TERRY J. STRYKER, Petitioner - Appellant,
WARDEN BEAR, Respondent - Appellee.
No. 5:17-CV-00695-W (W.D. Okla.)
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L Hartz Circuit Judge
Terry Stryker seeks a certificate of appealability (COA) to
appeal the dismissal of his application for relief under 28
U.S.C. § 2241. See Dulworth v. Jones, 496 F.3d
1133, 1135 (10th Cir. 2007) ("[A] state prisoner seeking
to appeal the denial of habeas relief in a § 2241
proceeding must obtain a COA to appeal."). Because no
reasonable jurist could debate the correctness of the
district court's decisions, we deny Applicant's
request for a COA and dismiss the appeal.
1975, Applicant was convicted in Oklahoma state court of
robbery with a firearm, and was sentenced to life in prison.
His direct appeal of his conviction and sentence was
unsuccessful as were his two attempts at postconviction
relief from the state courts. He was granted parole in 2004,
but that parole was revoked in 2008. Following that
revocation, he again unsuccessfully sought postconviction
relief in Oklahoma state court.
noted by the magistrate judge below, Applicant's §
2241 application is a challenge to understand. But construing
the pro se pleading "liberally, " Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks
omitted), he read the application as raising three claims:
(1) a life sentence in Oklahoma has been defined as a
sentence of 45 years' imprisonment and, having served
that long, Applicant is entitled to release; (2) the United
States Supreme Court has somehow determined that his
conviction is void; and (3) Oklahoma denied him access to the
courts, denied him equal protection and due process,
suspended habeas corpus, and violated his rights under the
Americans with Disabilities Act (ADA). The magistrate judge
recommended denial of relief on all claims, and the district
court adopted the recommendation.
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This standard requires "a
demonstration that . . . includes showing 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) (internal quotation
marks omitted). In other words, the applicant must show that
the district court's resolution of the constitutional
claim was either "debatable or wrong." Id.
view, no reasonable jurist could debate that the district
court erred on the issues before us. Applicant does not
challenge the district court's characterization of his
claims below and makes no challenge to the disposition of his
first claim. As for his second claim, he does cite the
Supreme Court decision in Solem v. Bartlett, 465
U.S. 463 (1984); but that opinion hardly declared his
conviction void, and it is far too old to be the proper
predicate for relief in a habeas proceeding initiated in
2017. See 28 U.S.C. § 2244(d)(1)(C) (barring
§ 2254 claims brought more than one year after Supreme
Court recognizes a constitutional right). And the district
court was undisputedly correct in denying relief on the third
claim, which was supported only by allegations regarding the
conduct of state postconviction proceedings. See United
States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006)
("[D]ue process challenges to post-conviction procedures
fail to state constitutional claims cognizable in a federal
habeas proceeding."); see also Lopez v. Trani,
628 F.3d 1228, 1229 (10th Cir. 2010) ("Our precedent
makes clear that the district court did not err in dismissing
claims that related only alleged errors in the
post-conviction proceedings."). We also note that
although Applicant complains that his mental disability was
the basis of improper conduct by the state courts, he does
not identify any specific such misconduct.
although Applicant argues some new claims in this court, we
do not consider issues not raised below. See United
States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012).
recognize that some, perhaps most, of Applicant's claims
are not appropriate claims under § 2241, which is
limited to challenging the execution of a sentence. See
Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 924
(10th Cir. 2008) ("§ 2241 is a vehicle for
challenging pretrial detention, or for attacking the
execution of a sentence. A § 2254 petition, on the other
hand, is the proper avenue for attacking the validity of a
conviction and sentence." (internal citations omitted)).
For example, his second claim is a challenge to his
conviction. But we need not determine whether we should
recharacterize some claims as being brought under § 2254
or should dismiss them for lack of jurisdiction, because the
denial of the request for a COA deprives this court of
jurisdiction in any event. See Harris v. Dinwiddie,
642 F.3d 902, 906 (10th Cir. 2011) ("A COA is a
jurisdictional prerequisite to our review of the petition for
writ of habeas corpus.").
DENY Applicant's request for a COA and
DISMISS the appeal. We DENY