D.C. No. 4:21-CV-00552-GKF-SH (N.D. Okla.)
Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
ORDER
Larry D. Hall, an Oklahoma prisoner proceeding pro se, petitions this court for a writ of procedendo. We deny the petition for the reasons explained below.
In 2017, the Tulsa County District Court sentenced Hall to thirty years' imprisonment based on his convictions for four counts of child sexual abuse. He did not appeal or pursue collateral relief in state court.
In 2021, Hall filed a 28 U.S.C. § 2254 petition in the United States District Court for the Northern District of Oklahoma. Presumably inspired by McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), he alleged Native American ancestry and that the alleged crimes occurred in Indian Country, meaning the state court never had jurisdiction to try and convict him. He also alleged that his trial counsel had been ineffective for failing to raise this issue.
The district court dismissed Hall's § 2254 petition without prejudice for failure to exhaust state remedies. That order entered in March 2022.
Between April 2022 and September 2023, Hall filed six postjudgment motions, most of which were attempts to present his McGirt theory from different angles. As legal authority for reopening the case, he invoked Federal Rule of Civil Procedure 60(b), among other things. He also asked for a writ of prohibition against the state court. The district court denied all these motions. It entered its most recent denial order in October 2023.
On March 25, 2024, this court received from Hall the petition now at issue, in which he requests a writ of procedendo. Procedendo, as developed in the English common law system, was a writ from the court of chancery to a subordinate court when the subordinate court "delay[ed] the parties" by failing to "give judgment, either on the one side or the other, when they ought so to do." 3 William Blackstone, Commentaries *109. "In this case a writ of procedendo [would] be awarded, commanding [the subordinate court] . . . to proceed to judgment; but without specifying any particular judgment ...." Id. This court has used mandamus (not procedendo) to grant a similar kind of relief when the district court has, for example, allowed a ripe habeas petition to linger undecided for an unusually long time. See Johnson v. Rogers, 917 F.2d 1283, 1284-85 (10th Cir. 1990).
In this case, however, the district court has not left Hall's § 2254 petition undecided, nor any motion. Hall instead argues the district court is unduly delaying its use of Rule 60(b) to vacate its timeliness ruling, and unduly delaying issuance of a writ of prohibition to the state court. In short, he believes the district court incorrectly decided his case.
Hall does not qualify for either mandamus or procedendo. This court's power to issue such writs comes from 28 U.S.C. § 1651(a), which allows us to "issue all writs necessary or appropriate [1] in aid of [our] jurisdiction[] and [2] agreeable to the usages and principles of law." Hall's petition fails both conditions. First, in this context, "in aid of [our] jurisdiction[]" refers to an appellate court's power to address "exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion." Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (citation and internal quotation marks omitted). But "a court of appeals has no occasion to engage in extraordinary review . . . 'in aid of its jurisdiction,' 28 U.S.C. § 1651, when it can exercise the same review by a contemporaneous ordinary appeal." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n.6 (1983) (brackets omitted). Second, using mandamus or procedendo to obtain what is effectively appellate review is not "agreeable" to their traditional "usages and principles." See In re Cooper Tire &Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (explaining that "a writ [of mandamus] is not a substitute for an appeal," nor is it "appropriate to issue a writ when the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction" (internal quotation marks omitted)); In re Ozenne, 841 F.3d 810, 815 (9th Cir. 2016) ("[A] writ of mandamus cannot substitute for a timely appeal."); 3 William Blackstone, Commentaries *109 (stating that procedendo does not specify the judgment the subordinate court should enter because "that [judgment] (if erroneous) [could] be set aside in the course of appeal").
We express no opinion on whether Hall could still timely appeal any of the relevant district court orders. We hold only that it would be inappropriate for this court to review those orders by way of an extraordinary writ. We accordingly deny his petition.
We also find that Hall has presented no reasoned, nonfrivolous argument in support of relief in these circumstances, so we deny his motion to proceed without prepayment of costs or fees. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).