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

                                     TENTH CIRCUIT                         November 6, 2013

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 JERRY L. THOMAS,

           Petitioner - Appellant,

 v.                                                           No. 13-6191
                                                      (D.C. No. 5:13-CV-00350-W)
 H. A. RIOS, JR., Warden, Lawton                             (W.D. Okla.)
 Correctional Facility,

           Respondent - Appellee.


               ORDER DENYING CERTIFICATE OF APPELABILITY *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Jerry L. Thomas, a state prisoner appearing pro se,1 seeks to appeal the federal

district court’s dismissal of his 28 U.S.C. § 2241 habeas petition. Such an appeal

requires a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A). Exercising

       *
        This order is not binding precedent, except under the doctrines of law of the case,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. Thomas is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally;
this rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).
jurisdiction under §§ 1291 and 2253(a), we deny Mr. Thomas’s request for a COA, and

we dismiss this matter.

                                   I. BACKGROUND

       Mr. Thomas was convicted in 1981 of second degree burglary and first degree

rape. Thomas v. State, 675 P.2d 1016, 1018, 1022 (Okla. Crim. App. 1984).2 Pursuant to

the state sentencing laws, he received enhanced sentences on both counts because he had

two or more previous felony convictions. This resulted in consecutive sentences of 25

years and 125 years of imprisonment. On May 28, 2010, Mr. Thomas filed what he titled

a “Petition for Writ of Habeas Corpus and/or Retroactive Adult Certification Hearing and

Appointment of Counsel” in the Oklahoma County District Court (the “state district

court”). ROA at 7. In the petition, Mr. Thomas claimed that his sentence was invalid

because the sentencing enhancements were based on unconstitutional felony convictions

before he was eighteen years old, in violation of Lamb v. Brown, 456 F.2d 18 (10th Cir.

1972). The state district court, apparently unaware of the petition, failed to respond for

more than a year.

       Mr. Thomas sought relief from the Oklahoma Court of Criminal Appeals (the

“OCCA”), asking that court to order the state district court to act on his petition. The

       2
        This case recounts the legal proceedings relevant to Mr. Thomas’s 1981
conviction. Prior proceedings are also discussed in Abdulhaseeb v. Hargett, No. 96-
6348, 111 F.3d 140 (10th Cir. 1997) (unpublished table decision) (habeas petition
brought under the name Madyun Abdulhaseeb, which Mr. Thomas used during this time),
and Thomas v. Cowley, No. 92-6267, 996 F.2d 311 (10th Cir. 1993) (unpublished table
decision).

                                             -2-
OCCA issued the requested order in October 2011, directing the state district court to

take up the petition. The state district court complied. It first issued an order directing

the State of Oklahoma to respond and informing the parties that the petition would be

construed as an application for post-conviction relief because Mr. Thomas sought to

challenge the legality of his conviction.

       On December 9, 2011, the state district court denied the recharacterized

application for post-conviction relief, holding that Mr. Thomas’s claims under Lamb had

been previously addressed by both state and federal courts and were therefore precluded

by the doctrine of res judicata. It further held that the application was “frivolous,

vexatious and without merit,” and ordered Mr. Thomas to show cause why the court

should not impose sanctions. ROA at 52.

       Mr. Thomas filed a response opposing sanctions, but the court concluded his

response contained “unfounded, offensive, abusive or fraudulent” accusations. ROA at

44. The court noted that Mr. Thomas had filed more than 30 pleadings since 1977 based

on the same primary ground—the Lamb argument—despite an agreement with the state

granting him relief and estopping him from further litigation on those grounds.3


       3
        In 1980, Mr. Thomas “entered into an agreement with Oklahoma County” in
response to the Tenth Circuit’s 1972 Lamb decision, which undermined the sentencing
enhancements underlying several of his early convictions. Thomas v. State, 675 P.2d
1016, 1020 n.6 (Okla. Crim. App. 1984). Pursuant to this agreement, a consent decree
voided one felony conviction and modified three others, reducing the associated
sentences. The agreement also provided “that the consent decree encompassed,
concluded and exhausted all the contentions between the appellant and Oklahoma County
                                                                           Continued . . .
                                             -3-
       For these reasons, the state district court ordered the following sanctions: (1) $750

in attorney fees; (2) $250 in court costs; (3) an order revoking permission to have non-

essential personal property for at least thirty days; and (4) revocation of 720 days of Mr.

