UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DELMA LAMAR SULLIVAN, 

 Petitioner - Appellant, 

v. 

H. A. RIOS, Warden, Lawton Correctional 

Facility, 

 Respondent - Appellee. 

No. 15-6179 

(D.C. No. 5:15-CV-00067-M) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges. 

_________________________________ 

Delma Lamar Sullivan, an Oklahoma state prisoner, applied for relief under 28 

U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. 

The district court dismissed his application. He now seeks a certificate of appealability 

(COA). See 28 U.S.C. § 2253(c)(1)(A) (state prisoner must obtain a COA to appeal 

denial of § 2254 application). We deny a COA and dismiss the appeal because his 

application challenges only the conduct of his state postconviction proceedings. 

In 1995 Mr. Sullivan was convicted by an Oklahoma jury of first-degree malice 

murder and was sentenced to life imprisonment. Eighteen years later he obtained a 

favorable affidavit from a codefendant and sought postconviction relief in state court. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 30, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

The state district court denied relief and the Oklahoma Court of Criminal Appeals 

(OCCA) affirmed. 

 Mr. Sullivan’s attorney then filed his § 2254 application, describing it as “an 

appeal” from the OCCA decision. Aplt. App. at 5. It alleged that the denial of his 

postconviction application violated his constitutional right to due process because the 

Oklahoma court erred in applying federal and state law to determine whether his 

codefendant’s affidavit was newly discovered evidence. The federal district court 

dismissed the application on the grounds that it failed to state a cognizable claim and was 

time-barred. 

To obtain a COA a petitioner must make a “substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner “can make such a showing by 

demonstrating that the issues he seeks to raise on appeal are deserving of further 

proceedings, subject to a different resolution on appeal, or reasonably debatable among 

jurists of reason.” Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000). Relief under 

§ 2254 is available if the applicant is “in custody pursuant to the judgment of a State 

court only on the ground that he is in custody in violation of the Constitution or laws or 

treaties of the United States.” 28 U.S.C. § 2254(a). 

We need not consider the timelines of Mr. Sullivan’s application because he has 

failed to state a claim cognizable in a § 2254 action. He challenges only the 

constitutionality of a state postconviction proceeding, not the constitutionality of his 

conviction. Under our precedents such a challenge is not proper under § 2254. See 

Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010) (“the district court did not err in 
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dismissing claims that related only alleged errors in the post-conviction proceedings”); 

Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (“because the constitutional error 

he raises focuses only on the State’s post-conviction remedy and not the judgment which 

provides the basis for his incarceration, it states no cognizable federal habeas claim.”). 

No reasonable jurist could debate whether Mr. Sullivan’s § 2254 application ought to 

have been granted. 

We DENY Mr. Sullivan’s request for a COA and DISMISS his appeal. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge