Dennis MARTIN, Petitioner-Appellant, v. Carl BEAR, Warden, Respondent-Appellee, 683 F. App'x 729

ORDER DENYING CERTIFICATE OF APPEALABILITY Carlos F. Lucero, Circuit Judge Dennis Martin, appearing pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2241 petition. We deny a COA and dismiss the appeal. I Martin is a state prisoner in Oklahoma. He asserts that he has been wrongfully imprisoned for 34 years and that there are no records of his arrest, conviction, or sentence.

In 2016, Martin filed a § 2241 petition in the district court, asserting three grounds for relief: (1) wrongful incarceration; (2) denial of access to courts, denial of due process, and suspension of habeas corpus; and (3) violation of his rights under the Oklahoma Constitution. The district court concluded that none of Martin’s claims were cognizable under § 2241. It dismissed the petition without prejudice and did not address whether to issue a COA. After the court denied Martin’s motion for reconsideration, he filed an application for a COA with this court.

II A state prisoner may not appeal the denial of habeas relief under § 2241 without a COA. Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We will issue a COA only if Martin demonstrates “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.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotation omitted). Because Martin is proceeding pro se, we construe his filings liberally. Garza v.

Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). Martin raises only one claim for relief on appeal: he argues that he has been wrongfully incarcerated because he was never arrested, charged, tried, or convicted of a crime. He asserts that there is no record of a criminal judgment or sentencing order against him. That contention is false, and we take judicial notice of his 1985 state court conviction for first degree murder and accompanying life sentence. See State v. Martin, No. CRF-84-169 (Okla. 15th Jud. Dist. Ct. Apr. 25, 1985) (unpublished) (judgment.and sentence on plea of guilty).

To the extent that Martin now challenges the validity of that conviction and sentence, § 2241 is not the appropriate avenue for relief. See Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (explaining that “§ 2241 petitions ... are generally reserved for complaints about the nature of a prisoner’s confinement, not the fact of his confinement”); Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (“A petition brought under 28 U.S.C. § 2241 typically attacks the execution of a sentence rather than its validity.... ” (quotation omitted)).

Martin appears to have abandoned all other grounds for relief asserted below. Accordingly, the district court’s dismissal of his wrongful incarceration claim is not reasonably debatable. Ill For the foregoing reasons, we DENY Martin’s application for a COA and DISMISS the appeal. Because Martin has not demonstrated the existence of a reasoned, nonfrivolous argument on appeal, his motion to proceed in forma pauperis is DENIED. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). 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.