Rodney Charles McCullough v. Mike Hunter

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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RODNEY CHARLES MCCULLOUGH,
Petitioner - Appellant,
v.
MIKE HUNTER,
Respondent - Appellee.
No. 20-6176
(D.C. No. 5:20-CV-00772-F)
(W.D. Okla.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before TYMKOVICH, Chief Judge, KELLY and CARSON, Circuit Judges.
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Rodney McCullough, a state prisoner representing himself, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254
petition.1 We deny a COA and dismiss this matter.
In 1990, an Oklahoma jury convicted McCullough of first-degree murder, and the
trial judge sentenced him to life in prison. In 2017, McCullough challenged his sentence
in a § 2254 petition, but the district court dismissed his petition as time-barred.
* This order is not binding precedent except under the doctrines of law of the case,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.
1 We construe McCullough’s pro se filings liberally without going so far as to take
on the role of his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
FILED
United States Court of Appeals
Tenth Circuit
February 9, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-6176 Document: 010110477107 Date Filed: 02/09/2021 Page: 1

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2
McCullough needed authorization from this court to file a second or successive
§ 2254 petition in the district court. See 28 U.S.C. § 2244(b)(3)(A). Without obtaining
that authorization, however, he filed another § 2254 petition, claiming actual innocence.
The district court dismissed the petition, concluding that it lacked jurisdiction to consider
an unauthorized second or successive § 2254 petition. And it denied McCullough a
COA.
To obtain a COA from us, McCullough must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 478 (2000). But he does not dispute either (1) that this case
involves his second § 2254 petition or (2) that he did not obtain authorization to file it.
Given those two facts, no reasonable jurist could debate the district court’s decision to
dismiss the petition—the court correctly concluded that it lacked jurisdiction to address
the merits of an unauthorized second or successive § 2254 petition. See In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
McCullough argues that the district court erred because it failed to recognize that
he had not raised his actual-innocence claim in a prior proceeding. This argument does
not cast doubt on the district court’s procedural ruling: McCullough needed authorization
to file any second or successive § 2254 petition, even one that contained a claim that he
had not previously presented. See § 2244(b)(3)(A). Because the district court’s
procedural ruling is not debatable, we need not consider McCullough’s arguments about
the merits of his actual-innocence claim.
Appellate Case: 20-6176 Document: 010110477107 Date Filed: 02/09/2021 Page: 2

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3
We grant McCullough’s motion to proceed without prepaying fees, deny his
application for a COA, and dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
Appellate Case: 20-6176 Document: 010110477107 Date Filed: 02/09/2021 Page: 3

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