Opinion
23-7073
11-07-2023
In re: CHRISTOPHER W. WEBB, Movant.
(D.C. No. 6:13-CV-00065-JHP-KEW) (E.D. Okla.)
Before MATHESON, McHUGH, and EID, Circuit Judges.
ORDER
More than a decade ago, an Oklahoma jury convicted Christopher W. Webb of second-degree rape by instrumentation. Mr. Webb has already challenged his conviction in a habeas application under 28 U.S.C. § 2254. He now moves for authorization to file another § 2254 application. See 28 U.S.C. § 2244(b)(3)(A).
Mr. Webb represents himself, so we construe his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
We may authorize a new § 2254 "claim only if it falls within one of two narrow categories-roughly speaking, if it relies on a new and retroactive rule of constitutional law or if it alleges previously undiscoverable facts that would establish" Mr. Webb's innocence. Banister v. Davis, 140 S.Ct. 1698, 1704 (2020); see also § 2244(b)(2).
Mr. Webb's motion is unusual because it does not present a claim against the state judgment behind his current confinement. The motion instead seeks to challenge a recent ruling by a federal district court in a related case. After the decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), the federal government indicted Mr. Webb based on the conduct underlying his Oklahoma conviction. Before long, however, the federal government came to believe that McGirt would not invalidate Mr. Webb's Oklahoma conviction. So it moved to dismiss the federal indictment without prejudice, and the district court granted the motion. Mr. Webb tried to appeal the order dismissing his indictment, but we dismissed his attempt to do so because he filed his notice of appeal too late. See United States v. Webb, No. 22-7053, 2023 WL 4783378, at *2-3 (10th Cir. July 27, 2023).
Mr. Webb's current motion seeks authorization to challenge the order dismissing his federal indictment. In his view, the dismissal violated the Major Crimes Act by "sending [him] back to the State of Oklahoma." Mot. for Authorization at 8. Attempting to fit this claim into the habeas framework, he argues that the claim relies on "newly discovered evidence" because the "violation" he seeks to challenge did not occur until October 20, 2021, the day the federal district court dismissed the indictment. Id. at 9.
Mr. Webb cannot use a § 2254 application to challenge the dismissal of his federal indictment. In any event, he alleges no facts suggesting his innocence. And so we deny his motion for authorization to file another § 2254 application. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E).