Tenth Circuit Clarifies: Post‑Judgment Discovery That Attacks the Merits Is a Successive § 2254 Petition Requiring § 2244(b) Authorization and a COA

Tenth Circuit Clarifies: Post‑Judgment Discovery That Attacks the Merits Is a Successive § 2254 Petition Requiring § 2244(b) Authorization and a COA

Introduction

In Johnson v. Patton, No. 25-6084 (10th Cir. Oct. 24, 2025), the Tenth Circuit—confronting a fourth appeal in the same long-running habeas matter—denied a certificate of appealability (COA) to Oklahoma state prisoner Antione Diray Johnson. Johnson, proceeding pro se, sought discovery years after the district court had denied his original 28 U.S.C. § 2254 petition and closed the case. The court treated his new discovery filing as a post-judgment Rule 60(b) motion that in substance attacked the merits of the original habeas judgment and, under controlling Supreme Court and Tenth Circuit precedents, therefore constituted an unauthorized successive § 2254 petition.

The panel (Chief Judge Tymkovich, joined by Judges Baldock and Federico) held that a COA was required to appeal the order striking the discovery motion and that Johnson could not satisfy Slack v. McDaniel’s procedural prong because a “plain procedural bar”—the district court’s lack of jurisdiction over an unauthorized successive petition—foreclosed relief. The court thus denied a COA and dismissed the appeal, while granting Johnson’s request to proceed in forma pauperis.

Although issued as a nonprecedential order, the decision is a comprehensive application of the Antiterrorism and Effective Death Penalty Act’s (AEDPA) gatekeeping rules. It synthesizes the Rule 60(b)/successive-petition distinction (Gonzalez v. Crosby; Spitznas v. Boone), the COA framework (Miller-El v. Cockrell; Slack v. McDaniel), and the jurisdictional authorization requirement for successive filings (§ 2244(b)(3)(A)), with a practical message: relabeling or packaging a merits challenge as a discovery request in a closed habeas case does not evade AEDPA’s successive-petition bar.

Summary of the Opinion

- Procedural posture: Years after the district court denied Johnson’s original § 2254 petition—having previously rejected his multiple successive filings—the district court struck a new “discovery” motion because the case was closed. Johnson sought review both by mandamus (denied) and direct appeal. The panel now addresses the appeal.

- Core holding: The panel construes Johnson’s post-judgment discovery motion as a Rule 60(b) motion which, in substance, challenges the merits of the original habeas decision. Under Gonzalez v. Crosby and Spitznas v. Boone, such a motion is a “successive habeas petition.” Because Johnson failed to obtain prior authorization from the Tenth Circuit under 28 U.S.C. § 2244(b)(3)(A), the district court lacked jurisdiction. A COA is required to appeal the denial of an unauthorized successive petition, and Johnson cannot meet the COA standard because a plain procedural bar (lack of jurisdiction) forecloses his appeal.

- Disposition: COA denied; appeal dismissed. Motion to proceed in forma pauperis granted.

Detailed Analysis

Precedents Cited and Their Influence

  • Harbison v. Bell, 556 U.S. 180 (2009): Clarifies that § 2253(c)(1)’s COA requirement applies to appeals from “final orders” in habeas proceedings—i.e., orders that dispose of the merits. The panel invokes Harbison to frame when a COA is required.
  • United States v. Harper, 545 F.3d 1230 (10th Cir. 2008): In the § 2255 context, the Tenth Circuit required a COA to appeal the denial of an unauthorized successive motion. The panel relies on Harper by analogy to § 2254 cases to confirm that a COA is likewise required here.
  • Miller-El v. Cockrell, 537 U.S. 322 (2003): Provides the general COA standard—reasonable jurists could debate whether the petition should have been resolved differently or whether the issues deserve encouragement to proceed further.
  • Slack v. McDaniel, 529 U.S. 473 (2000): When the district court’s ruling rests on procedural grounds, the applicant must show that reasonable jurists could debate both (1) the validity of the underlying constitutional claim and (2) the correctness of the procedural ruling. Slack also introduces the “plain procedural bar” concept: COA should be denied where a clear procedural bar exists.
  • Gonzalez v. Crosby, 545 U.S. 524 (2005): Distinguishes a “true” Rule 60(b) motion (attacking a defect in the integrity of the federal habeas proceedings) from a disguised successive petition (attacking the merits of the underlying judgment). Motions that seek to relitigate or augment the merits—even if styled under Rule 60(b)—are successive petitions. The panel applies Gonzalez to classify Johnson’s motion.
  • Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006): The Tenth Circuit’s framework for parsing Rule 60(b) motions in the § 2254 context, implementing Gonzalez. If the motion challenges the merits determination, it is successive; if it claims a defect in the habeas proceeding’s integrity, it may be a true Rule 60(b) motion.
  • Deloge v. Warden, Wyo. Medium Corr. Inst., 766 F. App’x 609 (10th Cir. 2019): A Rule 60(b) motion that challenges the habeas court’s refusal to hold an evidentiary hearing is successive because it contests the merits ruling. This is directly on point: Johnson argued the district court decided “without a full evidentiary record” and sought discovery to bolster original claims.
  • United States v. Nelson, 465 F.3d 1145 (10th Cir. 2006): Without authorization under § 2244(b)(3)(A), district courts lack jurisdiction to consider successive habeas filings. This underpins the panel’s “plain procedural bar.”
  • United States v. Springer, 875 F.3d 968 (10th Cir. 2017): The court may construe a notice of appeal as a request for a COA; it may also affirm on any ground supported by the record, even if the district court relied on a different rationale. The panel uses Springer both to treat Johnson’s notice as a COA request and to pivot to the jurisdictional defect (rather than the district court’s “case closed” rationale).
  • McIntosh, 716 F. App’x 796 (10th Cir.): The panel cites this unpublished decision for the proposition that a motion to compel discovery filed to support habeas relief can be construed as a successive petition.

