*

 This order is not binding precedent except under the doctrines of law of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

FILED

United States Court of Appeals

Tenth Circuit

October 1, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICKKE L. GREEN,

Petitioner-Appellant,

v.

MARTY SIRMONS, Warden,

Respondent-Appellee.

No. 08-7024

(D.C. No. CV-07-254-RAW-KEW)

(E.D. Okla.)

RICKKE L. GREEN,

Petitioner-Appellant,

v.

DAN REYNOLDS; ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents-Appellees.

No. 08-6063

(D.C. No. CV-93-702-D)

(W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
1

 Accompanying both applications for COA, Mr. Green has filed an

identical motion requesting that the entire Tenth Circuit Court of Appeals be

disqualified from deciding cases to which he is a party. We construe this as a

motion made under 28 U.S.C. § 455. This is not the first such motion Mr. Green

has made to this court. See Green v. Franklin, 1994 WL 266761 (10th Cir. 1994).

 We remind Mr. Green that judges cannot recuse themselves based on

“unsupported, irrational, or highly tenuous speculation.” Hinman v. Rogers, 831

F.2d 937, 939 (10th Cir. 1987). Because we find his allegations to fall into that

category, we deny the motions with respect to both applications for COA.

- 2 -

Rickke Leon Green is a prisoner in the Oklahoma State Penitentiary. He

has filed applications for a certificate of appealability (“COA”) in the two abovecaptioned matters that we have consolidated for decision. Because Mr. Green is

proceeding pro se, we construe his filings liberally. Andrews v. Heaton, 483 F.3d

1070, 1076 (10th Cir. 2007).1

 

1. Green v. Sirmons, No. CV-07-254 (E.D. Okla. Feb. 19, 2008). In this

action, Mr. Green sought to challenge his imprisonment in a 28 U.S.C. § 2254

petition. The district court denied his petition and he now seeks a COA before us. 

Before the district court, Mr. Green alleged that an Oklahoma state district

judge and the Oklahoma Court of Criminal Appeals obstructed his filing of postconviction petitions in the Oklahoma state courts. He asked that the federal court

“entertain and adjudicate on the merits” his state post-conviction cases. The

district court explained that, despite any alleged difficulties Mr. Green might have

experienced in the Oklahoma state court system, he did not state any violations of

his federal constitutional rights as a habeas petitioner must. Accordingly, the

district court dismissed the petition.
2

 We note that the district court granted Mr. Green’s request to proceed in

forma pauperis in this matter (No. 08-7024).

- 3 -

We may only issue a COA if the petitioner makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard,

Mr. Green must demonstrate that “reasonable jurists could debate whether (or, for

that matter agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations

omitted). In his request for COA, Mr. Green has not addressed the district court

decision or provided additional reasons for COA to be granted. In view of Mr.

Green’s pro se status, we have nonetheless reviewed the district court’s decision

with care, but we find that reasonable jurists could not debate its decision. 

Accordingly, we must deny his request for COA for substantially the same

reasons given by the district court.2

2. Green v. Reynolds, No. CV-93-702 (W.D. Okla. March 7, 2008). Mr.

Green originally brought this particular habeas action in 1993, challenging a 1971

Oklahoma state conviction. After the district court denied relief, this court

reversed on Mr. Green’s remaining claim that he was denied due process because

he was not properly certified as an adult prior to trial. Green v. Reynolds, 57 F.3d

956 (10th Cir. 1995). On that claim, this court directed the district court to issue

a writ of habeas corpus unless “the state holds a constitutionally adequate
- 4 -

[retroactive adult certification] hearing and validly concludes that petitioner

would have been prosecuted as an adult had proper, timely certification

procedures been employed.” Id. at 961 (emphasis omitted). After the state held

such a hearing, the federal district court determined that the hearing was

constitutionally adequate and that petitioner would have been prosecuted as an

adult had timely certification procedures been used; accordingly, it dismissed the

petition in a 1996 order. Mr. Green did not appeal this decision, but twelve years

later filed a Fed. R. Civ. P. Rule 60(b) motion on the grounds that the federal

district court lacked jurisdiction to issue its decision. He now seeks a COA

before us to challenge the denial of his Rule 60(b) motion.

As with Mr. Green’s first application for COA, we may only issue it if

reasonable jurists could debate whether the district court resolved the matter

correctly. Slack, 529 U.S. at 484. Layered on top of the Slack inquiry in this

application are other standards of review that stand as significant hurdles to Mr.

Green obtaining a COA in this matter. See Fleming v. Evans, 481 F.3d 1249,

1254-55 (10th Cir. 2007) (applying Slack test in conjunction with appropriate

standard of review). First, denials of Rule 60(b) motions are reviewed only for

abuse of discretion. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242

(10th Cir. 2006). Moreover, the relief afforded by Rule 60(b) is “extraordinary

and may only be granted in exceptional circumstances.” Id. Accordingly, we

may only grant COA if we find that it is debatable whether the district court
- 5 -

abused its discretion by denying a form relief that is only available in

extraordinary and exceptional circumstances. This is a difficult hurdle that Mr.

Green cannot overcome.

 Mr. Green argues that his Rule 60(b) motion should be granted based on

his contention that the federal district court lacked jurisdiction to deny his habeas

petition because the retroactive adult certification hearing was improperly held in

a state juvenile court rather than in a state district court. Finding no legal

authority to suggest that the retroactive adult certification hearing could not be

held in a state juvenile court or that it lacked jurisdiction, the federal district

court denied his 60(b) motion. Mr. Green has not addressed the district court

decision or reasoning in his application for COA. Mindful of Mr. Green’s pro se

status, we have reviewed the matter carefully, but we do not believe it debatable

that the district court abused its discretion in this matter. Accordingly, we deny

COA. 

Finally, Mr. Green seeks leave to proceed in this court in forma pauperis in

this matter (No. 08-6063). Because Mr. Green has failed to raise any “reasoned,

nonfrivolous argument” in his appeal we deny this motion. See DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). 

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge