Vue v. Dowling

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 21, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ONG VUE, Petitioner - Appellant, v. No. 17-6213 (D.C. No. 5:17-CV-00857-HE) JANET DOWLING, Warden, Dick Conner (W.D. Okla.) Correctional Center, Respondent - Appellee. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________ Before KELLY, MURPHY, and MATHESON, Circuit Judges. _________________________________ Ong Vue, a state prisoner proceeding pro se,1 seeks a certificate of appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 application for a writ of habeas corpus. He also seeks leave to file a “Motion to Certify Question of Law to Oklahoma Supreme Court” and a “Motion to Confer Standing as a Member of a Peculiar Suspect Class.” Exercising jurisdiction under 28 * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Because Mr. Vue is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.”). U.S.C. § 1291, we deny the COA and dismiss this matter. We also dismiss as moot his request to file the motions. I. BACKGROUND In 1998, Mr. Vue pled no contest in Oklahoma state court to one count of murder in the first degree and two counts of shooting with intent to kill. On June 1, 1998, he was sentenced to life in prison for the murder conviction and two 20-year terms for the shooting with intent to kill convictions. Mr. Vue did not appeal these convictions in state court. Instead, his trial counsel filed a motion to modify his original sentence, which the Oklahoma state trial court granted in September of 1998.2 In July 2016, Mr. Vue sought post-conviction relief in state court. That request was denied, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed. On August 12, 2016, Mr. Vue filed a 28 U.S.C. § 2241 petition in the United States District Court for the Western District of Oklahoma seeking relief from an immigration removal order and raising claims of ineffective assistance of counsel. See Ong Vue v. Allbaugh, 682 F. App’x 636, 638-39 (10th Cir. 2017). The district court construed Mr. Vue’s petition as a request for relief under § 2254 and dismissed 2 Under Mr. Vue’s original sentence, the 20-year terms were to run concurrently with each other but consecutively to the life sentence. The Oklahoma state trial court granted Mr. Vue’s request to modify the sentence, ordering that one of the 20-year terms would run concurrently with the life sentence. See Ong Vue v. Allbaugh, 682 ...

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