Opinion
CIV-23-527-R
07-26-2023
RICKEY WHITE, Petitioner, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, et al., Respondents.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner Rickey White, proceeding pro se, brings this action under 28 U.S.C. § 2241, seeking habeas corpus relief from his state conviction and sentence. Doc. 1.Although filed on a § 2241 form, the petition clearly challenges the validity of Petitioner's underlying state conviction,alleging, among other related claims, inconsistency with first-degree murder guidelines. See id. Because Petitioner challenges his underlying state-court conviction, the Court construes this petition as arising under 28 U.S.C. § 2254. Tucker v. Lawson, No. CIV-20-979-J, 2020 WL 7220796, at *1 (W.D. Okla. Dec. 7, 2020) (construing petition filed under § 2241 “as arising under § 2254 because Petitioner is challenging the validity of his convictions rather than the execution of his sentence”); see also Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008) (“Section § 2241 is a vehicle for challenging pretrial detention or for attacking the execution of a sentence. A § 2254 petition, on the other hand, is the proper avenue for attacking the validity of a conviction and sentence.” (internal citations omitted)). United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. After a careful examination of the petition, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends (1) the dismissal of the petition as a second or successive habeas petition without Tenth Circuit authorization and (2) the imposition of filing restrictions.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
See State v. White, Case No. CRF-1981-83, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=choctaw&number =CRF-1981-00083&cmid=80191 (last visited July 25, 2023) (White I). The undersigned takes judicial notice of the docket report in Petitioner's state-court proceedings. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (exercising discretion “to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
Adoption of this report and recommendation would moot Petitioner's Motion to Modify the Judgment and Sentence on the Conviction, which raises largely the same arguments as his habeas petition. Doc. 6.
I. Procedural history.
A Choctaw County jury convicted Petitioner of first-degree murder on January 24, 1983. Doc. 1, at 1; see also White I. The Oklahoma Court of Criminal Appeals affirmed the conviction. White I, Docket Entry dated Aug. 15, 1985. “Since that time, Petitioner has attempted to challenge his conviction through federal habeas relief numerous times both in this Court and in the Eastern District of Oklahoma.” White v. Yates, No. CIV-18-1072-R, 2018 WL 6928921, at *1 (W.D. Okla. Nov. 28, 2018) (collecting cases), adopted, 2019 WL 99269 (W.D. Okla. Jan. 3, 2019); see also White v. Farris, No. CIV-21-868-R, 2021 WL 4901707 (W.D. Okla. Sept. 3, 2021) (dismissing habeas petition as second or successive). “Likewise, Petitioner has unsuccessfully moved the Tenth Circuit for authorization to proceed with a second or successive habeas petition at least four times.” Yates, 2018 WL 6928921, at *1 (collecting cases); see also White v. Farris, 2022 WL 454009 (10th Cir. Feb. 15, 2022) (denying certificate of appealability and noting lack of authorization).
In this case, Petitioner first claims he “was charged with first degree murder . . . without a[n] element statutes on his conviction,” which “make[s] his charge[] ineffective and his life sentence [] invalid.” Doc. 1, at 2. He argues it is unconstitutional to convict a defendant of first-degree murder under the “first degree murder guidelines” “when there is no element statutes set out.” Id. at 3, 6. He explains “the trial court has failed to specifically state[] in his judgment and sentence so he could be able to challenge it.” Id. at 3.
Petitioner next claims his first-degree murder conviction “do[es] not meet the first degree murder guidelines statutes.” Id. at 7. Though he does not specify which statute lays out said guidelines, he explains that “[e]very murder case [must] have a[n] element crime statutes, and on their judgment and sentence on the conviction.” Id.
He asks that the Court reverse his conviction and send the case back to the Choctaw County District Court for further proceedings and a new sentence. Id. at 8.
II. Screening requirement.
Rule 4 requires this Court to promptly review habeas petitions and promptly dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” And this Court must dismiss an action sua sponte if it determines that it lacks jurisdiction. See Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006).
