                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      January 26, 2011

                                                                        Elisabeth A. Shumaker
                                  TENTH CIRCUIT
                                                                            Clerk of Court


ALVIN PARKER,

      Petitioner - Appellant,
                                                            No. 10-6143
v.                                                          (W.D. Okla.)
                                                     (D.C. No. 5:08-CV-00769-D)
GREG PROVINCE, Warden,

      Respondent - Appellee.




                     ORDER DENYING LEAVE TO PROCEED
                       ON APPEAL IN FORMA PAUPERIS
                          AND DISMISSING APPEAL


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


      Alvin Parker, an Oklahoma prisoner proceeding pro se,1 is quite familiar with the

procedures of this Court having filed more than twenty appeals of one sort or another

since his conviction for second-degree murder in 1990. His latest attempt challenges the

district court’s denial of his motion to find the Oklahoma Court of Criminal Appeals

(OCCA) in civil contempt of an order granting him habeas relief from the imposition of

sanctions.2 Because Parker has declined to request a certificate of appealability (COA),



      1
       Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
      2
       Although his motion for a finding of civil contempt names Warden Province as
we dismiss this appeal, 28 U.S.C. § 2253(c), and deny his request to proceed in forma

pauperis (ifp).

                                  I.   BACKGROUND

       The events leading to this appeal began when Parker filed his ninth application to

the Oklahoma courts for post-conviction relief. The application concerned the testimony

of Glenn Briggs, Parker’s accomplice, who testified for the state at Parker’s trial. During

direct examination, Briggs told the jury the state agreed to reduce his murder charge to

grand larceny in exchange for his testimony. Years later, at Parker’s parole hearing, the

state averred it did not make a deal in exchange for Brigg’s testimony. Based on this

statement, Parker claimed the prosecutor suborned perjury at his trial by eliciting Briggs’

testimony about the nonexistent deal. See Parker v. Province, 339 Fed. Appx. 850, 852

(10th Cir. 2009) (unpublished). The state district court denied relief concluding Parker

had already raised this claim; it imposed sanctions against him pursuant to Okla. Stat. tit.

57 § 566(C).3 The OCCA affirmed and the federal district court denied Parker’s 28

U.S.C. § 2241 challenge to the imposition of sanctions.4

       Parker appealed and we reversed the district court’s denial of habeas relief,


the respondent, the facts relied upon involve only the OCCA.
       3
         Okla. Stat. tit. 57 § 566(C) authorizes the state court to impose specific sanctions
“[i]f the court determines from the pleadings or the evidence that one or more of the
causes of action are frivolous or malicious, . . . after notice to the inmate and an
opportunity for the inmate to respond . . . .” Parker’s sanctions included: (1) $3000 to
cover costs of attorney's fees and costs, court clerk's costs, and the court's time and
expense; (2) the loss of 720 earned credits; and (3) the removal of Mr. Parker's non-
essential personal property for nine months. Parker, 339 Fed. Appx. at 852.
       4
        Parker did not appeal from the judgment on the merits.

                                            -2-
concluding his due process rights were violated. We reasoned his current claim was not

and could not have been raised earlier because it was based on recently discovered

evidence. See Parker, 339 Fed. Appx. at 854-855. Because the state court had failed to

determine whether the new claim was frivolous and past frivolous claims, alone, are not

sufficient to justify the imposition of sanctions, we remanded the case to the district court

to grant habeas relief. Id. at 855. Pursuant to our mandate, on remand the district court

granted habeas relief and ordered Greg Province, Warden of the Oklahoma facility, “to

give no further effect to the sanction order.” (R. Vol. I at 114.)

       Following the district court’s order granting him habeas relief from the sanctions,

Parker filed a tenth motion for post-conviction relief reasserting his claim. The state

district court denied it on the merits. It concluded the alleged prosecutorial misconduct

actually worked to Parker’s advantage and, moreover, Briggs testified truthfully at trial.

       Parker filed an appeal with the OCCA accompanied by a motion requesting the

judges of that court to “recuse themselves from hearing and determining Petitioner’s

post-conviction appeal . . . .” (R. Vol. I at 135.) He did not pay the filing fee on appeal.