One additional doctrine is implicit in the background: the district court initially declined an expanded evidentiary hearing on Johnson’s Fourth Amendment claim because he had a full and fair opportunity to litigate it in state court—a formulation traceable to Stone v. Powell. Although Stone is not cited in the panel’s order, the reference contextualizes why early requests for expanded federal evidentiary development were rejected and why Johnson later reframed his efforts as “discovery.”

Legal Reasoning

1) Characterizing the filing. The court begins by looking past labels to substance. Johnson invoked Rule 6 of the Rules Governing § 2254 Cases to request discovery in a long-closed federal action. Rule 6 does not authorize discovery after judgment. More importantly, the panel emphasizes the motion’s “thrust”: it contends the district court erred on the merits of the original habeas case—asserting insufficient analysis, incorrect probable cause analysis, and decision-making without a full evidentiary record—while requesting discovery to corroborate claims raised in the original petition. Under Gonzalez and Spitznas, that is “effectively indistinguishable” from seeking habeas relief on the merits and thus counts as a successive § 2254 petition.

2) Authorization and jurisdiction. AEDPA requires a state prisoner to obtain authorization from the court of appeals before filing a successive § 2254 petition. 28 U.S.C. § 2244(b)(3)(A). Without that authorization, the district court lacks jurisdiction. Citing Nelson, the panel holds that Johnson’s failure to obtain authorization erects a clear jurisdictional bar.

3) COA requirement. The panel affirms that a COA is required to appeal the denial of a successive petition, citing Harper (a § 2255 case) and relying on Harbison’s definition of “final orders.” Even though the district court struck the motion as the case was closed, the appellate court looks to the substance: an order disposing of a de facto successive petition in a § 2254 proceeding triggers § 2253(c)(1)’s COA requirement.

4) Applying Slack’s COA standard and the “plain procedural bar.” Because the district court’s disposition is procedural (jurisdictional), Slack’s two-step COA analysis applies. The panel bypasses the underlying constitutional claims and resolves the COA question solely on the procedural prong: reasonable jurists could not debate the correctness of the jurisdictional ruling where no authorization was sought or obtained. Slack’s “plain procedural bar” doctrine thus requires denial of a COA.

5) Affirming on any ground. Although the district court’s stated reason for striking the motion was that the case was closed, the panel—citing Springer—denies a COA based on the more foundational jurisdictional defect. This underscores that appellate courts may resolve COA questions on any record-supported ground, even if different from the district court’s reasoning.

6) Liberal construction of pro se filings. Finally, consistent with Tenth Circuit practice, the court construes Johnson’s notice of appeal as a request for a COA (Springer) and construes his mislabeled Rule 6 request as a Rule 60(b) motion. Liberal construction aids access but does not overcome AEDPA’s gatekeeping requirements.

Impact and Practical Significance

- Reinforcing AEDPA’s gatekeeping: The decision firmly reiterates that AEDPA’s successive-petition authorization requirement is jurisdictional. Post-judgment filings that functionally challenge a prior habeas merits decision—even if styled as discovery requests—will be treated as successive petitions. District courts lack jurisdiction to entertain them without § 2244(b)(3)(A) authorization.

- Discovery in closed habeas cases: The panel’s reasoning makes clear that there is no freestanding “right to discovery” in a closed federal habeas case. Discovery requests that aim to supplement or relitigate the merits after judgment fall squarely within Gonzalez and are barred absent authorization.

- COA practice in the Tenth Circuit: The order confirms that a COA is required to appeal jurisdictional dismissals of unauthorized successive petitions. Petitioners who bypass authorization not only face dismissal below but also face denial of a COA on appeal under Slack’s “plain procedural bar” doctrine.

