Lewis E. Erskine v. the Warden of the Colorado Territorial Correctional Facility

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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LEWIS E. ERSKINE,
Petitioner - Appellant,
v.
THE WARDEN OF THE COLORADO
TERRITORIAL CORRECTIONAL
FACILITY,
Respondent - Appellee.
No. 22-1177
(D.C. No. 1:22-CV-00698-LTB-GPG)
(D. Colo.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, KELLY, and PHILLIPS, Circuit Judges.
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Lewis E. Erskine, a Colorado prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2241
application as an unauthorized second or successive 28 U.S.C. § 2254 habeas application.
We deny a COA.
* This order is not binding precedent except under the doctrines of law of the case,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
August 23, 2022
Christopher M. Wolpert
Clerk of Court
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I. Background
In August 2001, Mr. Erskine pleaded guilty to sexual assault and was sentenced to
sixteen years to life. He filed his first § 2254 habeas application almost twenty years
later in March 2020. The district court dismissed the application as untimely.
In July 2022, he filed an application purportedly seeking relief under § 2241. In it,
he challenged his detention, arguing he had been illegally extradited from Oklahoma to
Colorado in violation of the Uniform Criminal Extradition Act. He requested to be
“disincarcerated from the Colorado Department of Corrections forthwit[h].” R. at 18.
The magistrate judge construed the § 2241 application as a § 2254 habeas application
because Mr. Erskine was not attacking the execution of his sentence, but instead was
attacking the legality of his conviction. Because Mr. Erskine had not obtained
authorization to file a second or successive § 2254 habeas application, the magistrate
judge recommended dismissing the application for lack of jurisdiction.
Mr. Erskine filed objections to the magistrate judge’s report and recommendation.
The district court overruled the objections, adopted the magistrate judge’s report and
recommendation, and dismissed the application. Mr. Erskine now seeks a COA to appeal
from that dismissal.
II. Discussion
To obtain a COA where, as here, a district court has dismissed a filing on
procedural grounds, the movant 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
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its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We need not
address the constitutional question if we conclude that reasonable jurists would not
debate the district court’s resolution of the procedural one. See id. at 485.
Dismissal of a § 2254 habeas application as time-barred constitutes a decision on
the merits, making any later § 2254 habeas application challenging the same conviction
second or successive. In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011). A prisoner
may not file a second or successive § 2254 habeas application unless he first obtains an
order from the circuit court authorizing the district court to consider the petition.
28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks jurisdiction
to address the merits of a second or successive § 2254 habeas application. In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
In his COA application, Mr. Erskine argues the merits of his claim that he was
illegally extradited to Colorado from Oklahoma. He also asserts that he filed a § 2241
application only challenging his illegal extradition with no mention of his state
conviction, but the district court brought in his state conviction. We have explained that
“[s]ection § 2241 is a vehicle for challenging pretrial detention, . . . or for attacking the
execution of a sentence” and “[a] § 2254 petition, on the other hand, is the proper avenue
for attacking the validity of a conviction and sentence.” Yellowbear v. Wyo. Att’y Gen.,
525 F.3d 921, 924 (10th Cir. 2008). Mr. Erskine’s claim that he was illegally extradited
from Oklahoma prior to being charged in Colorado is an attack on the validity of his
conviction and sentence because he asserted in his § 2241 application that, due to the
illegal extradition, he should be released from incarceration. Such a claim is properly
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brought in a § 2254 habeas application. He has therefore failed to show that reasonable
jurists could debate the district court’s procedural ruling to treat his § 2241 application as
an unauthorized second or successive § 2254 habeas application and dismiss it for lack of
jurisdiction.
For the foregoing reasons, we deny a COA. We grant Mr. Erskine’s motion for
leave to proceed on appeal without prepayment of costs or fees. We deny his second
motion for court-appointed counsel.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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