Opinion
23-5005 23-5009
02-09-2023
In re: DARRIN LYNN PICKENS, Movant. In re: DARRIN LYNN PICKENS, Movant.
(N.D. Okla., D.C. No. 4:06-CV-00343-TCK-TLW, 4:96-CV-00984-GKF-CDL)
Before HOLMES, Chief Judge, KELLY and PHILLIPS, Circuit Judges.
ORDER
Darrin Lynn Pickens, an Oklahoma prisoner proceeding pro se, has filed two motions for authorization to bring second or successive 28 U.S.C. § 2254 petitions. These motions are closely related. For the reasons explained below, we deny both as unnecessary.
In February 1990, Pickens robbed three convenience stores in Oklahoma and shot the clerk on duty in each. Two of the clerks died of their wounds. The state tried the two murders separately. One trial took place in Creek County, and the other in Tulsa County. Both trials resulted in convictions and death sentences. However, postconviction proceedings eventually led to each sentence being modified to life without parole. Pickens has since filed unsuccessful § 2254 petitions challenging those amended judgments.
On January 27, 2023, this court received from Pickens a motion for authorization to file a new § 2254 challenge against the Creek County judgment. The court accordingly opened proceeding No. 23-5005. Four days later, this court received from Pickens a motion for authorization to file a new § 2254 challenge against the Tulsa County judgment. In response, the court opened proceeding No. 23-5009.
Pickens's two motions are materially identical. In both, Pickens actually requests authorization to file a Federal Rule of Civil Procedure 60(b)(4) motion, not a successive § 2254 petition. Rule 60(b)(4) authorizes the district courts to "relieve a party . . . from a final judgment" when "the judgment is void." Pickens quotes and summarizes numerous judicial decisions generically discussing a district court's authority to grant Rule 60(b) relief, but he never explains his claim that the relevant judgments were void.
We recognize that if Pickens had filed his proposed motions with the district court, it might have recharacterized them as unauthorized successive § 2254 petitions and dismissed them for lack of jurisdiction. See Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). But that is the district court's decision to make in the first instance. We have no authority to pre-screen nominal Rule 60(b) motions to decide if they are true Rule 60(b) motions over which the district court may exercise jurisdiction. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." (emphasis added)). Thus, we deny both of Pickens's motions as unnecessary. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." Id. § 2244(b)(3)(E).
We express no opinion about whether either proposed motion, if filed with the district court, would be a true Rule 60(b) motion.