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    Green v. Reynolds, 10th Cir. (2008)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Rickke Green's applications for a certificate of appealability in two habeas corpus cases. In the first case, the district court dismissed Green's petition for failing to allege a violation of his federal constitutional rights, and the appellate court found that reasonable jurists could not debate the district court's decision. In the second case, the appellate court found that Green could not overcome the high hurdles required to overturn the district court's denial of his Rule 60(b) motion for relief from the court's previous dismissal of his habeas petition twelve years prior. Therefore, the appellate court denied Green's request for a certificate of appealability in both

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    Green v. Reynolds, 10th Cir. (2008)

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    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Rickke Green's applications for a certificate of appealability in two habeas corpus cases. In the first case, the district court dismissed Green's petition for failing to allege a violation of his federal constitutional rights, and the appellate court found that reasonable jurists could not debate the district court's decision. In the second case, the appellate court found that Green could not overcome the high hurdles required to overturn the district court's denial of his Rule 60(b) motion for relief from the court's previous dismissal of his habeas petition twelve years prior. Therefore, the appellate court denied Green's request for a certificate of appealability in both

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    Filed: 2008-10-01 Precedential Status: Non-Precedential Docket: 08-6063

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    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Rickke Green's applications for a certificate of appealability in two habeas corpus cases. In the first case, the district court dismissed Green's petition for failing to allege a violation of his federal constitutional rights, and the appellate court found that reasonable jurists could not debate the district court's decision. In the second case, the appellate court found that Green could not overcome the high hurdles required to overturn the district court's denial of his Rule 60(b) motion for relief from the court's previous dismissal of his habeas petition twelve years prior. Therefore, the appellate court denied Green's request for a certificate of appealability in both

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    27 views5 pages

    Green v. Reynolds, 10th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    The document is an order from the United States Court of Appeals for the Tenth Circuit denying Rickke Green's applications for a certificate of appealability in two habeas corpus cases. In the first case, the district court dismissed Green's petition for failing to allege a violation of his federal constitutional rights, and the appellate court found that reasonable jurists could not debate the district court's decision. In the second case, the appellate court found that Green could not overcome the high hurdles required to overturn the district court's denial of his Rule 60(b) motion for relief from the court's previous dismissal of his habeas petition twelve years prior. Therefore, the appellate court denied Green's request for a certificate of appealability in both

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    FILED

    United States Court of Appeals


    Tenth Circuit

    October 1, 2008
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court

    TENTH CIRCUIT

    RICKKE L. GREEN,
    Petitioner-Appellant,
    v.
    MARTY SIRMONS, Warden,

    No. 08-7024
    (D.C. No. CV-07-254-RAW-KEW)
    (E.D. Okla.)

    Respondent-Appellee.

    RICKKE L. GREEN,
    Petitioner-Appellant,
    v.
    DAN REYNOLDS; ATTORNEY
    GENERAL OF THE STATE OF
    OKLAHOMA,

    No. 08-6063
    (D.C. No. CV-93-702-D)
    (W.D. Okla.)

    Respondents-Appellees.

    ORDER DENYING CERTIFICATE OF APPEALABILITY *

    Before OBRIEN, McKAY, and GORSUCH, Circuit Judges.

    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.

    Rickke Leon Green is a prisoner in the Oklahoma State Penitentiary. He


    has filed applications for a certificate of appealability (COA) in the two abovecaptioned matters that we have consolidated for decision. Because Mr. Green is
    proceeding pro se, we construe his filings liberally. Andrews v. Heaton, 483 F.3d
    1070, 1076 (10th Cir. 2007). 1
    1. Green v. Sirmons, No. CV-07-254 (E.D. Okla. Feb. 19, 2008). In this
    action, Mr. Green sought to challenge his imprisonment in a 28 U.S.C. 2254
    petition. The district court denied his petition and he now seeks a COA before us.
    Before the district court, Mr. Green alleged that an Oklahoma state district
    judge and the Oklahoma Court of Criminal Appeals obstructed his filing of postconviction petitions in the Oklahoma state courts. He asked that the federal court
    entertain and adjudicate on the merits his state post-conviction cases. The
    district court explained that, despite any alleged difficulties Mr. Green might have
    experienced in the Oklahoma state court system, he did not state any violations of
    his federal constitutional rights as a habeas petitioner must. Accordingly, the
    district court dismissed the petition.
    1