Thomas’s earned credits. The order also provided that revocation of the earned credits

would be suspended “so long as [Mr. Thomas] ceases to pursue collateral remedy in the

Oklahoma County District Court.” ROA at 47. Mr. Thomas appealed to the OCCA,

which upheld the sanctions on April 11, 2012.4

       Mr. Thomas then filed a petition for habeas relief under 28 U.S.C. § 2241 in the

United States District Court for the Western District of Oklahoma, challenging the

sanctions. A magistrate judge recommended the petition be denied. Over Mr. Thomas’s

objection, the federal district court adopted the recommendation and denied the petition.

The district court declined to issue a COA, concluding that Mr. Thomas had failed to

meet the burden under Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), and Slack v.

McDaniel, 529 U.S. 473, 484 (2000), because he had not made “a substantial showing of

the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2).




based on Lamb v. Brown . . . or its progeny.” Id. (citations omitted). In spite of this
agreement, Mr. Thomas continued to file challenges based on Lamb. In 1984, the OCCA
held that Mr. Thomas was estopped by the agreement from continuing to litigate the
issue. Id. at 1020.
       4
         The OCCA did, however, vacate part of a March 4, 2002 state district court order
requiring Mr. Thomas to obtain an attorney’s signature on any pleadings requesting
collateral relief in various ongoing cases.

                                             -4-
                                    II. DISCUSSION

                                  A. Legal Background

       A federal court’s habeas review of state court decisions is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA,

when a state court has adjudicated the merits of a claim, a federal court cannot grant

habeas relief unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2).

       Once a federal district court denies relief, a prisoner may not appeal without first

obtaining a COA. 28 U.S.C. § 2253(c)(1)(A). The federal district court refused to grant

a COA in this case, and Mr. Thomas therefore requests a COA from this court. To

determine whether a COA must be granted, “[w]e look to the District Court’s application

of AEDPA to petitioner’s constitutional claims and ask whether the resolution was

debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.

       Section 2241 petitions may only be “used to attack the execution of a sentence, in

contrast to § 2254 habeas . . . proceedings, which are used to collaterally attack the

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

811 (10th Cir. 1997) (citations omitted). Mr. Thomas’s § 2241 petition raises numerous

issues challenging both the validity and execution of his sentence. A federal court can
                                             -5-
consider in a § 2241 proceeding only the issues relating to the execution of his

sentence—in this case, the two issues challenging suspended sanctions revoking his 720

days of earned credits. See id. (deprivation of good-time credits may be challenged under

§ 2241).

                                        B. Analysis

       Mr. Thomas’s combined brief and motion for a COA lists twelve largely repetitive

issues. The issues properly brought in a § 2241 petition may be summarized under two

main due process arguments: (1) the state district court should have given him notice

before recharacterizing his petition as an application for post-conviction relief, and its

failure to do so violated due process; and (2) the state district court should have dismissed

his petition without prejudice as required by Oklahoma law, Okla. Stat. tit. 12, §§ 1083

and 2003.1(D).5


       5
          Mr. Thomas attempted to raise his Lamb argument yet again to the federal
district court. He contended that one of the past felonies applied to enhance his current
sentence was unconstitutional because he was under eighteen years of age at the time of
conviction. He posited that the sentencing court applied the unconstitutional conviction
because of a clerical error—that it mixed up the case number of a void conviction with
the case number for one of his many appeals.
        This issue is not properly brought in a § 2241 petition because it seeks to
challenge the validity of his sentence, not its execution. McIntosh, 115 F.3d at 811. We
note, however, that even if this issue had been properly raised on collateral appeal, and
even if Mr. Thomas had not received relief on his Lamb claims more than two decades
ago, and even if he were not now estopped from litigating this issue by virtue of his 1980
agreement with Oklahoma County, he still would not be entitled to relief. As multiple
courts have noted, the applicable sentencing statute requires only two prior felonies.
Okla. Stat. tit. 21, § 51(B). Mr. Thomas has more than two prior felonies, even without
the convictions he continues to challenge. See Thomas, 675 P.2d at 1020 n.6; see also
                                                                               Continued . . .
                                             -6-
       The federal district court analyzed the first argument but did not explain its

reasoning for the second. It denied relief on both issues and denied a COA. For the

reasons provided below, we likewise deny COA.

