Kevin M. Brown, Sr. v. JIM FARRIS, Warden

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
KEVIN M. BROWN, SR.,
Petitioner - Appellant,
v.
JIM FARRIS, Warden,
Respondent - Appellee.
No. 21-5044
(D.C. No. 4:20-CV-00037-GKF-JFJ)
(N.D. Oklahoma)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, KELLY, and McHUGH, Circuit Judges.
_________________________________
Petitioner Kevin M. Brown, Sr. was tried and convicted of nine state crimes in
Oklahoma state court, and he was sentenced to eight consecutive life sentences plus a
consecutive year in prison. Mr. Brown’s lengthy sentence was due in part to a
sentence enhancement that applied because Mr. Brown had previously been
convicted of two or more felonies. Mr. Brown argues recent amendments to the
applicable Oklahoma statutes changed his prior convictions from felonies to
misdemeanors and therefore no longer trigger the sentence enhancements. As a
result, Mr. Brown argues his current sentence violates his federal due process rights.
* This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 14, 2021
Christopher M. Wolpert
Clerk of Court
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After failing to obtain relief in the state courts, Mr. Brown, acting pro se, 1
submitted a federal habeas corpus petition under 28 U.S.C. § 2254. The district court
denied the petition and declined to issue a certificate of appealability (“COA”)
because Mr. Brown had not shown he was denied a federal constitutional right.
Mr. Brown subsequently submitted an application for a COA in this court. Because
Mr. Brown fails to show a constitutional violation, we decline to issue a COA, and
we dismiss this matter. We also deny his motion for leave to proceed in forma
pauperis (“IFP”).
I. BACKGROUND
In 2011, an Oklahoma jury convicted Mr. Brown of one count of first-degree
robbery, five counts of robbery with a firearm, two counts of possession of a firearm
after former conviction of a felony, and one count of attempting to elude a police
officer. The state court sentenced him to eight consecutive life sentences and a
consecutive year in prison for these crimes. The life sentences imposed were due, in
part, to the fact Mr. Brown had been convicted of two or more felonies prior to these
convictions.
In 2019, Mr. Brown sought postconviction relief in Oklahoma state court. 2 He
argued two changes in Oklahoma state law, set forth in 2018 Okla. Sess. Laws SB
1 Because Mr. Brown is proceeding pro se, we construe his pleadings liberally, but
we will not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008). 2 Significant time has elapsed between the finality of Mr. Brown’s conviction and
the federal habeas proceeding, which could raise potential timeliness concerns. However,
timeliness is generally an affirmative defense. See Kilgore v. Attorney Gen. of Colo., 519
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649 and 2018 Okla. Sess. Laws HB 1269, 3 apply retroactively. According to
Mr. Brown, these revisions mean his prior convictions are now classified as
misdemeanors, not felonies, and cannot support the sentence enhancements the state
court imposed. The Tulsa County District Court disagreed, concluding “(1) that
recent reforms were not intended to operate retroactively; and (2) that those already
sentenced before the effect of these measures were to avail themselves of these
changes by way of the Pardon and Parole Board, not Oklahoma’s Post-Conviction
Procedure Act.” ROA Vol. 1 at 192. It therefore dismissed the petition. Mr. Brown
appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), which concluded
the state district court had not abused its discretion in denying relief, and therefore
affirmed the dismissal.
Mr. Brown subsequently filed a federal habeas petition pursuant to § 2254 in
the United States District Court for the Northern District of Oklahoma. 4 In the
F.3d 1084, 1086 (10th Cir. 2008) (“[T]he timeliness of a § 2254 petition is an affirmative
defense.” (citing Day v. McDonough, 547 U.S. 198, 202 (2006)). Because the state
conceded this petition was timely, we do not address this question.
3 The Oklahoma legislature approved both bills, thereby amending existing
Oklahoma statutes. The most relevant change is that a conviction for possession of a
controlled dangerous substance may not be used to enhance a sentence. Okla. Stat. tit. 21,
§ 51.1(D). Another amendment provides, “[t]he Pardon and Parole Board shall establish
an accelerated, single-stage commutation docket for any applicant who has been
convicted of a crime that has been reclassified from a felony to a misdemeanor under
Oklahoma law.” Okla. Stat. tit. 57, § 332.2(F).
4 In 2014, Mr. Brown filed his first § 2254 petition on different grounds in the
United States District Court for the Northern District of Oklahoma. The district court
denied that petition, and Mr. Brown appealed. This court denied a COA and
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petition, Mr. Brown argued (1) the changes in Oklahoma laws should apply
retroactively and (2) the state court’s failure to grant relief denied him his federal due
process rights. 5 After reviewing the petition on the merits, the district court denied
relief. It reasoned that whether changes in Oklahoma law apply retroactively is a
question of state law, so it is not cognizable under § 2254. The district court also
determined that Mr. Brown failed to demonstrate a due process violation because he
did not show the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence.” ROA Vol. 1 at 405 (quoting 28
U.S.C. § 2254(d)). Ultimately, the district court declined to issue a COA because
dismissed the appeal. Brown v. Allbaugh, No. 16-5135, 678 F. App’x 638 (10th Cir.
Jan 31, 2017) (unpublished).
Because the petition underlying this matter was his second § 2254 petition, the
district court initially dismissed it as an unauthorized second or successive § 2254
petition. Mr. Brown sought authorization from this court to file his second petition,
and we determined authorization was unnecessary because the gatekeeping function
of 28 U.S.C. § 2244(b) did not apply to the argument he sought to raise. In re:
Brown, No. 20-5076, slip op. (10th Cir. Aug. 4, 2020). Accordingly, the district court
reinstated the § 2254 petition.