The OCCA rejected his appeal pursuant to Okla. Stat. tit. 57 § 566.2(A) (2004) which

provides:

       A prisoner who has, on three or more prior occasions, while incarcerated or
       detained in any facility, or while on probation or parole, brought an action
       or appeal in a court of this state or a court of the United States that has been
       dismissed on the grounds that the case was frivolous, or malicious, or failed
       to state a claim upon which relief could be granted, may not proceed in a
       matter arising out of a civil case, or upon an original action or on appeal
       without prepayment of all fees required by law, unless the prisoner is under




                                             -3-
       immediate danger of serious physical injury.5

       The OCCA determined the official court registry showed Parker had previously

filed at least three frivolous appeals and noted its previous 2005 order which barred

Parker from submitting subsequent applications for relief in the OCCA due to the

frivolous nature of his previous filings.

       Because Parker had not paid the filing fee on appeal and had not claimed any

danger of serious physical injury, the OCCA struck his appeal for failing to pay the filing

fee and returned his materials. Parker then filed a request to submit his appeal stating he

was entitled to appeal ifp and requiring him to pay filing fees would deny his

constitutional rights and render the appeal untimely. This renewed appeal was dismissed

as untimely.

       Parker next filed a motion for a finding of civil contempt in the federal district

court. He alleged he “ had only had two prior cases denied as frivolous” -- the third

episode being the subject of the federal court’s order granting habeas relief from

sanctions. (R. Vol. 1 at 118.) He argued the OCCA knowingly violated the federal

court’s order when it counted the unconstitutional sanctions in refusing his appeal. He

asked the court to find the OCCA in contempt and direct the reinstatement of his appeal.

The district court denied his motion, concluding (1) the order was not directed to the

OCCA; and (2) the OCCA did not rely solely on the state’s three-strike rule but also on



       5
       This statute is similar to 28 U.S.C. § 1915(g) barring civil actions unless the
prisoner is under imminent danger of serious physical injury. Unlike § 1915(g), however,
the Oklahoma law applies to all actions, including criminal collateral relief.

                                            -4-
its 2005 order requiring Parker to request leave from the OCCA before filing an appeal.6

       Parker filed a notice of appeal and a motion to proceed ifp. The district court

denied his motion to proceed ifp on appeal because Parker had “not demonstrated the

existence of a reasoned, nonfrivolous argument in support of an issue to be raised on

appeal.” In addition, the district court certified the appeal was not taken in good faith;

Parker appeared to be raising a new issue.7 See 28 U.S.C. § 1915(a)(3). Parker renewed

his application to proceed ifp on appeal with this Court but notified the Court he will not

file an application for a COA because it is unnecessary for him to do so.

                                  II.   DISCUSSION

       Absent a COA, an appeal may not be taken from “the final order in a habeas

corpus proceeding in which the detention complained of arises out of process issued by a

State court.” 28 U.S.C. § 2253(c)(1)(A). This rule applies to cases brought by state

prisoners under § 2241. Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000). This

Court provided Parker a COA application form. In response, he declined to file the

application because he is “not appealing a writ of habeas corpus decision, but the denial

of [his] motion for a finding of civil contempt filed in the habeas case, post-judgment.”

(Letter, June 29, 2010.) In making this determination, Parker has refused to comply with


       6
        The district court also noted the case record established both the state district
court and the OCCA “previously issued numerous orders finding Mr. Parker’s filings to
be frivolous and imposing sanctions.” (R. Vol. I at 141 n.3.)
       7
        The question on appeal, as framed by Parker in his request to proceed ifp, was
whether the [district] court “abused its discretion by not treating appellant’s motion for a
finding of civil contempt as an amended petition seeking a broadening of the previous
decree . . . .” (R. Vol. I at 161-62.)

                                            -5-
an essential step in his appeal.

       We have held in cases such as this, an appellant must file a COA. Dulworth v.

