December 1, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF… v. United States of America

FILED
United States Court of Appeals
Tenth Circuit
December 1, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN DONALD KELSO,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
No. 20-5041
(D.C. No. 4:20-CV-00041-CVE-FHM
(N.D. Okla.)
ORDER AND JUDGMENT*
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
John Donald Kelso appeals, pro se, 1 from the denial of his motion to
terminate his civil commitment through a writ of habeas corpus under 28 U.S.C.
§ 2241 or any writs available under the All Writs Act, 28 U.S.C. § 1651. See
Aplt.’s Opening Br. at 2–3. Mr. Kelso also seeks permission to proceed in forma
pauperis (“IFP”).
* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
1 Because Mr. Kelso is proceeding pro se, we construe his filings
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the
role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 1

-- 1 of 7 --

For substantially the same reasons as the district court, we find no merit in
Mr. Kelso’s appeal. 2 Accordingly, we affirm the district court’s judgment.
Furthermore, concluding that Mr. Kelso raises no non-frivolous arguments in
support of his appeal, we deny his IFP motion.
I
After he was found unfit to stand trial for bank robbery on November 22,
2017, Mr. Kelso was civilly committed to the Springfield Medical Center for
Federal Prisoners (“MCFP”) by a district judge in the Western District of
Missouri. See Order Adopting Report and Recommendations, United States v.
Kelso, No. 6:17-cv-03039 (W.D. Mo. Nov. 22, 2017), ECF 14; 3 see also
18 U.S.C. § 4246(a) (concerning the hospitalization of a person due for release
2 The district court also denied Mr. Kelso a Certificate of
Appealability (“COA”). R. at 55 n.4 (Dist. Ct. Order, filed Mar. 6, 2020). This
ruling was unnecessary. “[A] certificate of appealability under the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat. 1214
(Apr. 24, 1996), is not required in order to appeal a final order in a proceeding
under 28 U.S.C. § 2241.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810
n.1 (10th Cir. 1997). And final orders involving other relief that Mr. Kelso
conceivably sought also are not subject to the COA requirement. Cf. 28 U.S.C.
§ 2253(c)(1) (specifying order requiring a COA). Consequently, we have no need
here to consider whether Mr. Kelso qualifies for a COA; nor do we further
consider the district court’s order denying him a COA.
3 “Although we are not obliged to do so, we may exercise our
discretion to take judicial notice of publicly-filed records in our court and certain
other courts concerning matters that bear directly upon the disposition of the case
at hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007),
cert. denied, 552 U.S. 969 (2007). We use this discretion here in taking note of
certain filings relating to Mr. Kelso.
2
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 2

-- 2 of 7 --

but suffering from mental disease or defect). On February 3, 2020, Mr. Kelso
filed a motion to terminate his civil commitment in the Northern District of
Oklahoma. See R. at 3 (Petition for Writ of Habeas Corpus, filed Feb. 3, 2020).
This petition is one in a series of filings by Mr. Kelso seeking release. See
Motion to Vacate, Set Aside, or Correct Sentence, Kelso v. United States,
No. 3:19-cv-00726-MMD-VPC (D. Nev. Dec. 5, 2019), ECF 41; United States v.
Kelso, 747 F. App’x 447, 448 (8th Cir. 2019) (unpublished). In the section of his
petition to the Northern District of Oklahoma titled “factual, legal error(s)
complained” of, Mr. Kelso stated that “[t]hey took me to Reno, Nevada from
Tulsa, Okla. where they allege the crime took place. . . . They did not give me a
preliminary hearing, a fair bond or a jury trial. . . . [This violated] my due process
and my right to a jury trial.” R. at 33 (Amended Petition for Writ of Habeas
Corpus, filed Feb. 11, 2020). Mr. Kelso also argued that several of his
constitutional rights were violated, including his right to receive a jury trial and
fair bail, his Sixth Amendment right to effective assistance of counsel, and his
Eighth Amendment right to be free from cruel and unusual punishment. Id.
at 34–35, 38–39. Additionally, Mr. Kelso asserted that the doctors at MCFP
repeatedly violated his First Amendment rights by forcing him to take medication,
in contravention of his religious beliefs, and by restricting his access to the
MCFP’s telephones. Id. at 38. Finally, Mr. Kelso requested an annual jury trial
concerning his sanity and competence. Id. at 34.
3
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 3

-- 3 of 7 --

After liberally construing Mr. Kelso’s pro se filing, see, e.g., Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), in a thorough
and well-reasoned order, the district court dismissed Mr. Kelso’s action. First,
the district court interpreted Mr. Kelso’s filing as a possible motion for a writ of
either audita querela or coram nobis under the All Writs Act, 28 U.S.C. § 1651.
See R. at 52–54 (Dist. Ct. Order, filed Mar. 6, 2020). But the district court
concluded that this construction required it to dismiss Mr. Kelso’s action because
Mr. Kelso can still seek relief through a writ of habeas corpus under 28 U.S.C.
§ 2241. See United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002).
Next, the district court viewed Mr. Kelso’s motion as a possible 28 U.S.C.
§ 2241 petition for a writ of habeas corpus. See R. at 54. However, § 2241
requires Mr. Kelso to file a petition in the jurisdiction of his confinement. See
Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004). Mr. Kelso’s jurisdiction of
confinement is the Western District of Missouri—not the Northern District of
Oklahoma. Thus, the district court concluded that, if Mr. Kelso was proceeding
under § 2241, the court lacked jurisdiction to review his petition. See R. at 55;
see also Archuleta v. Hendrick, 365 F.3d 644, 649 (8th Cir. 2004) (noting that
only a committing court may grant conditional or unconditional release under
18 U.S.C. § 4247(h) and, therefore, such a court is the correct one to exercise
jurisdiction over a 28 U.S.C. § 2241 petition).
4
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 4