5 Mr. Brown also sought leave to amend his petition with three additional claims
and requested that the district court direct the Oklahoma Department of Corrections to
transfer him to a different prison. The district court denied both requests, but Mr. Brown
did not raise these issues on appeal. We therefore do not address them.
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Mr. Brown had not shown a constitutional violation. Mr. Brown now seeks a COA.
He also moves for leave to proceed IFP. 6
II. DISCUSSION
A. Certificate of Appealability
Before we can turn to the merits of Mr. Brown’s § 2254 petition, Mr. Brown
must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). The district court declined to issue a
COA when it denied relief, so we must consider Mr. Brown’s application for a COA
at the outset. Fed. R. App. P. 22(b)(2).
“A [COA] may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added).
“Federal habeas relief is not available to correct state law errors.” Leatherwood v.
Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017) (citing Estelle v. McGuire, 502 U.S.
62, 67–68 (1991)). And “[a] habeas applicant cannot transform a state law claim into
a federal one merely by attaching a due process label.” Id.; see also Johnson v.
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997) (“Errors of state law cannot be
repackaged as federal errors simply by citing the Due Process Clause.”). To show the
denial of a constitutional right, the applicant should “‘include reference to a specific
federal constitutional guarantee, as well as a statement of the facts that entitle him to
6 The district court initially denied Mr. Brown’s motion to proceed on appeal IFP
because he failed to (1) make his motion on a court-approved form, (2) submit a financial
affidavit, and (3) provide any information regarding his ability to pay the filing fees or
identify the issues he intended to raise on appeal. Mr. Brown renewed his motion in this
court, and his renewed motion includes a complete, signed financial declaration on the
court-approved form.
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relief.’” Leatherwood, 861 F.3d at 1043 (quoting Gray v. Netherland, 518 U.S. 152,
162–63 (1996)). We will grant a COA only if the applicant shows “‘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.’” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The first issue on which Mr. Brown seeks a COA is whether the recent
changes in Oklahoma law should be applied retroactively to him, which he says
would result in a reduction to his sentence. Mr. Brown contends the Northern District
of Oklahoma erred because it “didn’t understand” the amendments to the state laws.
Opening Br. at 5. Nevertheless, the district court correctly noted that whether a
change in state law applies retroactively is a question of state, not federal, law.
Burleson v. Saffle, 278 F.3d 1136, 1140 (10th Cir. 2002) (“[W]hether or not a new
rule of state law may be applied retroactively is a pure state law question.”); Richie v.
Sirmons, 563 F. Supp. 2d 1250, 1298–99 (N.D. Okla. 2008) (determining the
OCCA’s refusal to apply its new case law retroactively to the defendant is a question
“of state law not cognizable in habeas corpus”). Even if the Oklahoma courts
incorrectly applied the Oklahoma statutes, as Mr. Brown contends, he is asking us to
“second-guess” the Oklahoma state courts “about the application of their own laws,”
which we cannot do. Leatherwood, 861 F.3d at 1043 (quotation marks omitted).
Thus, we deny a COA as to the first issue.
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Second, Mr. Brown argues the use of his prior convictions to enhance his
sentence violates due process because the legislature has amended the relevant
Oklahoma statutes, and the statutes no longer permit the enhancement he received.
He claims the failure to apply the new law leaves him with a sentence beyond the
maximum sentence currently permitted. Mr. Brown, however, fails to cite any
precedent holding that the due process clause requires amendments to state criminal
statutes, including reductions in the maximum sentence, be applied retroactively. To
the contrary, “we have repeatedly refused to find a federal constitutional right to
retroactive application of . . . more lenient sentencing rules.” Dockins v. Hines, 374
F.3d 935, 940 (10th Cir. 2004).
In sum, Mr. Brown has not shown the state court’s decision to not apply the
changes retroactively “was contrary to, or involved an unreasonable application of,
clearly established Federal law” or that it denied him a constitutional right. 28 U.S.C.
§ 2254(d)(1) (emphasis added); 28 U.S.C. § 2253(c)(2). Therefore, we deny a COA
for his federal due process claim.
Because neither of Mr. Brown’s arguments supports the issuance of a COA,
we deny his application for a COA and dismiss this matter.
B. In Forma Pauperis
Now, we turn to Mr. Brown’s motion for leave to proceed IFP. To succeed on
this motion, Mr. Brown “must show a financial inability to pay the required filing
fees and the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505
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(10th Cir. 1991); see also Fed. R. App. P. 24(a)(3)(A) (providing an exception for
allowing an appellant to proceed IFP when the appeal is not taken in good faith);
United States v. Ballieu, 480 F. App’x 494, 498 (10th Cir. 2012) (unpublished)
(defining “good faith” as presenting a nonfrivolous issue); Felvey v. Long, 800
F. App’x 642, 646 (10th Cir. 2020) (unpublished) (applying the IFP standard when
reviewing an application for a COA for a § 2254 petition). As explained, Mr. Brown
raises an issue of state law that is not cognizable under § 2254 and has not shown a
constitutional violation as statutorily required to obtain a COA. Therefore,
Mr. Brown has not presented a nonfrivolous argument on appeal, and we will deny
his motion for leave to proceed IFP. Mr. Brown is reminded that denial of the COA
“does not relieve him of the responsibility to pay the . . . filing fee in full.” Kinnell v.
Graves, 265 F.3d 1125, 1129 (10th Cir. 2001); see also Kincaid v. Bear, 687
F. App’x 676, 679 (10th Cir. 2017) (unpublished) (ordering the petitioner to pay the
filing fee after denying a COA to appeal the dismissal of the § 2254 petition and
denying a motion for leave to proceed IFP).
III. CONCLUSION
For the reasons stated, we DENY Mr. Brown’s application for a COA and
DISMISS this matter. We also DENY Mr. Brown’s motion for leave to proceed IFP.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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