No. 5:18-CV-00083-D (W.D. Okla.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
E. Bacharach Circuit Judge.
Leroy Hayes is an Oklahoma state prisoner who seeks habeas
relief under 28 U.S.C. § 2241, claiming that state
courts failed to enforce Supreme Court precedent, failed to
protect his federal rights, suspended habeas corpus, and
impeded court access. The district court denied habeas
relief, reasoning that (1) the petition had been improperly
filed under 28 U.S.C. § 2241 instead of § 2254 and
(2) the underlying allegations had not stated a valid claim
for relief under § 2241. Hayes v. Bear, No.
CIV-18-83-D, 2018 WL 1309858, at *1 (W.D. Okla. Mar. 13,
2018). Mr. Hayes seeks a certificate of appealability and
leave to proceed in forma pauperis. We deny a certificate of
appealability but grant leave to proceed in forma pauperis.
Certificate of Appealability
court will grant a certificate of appealability
"'only if the applicant has made a substantial
showing of the denial of a constitutional right.'"
Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir.
2012) (quoting 28 U.S.C. § 2253(c)(2)). To make this
showing, Mr. Hayes "must demonstrate that 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).
Hayes contends that 28 U.S.C. § 2241 provides a proper
vehicle for him to seek habeas relief. This contention lacks
reasonable support under our case law. As the district court
correctly noted, § 2254 and § 2241 petitions
provide relief for different types of claims. For state
prisoners, "[p]etitions under § 2241 are 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) (internal citations
Hayes challenges only the validity of his conviction, arguing
that state courts lack jurisdiction over crimes committed
"by an Indian, [against] an Indian . . . inside a
sovereign Indian Reservation." Appellant's Combined
Opening Br. and Appl. for a Certificate of Appealability at
3. He is not challenging the execution of his sentence. Thus,
§ 2254 provides the sole source of habeas relief.
Hayes argues that § 2254 provides an inadequate remedy.
If the remedy is inadequate, the writ of habeas corpus could
be considered suspended in violation of the Constitution.
Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998).
But even if the remedy in § 2254 were inadequate, Mr.
Hayes could not pursue his habeas claims through a §
2241 petition. His arguments are jurisdictional and do not
attack "the nature of [Mr. Hayes's]
confinement." Prost v. Anderson, 636 F.3d 578,
581 (10th Cir. 2011) (emphasis in original). Thus, his claims
cannot be brought under § 2241. In light of the
unavailability of a remedy through § 2241, we deny Mr.
Hayes's motion for a certificate of appealability and
dismiss the appeal.
Leave to Proceed in Forma Pauperis
the dismissal of the appeal, we must address Mr. Hayes's
motion for leave to proceed in forma pauperis. See Clark
v. Oklahoma, 468 F.3d 711, 715 (10th Cir. 2006) (stating
that a petitioner remains obligated to pay the filing fee
after denial of a certificate of appealability). To obtain
leave to proceed in forma pauperis, Mr. Hayes must show that
. lacks money to prepay the filing fee and
. brings the appeal in good faith.