-- 4 of 7 --

Finally, the district court considered the possibility that Mr. Kelso’s motion
could be interpreted as an action challenging conditions of his confinement or as
one pursuing damages claims against individual federal or state actors under
either Bivens v. Six Unknown Named Agents of Federal Bureau Narcotics,
403 U.S. 388 (1971), or 42 U.S.C. § 1983. See R. at 55–56. The court
entertained this possibility because Mr. Kelso stated that the MCFP’s staff
repeatedly violated a number of his asserted civil rights. Id. However, the
district court reasoned that this view of Mr. Kelso’s motion was still procedurally
barred because venue was improper. Id. at 56.
Accordingly, based on the foregoing alternative rationales, the district court
dismissed Mr. Kelso’s action. Following this dismissal, Mr. Kelso timely filed a
notice of appeal on April 21, 2020. 4
4 Generally speaking, Mr. Kelso’s appeal presents similar arguments to
those rejected by the district court. Admittedly, Mr. Kelso’s pro se filings are
sometimes difficult to decipher, but there appear to be five notable exceptions.
First, Mr. Kelso asks for a transcript of the Nevada District Court’s decision to
drop his robbery charges. Aplt.’s Opening Br. at 4. Second, Mr. Kelso invokes
the Ninth Amendment’s protection of unenumerated rights to argue that he should
have his criminal sentence reinstated because his civil commitment could keep
him in jail for life. Id. at 7. Third, Mr. Kelso argues it is class discrimination
that convicted criminals get good time credits and individuals who are civilly
committed do not. Id. at 2. Fourth, Mr. Kelso contends that the civil
commitment statute, 18 U.S.C. § 4246(a), should be ruled void for vagueness. Id.
at 5. Finally, Mr. Kelso states that he is in grave danger and needs to be
transferred to any state hospital. Id. To the extent Mr. Kelso presents these
arguments for the first time on appeal, they are waived. See, e.g., Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th Cir. 2011); Tele-Commc’ns v.
(continued...)
5
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 5

-- 5 of 7 --

II
We review the district court’s decision de novo because at issue are legal
questions of statutory jurisdiction and venue. See, e.g., Trujillo v. Williams,
465 F.3d 1210, 1215–16 (10th Cir. 2006); Pierce v. Shorty Small’s of Branson
Inc., 137 F.3d 1190, 1191–92 (10th Cir. 1998); United States v. Smartt, 129 F.3d
539, 540 (10th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996);
see also Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (“This
court reviews the district court’s disposition of [ ] habeas corpus petition[s] de
novo. Factual findings are reviewed for clear error.” (citation omitted)).
Like the district court, we liberally construe Mr. Kelso’s pro se filing. See
Garrett, 425 F.3d at 840. And, as that court did, we conclude that there are three
reasonable ways to interpret Mr. Kelso’s action: first, as a motion under the All
Writs Act, 28 U.S.C. § 1651; second, as a petition under 28 U.S.C. § 2241; and
third and finally, as a suit challenging his conditions of confinement or presenting
damages claims against individual state or federal actors under 42 U.S.C. § 1983
or Bivens.
4 (...continued)
C.I.R., 104 F.3d 1229, 1232–33 (10th Cir. 1997). In any event, in light of the
threshold procedural nature of the district court’s rulings—i.e., concluding
alternatively that it lacked statutory jurisdiction or venue over Mr. Kelso’s
action—and given our ultimate conclusion that those rulings are legally sound,
even if we considered Mr. Kelso’s additional arguments, our disposition would
remain the same.
6
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 6

-- 6 of 7 --

Having thoroughly considered Mr. Kelso’s filings, the record, and the
relevant law, we uphold the district court’s thorough disposition of Mr. Kelso’s
action for substantially the same reasons stated by that court. Furthermore, we
cannot conclude that Mr. Kelso has presented any “reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.”
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Accordingly, we
deny his IFP motion.
III
For the foregoing reasons, we AFFIRM the district court’s judgment and
DENY Mr. Kelso’s IFP motion. 5
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
5 Because we affirm the district court and deny Mr. Kelso’s IFP
motion, under the circumstances of this case, we also DENY as moot Mr. Kelso’s
self-titled Motion in Support of Writ filed on March 16, 2021 and his two motions
filed on March 29, 2021—specifically, for a fast and speedy trial and for
continuance of his pro se status.
7
Appellate Case: 20-5041 Document: 010110612526 Date Filed: 12/01/2021 Page: 7

-- 7 of 7 --