1. Mr. Thomas’s Due Process Rights Were Not Violated When the State District
   Court Construed His Petition as an Application for Post-Conviction Relief

       In his § 2241 petition, Mr. Thomas argued that the state district court violated his

due process rights when it construed his habeas petition as an application for post-

conviction relief without first providing him notice. He pointed to Castro v. United

States, 540 U.S. 375 (2003), which held that federal courts cannot recharacterize a pro se

litigant’s motion as a first habeas petition without providing notice to the litigant that the

recharacterization will make any subsequent § 2255 motion subject to the restrictions on

“second or successive” motions. Id. at 383.

       In its report and recommendation to the federal district court, the magistrate judge

considered these arguments and agreed with the OCCA that the state district court had

properly construed Mr. Thomas’s petition as a post-conviction application. The

magistrate concluded that the recharacterization merely effectuated Mr. Thomas’s stated

intent to collaterally attack his conviction and was therefore appropriate under Stewart v.

State, 989 P.2d 940, 943 (Okla. Crim. App. 1999) (it is proper to construe a habeas

petition challenging a conviction or sentence as a post-conviction action), overruled on


Abdulhaseeb, 111 F.3d 140, at *3 (unpublished table decision) (affirming denial of relief
on a § 2254 habeas petition Mr. Thomas brought using the name Madyun Abdulhaseeb,
an alias he has sometimes used).

                                              -7-
other grounds by King v. State, 29 P.3d 1089 (Okla. Crim. App. 2001). Finally, the

magistrate concluded that the label applied to Mr. Thomas’s filing was irrelevant to the

sanctions, which were properly imposed because of his past repeated filings of claims

precluded by res judicata.

       The federal district court adopted the magistrate’s recommendations, denied Mr.

Thomas’s claim and denied COA. After reviewing Mr. Thomas’s arguments, we find

that reasonable jurists could not disagree with this conclusion.6 We therefore deny Mr.

Thomas’s request for a COA on this ground.

2. Mr. Thomas Is Not Entitled to Habeas Relief Because the State District Court
   Failed to Dismiss His Petition

       In his § 2241 petition to the federal district court, Mr. Thomas argued that two

Oklahoma statutes, Okla. Stat. tit. 12, §§ 1083 and 2003.1(D), required the state district

court to dismiss his habeas petition without prejudice. He contends that the district

court’s decision to instead resolve the petition by issuing sanctions revoking his earned

time credits and preventing him from access to the courts violated his due process rights.

The federal district court did not clearly articulate its reasons for rejecting this argument.

Our own analysis of Mr. Thomas’s arguments convinces us that COA should be denied.

       The OCCA also did not explicitly address this argument, and it is not clear from

the record before us whether Mr. Thomas fairly presented the issue to that court. “A

       6
         We also note that Mr. Thomas’s reliance on Castro is misplaced. That case
involved the Supreme Court’s exercise of its “supervisory powers” over the federal
judiciary and thus does not control this case. Castro, 540 U.S. at 382-83.

                                              -8-
habeas petitioner is required to exhaust his state court remedies prior to obtaining federal

habeas review.” Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002). Ordinarily,

a federal court will dismiss the petition without prejudice to allow the petitioner to return

to state court to exhaust his claims. See Slack, 529 U.S. at 485-87; Moore, 288 F.3d at

1232. Alternatively, a habeas petition “may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the courts of the State.” 28

U.S.C. § 2254(b)(2); see also Moore, 288 F.3d at 1232.

         Mr. Thomas’s arguments under each of the two Oklahoma statutes are without

merit.

         a. Okla. Stat. tit. 12, § 1083

         Okla. Stat. tit. 12, § 1083 states:

                Any action in which no pleading has been filed or other
                action taken for a year . . . shall be dismissed without
                prejudice by the court on its own motion after notice to the
                parties or their attorneys of record; providing, the court may
                upon written application and for good cause shown, by order
                in writing allow the action to remain upon its docket.

