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

                             FOR THE TENTH CIRCUIT                                July 8, 2019
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 THOMAS A. BIAS,

       Petitioner - Appellant,

 v.                                                            No. 18-5105
                                                   (D.C. No. 4:17-CV-00607-JHP-FHM)
 JIMMY MARTIN, Warden,                                         (N.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

       Thomas A. Bias, an Oklahoma state prisoner proceeding pro se,1 seeks a

certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1) to appeal the

district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2241. We deny Mr. Bias’s application for a COA and dismiss this matter.




       
         This order is not binding precedent except under the doctrines of law of the case,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 Mr. Bias is proceeding pro se, we construe his filings liberally, but we
do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
                                             I.

       In 1975, Mr. Bias was convicted in Oklahoma state court of first-degree murder

and sentenced to death. He was 17 years old at the time of the murder, but he was

certified to be tried as an adult. On direct appeal, the Oklahoma Court of Criminal

Appeals (OCCA) affirmed his conviction but modified his sentence to life imprisonment

at hard labor. See Bias v. State, 561 P.2d 523, 538 (Okla. Crim. App. 1977) (per curiam).

Mr. Bias filed several applications for postconviction relief in state court, which were

denied. In 1991, he filed an application for a writ of habeas corpus under 28 U.S.C.

§ 2254 in the U.S. District Court for the Northern District of Oklahoma. The district

court denied the application, and this court affirmed. Bias v. Cody, No. 92-5190, 1993

WL 152654 (10th Cir. May 11, 1993).

       In 2012, the Supreme Court held in Miller v. Alabama, that “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without possibility

of parole for juvenile offenders.” 567 U.S. 460, 479 (2012). And in January 2016, the

Supreme Court held that Miller announced a new rule of constitutional law to be applied

retroactively on collateral review. Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016).

       In July 2016, Mr. Bias filed another application for post-conviction relief in

Oklahoma state court, claiming that his life sentence “should have a finite term” because

“Oklahoma courts have implied that life meant 45 years” under state statute. R. at 64. It

appears he did not challenge the constitutionality of his life sentence under Miller and

Montgomery. The state court denied relief, and the OCCA affirmed.



                                             2
       On January 12, 2017, Mr. Bias filed a § 2241 petition for a writ of habeas corpus

in the U.S. District Court for the Northern District of Oklahoma claiming that his life

sentence was “in violation of Due Process and Equal Protection by not being allowed to

seek collateral attack against continued incarceration.” R. at 98 (emphasis and internal

quotation marks omitted). He asserted that “State Legislation, State Law and District

Court’s rulings have established a precedent” that he had discharged his life sentence, and

he asked the court to modify his sentence “to a determinate forty-five (45) year

sentence.” Id. (internal quotation marks omitted). The district court dismissed the

petition for failure to exhaust administrative remedies. Mr. Bias then pursued

administrative relief.

       On November 2, 2017, Mr. Bias filed the § 2241 habeas petition underlying this

appeal. In Ground One, citing Miller, he claimed that his life sentence violated the

Eighth and Fourteenth Amendments. In Ground Two, he alleged that he was being held

unlawfully because he had discharged his life sentence under Oklahoma state statutes and

court decisions. The district court dismissed the § 2241 petition for lack of jurisdiction.

The court concluded that Ground One, which challenged the constitutionality of

Mr. Bias’s life sentence, was an unauthorized second or successive § 2254 habeas claim.

The court concluded that Ground Two, which alleged a violation of state law, was not a

cognizable federal habeas claim. Mr. Bias seeks a COA to appeal these determinations.

                                             II.

       “Petitions under § 2241 are used to attack the execution of a sentence, in contrast

to § 2254 habeas . . . proceedings, which are used to collaterally attack the validity of a

                                              3
conviction and sentence.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811

(10th Cir. 1997) (citations omitted). “[A] state prisoner must obtain a COA to appeal the

denial of a habeas petition, whether such petition was filed pursuant to § 2254 or § 2241,

whenever ‘the detention complained of arises out of process issued by a State court.’”

Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (quoting 28 U.S.C.

§ 2253(c)(1)(A)) (alteration omitted).

       If the petition was disposed of on procedural grounds, “the applicant faces a

double hurdle” to obtain a COA. Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir.

2008). “Not only must the applicant make a substantial showing of the denial of a

constitutional right, but he must also show ‘that jurist of reason would find it debatable

whether the district court was correct in its procedural ruling.’” Id. (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)) (alteration omitted). “Each component of [this

showing] is part of a threshold inquiry, and a court may find that it can dispose of the

application in a fair and prompt manner if it proceeds first to resolve the issue whose

answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485. The

procedural issue is often more apparent, see id., but we need not decide it first if “a quick

look at the face of the [petition]” reveals that it does not “facially allege the denial of a

constitutional right.” Paredes v. Atherton, 224 F.3d 1160, 1161 (10th Cir. 2000) (internal

quotation marks omitted).

       Having reviewed the record on appeal, the district court’s order and Mr. Bias’s

combined opening brief and application for a COA, we conclude Mr. Bias is not entitled

to a COA. With regard to Ground One, Mr. Bias previously filed a § 2254 application,

                                               4
which was adjudicated on the merits, and he did not obtain prior authorization from this

court before filing his claim challenging the validity of his life sentence under Miller.

See 28 U.S.C. § 2244(b)(2) and (b)(3). It is not debatable that the district court correctly

dismissed Ground One as an unauthorized second or successive § 2254 claim. See In re

Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction

to address the merits of a second or successive . . . 28 U.S.C. § 2254 claim until this

court has granted the required authorization.”). As to Ground Two, we need not reach the

jurisdictional issue as framed by the district court because our quick look at Mr. Bias’s

§ 2241 petition confirms that he alleged only a violation of state law—that he had

discharged his life sentence and his continued detention violated Oklahoma statues and

court decisions. Because he did not allege the denial of a constitutional right in Ground

Two, Mr. Bias is not entitled to a COA. See Montez, 208 F.3d at 865 (holding that state

law violations are not cognizable in a federal habeas action).

                                             III.

       For the foregoing reasons, we deny Mr. Bias’s application for a COA and dismiss

this matter.


                                               Entered for the Court


                                               Jerome A. Holmes
                                               Circuit Judge




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