Opinion
24-CIV-426-HE
06-25-2024
JONATHAN GRAHAM, Petitioner, v. DAVID ROGERS,[1]Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Jonathan Graham (“Petitioner”), a state prisoner proceeding pro se, seeks a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Docs. 1, 9).United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 7). For the reasons set forth below, the undersigned recommends that the Court DISMISS this habeas petition for lack of jurisdiction as a second or successive habeas petition filed without Tenth Circuit authorization. See 28 U.S.C. § 2244(b).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions and summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at*3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
II. Procedural History
A. Petitioner's Oklahoma County Conviction
On January 5, 2005, Petitioner pled guilty in Oklahoma County District Court to one count of murder in the first degree (Count One), one count of rape (Count Two), and one count of burglary in the first degree (Count Three). (Doc. 9, at 1); see also Oklahoma County District Court, Case No. CF-2004-2542.The court sentenced Petitioner to life imprisonment without parole on Count One and life imprisonment on Counts Two and Three, to be served consecutively. Id. Petitioner did not appeal his conviction. (Doc. 9, at 2).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2004-2542 (Docket Sheet) (last visited May 24, 2024). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
B. Petitioner's Efforts to Obtain Post-Conviction Relief in State Court
On November 16, 2020, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court asserting that the court lacked jurisdiction over his case pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). See Oklahoma County District Court, Case No. CF-2004-2542 (see footnote 3). The Oklahoma County District Court dismissed his Application, Petitioner appealed the dismissal, and the Oklahoma Criminal Court of Appeals (“OCCA”) declined jurisdiction and dismissed the appeal on December 30, 2020. Id.; OCCA, Case No. PC-2020-875.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2020-875 (Docket Sheet) (last visited May 24, 2024).
On December 11, 2020, Petitioner filed a second Application for Post-Conviction Relief in the Oklahoma County District Court. See Oklahoma County District Court, Case No. CF-2004-2542 (see footnote 3). The Oklahoma County District Court denied his second Application, Petitioner appealed the denial, and the OCCA declined jurisdiction and dismissed the appeal on March 23, 2021. Id.; OCCA, Case No. PC-2021-152.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2021-152 (Docket Sheet) (last visited May 24, 2024).
On November 8, 2022, Petitioner filed a third Application for Post-Conviction Relief in the Oklahoma County District Court. See Oklahoma County District Court, Case No. CF-2004-2542 (see footnote 3). The Oklahoma County District Court dismissed his third Application as time barred, Petitioner appealed the dismissal, and the OCCA affirmed the dismissal on May 23, 2023. Id.; OCCA, Case No. PC-2022-1113.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2022-1113 (Docket Sheet) (last visited May 24, 2024).
C. The Previous Petition
On August 10, 2020, Petitioner filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 in this Court, challenging his Oklahoma County convictions. See Graham v. United States of America, Case No. CIV-20-828-G (W.D. Okla.) (Doc. 1, at 1, 20). Describing the petition, the Court found that:
[l]iberally construed, Petitioner seeks habeas relief based on two alleged constitutional errors relating to his state-court conviction: (1) ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984); and (2) lack of subject-matter jurisdiction, citing McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).Graham v. Pettigrew, No. CIV-20-828-G, 2022 WL 126545, at *1 (W.D. Okla. Jan. 12, 2022) (internal record citations omitted). The court found the petition untimely and dismissed it. Graham v. Pettigrew, No. CIV-20-828-G, 2022 WL 9497308, at *2 (W.D. Okla. Oct. 14, 2022). Petitioner filed a “Motion for Mandamus or in the Alternative Writ of Prohibition” seeking review of the court's decision, but the Tenth Circuit later dismissed his action for failure to prosecute. See Graham v. United States of America, Case No. 20-CIV-828-G (W.D. Okla.) (Docs. 24, 27).
D. The Instant Petition
On October 16, 2023, Petitioner filed the instant Petition. (Doc. 1, at 4).He later filed an Amended Petition (Doc. 9) in response to order of this Court (Doc. 8). In his sole ground for relief, Petitioner claims he was “deprived . . . of his Fifth Amendment right to be tried only on charges presented in an indictment returned by a grand jury” because “the indictment was insufficient because it failed to allege his Indian or non-Indian status and the Indian and non-Indian status of the victim.” (Doc. 9, at 7). In response to the question “[w]hat are you challenging in this petition,” Petitioner indicated “[t]he validity of [his] conviction or sentence as imposed.” (Id. at 2). In his request for relief, Petitioner “asks for immediate sentence vacated with prejudice.” (Id. at 12). Thus, although Petitioner's Petition is filed on the court form for a writ of habeas corpus under 28 U.S.C. § 2241, (see Doc. 9), it is clear from the information provided and the relief requested that Petitioner is seeking a writ of habeas corpus under § 2254.
See Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) (applying the prison mailbox rule to habeas petition) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
Section 2241 petitions “are generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement.” Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011). By contrast, if Petitioner seeks “to challenge the validity and constitutionality of a sentence he is currently serving,” he must file a petition pursuant to 28 U.S.C. § 2254. Watson v. McCollum, 772 Fed.Appx. 675, 678 (10th Cir. 2019).
III. Analysis
A. The Petition Is An Unauthorized Second or Successive Petition.
Because Petitioner previously challenged his state convictions under § 2254 in this Court, he needed authorization from the Tenth Circuit to file a second or successive § 2254 habeas petition. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”). Petitioner has not provided any evidence that he sought permission to file a second or successive habeas petition, and a search of the Tenth Circuit's docket does not show any application from Petitioner for such permission. This Court therefore has no jurisdiction to entertain Petitioner's second or successive habeas corpus petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to address the merits of a second or successive [ ] 28 U.S.C. § 2254 claim until [the Tenth Circuit] has granted the required authorization.”).
B. Transfer to The Tenth Circuit for Possible Authorization Is Not in the Interest of Justice.
When an action is filed in a court that lacks jurisdiction, the court “shall, if it is in the interest of justice, transfer such action or appeal to any other court . . . in which the action or appeal could have been brought at the time it was filed or noticed.” 28 U.S.C. § 1631 (emphasis added). Thus, a district court may either transfer an unauthorized second or successive § 2254 petition to the court of appeals if “it is in the interest of justice to do so under § 1631, or it may dismiss the . . . petition for lack of jurisdiction.” Cline, 531 F.3d at 1252. Under the interest of justice analysis,
factors warranting transfer rather than dismissal . . . include finding that the new action would be time barred, that the claims are likely to have merit, and that the original action was filed in good faith rather than filed after plaintiff either realized or should have realized that the forum in which he or she filed was improper.Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006) (internal quotation marks and citations omitted). “Where there is no risk that a meritorious successive claim will be lost absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the interest of justice to transfer the matter . . . for authorization.” Cline, 531 F.3d at 1252.
Transferring this case to the Tenth Circuit is not in the interest of justice. Pursuant to 28 U.S.C. § 2244(b)(3)(C), “[t]he court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C. § 2244(b)]. See Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization “only if [petitioner] is able to demonstrate that he has new claims” that meet the statutory requirements under 28 U.S.C. § 2244(b)(2)(A)-(B)).
Under 28 U.S.C. § 2244(b)(1), a court must dismiss any claims in a second or successive habeas corpus petition that were presented in a prior petition. Under § 2244(b)(2), a court must dismiss any claims presented in a second or successive habeas corpus petition that were not presented in a prior petition unless:
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)
(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(2). “[A] recent discovery of facts is not sufficient to establish that a claim was previously unripe.” Dopp v. Martin, 750 Fed.Appx. 754, 757 (10th Cir. 2018). Indeed, the exception to the bar on second or successive petitions only “applies ‘where the factual basis for a claim does not yet exist - not where it has simply not yet been discovered - at the time of a [petitioner's] first motion.'” Id. (quoting United States v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015)).
These exceptions do not apply to Petitioner's claims. First, although Petitioner styles his claim in his new Petition as one pursuant to the Fifth Amendment, the basis of his challenge rests on the holding inMcGirtv. Oklahoma, 140 S.Ct. 2452 (2020), identical to the second claim in his first petition. (Doc. 9, at 7); Graham v. Pettigrew, No. CIV-20-828-G, 2022 WL 126545, at *1 (W.D. Okla. Jan. 12, 2022). This mandates dismissal. See 28 U.S.C. § 2244(b)(1). And, even to the extent Petitioner asserts a new ground for relief, Petitioner cites no new principles of constitutional law underlying the claim he raises in the instant § 2254 habeas petition. (See Doc. 9). Moreover, Petitioner alleges only facts actually known or discoverable by him when he filed his first habeas petition in 2020. (Id.)
Because the Petition does not meet the statutory requirements for the authorization of a second or successive petition, it would be a waste of judicial resources to transfer this case to the Tenth Circuit. See In re Cline, 531 F.3d at 1252. Thus, the Court should dismiss Petitioner's § 2254 habeas petition.
IV. Recommended Ruling and Notice of Right to Object
For the foregoing reasons, it is recommended that the Petition for a Writ of Habeas Corpus (Doc. 9) be DISMISSED for lack of jurisdiction as an unauthorized second or successive petition.
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by June 14, 2024, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.