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

                            FOR THE TENTH CIRCUIT                              June 5, 2018
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
DENNIS MARTIN,

      Petitioner - Appellant,

v.                                                          No. 18-6017
                                                     (D.C. No. 5:17-CV-01300-D)
WARDEN BEAR; STATE OF                                       (W.D. Okla.)
OKLAHOMA,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Dennis Martin, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2241

petition. For the reasons explained below, we deny his COA request and dismiss this

matter.

      In his § 2241 petition, Martin alleged that because his crime was committed by

an Indian, against an Indian, and on Indian land, the state court that convicted and

sentenced him lacked jurisdiction to do so. As a result, Martin contended, his

      *
         This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. 32.1; 10th Cir. R. 32.1.
       1
         Because Martin proceeds pro se, we construe his filings liberally. See
Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015). But we won’t act as
his advocate. See id.
confinement is illegal. The magistrate judge recommended denying Martin’s petition

because it attacked the validity of his sentence rather than the execution of it and

therefore failed “to state a cognizable claim under § 2241.” R. 17. Martin objected to

the magistrate judge’s report and recommendation, but the district court overruled

those objections. Instead, it adopted the magistrate judge’s report and

recommendation in full, dismissed Martin’s § 2241 petition, and denied him a COA.

Martin now seeks to appeal the district court’s decision.

      To do so, he must first obtain a COA. See 28 U.S.C. § 2253(c)(1)(A);

Dulworth v. Jones, 496 F.3d 1133, 1135 (10th Cir. 2007) (requiring COA for state

prisoner to appeal adverse decision in § 2241 proceeding). We will grant Martin a

COA if “reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

      Martin insists that § 2241 is the appropriate avenue for his claim. But a § 2241

petition “typically ‘attacks the execution of a sentence rather than its validity.’”

Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (quoting Bradshaw v.

Story, 86 F.3d 164, 166 (10th Cir. 1996)). And as the district court concluded,

Martin’s claim—which challenges the jurisdiction of the court that sentenced him—

goes directly to the validity of his sentence. See Yellowbear v. Wyo. Attorney Gen.,

525 F.3d 921, 924 (10th Cir. 2008) (noting petitioner’s claim that state court lacked

jurisdiction over Indian-country crime was “an attack on his conviction and sentence”

that petitioner had to bring under 28 U.S.C. § 2254).

                                            2
      Martin’s unsupported assertions to the contrary don’t convince us otherwise.

Nor does the decision he cites, Kincaid v. Bear, No. CIV-1117-F, 2017 WL 6551300

(W.D. Okla. Nov. 17, 2017) (unpublished). There, the petitioner advanced the same

claim Martin presents here: he argued that the state court lacked jurisdiction because

the crime involved only Indians and occurred in Indian country. See Report &

Recommendation, Kincaid v. Bear, No. CIV-1117-F, 2017 WL 5560424, at *1 (W.D.

Okla. Nov. 8, 2017). He did so under § 2254, rather than § 2241. See id. And the

magistrate judge recommended dismissing the motion—but not, as Martin contends,

because such a claim is more properly brought under § 2241. See id. at *2. Instead,

the magistrate judge concluded that the district court lacked jurisdiction over the case

because it was an unapproved second or successive motion under § 2254.2 See id.

Nothing in Kincaid casts any doubt on the conclusion that a claim challenging the

sentencing court’s jurisdiction goes to the validity of the sentence rather than its

execution. See Yellowbear, 525 F.3d at 924. Thus, we conclude that reasonable jurists

wouldn’t debate the district court’s conclusion that Martin’s claim cannot proceed

under § 2241. See Slack, 529 U.S. at 484.

      Next, Martin suggests that he’s being illegally detained because there’s no

record of his arrest, trial, conviction, or sentencing order. But we already rejected this

argument in Martin’s prior § 2241 petition. See Martin v. Bear, 683 F. App’x 729,

730 (10th Cir. 2017) (unpublished). We do so again here. Martin’s assertion—that


      2
          The district court adopted the magistrate judge’s report and recommendation
in full. See Kincaid, 2017 WL 6551300, at *2.
                                            3
there’s no record of his conviction or sentence—is patently false. See id. at 730

(taking judicial notice of Martin’s 1985 state-court conviction and life sentence).

Further, this claim challenges the validity of Martin’s sentence, not its execution, so

it can’t be brought under § 2241. See id.; see also Brace, 634 F.3d at 1169.

      Thus, we deny Martin’s COA request and dismiss this case. As a final matter,

because Martin hasn’t demonstrated the existence of a reasoned, nonfrivolous

argument on appeal, we also deny his motion to proceed in forma pauperis. See

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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