Hess v. Quick

Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 1

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 12, 2024

_________________________________

Christopher M. Wolpert

Clerk of Court DARYL A. HESS,

Petitioner - Appellant, v. No. 24-5064

(D.C. No. 4:10-CV-00517-CVE-FHM) CHRISTE QUICK, Warden, (N.D. Okla.)

Respondent - Appellee.

_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ Before McHUGH, EBEL, and KELLY, Circuit Judges.

_________________________________ Daryl A. Hess, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of appealability (COA) to appeal from the district court’s determination that his recent filing was an unauthorized second or successive 28 U.S.C. § 2254 habeas application that it lacked jurisdiction to consider. We deny a COA and dismiss this matter.

An Oklahoma jury found Mr. Hess guilty of robbery with a dangerous weapon after his former conviction of two or more felonies. After the Oklahoma Court of Criminal Appeals affirmed his conviction, Mr. Hess unsuccessfully pursued a federal

Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 2 habeas application under § 2254. See Hess v. Trammell, 535 F. App’x 765 (10th Cir. 2013). To commence this case, he recently filed a “Motion to Reopen Case Fed. R. Civ. P. 59(e); Rule 60(b) Memorandum and/or Motion to Relate back to Original Petition.” R. at 169. The district court determined that Mr. Hess’s filing was an unauthorized second or successive § 2254 application and dismissed it. He now seeks to appeal the dismissal.

To appeal, Mr. Hess must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). And to obtain a COA, he 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 its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Hess has not satisfied this standard.

A district court lacks jurisdiction over the merits of an unauthorized second or successive § 2254 application. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). The district court determined that it lacked jurisdiction to consider Mr. Hess’s filing because it was a second or successive § 2254 application and this court had not authorized it. Reasonable jurists could not debate the correctness of the district court’s procedural ruling.

Appellate Case: 24-5064 Document: 18-1 Date Filed: 09/12/2024 Page: 3

Accordingly, we deny Mr. Hess’s application for a COA and dismiss this matter. We deny as moot Mr. Hess’s Motion to Withdraw Appeal Without Prejudice.

Entered for the Court CHRISTOPHER M. WOLPERT, Clerk