- Clarifying true Rule 60(b) versus successive: The decision adds to the Tenth Circuit’s body of persuasive authority distinguishing “true” Rule 60(b) motions (attacking defects in the integrity of the federal habeas proceeding) from disguised merits attacks. Complaints such as “the court did not fully analyze the issues,” “erred in its probable-cause analysis,” or “decided without a full evidentiary record” all target the merits determination, not a procedural defect. They are successive.

- Appellate flexibility to affirm on alternative grounds: By invoking Springer, the panel signals that even if the district court’s rationale is framed in case-management terms (e.g., “case closed”), the appellate court may deny a COA on the independent, dispositive jurisdictional defect evident in the record.

- For state and federal courts: The decision discourages repetitive, serial filings and protects finality by applying AEDPA’s jurisdictional gatekeeping in a practical, label-agnostic way. For courts, it provides a ready roadmap: evaluate substance, classify under Gonzalez/Spitznas, check authorization, and, if absent, deny relief for lack of jurisdiction and deny COA under Slack.

Complex Concepts Simplified

  • Certificate of Appealability (COA): A “ticket to appeal” in habeas cases. To get one, a petitioner must show reasonable jurists could debate the district court’s ruling, or that the issues are significant enough to deserve further proceedings. If the district court dismissed for procedural reasons, the petitioner must also show the procedural ruling is debatable (Slack).
  • Successive petition: A second or later federal habeas petition attacking the same conviction or sentence after the first federal petition has already been adjudicated. Under AEDPA, such a filing generally requires prior authorization from the court of appeals (28 U.S.C. § 2244(b)(3)(A)) and must meet strict statutory criteria.
  • Rule 60(b) versus successive petition: A true Rule 60(b) motion challenges a flaw in the federal habeas process (e.g., fraud on the court, failure to consider a properly raised claim). A motion that seeks to relitigate or bolster the merits of the underlying habeas claims (e.g., demanding new evidence to prove prior claims) is treated as a successive petition (Gonzalez; Spitznas).
  • Plain procedural bar: Under Slack, if a dispositive procedural rule clearly blocks relief (such as lack of jurisdiction because no § 2244(b) authorization was obtained), a COA should be denied without reaching the merits.
  • Final order in habeas: Orders that dispose of the merits of a habeas proceeding. Appeals from such orders require a COA (Harbison).
  • Mandamus versus direct appeal: Mandamus is an extraordinary remedy to compel a lower court to perform a clear, non-discretionary duty. The Tenth Circuit had already denied Johnson’s mandamus petition, observing he had no right to discovery in a closed federal case; the present decision addresses his direct appeal and reaches the same result through the COA framework.

Practice Takeaways

  • Do not relabel a merits attack as “discovery” after judgment. If the relief sought would effectively reopen or augment the merits of a closed habeas case, courts will treat the filing as a successive petition under Gonzalez and Spitznas.
  • Seek § 2244(b) authorization before filing any post-judgment motion that could be construed as successive. Without it, the district court lacks jurisdiction and a COA will almost certainly be denied under Slack’s plain procedural bar.
  • If contemplating Rule 60(b) relief, ensure it is a “true” 60(b) motion: identify a defect in the integrity of the federal habeas proceeding (e.g., the court overlooked a claim entirely) rather than criticizing the correctness of the merits determination or seeking new evidence for old claims.
  • Remember the COA overlay. Even if you believe the district court erred procedurally, frame the COA request to satisfy Slack’s two-prong test, addressing both the procedural ruling and the underlying constitutional claim—unless a plain procedural bar clearly defeats jurisdiction.
  • Discovery in habeas is tightly cabined. Rule 6 discovery tools operate, if at all, within an open habeas case and upon a showing of “good cause.” They are not vehicles to revive closed proceedings.

Conclusion

Johnson v. Patton reinforces a straightforward but often misunderstood principle: in federal habeas practice, substance controls over labels. A post-judgment motion seeking discovery to bolster or relitigate the merits of a closed § 2254 case is a successive petition; without prior authorization under § 2244(b)(3)(A), the district court lacks jurisdiction to entertain it. Appeals from such dispositions require a COA, and under Slack’s plain procedural bar doctrine, COA will be denied where the jurisdictional defect is clear.

Although nonprecedential, the order methodically applies Gonzalez, Spitznas, Slack, and related precedents, offering a persuasively reasoned guide for district and appellate courts and a cautionary roadmap for habeas litigants. Its broader significance lies in its faithful enforcement of AEDPA’s gatekeeping, the finality of criminal judgments, and the disciplined use of Rule 60(b) and discovery in post-conviction litigation.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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