Opinion
CIV-22-83-C
03-14-2022
JOSEPH MACASTLE JACKSON, Petitioner, v. MARK BOWEN, Respondent.
REPORT AND RECOMMENDATION
SHONT. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United States District Judge Robin J. Cauthron has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Court DISMISS the Petition for lack of jurisdiction.
Mr. Jackson filed this lawsuit utilizing a form petition seeking habeas relief under 28 U.S.C. § 2241. See ECF No. 1. However, because Mr. Jackson's sole ground for relief challenges the trial court's jurisdiction, the Court should construe the action as one seeking relief under 28 U.S.C. § 2254. See Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008) (recognizing that § 2241 is not the proper vehicle to challenge state court jurisdiction over the petitioner for a crime allegedly committed in Indian country); see McIntosh v. United States Parole Commission, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions under § 2241 are used to attack the execution of a sentence, in contrast to § 2254 habeas and 2255 proceedings, which are used to collaterally attack the validity of a conviction and sentence.” (citation omitted)); Jones v. Pedigrew, No. CIV-21-290-G, 2021 WL 2815810, at *3 (W.D. Okla. Apr. 19, 2021) (noting that an attack on the trial court's jurisdiction “is an attack on [petitioner's] conviction and sentence and must therefore be brought under § 2254.”), adopted, No. CIV-21-290-G, 2021 WL 2809433 (W.D. Okla. July 6, 2021).
I. PROCEDURAL BACKGROUND
Mr. Jackson is no stranger to state or federal court following his conviction in Oklahoma County District Court, Case No. CF-1983-3152. In 2006, following a transfer from this court to the Tenth Circuit Court of Appeals for authorization to file a second or successive habeas petition, the appellate court summarized Mr. Jackson's procedural history thus:
See infra.
In 1983, Jackson was convicted by a jury of conspiracy to commit murder and first degree murder. He was sentenced to five years' imprisonment for the conspiracy offense, and life imprisonment for the murder offense, to be served concurrently. His conviction and sentence were affirmed on direct appeal. Jackson v. State, 741 P.2d 875 (Okla. Crim. App. 1987).
Mr. Jackson filed his first § 2254 petition [attacking the validity of the conviction in Case No. CF-1983-3152] ¶ 1988, which was denied on the merits. See Jackson v. Champion No. 98-6023, 1998 WL 792069, at *1 (10th Cir. Oct. 15, 1998) (describing Mr. Jackson's habeas petition history). This court affirmed the denial of his second and third petitions. See Jackson v. Champion, No. 96-6367, 1997 WL 687702 (10th Cir. Nov. 3, 1997); Jackson v. Champion, No. 93-5158, 1993 WL 482969 (10th Cir. Nov. 24, 1993) (unpublished dispositions). After the Antiterrorism and Effective Death Penalty Act of 1996 amended § 2254 to require proper appellate authorization to file a second or successive habeas petition, Mr. Jackson filed three motions directly or implicitly seeking such authorization, all of which were denied because he failed to meet the requirements set forth in 28 U.S.C. § 2244(b). See Jackson v. Workman, No. 03-5126 (10th Cir. Mar. 25, 2003); Jackson, 1998 WL 79206, at *1.
After his sixth attempt to file a second or successive § 2254 motion, this court warned Mr. Jackson that any further effort by him to begin a collateral attack on his state court conviction without satisfying the requirements set forth in § 2244(b) could lead to imposition of sanctions. Jackson, No. 03-5126, slip op. at 2. Moreover, because Mr. Jackson had filed more than five state court post-conviction filings, the Oklahoma Court
of Criminal Appeals has imposed filing restrictions on Mr. Jackson. See Jackson v. Oklahoma, 172 Fed.Appx. 838, 839-40 (10th Cir. 2006) (affirming the district court's denial of his challenges in federal court to the state court's filing restrictions).
Nevertheless, Mr. Jackson filed a § 2254 petition in federal district court on August 11, 2006. The district court determined that the petition constituted an attempt to file a second or successive § 2254 without the authorization from this court required by § 2244(b)(3), and transferred the petition here, as required by Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam).Jackson v. Dinwiddie, Case No. 06-6323 (10th Cir. Nov. 17, 2006). Ultimately, the Tenth Circuit Court of Appeals concluded that Mr. Jackson did not meet the requirements for authorization to file a second or successive § 2254 petition and denied authorization. Id. at 3-4.
On January 27, 2022, Mr. Jackson filed the habeas petition in this case, attacking the validity of his conviction by arguing a lack of jurisdiction in the trial court pursuant to McGirt v. Oklahoma, --- U.S. __, 140 S.Ct. 2452 (2020). See ECF No. 1.
