Filed: Oct. 08, 2019
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 8, 2019 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court KERRY LUCERO, Petitioner – Appellant, v. No. 19-3126 (D.C. No. 5:08–CV–03062–SAC) DAVID MCKUNE, Warden, Lansing (D. Kan.) Correctional Facility; ROGER WERHOLTZ, Kansas Secretary of Corrections; STEPHEN SIX, Attorney General for the State of Kansas, Respondents – Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before MATHESON, McKAY, and BACHA
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 8, 2019 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court KERRY LUCERO, Petitioner – Appellant, v. No. 19-3126 (D.C. No. 5:08–CV–03062–SAC) DAVID MCKUNE, Warden, Lansing (D. Kan.) Correctional Facility; ROGER WERHOLTZ, Kansas Secretary of Corrections; STEPHEN SIX, Attorney General for the State of Kansas, Respondents – Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before MATHESON, McKAY, and BACHAR..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 8, 2019
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
KERRY LUCERO,
Petitioner – Appellant,
v. No. 19-3126
(D.C. No. 5:08–CV–03062–SAC)
DAVID MCKUNE, Warden, Lansing (D. Kan.)
Correctional Facility; ROGER
WERHOLTZ, Kansas Secretary of
Corrections; STEPHEN SIX, Attorney
General for the State of Kansas,
Respondents – Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
Petitioner Kerry Lucero seeks a certificate of appealability to appeal the district
court’s denial of his Rule 60(b) motion, in which he sought to challenge the mandate
entered in a prior appeal in this 28 U.S.C. § 2241 habeas case.1
*
This order is not binding precedent except under the doctrines of law of the case, res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
Petitioner’s motion appears to be a true Rule 60(b) motion, for which a certificate of
appealability is required, because he challenges “a procedural ruling of the habeas court which
precluded a merits determination of the habeas application.” Spitznas v. Boone,
464 F.3d 1213,
1215 (10th Cir. 2006).
In 2008, Petitioner filed the underlying habeas petition, in which he argued that his
constitutional rights were violated when state officials aggregated his sentences from two
different criminal cases. The district court denied relief, holding that Petitioner had not
stated a valid claim for federal habeas relief. On appeal, this court held that Petitioner’s
release from prison had mooted his challenge to the legality of his imprisonment. See
Lucero v. McKune, 340 F. App’x 442, 444 (10th Cir. 2009). We therefore vacated the
district court’s judgment and remanded with instructions for the district court “to dismiss
without prejudice the underlying case as moot.”
Id. In accordance with this order, the
district court dismissed the case without prejudice as moot on November 3, 2009.
Nearly ten years later, in May 2019, Petitioner filed a “Motion to Correct Under
Rule 60(b),” in which he argued that the district court should vacate its earlier decision
because this court had erred in finding his habeas challenge to be moot. (R. at 27.)
Specifically, he claimed that his challenge to the aggregation of his state sentences was
not moot because (1) he was still on parole, and (2) he needed his sentences to be
invalidated in order to seek “damages for excess incarceration.” (R. at 29–30.) The
district court denied relief based on the mandate rule and law-of-the-case doctrine.
In his filings to this court, Petitioner acknowledges that “it is clearly correct tha[t]
the District Court could not ignore the 10th Circuit’s mandate.” (Suppl. to Request for
C.O.A. at 1.) Nevertheless, he argues that “this does not end the matter” because we
should treat his Rule 60(b) motion in the district court and/or his motion in this court for a
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certificate of appealability as a motion to recall the mandate, which we can grant even if
the district court could not. (Id.) “Whether the district court was bound by the mandate .
. . , and whether this court is bound by principles of finality to enforce our prior . . .
determination, are separate inquiries.” Ute Indian Tribe of the Uintah & Ouray
Reservation v. Utah,
114 F.3d 1513, 1520 (10th Cir. 1997) (modifying mandate, after
holding that district court properly followed it, where Supreme Court had subsequently
issued a directly conflicting determination on the same reservation boundary question).
Assuming without deciding that Petitioner’s motions could be construed as a valid
motion to recall the mandate, we hold that reasonable jurists would not dispute that he is
not entitled to the requested relief. See Okla. Chapter of Am. Acad. of Pediatrics v.
Fogarty, Nos. 05-5100, 05-5107,
2010 WL 3341881, at *2 (10th Cir. July 10, 2010)
(“assum[ing], without deciding, that Rule 60(b)(6) can be invoked” at appellate level and
denying relief because plaintiffs had not shown “extraordinary circumstances” as required
for relief under both Rule 60(b) and the court’s inherent power to recall the mandate).
“[T]he power to recall or modify a mandate is limited and should be exercised only in
extraordinary circumstances.” Ute Indian
Tribe, 114 F.3d at 1522. “The sparing use of
the power demonstrates it is one of last resort, to be held in reserve against grave,
unforeseen contingencies.” Calderon v. Thompson,
523 U.S. 538, 550 (1998).
Moreover, appellate courts must be especially cautious when considering whether to
recall the mandate in a habeas case. See
id. at 553–56. “In the absence of a strong
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showing of actual innocence, the State’s interests in actual finality outweigh the
prisoner’s interest in obtaining yet another opportunity for review.”
Id. at 557 (internal
quotation marks, brackets, and citation omitted). Petitioner has not made such a showing
here. His disagreement with our earlier mootness decision, on a challenge to the
calculation of his sentence, is insufficient to establish the type of extraordinary
circumstance in which we could permissibly recall the mandate. Cf.
id. at 541–42, 548,
559, 566 (holding that appellate court could not recall mandate even where majority of en
banc court belatedly agreed that panel decision had been erroneous; after mandate had
already issued in habeas case, it “was a grave abuse of discretion” for court to recall
mandate absent credible showing of actual innocence).
Thus, “a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further.” Slack
v. McDaniel,
529 U.S. 473, 484 (2000). We therefore DENY Petitioner’s request for a
certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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