Joshua Tyrone Thomas v. Scott Nunn

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JOSHUA TYRONE THOMAS,
Petitioner - Appellant,
v.
SCOTT NUNN,
Respondent - Appellee.
No. 21-5034
(D.C. No. 4:18-CV-00123-JED-CDL)
(N.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Joshua Tyrone Thomas, an Oklahoma state inmate proceeding pro se, seeks a
certificate of appealability (COA) to contest the district court’s denial of his application
for relief under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. § 1291, we
deny a COA and dismiss this matter.
BACKGROUND
In October 2014 an Oklahoma jury found Thomas guilty on two counts of
first-degree rape, one count of lewd or indecent proposal to a child, and one count of
lewd molestation of a child under 16. The trial court sentenced Thomas to concurrent
 This order is not binding precedent except under the doctrines of law of the case,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
November 18, 2021
Christopher M. Wolpert
Clerk of Court
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sentences of 30 years’ imprisonment for the rape convictions and concurrent sentences of
five years’ imprisonment for the other two convictions. The court ordered the five-year
terms to be served consecutively to the 30-year terms, for a total term of 35 years. The
court also imposed three years of postimprisonment supervision for each conviction. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed the judgment.
In October 2016, Thomas filed an application for postconviction relief. The state
district court denied the application, and the OCCA affirmed.
In March 2018, Thomas filed a § 2254 application in the district court, claiming
that (1) the trial court committed plain error when it instructed the jury that state law
required a fine as part of his sentence; (2) his sentence was unauthorized by statute
because the trial court imposed a three-year term of postimprisonment supervision
without also suspending a portion of the sentence; and (3) his appellate attorney provided
ineffective representation by failing to argue that the sentence was unauthorized and that
the lack of sentencing guidelines in Oklahoma results in arbitrary punishment. The
district court denied the application, concluding that the state postconviction court
reasonably rejected Thomas’s first and third claims and that his second claim was an
issue of state law not cognizable on federal habeas review. The district court also denied
a COA. Thomas now seeks a COA from this court.
DISCUSSION
A state inmate must obtain a COA to appeal a denial of federal habeas relief.
See 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only upon “a substantial showing
of the denial of a constitutional right.” Id. § 2253(c)(2). For claims denied on the merits,
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Thomas must show that reasonable jurists would regard the district court’s rulings on his
constitutional claims as debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484
(2000). And for claims denied on procedural grounds, he must show that reasonable
jurists would find it debatable both that his habeas application fails to state a valid
constitutional claim and that the court was correct in its procedural ruling. See id.
In his combined opening brief and COA application, Thomas presents no
argument on the three claims raised in his § 2254 application and rejected by the district
court. Under our waiver rule, which applies “even to prisoners who proceed pro se and
therefore are entitled to liberal construction of their filings,” “[a]rguments not clearly
made in a party’s opening brief are deemed waived.” Toevs v. Reid, 685 F.3d 903, 911
(10th Cir. 2012). Moreover, we “cannot take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). See generally Nixon v.
City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an
appellant is to explain to us why the district court’s decision was wrong.”). Accordingly,
we do not address the claims raised and rejected in district court. See United States v.
Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (declining to address a claim raised in
a § 2255 motion that was not included in the COA application or brief to this court).
By not presenting any argument concerning the district court’s denial of his habeas
claims, Thomas has not satisfied the requirements for a COA on those claims. Instead,
Thomas contends he is entitled to habeas relief under the Supreme Court’s decision in
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and the OCCA’s decision in Hogner v.
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State, 2021 OK CR 4. In McGirt the Supreme Court held that territory in Oklahoma
reserved for the Creek Nation in the 19th century remains “‘Indian country’” for purposes
of exclusive federal jurisdiction over certain criminal offenses committed “within ‘the
Indian country’” by an “‘Indian.’” 140 S. Ct. at 2459 (quoting 18 U.S.C. § 1153(a)). In
Hogner the OCCA applied McGirt and held that the trial court lacked jurisdiction
because (1) the parties stipulated, and the evidence demonstrated, that the defendant was
an Indian; (2) the land on which the crimes occurred had been reserved to the Cherokee
Nation; and (3) no evidence was presented that Congress had disestablished the Cherokee
Nation reservation. See 2021 OK CR 4, ¶¶ 8, 17-18.
Thomas contends that his criminal offenses occurred within the boundaries of the
Cherokee Nation reservation and that, therefore, under McGirt and Hogner, the state trial
court lacked jurisdiction.1 But Thomas did not raise the substance of this claim in district
court, and “[w]e do not generally consider issues that were not raised before the district
court as part of the habeas petition,” Stouffer v. Trammell, 738 F.3d 1205, 1222 n.13
(10th Cir. 2013). Accordingly, we decline to consider Thomas’s McGirt claim. See id.;
see also Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (declining to consider
additional ineffective-assistance-of-counsel claims not raised in district court).
1 Thomas, however, concedes he “is not a member of any tribe” and, instead, “is a
person of African descent who had been living within [the] Cherokee Nation reservation
boundaries at the time of the crimes alleged.” Aplt. Opening Br. at 2.
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CONCLUSION
We deny Thomas’s application for a COA and dismiss this matter. We also deny
his motion for a stay-and-abeyance.
Entered for the Court
Harris L Hartz
Circuit Judge
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