a Rule 60(b)(6) motion, the Supreme Court has accepted a formulation of the

 relevant COA standard as “whether a reasonable jurist could conclude that the District

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 Court abused its discretion in declining to reopen the judgment.” Buck v. Davis, 137 S.

 Ct. 759, 777 (2017).1

        That standard has not been satisfied in this case. Because Mr. Farris’s filings were

 submitted pro se, they are “entitled to a liberal construction,” Childers v. Crow, 1 F.4th

 792, 798 (10th Cir. 2021), but we “cannot take on the responsibility of serving as [his]

 attorney in constructing arguments and searching the record,” Lankford v. Wagner, 853

 F.3d 1119, 1122 (10th Cir. 2017) (internal quotation marks omitted).

        We first address Mr. Farris’s bias claim.2 The Rule 60(b) motion makes various

 allegations of favoritism, bias, and prejudice by both the district and magistrate judges.



        1
           In a proceeding under 28 U.S.C. § 2254 or § 2255, an additional step is necessary
 before determining whether to consider a motion under Rule 60(b) or whether to grant a
 COA to review a ruling on such a motion. A district court lacks authority to grant relief
 on a second-or-successive petition under § 2254 or § 2255 unless permission is granted
 by a court of appeals, see 28 U.S.C. § 2244(b) (§ 2254 applications); id. § 2255(h) (§
 2255 motions). Because some matters raised in motions under Rule 60(b) in habeas
 proceedings may be properly viewed as second-or-successive petitions, such matters
 cannot be considered by a district court without prior approval by the court of appeals;
 that is, the district court can address only matters that are termed, in this context, “true”
 Rule 60(b) motions because they concern only “some defect in the integrity of the federal
 habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005); see United
 States v. Nelson, 465 F.3d 1145, 1147–49 (10th Cir. 2006) (applying Gonzalez in a
 § 2255 case). The prior-approval requirement for second-or-successive habeas petitions
 does not apply, however, in proceedings under § 2241. See Stanko v. Davis, 617 F.3d
 1262, 1269 n.5 (10th Cir. 2010) (“[T]he requirement for prior circuit authorization . . .
 does not apply to habeas petitions brought under § 2241.”); see id. at 1268–69
 (explaining this conclusion). There are significant limitations on § 2241 applications
 under long-standing restrictions on successive habeas petitions and under the abuse-of-
 the-writ doctrine, see id. at 1269–70 & n.7; but the district court has authority to address
 them without prior approval from the court of appeals. Thus, we need not determine
 whether any part of Mr. Farris’s motion is or is not a “true” Rule 60(b) motion.
        2
        We recognize that at least two unpublished opinions of this court have stated that
 a COA is not required to seek review in this court of an order denying recusal in a habeas
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 But the sole support for the bias claims is that the judges issued various adverse rulings.

 It is well-settled law that “adverse rulings cannot in themselves form the appropriate

 grounds for disqualification.” United States v. Wells, 873 F.3d 1241, 1252 (10th Cir.

 2017) (internal quotation marks omitted); see Willner v. Univ. of Kansas, 848 F.2d 1023,

 1028 (10th Cir. 1988) (“[A] motion to recuse cannot be based solely on adverse

 rulings.”). No reasonable jurist could conclude that the district court abused its discretion

 in declining to reopen the judgment on this ground.

        The remainder of Mr. Farris’s Rule 60(b) motion does nothing more than reargue

 the merits of his original § 2241 application. But the district court has no obligation to

 repeat what it has already ruled on the same issues. See Allender v. Raytheon Aircraft

 Co., 439 F.3d 1236, 1242 (10th Cir. 2006). The district court did not abuse its discretion

 in declining to reopen the judgment on this ground. No reasonable jurist would hold

 otherwise.




 case. See Vreeland v. Zupan, 801 F. App’x 629, 632 (10th Cir. 2020) (citing Harbison v.
 Bell, 556 U.S. 180, 183 (2009)); United States v. McIntosh, 723 F. App’x 613, 616 (10th
 Cir. 2018) (citing Harbison). But the procedural posture of those cases was unlike the
 posture here. In both of those cases the prisoner was appealing the denial of the motion to
 recuse, seeking to require the accused judges to no longer participate in the case. That is
 not the relief sought by Mr. Farris. His motion seeks to set aside the denial of his § 2241
 application. It therefore comes squarely within the requirement of § 2253(c)(1)(A) that a
 COA be obtained before appealing from a “final order in a habeas corpus proceeding.”
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    III.   CONCLUSION

       We DENY Mr. Farris’s application for a COA, DENY his motion to proceed in

 forma pauperis, and DISMISS this matter.


                                            Entered for the Court


                                            Harris L Hartz
                                            Circuit Judge




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