In his habeas petition, Mr. Jackson does not explicitly mention McGirt, although his argument mirrors that discussed in McGirt, and Mr. Jackson states that “[t]his action presents issues that have already been raised in briefs for the state courts, ” referencing his post-conviction appeal in the Oklahoma Court of Criminal Appeals (OCCA), Case No. PC-2021-1026. (ECF No. 1:2-3). In that case, the OCCA affirmed the Oklahoma County District Court's order denying post-conviction relief based on allegations that Petitioner was entitled to relief under McGirt. See Jackson v. Oklahoma, Case No. PC-2021-1026 (Okla. Ct. Crim. App. Nov. 16, 2021); 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).
II. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading, ” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct. Likewise, courts are obligated to examine their jurisdiction sua sponte and dismiss any action where subject-matter jurisdiction is lacking. See Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006); Berryhill v. Evans, 466 F.3d 934, 938 (10th Cir. 2006).
III. UNAUTHORIZED SECOND OR SUCCESSIVE HABEAS PETITION
“The filing of a second or successive § 2254 application is tightly constrained by the provisions of AEDPA.” Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). Notably, “[b]efore a second or successive [§ 2254] application . . . 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.” 28 U.S.C. § 2244(b)(3)(A); accord Case, at 1026. If the petitioner does not heed the statutory directive in 28 U.S.C. § 2244(b)(3)(A), the district court has no jurisdiction to consider his second or successive filing. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
As discussed, Mr. Jackson has previously challenged the validity of the underlying conviction in Oklahoma County District Court Case No. CF-1983-3152. See supra. And once again, Petitioner has challenged the underlying conviction by filing the instant habeas Petition. See supra. Because the Petition in the instant case challenges the same conviction has been previously challenged, Mr. Jackson would have to seek permission in the Tenth Circuit Court of Appeals before proceeding in this Court. See supra 28 U.S.C. § 2244(b)(3)(A). But a review of the appellate court docket sheet does not show that Petitioner sought such authorization prior to filing the instant case. As a result, this Court has no jurisdiction over the Petition. To the extent Mr. Jackson argues that authorization from the Circuit is not required based on the jurisdictional nature of his claim, the Court should reject such argument. See Cowan v. Crow, 804 Fed.Appx. 893, 894 (10th Cir. 2020) (affirming dismissal of habeas petition for lack of jurisdiction as second or successive where petition challenged state court's jurisdiction); Dopp v. Martin, 750 Fed.Appx. 754, 757 (10th Cir. 2018) (“[T]he jurisdictional nature of Dopp's claim does not exempt his § 2254 application from dismissal for lack of jurisdiction as a successive and unauthorized application.”). Accordingly, dismissal of the Petition for lack of jurisdiction is appropriate.
IV. TRANSFER IS NOT WARRANTED
When faced with an unauthorized second or successive § 2254 petition, the court has two choices. It may dismiss the petition for lack of jurisdiction, or if it is in the interest of justice, it may transfer the matter to the Tenth Circuit pursuant to 28 U.S.C. § 1631. See, In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). “A transfer is not in the interest of justice when the claims raised in the successive petition clearly do not meet the requirements set forth in 28 U.S.C. § 2244(b)(2).” Crawford v. Milyard, 350 Fed.Appx. 240, 242 (10th Cir. 2009) (citing In re Cline, 531 F.3d at 1252).
The Court should conclude that Petitioner's sole ground for relief does not meet the requirements of 28 U.S.C. § 2244(b)(2). First, the claim does not rely on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). The Tenth Circuit recently denied a motion for authorization to file a second or successive § 2254 petition raising claims based upon McGirt, finding the decision did not establish a new rule of constitutional law, but even if it did, the Supreme Court did not explicitly make the rule retroactive to cases on collateral review. See In re Morgan, Case No. 20-6123 (10th Cir. Sept. 18, 2020), Order, p. 4; Jones v. Pettigrew, No. CIV-20-758, 2021 WL 640834, at *2 (W.D. Okla. Feb. 18, 2021) (declining to transfer second and successive habeas petition to the Tenth Circuit Court of Appeals for authorization because the petitioner's McGirt claim did not meet the requirements of 28 U.S.C. § 2244(b)(2)).
V. RECOMMENDATION
The Court should DISMISS the Petition (ECF No. 1) for lack of jurisdiction and decline transfer to the Tenth Circuit Court of Appeals. Adoption of this recommendation would render Petitioner's Motion for Counsel (ECF No. 4) MOOT.
VI. NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by March 31, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.