         Mr. Thomas argues that this statute required the state district court to dismiss his

petition after a year, and therefore its order resolving the petition—including the

sanctions—was invalid. We are not convinced that a court’s failure to apply this statute

would amount to a due process violation, but in this case there is no indication the state

district court’s order was not in compliance.

         Section 1083 explicitly permits the district court to “allow the action to remain

                                               -9-
upon its docket” by issuing a written order “upon written application and for good cause

shown.” Id.; see also Meadors v. Majors, 875 P.2d 1166, 1168 (Okla. Civ. App. 1994)

(“Section 1083 gives the court the discretion to retain an action . . . [upon] a showing of

good cause.”). Mr. Thomas made a written application when he asked the OCCA to

order the state district court to address his petition, and the OCCA’s subsequent order to

the state district court to act provided good cause for keeping the petition on its docket.

       Reasonable jurists could not debate whether the federal district court was correct

in denying Mr. Thomas relief under this statutory provision.

       b. Okla. Stat. tit. 12, § 2003.1(D)

       Okla. Stat. tit. 12, § 2003.1(D) governs pro se legal actions by inmates. It

provides that “[i]f the court determines that the filing is a noncomplying petition . . . it

shall be returned together with a copy of this statute and a statement of the reason or

reasons for its return.” Id.

       Mr. Thomas asserts that the state district court acknowledged in an October 28,

2011 response that his petition had deficiencies that caused it to be unadjudicated for over

a year.7 He argues that § 2003.1(D) required the state district court to return the petition

to him with a copy of the statute and a statement of the reasons for its return. When the

court failed to do this, he argues, it stripped him of the opportunity to withdraw the

petition and avoid sanctions, thus violating his due process rights. Again, we are not


       7
           Mr. Thomas did not provide this court with a copy of the October 28, 2011 order.

                                              -10-
convinced that a court’s failure to apply this statute would amount to a due process

violation. In any case, we do not see how the sanctions were connected to the procedure

outlined in this statute.

       A “noncomplying petition” under § 2003.1(D) means a petition that “does not

comply with the requirements set forth in § 2003.1(B) and (C),” which list specific

information an inmate must include in a petition—for example, the petitioner’s name and

place of residence and a brief statement of the facts. Lowe v. Monard, 942 P.2d 732, 733

(Okla. 1997). There is also no indication in the record that any § 2003.1(B) or (C)

deficiencies in the petition, assuming they existed, were even remotely relevant to the

delay in adjudicating Mr. Thomas’s petition or to the sanctions issued. To the contrary,

the state district court said the delay occurred because the court had not received a copy

of the petition and was unaware of it. And the court clearly denied relief on res judicata

grounds and issued sanctions because the claims were frivolous.

       Mr. Thomas’s complaint that he missed the opportunity to withdraw the petition

and avoid sanctions is especially hollow because the state district court gave Mr. Thomas

advanced notice of the pending sanctions in its show cause order.8 Mr. Thomas did not

attempt to withdraw the petition; he simply responded with the same arguments and


       8
        In contrast, if the state district court had decided to apply this statute, it would
have returned the petition to him with a copy of the statute and instructions to provide
any missing § 2003.1(B) or (C) data. Unlike the show cause order, this process would
not have provided Mr. Thomas with notice as to how the court might eventually rule on
the merits of the petition.

                                             -11-
allegations he knew would result in sanctions. We agree with the OCCA that the show

cause order “provided [Mr. Thomas] with due process by advising him of the potential

sanctions” and allowing him to respond. ROA at 40 (OCCA’s Order Affirming in Part

and Vacating in Part Imposition of Sanctions, addressing a different due process

argument).

       Reasonable jurists could not debate whether the federal district court should have

denied Mr. Thomas relief under this statutory provision.

                                 III.   CONCLUSION

       We conclude that reasonable jurists could not debate the federal district court’s

application of AEDPA to Mr. Thomas’s § 2241 petition or its decision to deny relief. See

Miller-El, 537 U.S. at 336. We therefore deny Mr. Thomas’s request for a COA and

dismiss this matter.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




                                            -12-
