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

                             FOR THE TENTH CIRCUIT                           July 29, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DONALD RAY COWAN,

      Plaintiff - Appellant,

v.                                                          No. 16-5030
                                                (D.C. No. 4:15-CV-00117-JHP-PJC)
STATE OF OKLAHOMA,                                          (N.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.**
                  _________________________________

       Plaintiff Donald Cowan was convicted of manslaughter in 2007 in Oklahoma

state court. After completing his four-year prison sentence and moving to Arkansas,

Cowan filed this 42 U.S.C. § 1983 action against the State of Oklahoma in federal

district court.   He asserts certain Oklahoma statutes and state court procedures

infringe on his Constitutional rights, particularly his Second Amendment rights

regarding self-defense and firearm possession. He asked the district court to, among


       *
         This order and judgment is not binding precedent, except under the doctrines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.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
other things, strike down a number of Oklahoma statutes, vacate his 2007

manslaughter conviction, and order Oklahoma to return his firearm.

      A magistrate judge recommended that the district court dismiss Cowan’s

claims for lack of subject matter jurisdiction because Cowan failed to show that he

had Article III standing.     The magistrate judge concluded that Cowan, now an

Arkansas resident, did not face an imminent threat of injury from the Oklahoma

statutes and court procedures he identified. Thus, Cowan would have to rest on his

actual past injury—the 2007 manslaughter conviction.           But the magistrate judge

concluded that the Rooker–Feldman doctrine and principles of res judicata barred the

district court from reviewing that conviction. Further, the magistrate judge noted that

the Eleventh Amendment barred Cowan’s suit because Cowan failed to establish that

Oklahoma had waived its sovereign immunity and also failed to name a state official

as a defendant to survive under Ex parte Young. Cowan objected to the magistrate

judge’s recommendation, mainly on the grounds that the magistrate judge did not

consider the merits of whether Oklahoma’s statutes infringed on his Second

Amendment      rights.      The   district   court   adopted   the   magistrate   judge’s

recommendation, incorrectly stating that Cowan had not objected but nonetheless

stating that it made its conclusion “upon full consideration of the entire record and

the issues presented herein.” The district court dismissed for lack of jurisdiction.




                                             2
      Cowan now appeals to this Court.1 He argues in his opening brief that the

district court got it wrong because the magistrate judge and district court failed to

address his Second Amendment arguments. Notably, however, Cowan fails to argue

how the magistrate judge or district court erred in its jurisdictional analysis, an

analysis that precludes us from reaching the merits. We conclude he has failed to

carry his burden of establishing standing to invoke federal jurisdiction for the reasons

articulated by the magistrate judge and adopted by the district court. Although the

district court did not acknowledge Cowan’s objections to the magistrate judge’s

recommendation, it nonetheless indicated it fully considered the magistrate judge’s

recommendation. Regardless, even if such a review was not de novo, the district

court’s error was harmless because we agree with the magistrate judge’s conclusions.

We deny Cowan’s request to set aside the doctrines of collateral estoppel and res

judicata. Further, we agree with the magistrate judge that the Eleventh Amendment

bars Cowan’s suit against the State of Oklahoma.

      As much as Cowan would like us to, we cannot bypass Article III’s limitations

on our jurisdiction to reach the merits of this case, even though those merits also

involve the Constitution. “Federal courts are courts of limited jurisdiction. They


      1
        Cowan proceeded in forma pauperis in the district court and renews his motion to
proceed in forma pauperis on appeal. Cowan could proceed on appeal in forma pauperis
without further authorization unless the district court certified that an appeal was not
taken in good faith or found that Cowan was not otherwise entitled to proceed in forma
pauperis. Fed. R. App. P. 24(a)(3). The district court has not done so, and thus Cowan’s
motion is moot. See Singleton v. Hargett, 188 F.3d 519, 1999 WL 606712 at *1 n.2
(10th Cir. 1999) (unpublished table opinion) (dismissing as moot petitioner’s motion
to proceed in forma pauperis in the court of appeals).
                                           3
lack power to decide issues—however important or fiercely contested—that are

detached from” an actual case or controversy. Brown v. Buhman, 822 F.3d 1151, 1155

(10th Cir. 2016). To the extent Cowan raises arguments that would have been more

properly included in his opening brief and otherwise asks us to consider the merits of his

case, we summarily deny his extraneous motions and petition for writ of mandamus as

moot. The Court orders that:

      1. The district court’s “Order Affirming and Adopting the Report and

          Recommendation of the United States Magistrate Judge” is AFFIRMED.

      2. The “Motion for Leave to Proceed on Appeal Without Prepayment of Costs or

          Fees (non-PLRA)” is DENIED AS MOOT.

      3. The “Motion to Set Aside the Doctrines of ‘Collateral Estoppel’ and ‘Res

          Judictia’ [sic] in the Interest of Justice / Motion to Adjudicate This Appeal as a

          Case of First Impression” is DENIED.

      4. The “Motion to Certify Constitutional Questions of Law” is DENIED.

      5. The “Motion for Declaratory Judgment and Motion for an Extraordinary Writ”

          is DENIED AS MOOT.

      6. The “Motion to Declare the Current Statutory Treatment of the Lawful Use and

          Discharge of Firearms as a Heat of Passion Crime as Dictated by the

          Oklahoma Firearms Control Act of 1971 and the First Degree Manslaughter

          Statute Unconsoctitutional [sic]” is DENIED AS MOOT.




                                            4
      7. The “Motion to Declare the Statutory Treatment of the Exercise of Second

         Amendment Rights as an Affirmative Defense Known as the ‘Stand Your

         Ground Defense’ Unconstitutional” is DENIED AS MOOT.

      8. The “Petition for a Writ of Mandamus Directed to the Honorable James H.

         Payne, Judge of the Northern District of Oklahoma and General Frank J. Glass,

         Chief of the United States National Guard Bureau” is DENIED AS MOOT.

      9. The “Motion for Expedited Hearing” is DENIED AS MOOT.

Accordingly, this appeal is DISMISSED.


                                          Entered for the Court


                                          Per Curiam




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