    Accompanying both applications for COA, Mr. Green has filed an


    identical motion requesting that the entire Tenth Circuit Court of Appeals be
    disqualified from deciding cases to which he is a party. We construe this as a
    motion made under 28 U.S.C. 455. This is not the first such motion Mr. Green
    has made to this court. See Green v. Franklin, 1994 WL 266761 (10th Cir. 1994).
    We remind Mr. Green that judges cannot recuse themselves based on
    unsupported, irrational, or highly tenuous speculation. Hinman v. Rogers, 831
    F.2d 937, 939 (10th Cir. 1987). Because we find his allegations to fall into that
    category, we deny the motions with respect to both applications for COA.
    -2-

    We may only issue a COA if the petitioner makes a substantial showing of


    the denial of a constitutional right. 28 U.S.C. 2253(c)(2). Under this standard,
    Mr. Green must demonstrate that reasonable jurists could debate whether (or, for
    that matter agree that) the petition should have been resolved in a different
    manner or that the issues presented were adequate to deserve encouragement to
    proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations
    omitted). In his request for COA, Mr. Green has not addressed the district court
    decision or provided additional reasons for COA to be granted. In view of Mr.
    Greens pro se status, we have nonetheless reviewed the district courts decision
    with care, but we find that reasonable jurists could not debate its decision.
    Accordingly, we must deny his request for COA for substantially the same
    reasons given by the district court. 2
    2. Green v. Reynolds, No. CV-93-702 (W.D. Okla. March 7, 2008). Mr.
    Green originally brought this particular habeas action in 1993, challenging a 1971
    Oklahoma state conviction. After the district court denied relief, this court
    reversed on Mr. Greens remaining claim that he was denied due process because
    he was not properly certified as an adult prior to trial. Green v. Reynolds, 57 F.3d
    956 (10th Cir. 1995). On that claim, this court directed the district court to issue
    a writ of habeas corpus unless the state holds a constitutionally adequate

    We note that the district court granted Mr. Greens request to proceed in
    forma pauperis in this matter (No. 08-7024).
    -3-

    [retroactive adult certification] hearing and validly concludes that petitioner


    would have been prosecuted as an adult had proper, timely certification
    procedures been employed. Id. at 961 (emphasis omitted). After the state held
    such a hearing, the federal district court determined that the hearing was
    constitutionally adequate and that petitioner would have been prosecuted as an
    adult had timely certification procedures been used; accordingly, it dismissed the
    petition in a 1996 order. Mr. Green did not appeal this decision, but twelve years
    later filed a Fed. R. Civ. P. Rule 60(b) motion on the grounds that the federal
    district court lacked jurisdiction to issue its decision. He now seeks a COA
    before us to challenge the denial of his Rule 60(b) motion.
    As with Mr. Greens first application for COA, we may only issue it if
    reasonable jurists could debate whether the district court resolved the matter
    correctly. Slack, 529 U.S. at 484. Layered on top of the Slack inquiry in this
    application are other standards of review that stand as significant hurdles to Mr.
    Green obtaining a COA in this matter. See Fleming v. Evans, 481 F.3d 1249,
    1254-55 (10th Cir. 2007) (applying Slack test in conjunction with appropriate
    standard of review). First, denials of Rule 60(b) motions are reviewed only for
    abuse of discretion. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242
    (10th Cir. 2006). Moreover, the relief afforded by Rule 60(b) is extraordinary
    and may only be granted in exceptional circumstances. Id. Accordingly, we
    may only grant COA if we find that it is debatable whether the district court
    -4-

    abused its discretion by denying a form relief that is only available in


    extraordinary and exceptional circumstances. This is a difficult hurdle that Mr.
    Green cannot overcome.
    Mr. Green argues that his Rule 60(b) motion should be granted based on
    his contention that the federal district court lacked jurisdiction to deny his habeas
    petition because the retroactive adult certification hearing was improperly held in
    a state juvenile court rather than in a state district court. Finding no legal
    authority to suggest that the retroactive adult certification hearing could not be
    held in a state juvenile court or that it lacked jurisdiction, the federal district
    court denied his 60(b) motion. Mr. Green has not addressed the district court
    decision or reasoning in his application for COA. Mindful of Mr. Greens pro se
    status, we have reviewed the matter carefully, but we do not believe it debatable
    that the district court abused its discretion in this matter. Accordingly, we deny
    COA.
    Finally, Mr. Green seeks leave to proceed in this court in forma pauperis in
    this matter (No. 08-6063). Because Mr. Green has failed to raise any reasoned,
    nonfrivolous argument in his appeal we deny this motion. See DeBardeleben v.
    Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
    ENTERED FOR THE COURT

    Neil M. Gorsuch
    Circuit Judge
    -5-

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