FILED

United States Court of Appeals

Tenth Circuit

June 24, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

 

HAROLD D. HORNSBY,

 Petitioner - Appellant,

v.

EDWARD EVANS,

 Respondent - Appellee. 

No. 10-5054

ORDER

Before Chief Judge BRISCOE, Judge TACHA, and Judge TYMKOVICH, 

Circuit Judges.

This matter is before the court on the appellant’s response to the court’s

April 26, 2010 order to show cause. 

In Hornsby v. Sirmons, No. 07-5057 (10 Cir., June 28, 2007), this court th

directed that “any further applications, motions, or other filings by Mr. Hornsby

collaterally attacking his convictions in state case Nos. CRF-90-3198 and/or CRF92-170 will be deemed denied on the thirtieth calendar day after filing unless this

court otherwise orders.” Further, the court warned Mr. Hornsby that “[i]f [he]

persists in filing additional § 2254 petitions, additional motions or applications

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for leave to file second or successive § 2254 petitions, or other filings challenging

these convictions, we may consider imposing monetary sanctions.” Id. In

addition, in Hornsby v. Evans, No. 08-5178 (10 Cir. May 13, 2009), after th

discussing Mr. Hornsby’s extensive filing history, the court cautioned him that

“[a]nother abusive filing will require us to impose monetary sanctions.” 

In the present appeal (opened on April 26, 2010), Mr. Hornsby seeks

review of orders issued in Northern District of Oklahoma Case No. 95-CV-940 - a

§ 2254 proceeding challenging his state court convictions in CRF-90-3198, CRF92-170, and CRF-90-461. 

Based upon its directives in Hornsby v. Sirmons, No. 07-5057 (10 Cir.

th

June 28, 2007), and Hornsby v. Evans, No. 08-5178 (10 Cir. May 13, 2009), this th

court issued an order directing Mr. Hornsby to show cause why the filing

restrictions imposed by this court in Case No. 07-5057 should not apply and why

this appeal should be allowed to proceed. The order also directed Mr. Hornsby to

show cause why monetary sanctions should not be imposed. Mr. Hornsby has

responded, apparently arguing that he is not attempting to challenge his

convictions in CRF-90-3198 or CRF-92-170 and that this court has jurisdiction

over this appeal, based upon 28 U.S.C. § 1292 (a), because it involves an

interlocutory injunctive order. 

Upon consideration of Mr. Hornsby’s response and upon review of its file

in this matter, the court concludes that this appeal constitutes yet another attempt

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by Mr. Hornsby to present collateral challenges to the convictions referenced by

this court in Case No. 07-5057. Accordingly, the court will construe this appeal

as an application for leave to file a second or successive § 2254 habeas petition

and, pursuant to the court’s directives in 07-5057, will deem it DENIED. This

denial is not subject to review through rehearing, appeal, or writ of certiorari. 

See 28 U.S.C. § 2244 (b)(3)(E). 

This court has previously warned Mr. Hornsby against future repetitive,

abusive filings and has cautioned him that such filings may result in the

imposition of monetary sanctions. The court sees nothing in his response to the

April 26, 2010 show cause order to indicate that such sanctions should not be

imposed in the present matter. 

Therefore, the court imposes a sanction in the amount of $250.00, payable

to the clerk of this court. Mr. Hornsby may not proceed with any future civil

matters filed with this court arising from Northern District of Oklahoma Case No.

95-CV-940, or otherwise involving the state court convictions challenged in that

case (the convictions in state court cases no. CRF-90-3198 and/or CRF-92-170

and/or CRF-90-461) unless and until this $250.00 sanction is paid and Mr.

Hornsby provides this court with proof of such payment. 

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See Christensen v. Ward, 916 F. 2d 1485 (10 Cir. 1990). th

Entered for the Court

ELISABETH SHUMAKER, Clerk of Court

by:

Christine Van Coney

Counsel to the Clerk

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