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Brian Lindsey pleaded guilty in Oklahoma state court May 30, 2017, to being a felon in possession of a firearm and feloniously pointing a firearm, each in violation of Oklahoma law.
He is currently serving his sentence at the Davis Correctional Facility in Holdenville, Oklahoma. Appearing pro se, Lindsey moved the 10th Circuit Court for a certificate of appealability so he may appeal the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S. Code 2254 as untimely.
According to the 10th Circuit Court of Appeals opinion, to get a certificate of appealability, Lindsey must “show[ ], at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and jurists of reason would find it debatable whether the district court was correct in its procedural ruling,” citing the U.S. Supreme Court case Slack v. McDaniel. Applying this standard, the 10th Circuit denied Lindsey’s application for a certificate of appealability and dismissed his appeal.
In his 2254 petition and present application for a certificate of appealability, Lindsey relied on the U.S. Supreme Court’s decision in McGirt v. Oklahoma, to argue the Oklahoma state court lacked jurisdiction to prosecute him because his crimes occurred in “Indian Country,” and he received ineffective assistance of trial counsel based on his counsel’s failure to raise the jurisdictional bar recognized in McGirt. The substance of Lindsey’s argument has two parts, according to the 10th Circuit: first, the state court lacked subject-matter jurisdiction over his prosecution and second, such jurisdictional claim isn’t subject to the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations.
The 10th Circuit noted, according to Lindsey, his jurisdictional claim may be raised at any time after conviction. As the district court explained, however, Lindsey’s argument, as well as the other related arguments he raised before it, are foreclosed by 10th Circuit precedent, the opinion noted citing the 10th Circuit decisions Pacheco v. Habti and Ford v. Dowling.
The 10th Circuit denied Lindsey’s application for a certificate of appealability mainly for the reasons stated in the district court’s opinion and order granting the respondent’s motion to dismiss and denying his initial application for a certificate of appealability. The district court previously granted Lindsey’s motion to proceed in forma pauperis on appeal, the opinion noted.
The 10th Circuit dismissed the appeal.