                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    March 21, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 11-7048
    v.                                          (D.C. No. 6:04-CR-00114-SPF-1)
                                                          (E.D. Okla.)
    MELVIN ELLIS HOLLY,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.




         Melvin Ellis Holly, a federal prisoner appearing pro se, appeals the district

court’s order denying his motion asserting that he was denied due process because

the court failed to look at the “true facts” at his criminal trial and because the

district court’s post-trial orders were defective for various reasons. Holly



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
requests leave to proceed on appeal in forma pauperis (IFP). We have jurisdiction

pursuant to 28 U.S.C. § 1291. We deny leave to proceed IFP. We affirm in part

and reverse and remand in part. In addition, we propose filing restrictions for

Holly.

                                      Background

         The facts underlying this appeal have been set forth in detail in several of

this court’s orders resolving prior appeals and petitions filed by Holly. Briefly,

                Mr. Holly, a former sheriff, was convicted of numerous counts
         “related to the sexual abuse of inmates, employees, and an
         employee’s daughter at the Latimer County jail.” United States v.
         Holly, 378 F. App’x 852, 853 (10th Cir. 2010). He has pursued a
         direct appeal, see United States v. Holly, 488 F.3d 1298 (10th Cir.
         2007); a motion to vacate, set aside or correct his sentence under
         28 U.S.C. § 2255, see United States v. Holly, 364 F. App’x 471
         (10th Cir. 2010); and various other forms of relief, see, e.g., United
         States v. Holly, 435 F. App’x 732 (10th Cir. 2011) (motion for a writ
         of audita querela[; denial of authorization to file second §2255
         motion]); Holly, 378 F. App’x at 852 (motion for a new trial).

United States v. Holly, 444 F. App’x 309, 310 (10th Cir. 2011) (dismissing appeal

of “Motion for Severance, ‘Conflict of Interest’ Change of Venue . . .”).

                                       Discussion

         In this case, Holly asserts that he was denied due process. His claims can

be divided into two categories. In the first, he attempts to re-argue various claims

challenging his criminal convictions that could have been brought in his first

28 U.S.C. § 2255 motion. In the second, he alleges that several of the district




                                           -2-
court’s rulings denied him due process and that the district court judge was

prejudiced against him.

                                   § 2255 Claims

      The claims raised in Holly’s current appeal are merely another attempt to

relitigate his § 2255 motion challenging his convictions. Moreover, this court has

specifically rejected these claims in prior rulings. Holly’s claims raised here that

have been specifically foreclosed are as follows: (1) he was administered the

drug Haloperidol (brand name Haldol) during his trial, see Holly, 435 F. App’x

at 736 (dismissing claim that “he was forced by prison officials to take

Haloperidol prior to trial” because it could not be raised in a second motion for

habeas relief); (2) Jennifer Monteil’s DNA was concealed from him, see Holly,

378 F. App’x at 854 (holding “Holly’s claim regarding concealed DNA evidence

[was] merely impeaching,” and therefore failed to satisfy the standard for a new

trial); (3) sheriff’s dispatcher Roberta Hughes furnished the female witnesses

methamphetamine while they were in jail, promised each witness one million

dollars to secure their statements that Holly had raped them, and then lied about

having done so; she also lied about her own drug addiction, see Holly,

435 F. App’x at 736-37 (denying a certificate of appealability for absolutely

unsupported claim that “Roberta Hughes . . . provided methamphetamine and an

offer of one million dollars to any female inmate willing to testify against

Holly”); (4) Amber Helmert’s drug convictions were not revealed to Holly before

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his trial, see id. (denying a certificate of appealability for claim that “Amber

Helmert, an inmate and one of Holly’s victims, admitted to receiving

methamphetamine from Roberta Hughes” or was ever prosecuted for possession

of methamphetamine); (5) the depositions of Amber Helmert, Roberta Hughes,

Jennifer Monteil, Deborah Hendricks, Skipper Kistler, Tasha Nix, and Alicia

Piper, which were taken as part of Holly’s victims’ subsequent civil suit against

Latimer County, were contradictory to the testimony given at trial, see id. (noting

that the civil depositions were taken over two years before Holly sought habeas

relief and Holly was aware of at least some of the depositions when he filed his

habeas motion; therefore, this evidence was not newly discovered and could not

be brought in a second or successive § 2255 motion); (6) the complaining

witnesses were given methamphetamine in the Latimer County Jail to induce their

testimony that Holly had sexually battered them, see id. (denying a certificate of

appealability for unsupported claim that Hughes provided methamphetamine to

witnesses because it was merely impeaching and failed to satisfy the standard for

a new trial); Holly, 378 F. App’x at 853-54 (rejecting claim of new evidence

based on government’s alleged “drug party” for witnesses); (7) Holly’s defense

counsel had a conflict of interest, see Holly, 364 F. App’x at 472 (noting that in

