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

                             FOR THE TENTH CIRCUIT                             August 14, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
DENNIS MARTIN,

      Petitioner - Appellant,

v.                                                           No. 18-6068
                                                      (D.C. No. 5:18-CV-00095-D)
STATE OF OKLAHOMA; CARL BEAR,                                (W.D. Okla.)

      Respondents - Appellees.
                      _________________________________

           ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

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

appealability (“COA”) to appeal the district court’s dismissal of his application for

federal habeas relief under 28 U.S.C. § 2241. 28 U.S.C. § 2253(c)(1)(A); see Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding “a state prisoner must obtain a

COA to appeal the denial of a habeas petition” that “was filed pursuant to . . . § 2241”).

Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA. We also deny Mr.

Martin’s request to proceed in forma pauperis (“ifp”).

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         This order is not binding precedent, except under the doctrines of law of the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

      Mr. Martin is serving a life sentence for his 1985 Oklahoma first degree

murder conviction. See Martin v. Bear, 683 F. App’x 729, 730 (10th Cir. 2017)

(“Martin I”) (taking judicial notice of Mr. Martin’s conviction). Mr. Martin has filed

two previous applications under 28 U.S.C. § 2241. See id.; Martin v. Bear, 725 F.

App’x 729 (10th Cir. 2018) (“Martin II”). Both times, the district court denied relief

and we denied a COA. Martin I at 730; Martin II at 730-31.

      Mr. Martin filed this § 2241 application in the United States District Court for

the Western District of Arkansas, which transferred it to the District Court for the

Western District of Oklahoma. Mr. Martin argued, as he had previously, that because

his crime was committed by an Indian, against an Indian, and on Indian land, the

Oklahoma state court that convicted and sentenced him lacked jurisdiction. He

argued his confinement was therefore in violation of federal law.

      The magistrate judge recommended dismissing Mr. Martin’s petition because

it did not establish a basis for habeas relief under § 2241. Mr. Martin objected to the

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

objections and adopted the recommendation in full. The district court denied a COA.

                                  II. DISCUSSION

      To obtain a COA, Mr. Martin must make “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “that reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

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further,” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). We

deny Mr. Martin’s request for a COA because reasonable jurists could not debate that

he has failed to state a claim for relief under 28 U.S.C. § 2241.

      We have told Mr. Martin twice before that § 2241 is not the appropriate

avenue for this type of claim. See Martin I at 730; Martin II at 730. “A petition

brought under 28 U.S.C. § 2241 typically attacks the execution of a sentence rather

than its validity . . . .” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011)

(quotations omitted). A claim that a state prisoner’s conviction is invalid should be

brought under 28 U.S.C. § 2254. See Yellowbear v. Wyo. Attorney Gen., 525 F.3d

921, 924 (10th Cir. 2008). Mr. Martin’s attack on the state court’s jurisdiction

challenges the validity of his conviction, not the execution of his sentence. See id.

His assertion on appeal that he is “actually innocent,” Aplt. Br. at 4, also challenges

his conviction. He therefore cannot obtain relief under § 2241.

      Mr. Martin also argues on appeal that the district court violated due process

when it denied him a hearing. We review the district court’s decision to grant or

deny a hearing in a habeas proceeding for an abuse of discretion. See Anderson v.

Attorney Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005). The district court did not

abuse its discretion by denying Mr. Martin a hearing.

      Because reasonable jurists could not debate whether Mr. Martin is entitled to

relief under 28 U.S.C. § 2241, we deny a COA and dismiss this matter. We also deny

his request to proceed ifp because Mr. Martin has not advanced a “reasoned,



                                           3
nonfrivolous argument” on appeal, see Lister v. Dep’t of the Treasury, 408 F.3d

1309, 1312 (10th Cir. 2005).

                                          Entered for the Court




                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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