Rickey White v. Scott Crow

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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RICKEY WHITE,
Petitioner - Appellant,
v.
SCOTT CROW,
Respondent - Appellee.
No. 20-7036
(D.C. No. 6:20-CV-00116-RAW-KEW)
(E.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before MORITZ, BALDOCK, and EID, Circuit Judges.
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Rickey White, a pro se Oklahoma inmate, seeks a certificate of appealability
(COA) to challenge the dismissal of his 28 U.S.C. § 2254 petition as an unauthorized
second or successive habeas petition. See id. § 2253(c)(1)(A). We deny a COA and
dismiss this matter.
I
Mr. White is currently serving a life sentence for first-degree murder. In 1985, the
Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction and sentence. See
White v. State, 702 P.2d 1058, 1063 (Okla. Crim. App. 1985). In 2003, the district court
 This order is not binding precedent except under the doctrines of law of the case,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
United States Court of Appeals
Tenth Circuit
March 9, 2021
Christopher M. Wolpert
Clerk of Court
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denied federal habeas relief on statute-of-limitations grounds, and we denied a COA, see
White v. Mullin, No. 03-7054 (10th Cir. Oct. 22, 2003). Since then, Mr. White has filed
numerous habeas petitions and motions for authorization to file second or successive
habeas petitions, all of which have been denied.
Most recently, Mr. White filed the underlying § 2254 petition in this case,
repeating various claims the OCCA rejected on direct appeal. He claimed the trial
court’s probable cause determination was predicated on a defective search warrant
affidavit that was unsigned, unsworn, based on hearsay, and that failed to specify when
an informant had viewed contraband (a gun) seized during the search. He acknowledged
he had previously raised these issues, but he asserted the state court judges refused to
invalidate the warrant and suppress the gun because they were racist.
The district court dismissed the petition as an unauthorized second or successive
§ 2254 habeas petition. The court also denied a COA. On the same day that the district
court dismissed his petition, Mr. White moved this court for authorization to file a second
or successive § 2254 petition to bring these and other claims. We denied his request. See
In re White, No. 20-7037 (10th Cir. July 31, 2020); R. at 98-105. Mr. White now seeks a
COA to challenge the district court’s dismissal.
II
A COA is a “jurisdictional prerequisite” to appeal the district court’s denial of
habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA 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). Where, as here, the district court denies relief on procedural
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grounds, an applicant 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).
Mr. White fails to make the required showing. He does not address the COA
standards or otherwise attempt to show that the district court’s dismissal is reasonably
debatable. Instead, he argues the merits of his claims and that of other claims raised in
his recent motion for authorization. But an inmate may not file a second or successive
§ 2254 petition without first obtaining an order from this court authorizing the district
court to consider his petition. See 28 U.S.C. § 2244(b)(3)(A). Absent such authorization,
“[a] district court does not have jurisdiction to address the merits of a second or
successive . . . § 2254 claim.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)
(per curiam). Because Mr. White did not first obtain circuit-court authorization to file his
successive § 2254 petition, the district court’s dismissal for lack of jurisdiction is not
reasonably debatable, and Mr. White is not entitled to a COA.
III
Accordingly, we deny a COA and dismiss this matter. Mr. White’s motion to
proceed without prepayment of fees is granted, and we remind him that he remains
obligated to pay the filing fees in full.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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