his request for a certificate of appealability to appeal the denial of his first § 2255

motion, Holly “fail[ed] to show either an actual conflict of interest or an adverse

effect on his counsel’s performance”); Holly, 378 F. App’x at 853 (rejecting

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Holly’s motion for a new trial based on claim that “his counsel had a conflict of

interest” because he “failed to demonstrate that he discovered this evidence after

trial or that such evidence is material to the principal issues involved in his

case”); and (8) Holly was friends with the United States Attorney, who should

have recused, see Holly, 444 F. App’x at 311-12 (dismissing Holly’s “creatively

titled motion” attempting to bring an unauthorized second or successive § 2255

motion asserting that “the then-current United States Attorney had a conflict of

interest because he and Mr. Holly were longtime friends”).

      We conclude that these claims should be characterized as challenges to

Holly’s convictions. Included in this category are Holly’s assertions in the

underlying motion that the district court violated his due process rights in

rejecting new evidence and in failing to consider his claims ab initio. All of those

claims should have been construed as a request to file a second or successive

§ 2255 motion and dismissed. See 28 U.S.C. § 2244(a); In re Cline, 531 F.3d

1249, 1251 (10th Cir. 2008) (per curiam) (“A district court does not have

jurisdiction to address the merits of a second or successive § 2255 . . . claim until

this court has granted the required authorization.”). We have previously approved

the district court’s recharacterization of Holly’s claims as an unauthorized second

or successive § 2255 motion. See Holly, 444 F. App’x at 312 (holding

district court “correctly recognized that [Holly’s] motion presented second or

successive § 2255 claims that [the court] lacked jurisdiction to consider”);

                                          -5-
Holly, 435 F. App’x at 734 (“We conclude that the district court correctly

recharacterized Holly’s motion as a second motion for habeas relief and that it

correctly dismissed the motion for lack of jurisdiction.”).

      We recognize that Holly has titled his current iteration of his claims as a

violation of due process, but he asserts and reasserts claims of error in his

convictions, so his request for relief must be treated like a second or successive

§ 2255 motion. As this court has explained to Holly,

      A prisoner’s post-judgment filing (however entitled) should be
      treated like a second or successive § 2255 motion if it asserts or
      reasserts claims of error in the prisoner’s conviction. See Gonzalez
      v. Crosby, 545 U.S. 524, 531-32 (2005); United States v. Nelson,
      465 F.3d 1145, 1147 (10th Cir. 2006); see also Melton v. United
      States, 359 F.3d 855, 857 (7th Cir. 2004) (“Call it a motion for a new
      trial, arrest of judgment, mandamus, prohibition, coram nobis, coram
      vobis, audita querela, certiorari, capias, habeas corpus, ejectment,
      quare impedit, bill of review, writ of error, or an application for a
      Get-Out-Of-Jail Card; the name makes no difference.”). We recently
      explained as much to Mr. Holly in connection with his motion for a
      writ of audita querela. See Holly, 435 F. App’x at 734-35.

Holly, 444 F. App’x at 311 (emphasis added).

      We have catalogued Holly’s current claims to make clear that the filing

restrictions we propose below are warranted. Nevertheless, we remand these

claims to the district court with instructions to recharacterize them as a second or

successive § 2255 motion, and to dismiss them for lack of jurisdiction.




                                          -6-
                               District Court’s Rulings

      Holly also claims that the district court denied him due process by

(1) relying on a brief by the U.S. Attorney in a matter concerning John Lester

Ruston, even though Holly does not know Ruston; (2) delaying in ruling on his

§ 2255 motion filed on October 24, 2008; and (3) denying his July 2010 motion

for a new trial before he had an opportunity to reply to the government’s

opposition, and not notifying him of the ruling promptly (although he does not

challenge the district court’s statement that the order was mailed to his last known

address). Holly further contends that the district court should have held an

evidentiary hearing and that the judge was biased and prejudiced against him.

      Holly has demonstrated no error or prejudice relating to a brief referencing

Ruston. We perceive no impropriety in the district court’s timeliness in ruling on

Holly’s motions or in mailing orders to his last known address. Holly was not

entitled to an evidentiary hearing to rehash his second and successive attempts to

relitigate his § 2255 motion. See 28 U.S.C. § 2255(b) (indicating that no hearing

is required where it is conclusive “that the prisoner is entitled to no relief”).

Finally, Holly’s bare assertion that the district court judge was biased and

prejudiced against him appears to be based solely on adverse rulings, a position

this court has explained to him does not warrant disqualification under Tenth

Circuit law. Holly, 364 F. App’x at 472 (“[T]he only grounds for disqualification

Holly advances concern adverse rulings by the district court judge and fantastical

                                          -7-
conspiracy theories. . . . Neither ground is sufficient to warrant

disqualification.”); In re Holly, No. 09-7052 (10th Cir. June 4, 2009) (order

denying mandamus relief; holding that a claim based on the district court judge’s

prior adverse rulings is not “a basis for seeking recusal”). Therefore, the district

court’s judgment on these claims is affirmed.

