Wesley Thompson v. Warden Benzon

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
WESLEY THOMPSON,
Petitioner - Appellant,
v.
WARDEN BENZON,
Respondent - Appellee.
No. 21-4114
(D.C. No. 2:18-CV-00320-DAK)
(D. Utah)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
This matter is before the court on Wesley Thompson’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
Thompson seeks a COA so he can appeal the district court’s denials of both his
28 U.S.C. § 2254 petition and his Fed. R. Civ. P. 59(e) motion to alter or amend
judgment. 1 See 28 U.S.C. § 2253(c)(1)(A). We grant Thompson’s request to
* This order is not binding precedent except under the doctrines of law of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.
1 After the district court denied his Rule 59(e) motion, Thompson did not
file a new or amended notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii)
(providing that a new or amended notice of appeal is required to appeal, inter
alia, the denial of a Rule 59(e) motion). We nevertheless have jurisdiction over
the denial of Thompson’s Rule 59(e) motion because Thompson filed his
combined brief and application for a COA within thirty days of the district
FILED
United States Court of Appeals
Tenth Circuit
August 2, 2022
Christopher M. Wolpert
Clerk of Court
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proceed on appeal in forma pauperis. Because Thompson has not, however,
“made a substantial showing of the denial of a constitutional right,” id.
§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
Thompson pleaded guilty in Utah state court to two counts of child sexual
abuse and one count of attempted child sexual abuse. On direct appeal, the Utah
Court of Appeals rejected Thompson’s challenges to the trial court’s sentencing
decisions. Thompson did not seek certiorari review in the Utah Supreme Court.
Thompson then filed a timely state petition for post-conviction relief. The Utah
Court of Appeals affirmed the trial court’s denial of that petition, and the Utah
Supreme Court denied Thompson’s request for a writ of certiorari.
Thompson then filed the instant § 2254 petition, raising numerous
challenges to his convictions and resulting sentences. The State responded by
arguing that each of the issues set out in Thompson’s § 2254 petition was
procedurally barred. In a thorough and comprehensive order dated September 7,
2021, the district court agreed all issues set out in Thompson’s petition were
procedurally barred. The district court, thus, denied Thompson’s petition.
Thompson then filed an exceedingly lengthy Rule 59(e) motion, rearguing
the merits of the district court’s procedural default ruling and, in addition, raising
four entirely new issues. Again, in a thorough and comprehensive order, the
court’s denial of the Rule 59(e) motion. See generally Smith v. Barry, 502 U.S.
244, 248-49 (1992).
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district court denied Thompson’s motion to the extent it reargued issues
previously litigated. In particular, the district court concluded Thompson’s
arguments did not satisfy the standard set out in Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). As to the issues raised for the first
time in the Rule 59(e) motion, the district court took a different tack. It
determined that, at least as to these issues, Thompson’s motion was more akin to
a Fed. R. Civ. P. 60(b) motion. See Dist. Court Order of June 1, 2022, at 8 (“The
final four of Petitioner’s post-judgment challenges are apparently newly raised
and therefore fit more appropriately under the rubric of Rule 60(b); after all,
Petitioner is not in a position to attack--under Rule 59(e)--the Court’s treatment
of these challenges in its dismissal order, when these issues were never
introduced before now.”). So construed, the district court concluded it lacked
jurisdiction to resolve those issues because they amounted to a second or
successive habeas petition. See id. at 1-3, 9-12 (citing, inter alia, Gonzalez v.
Crosby, 545 U.S. 524, 538 (2005)).
The granting of a COA is a jurisdictional prerequisite to Thompson’s
appeal from the denials of his § 2254 petition and his Rule 59(e) motion. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a COA,
Thompson must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must
demonstrate “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the
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issues presented were adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether Thompson
has satisfied his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although Thompson need not demonstrate his appeal will
succeed to be entitled to a COA, he must “prove something more than the absence
of frivolity or the existence of mere good faith.” Id. (quotations omitted).
Having undertaken a review of Thompson’s combined request for a COA
and appellate brief, the district court’s well-stated orders dated September 7,
2021, and June 1, 2022, and the entire record before this court, we conclude
Thompson is not entitled to a COA. In so concluding, this court has nothing to
add to the comprehensive analysis set out by the district court as to each of the
issues that were denied as procedurally barred. As to the four new issues raised
in Thompson’s Rule 59(e) motion, we note that it is far from clear the rule set out
by the Supreme Court in Crosby applies. See generally Banister v. Davis, 140 S.
Ct. 1698, 1705 (2020) (holding that Rule 59(e) “motion[s] to alter or amend a
habeas court’s judgment” do not count as “second or successive habeas
application[s]”). Nevertheless, no reasonable jurist would find fault with the
district court’s refusal to address those four issues on the merits. See id. at 1702-
03 (“In keeping with [its] corrective function, federal courts generally have used
Rule 59(e) only to reconsider matters properly encompassed in a decision on the
merits. In particular, courts will not address new arguments or evidence that the
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moving party could have raised before the decision issued.” (citation, alterations,
and quotations omitted)). Accordingly, this court DENIES Thompson’s request
for a COA and DISMISSES this appeal.
Entered for the Court
Michael R. Murphy
Circuit Judge
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