Rickey White v. JIM FARRIS, Warden

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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RICKEY WHITE,
Petitioner - Appellant,
v.
JIM FARRIS, Warden,
Respondent - Appellee.
No. 21-7028
(D.C. No. 6:21-CV-00076-JFH-KEW)
(E.D. Okla.)
_______________________________________
ORDER
_______________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_______________________________________
This case involves an appeal from the denial of habeas relief. The
petitioner sought habeas relief, complaining of prison conditions and the
refusal to transfer him to a Canadian prison. On appeal, however, he
abandons the claims asserted in district court and challenges his underlying
conviction in state court. To pursue the appeal, the petitioner needs a
certificate of appealability. We can grant a certificate only upon the
presentation of a reasonably debatable appeal point. Laurson v. Leyba, 507
F.3d 1230, 1232 (10th Cir. 2007). We decline to issue a certificate of
appealability. With no certificate, we dismiss the matter.
The petitioner’s appellate arguments are not reasonably debatable
because he has waived the underlying claims. He did not present any of
FILED
United States Court of Appeals
Tenth Circuit
September 16, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-7028 Document: 010110577244 Date Filed: 09/16/2021 Page: 1

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these claims in his habeas petition. So the district court never had an
opportunity to consider these claims. Because these claims did not appear
in the habeas petition, we consider these claims “waived.” Owens v.
Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015). Because these claims are
waived, they cannot be considered “reasonably debatable” in an appeal.
See Childers v. Crow, 1 F.4th 792, 799–800 (10th Cir. 2021) (stating that
because the underlying habeas claim had been omitted in the habeas
petition, a certificate of appealability should not have been granted). 1
* * *
With no reasonably debatable appeal point, we
 decline to issue a certificate of appealability and
 dismiss this matter. 2
Entered for the Court
Robert E. Bacharach
Circuit Judge
1 Because the petitioner did not challenge the conviction in district
court, the record on appeal contains no information about his criminal
proceedings or any state-court appeals. We thus have no information to
guide us in considering the petitioner’s newly presented claims.
2 We grant Mr. White’s request for leave to proceed in forma pauperis.
Appellate Case: 21-7028 Document: 010110577244 Date Filed: 09/16/2021 Page: 2

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