                                 Filing Restrictions

      As discussed above, Holly has attempted to raise claims and arguments that

have all been resolved in prior appeals. Because these issues have previously

been resolved against him, his appeal is frivolous. See Braley v. Campbell,

832 F.2d 1504, 1510 (10th Cir. 1987) (holding that “[a]n appeal is frivolous when

the result is obvious, or the appellant’s arguments of error are wholly without

merit” (internal quotation marks omitted)).

      “The right of access to the courts is neither absolute nor unconditional, and

there is no constitutional right of access to the courts to prosecute an action that is

frivolous or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315

(10th Cir. 1994) (per curiam) (internal quotation marks omitted) (alteration

omitted). “Federal courts have the inherent power to regulate the activities of

abusive litigants by imposing carefully tailored restrictions in appropriate

circumstances.” Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007). This

court may impose an injunction “where the litigant’s lengthy and abusive history

is set forth; the court provides guidelines as to what the litigant may do to obtain

                                          -8-
its permission to file an action; and the litigant receives notice and an opportunity

to oppose the court’s order before it is implemented.” Id. “[P]ro se litigants are

subject to the same minimum litigation requirements that bind all litigants and

counsel before all federal courts. We emphasize today that we will scrutinize

equally all filings by both pro se and counseled litigants to protect against

[abusive litigation].” Kyler v. Everson, 442 F.3d 1251, 1253-54 (10th Cir. 2006);

cf. Haworth v. Royal (In re Haworth), 347 F.3d 1189, 1191-92 (10th Cir. 2003)

(imposing sanctions against a pro se litigant for, among other things, challenging

matters that had been decided in a prior appeal).

      In addition to the six appellate proceedings described above, Holly has

filed the following three matters in this court: Holly v. Gotcher, 427 F. App’x

634, 636 (10th Cir. 2011) (holding claims brought under 42 U.S.C. § 1983 were

“based on the argument that he was deprived of due process [which] implicitly

question[ed] the validity of his convictions” that had not been vacated; the

due-process claims were therefore barred); United States v. Holly, No. 10-7101

(10th Cir. Apr. 26, 2011) (appeal of claims based on convictions dismissed for

lack of prosecution); In re Holly, No. 10-7092 (10th Cir. Jan. 25, 2011) (order

dismissing for failure to prosecute complaint “which the district court construed

as an attempt to file an unauthorized second or successive 28 U.S.C. § 2255

motion”). Moreover, in his supplemental notice of appeal in this case, Holly has

acknowledged that the issues raised here “had been brought up before” and

                                         -9-
declared that the same “issues will be brought up in the lower court until the court

puts these issues before a jury.” R. Doc. 172 at 1.

      This court has distinguished between “litigants who have repeatedly abused

the appellate process” and “those who have limited their repetitive filings to a

particular subject.” Ford v. Pryor, 552 F.3d 1174, 1181 (10th Cir. 2008)

(collecting cases). Thus far, Holly’s claims have been based on his criminal

convictions and various proceedings related to them. It does not appear “(at least

as yet)” that he is “likely to abuse the legal process in connection with other

persons and subject matters.” Id. (internal quotation marks omitted).

Accordingly, we conclude that Holly’s appellate filings warrant imposing filing

restrictions limited to the claims brought in his prior appellate proceedings and

arguments related to those claims.

      Therefore, Holly is restricted from filing any further pro se filings with this

court raising claims decided in his prior appellate cases cited above. In addition,

this court will not accept any further pro se appeals or original proceedings filed

by Holly that raise claims related to the claims brought in his prior appellate

cases. The clerk of this court shall return any such filings, unfiled, to Holly.

      Holly shall have ten days from the date of this order and judgment to file

written objections to these proposed filing restrictions. His response shall be

limited to fifteen pages. If Holly does not file an objection, the filing restrictions

shall take effect twenty days from the date of this order and judgment. If Holly

                                         -10-
does file timely objections, these filing restrictions shall take effect only if the

court rules against Holly and rejects his objections. In that event, the filing

restrictions shall apply to any matter filed after that ruling.

                                      Conclusion

      Holly’s motion to proceed IFP on appeal is DENIED. Holly’s claims

deemed to be an attempt to file a second or successive § 2255 motion are

REVERSED and REMANDED to the district court with instructions to dismiss

them for lack of subject matter jurisdiction. The district court’s judgment is

AFFIRMED in all other respects. Holly’s objections, if any, to the proposed

filing restrictions described above are due within ten days of this order and

judgment.


                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




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