Jones, 496 F.3d 1133, 1136 (10th Cir. 2007). In Dulworth, the appellant also contended

he was “not required to obtain a [COA] pursuant to 28 U.S.C. § 2253(c)(1)(A) because he

[was] appealing the denial of costs, not the denial of his application for a writ of habeas

corpus.”8 Id. at 1135. We disagreed, reasoning:

       Congress imposed the COA requirement to screen out appeals that do not
       raise substantial constitutional questions, thereby conserving appellate
       judicial resources for use only in substantial cases. Given the focus on
       uncovering possible constitutional error at the appellate level, it makes no
       sense to squander those resources by circumventing that screening process
       for some final orders in habeas cases. Consequently, in our judgment all
       appeals from final orders in habeas cases, of whatever type, should be
       required to meet the COA standard to proceed.

Id. at 1136 (emphasis added). Parker correctly describes his current appeal as a post-

judgment final order in a habeas case. As such, a COA is necessary for appellate

consideration of his claims. Because Parker has specifically refused to request a COA,

we decline to construe his appeal as a request for a COA and dismiss this appeal.9


       8
       Unlike Parker, however, Dulworth did request a COA in the event we determined
one was required.
       9
        Even were we to consider his brief as a request for a COA, Parker must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make the requisite showing, he must demonstrate “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations and
citation omitted). Parker needs no encouragement.
        Federal courts have the inherent power to enforce constitutional judgments.
Madej v. Briley, 370 F.3d 665, 666 (7th Cir. 2004) (“No state court can countermand an
order, issued by a federal court, implementing the Constitution of the United States”).

                                            -6-
       We also deny Parker’s motion to proceed ifp on appeal. To proceed ifp on appeal,

Parker “must show a financial inability to pay the required filing fees and the existence of

a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on

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

added). We have reviewed Parker’s motion to proceed ifp and solicitously construed his

briefs in light of the district court record. His arguments deliberately misapprehend

settled law and the record. Parker is well aware that the imposition of sanctions does not

always accompany a determination that a lawsuit or an appeal is frivolous, yet his entire

claim and appeal rest on that premise. In fact, Parker’s claim that the sanctions we

reversed in his habeas appeal are only his third instance of being sanctioned is not true.

“Previous sanctions included filing restrictions imposed in 1999 . . . a monetary sanction .

. . in 2001 and a second monetary sanction in 2005.” (R. at 88 n.1.) In short, Parker has

not presented reasoned, non-frivolous arguments in support of the issues raised on appeal.

We remind him of his obligation to pay the filing and docket fees in full.

       Finally, we provide Parker a warning. His abuse of the judicial system has been

noted not only by the Oklahoma courts, but by the United States Supreme court as well.

See Parker v. Oklahoma, 540 U.S. 978 (2003) (“As petitioner has repeatedly abused this



But Parker cites no authority giving federal courts the authority to hold a state appellate
court in contempt and our research reveals none. Moreover, the OCCA’s order is clearly
appropriate and is not contrary to the federal district court’s order awarding habeas relief.
Parker claims there are but two instances where he has been sanctioned, but the statute
says nothing about previous sanctions being necessary. Parker has had numerous filings
dismissed “on the grounds that the case was frivolous, or malicious, or failed to state a
claim upon which relief could be granted.” Okla. Stat. tit. 57 § 566.2(A).

                                            -7-
Court’s process, the Clerk is directed not to accept any further petitions in noncriminal

matters from petitioner unless the docketing fee required by Rule 38(a) is paid and

petition submitted in compliance with Rule 33.1.”) Parker has ‘two strikes’ by this Court

under the Prisoner Litigation Reform Act, 28 U.S.C. § 1915(g). See Parker v.

Gosmanova, No. 10-6044, 2010 WL 1971916, at *2 (10th Cir. May 18, 2010). While a

strike ordinarily will not be applied to § 2241 petitions unless they challenge the

conditions of imprisonment, Jennings v. Natrona County Det. Ctr. Med. Fac., 175 F.3d

775, 780-81 (10th Cir.1999), Parker is cautioned to refrain from further filings pursuant

to § 2241 which are patently without merit. “[T]he 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.” Tripati v. Beaman, 878 F.2d 351, 35

(10th Cir. 1989) (citation omitted). This Court has the authority to place appropriate

restrictions on Parker’s access to the court when his filings are repetitious, frivolous or

false.

                                III.    CONCLUSION

         This appeal is DISMISSED and the request to proceed ifp is DENIED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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