Major Hudson, Iii v. Rick Whitten

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MAJOR HUDSON, III,
Petitioner - Appellant,
v.
RICK WHITTEN,
Respondent - Appellee.
No. 20-6140
(D.C. No. 5:01-CV-00258-G)
(W.D. Okla.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY∗
_________________________________
Before BRISCOE, KELLY, and EID, Circuit Judges.
_________________________________
Major Hudson, III, an Oklahoma prisoner proceeding pro se,1 seeks to appeal the
district court’s dismissal of his Fed. R. Civ. P. 60(b) motion as an unauthorized second or
successive 28 U.S.C. § 2254 petition. We deny Hudson’s request for a certificate of
appealability (COA) and dismiss this matter.
In 1998, an Oklahoma state court jury convicted Hudson on charges of first-degree
burglary, first-degree rape, child abuse, and threatening a witness. The Oklahoma Court
∗ This order is not binding precedent except under the doctrines of law of the case,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 Because Hudson appears pro se, we construe his filings liberally but do not serve
as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005).
FILED
United States Court of Appeals
Tenth Circuit
January 6, 2021
Christopher M. Wolpert
Clerk of Court
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of Criminal Appeals affirmed on direct appeal. Hudson filed his first § 2254 petition
challenging his conviction in 2001. He claimed: “(1) admission of evidence of other
crimes denied him a fair trial; (2) the evidence was insufficient to support the
convictions; (3) defense counsel provided ineffective assistance of counsel at trial; (4) the
sentences were excessive; and (5) his appellate counsel provided ineffective assistance on
his direct appeal.” Hudson v. Saffle, 30 F. App’x 823, 824 (10th Cir. 2002). The district
court denied relief on the merits, and this court denied his request for a COA. In 2016,
Hudson sought authorization to file a second or successive § 2254 petition, but we denied
authorization.
In 2019, Hudson again sought authorization to file a second or successive § 2254
petition. He hoped to bring two new claims for ineffective assistance of appellate
counsel. We again denied authorization. Undeterred, Hudson then filed a motion under
Fed. R. Civ. P. 60(b)(6) in the district court seeking to amend his 2001 § 2254 petition to
include the two claims for ineffective assistance of appellate counsel that we denied him
authorization to file.2 The district court concluded that because the motion sought “to
2 Hudson entitled his pro se filing a “Motion to Recall Mandate.” R. at 29
(capitalization omitted). The motion invoked, as “rel[e]vant authorities,” both
Fed. R. Civ. P. 15(c)(1)(B) and Fed. R. Civ. P. 60(b)(6). Id. at 32. “But the motion was
filed after judgment, and we have held that once judgment is entered, the filing of an
amended complaint [under Fed. R. Civ. P. 15] is not permissible until judgment is set
aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).” United States v. Nelson,
465 F.3d 1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). Hudson
contends on appeal that he brought his motion “under Rule 60(b)(6)’s catch[-]all
provision.” Aplt. Combined Opening Br. at 2. We construe it accordingly. See Nelson,
465 F.3d at 1148 (“Because [the defendant] was proceeding pro se, we will construe his
motion liberally, and treat it as a combination of a motion to set aside judgment
under Rule 60(b) . . . and a motion to then amend under Rule 15.” (citation omitted)).
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present claims based upon a denial of [Hudson’s] constitutional right to effective
assistance of appellate counsel,” it “must be treated as a second or successive habeas
petition.” R. at 75–76 (citing Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006)).
The district court dismissed Hudson’s motion for lack of jurisdiction as an unauthorized
second or successive § 2254 petition and in the process expressly declined to transfer the
motion to this court for possible authorization. See In re Cline, 531 F.3d 1249, 1252
(10th Cir. 2008) (per curiam) (“When a second or successive § 2254 or § 2255 claim is
filed in the district court without the required authorization from this court, the district
court may transfer the matter to this court if it determines it is in the interest of justice to
do so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for lack of
jurisdiction.”).
The district court correctly construed Hudson’s motion as a second or successive
habeas petition. See Spitznas, 464 F.3d at 1215 (“[A] 60(b) motion is a second or
successive petition if it in substance or effect asserts or reasserts a federal basis for relief
from the petitioner’s underlying conviction.”). Hudson therefore must obtain a COA
before he can appeal the district court’s dismissal of the motion. See 28 U.S.C.
§ 2253(c)(1)(A); United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008)
(construing 28 U.S.C. § 2255 and holding “that § 2253 requires [a] petitioner to obtain
a COA before he or she may appeal” from “the district court’s dismissal of an
unauthorized . . . motion”).
To obtain a COA, Hudson must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court’s ruling rested
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on procedural grounds, Hudson must show “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 its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
Hudson has not met this burden.
“Before a petitioner may file a second or successive 28 U.S.C. § 2254 petition in
the district court, he must successfully apply to this court for an order authorizing the
district court to consider the petition.” Spitznas, 464 F.3d at 1215 (citing 28 U.S.C.
§ 2244(b)(3)). We rejected Hudson’s application for authorization to file his motion.
The district court therefore correctly concluded that it lacked jurisdiction to consider
Hudson’s motion. See Cline, 531 F.3d at 1251 (“A district court does not have
jurisdiction to address the merits of a second or successive . . . § 2254 claim until this
court has granted the required authorization.”).
Because reasonable jurists could not debate the correctness of the district court’s
procedural ruling, we deny Hudson’s application for a COA and dismiss this matter. We
deny Hudson’s motion to proceed on appeal without prepayment of costs or fees because
he failed to show “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 (10th Cir. 1991).
Entered for the Court
Per Curiam
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