UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KEVIN L. MCKINNEY, 

 Petitioner - Appellant, 

v. 

MARK FAIRBAIRN, 

 Respondent - Appellee. 

No. 23-1004 

(D.C. No. 1:22-CV-02351-LTB-GPG) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before TYMKOVICH, EBEL, and McHUGH, Circuit Judges. 

_________________________________ 

Kevin L. McKinney, a Colorado prisoner proceeding pro se, seeks a certificate of 

appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2241 

application as an unauthorized second or successive 28 U.S.C. § 2254 habeas 

application.1

 We deny a COA. 

*

 This order is not binding precedent except under the doctrines of law of the case, 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

 Mr. McKinney sought an extension of time from the district court to file his 

notice of appeal. The district court granted the motion. Mr. McKinney’s notice of appeal 

filed January 3, 2023, is therefore timely. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 7, 2023

Christopher M. Wolpert 

Clerk of Court

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2 

I. Background 

Following a jury trial, Mr. McKinney was convicted of multiple counts stemming 

from an armed robbery of a grocery store in Arapahoe County, Colorado. He was 

sentenced to 216 years in prison. The Colorado Court of Appeals affirmed the judgment 

and the Colorado Supreme Court denied certiorari. Mr. McKinney then filed a § 2254 

habeas corpus application, alleging a due process violation because he was convicted on 

evidence seized as the result of an illegal vehicle stop. The district court denied relief, 

and we denied a COA. 

He subsequently filed an application purportedly seeking relief under § 2241. He 

brought one claim for “ILLEGAL CUSTODY,” R. at 81, and argued the trial court 

permitted evidence seized as a result of an illegal stop to be admitted as evidence, which 

violated his Fourteenth Amendment right to due process. The magistrate judge 

concluded that Mr. McKinney was challenging the validity of his state-court convictions, 

not the execution of his sentence. The magistrate judge therefore concluded that 

Mr. McKinney’s claim arose under § 2254. Because Mr. McKinney had already 

challenged his convictions under § 2254 and had not obtained authorization to file a 

second or successive § 2254 habeas application, the magistrate judge recommended 

dismissing the application for lack of jurisdiction. 

Mr. McKinney filed objections to the magistrate judge’s report and 

recommendation. The district court overruled the objections, adopted the magistrate 

judge’s report and recommendation, and dismissed the application. Mr. McKinney now 

seeks a COA to appeal from that dismissal. 

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II. Discussion 

To obtain a COA where, as here, a district court has dismissed a filing on 

procedural grounds, the movant must show both “that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and 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, 484 (2000). We need not 

address the constitutional question if we conclude that reasonable jurists would not 

debate the district court’s resolution of the procedural one. See id. at 485. 

 A prisoner may not file a second or successive § 2254 habeas application unless he 

first obtains an order from the circuit court authorizing the district court to consider the 

petition. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, a district court lacks 

jurisdiction to address the merits of a second or successive § 2254 habeas application. 

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). 

 In his COA application, Mr. McKinney contends that the state trial court 

suppressed its ruling that was favorable to the defense and the jury was not properly 

instructed, which led to a fundamentally unfair trial and violated his due process rights. 

But he fails to adequately address the district court’s reasoning for construing his § 2241 

application as a successive § 2254 application. 

We have explained that “[s]ection § 2241 is a vehicle for challenging pretrial 

detention, . . . or for attacking the execution of a sentence” and “[a] § 2254 petition, on 

the other hand, is the proper avenue for attacking the validity of a conviction and 

sentence.” Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008). 

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Mr. McKinney’s argument that his due process rights were violated due to alleged errors 

during trial is an attack on the validity of his convictions and sentences. Such a claim is 

properly brought in a § 2254 habeas application. He has therefore failed to show that 

reasonable jurists could debate the district court’s procedural ruling to treat his § 2241 

application as an unauthorized second or successive § 2254 habeas application and 

dismiss it for lack of jurisdiction. 

For the foregoing reasons, we deny a COA. We grant Mr. McKinney’s motion for 

leave to proceed on appeal without prepayment of costs or fees. 

Entered for the Court 

CHRISTOPHER M. WOLPERT, Clerk 

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