Section 2244(b) requires that before this Court may consider a second or successive § 2254 habeas petition, Petitioner “shall move in the [Tenth Circuit] for an order authorizing the district court to consider the application.” See 28 U.S.C. § 2244(b)(3)(A). This statutory requirement is jurisdictional. 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.”).
III. Discussion.
A. Petitioner's second or successive habeas petition.
Because Petitioner previously challenged his conviction and sentence, supra § I., he needs authorization from the Tenth Circuit to file a second or successive § 2254 habeas petition, under 28 U.S.C. § 2244(b)(3)(A). See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011). Petitioner has not indicated he received prior authorization from the Tenth Circuit to file this second or successive habeas petition, nor has the undersigned determined that he has received such authorization.
B. The undersigned recommends dismissal of this petition, rather than transfer to the Tenth Circuit Court of Appeals.
A district court may either dismiss or transfer an unauthorized second or successive § 2254 habeas application. In re Cline, 531 F.3d at 1252. Under 28 U.S.C. § 1631, if a district court determines that it lacks jurisdiction, it “shall, if it is in the interest of justice, transfer such action or appeal to any other such court . . . in which the action or appeal could have been brought.” “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.” In re Cline, 531 F.3d at 1252; see also Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir.2006).
Here, the interest of justice does not require transfer of this action to the Tenth Circuit. Because Petitioner does not meet the statutory requirements for authorization, the Tenth Circuit would not grant him permission to file a second or successive habeas petition even if it were transferred. See Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization to file a successive habeas application only if Petitioner can show he meets the statutory requirements under 28 U.S.C. § 2244(b)(2)(A)-(B)). Under 28 U.S.C. § 2244(b), a court may consider second or successive habeas petitions in limited circumstances, if:
(b)(2)(A) [T]he 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). These § 2244(b)(2) exceptions do not apply to Petitioner's claims.
Petitioner cites no new principles of constitutional law underlying the claims in the instant § 2254 habeas petition. See 28 U.S.C. § 2244(b)(2)(A). Nor does Petitioner allege any new facts to support his claims for habeas relief. See 28 U.S.C. § 2244(b)(2)(B).
In the supplement to his habeas petition, Petitioner claims “actual innocence on first degree murder charged because [of] insufficien[t] evidence.” Doc. 7, at 2. This claim is based on “a conflict between two courts”-the trial court and the Oklahoma Court of Criminal Appeals-about what type of gun the murder weapon was. Id. Any conflict between the two courts about the characteristics of the murder weapon is not a newly discoverable fact. See 28 U.S.C. § 2244(b)(2)(B)(i). So Petitioner's supplemental claim does not satisfy the actual innocence exception.
Because transfer to the Tenth Circuit would result in dismissal in any case, the interest of justice does not require it, and this Court should dismiss Petitioner's habeas petition in its entirety.
C. Recommendation of the imposition of filing restrictions.
Petitioner's persistence in raising near-identical vexatious challenges to the same conviction without permission appears unyielding. And this Court has voiced its repeated frustration with Petitioner's frivolous and successive challenges.The undersigned finds filing restrictions necessary given Petitioner's history of filing successive and frivolous petitions that takes away from the time needed to consider the habeas actions brought by other prisoners.
See e.g., White v. Farris, 2021 WL 5015602, at *1 (E.D. Okla. 2021) (“Petitioner also has filed the following second or successive § 2254 habeas petitions in this Court: White v. Workman, No. CIV 12-001-RAW-KEW (E.D. Okla. Jan. 12, 2012); White v. Workman, No. CIV 12-071-RAW-KEW (E.D. Okla. Feb. 24, 2012), certificate of appealability denied, Nos. 12-7015 & 12-7023 (10th Cir. May 23, 2012); White v. Workman, No. CIV 12-196-FHS-KEW (E.D. Okla. June 13, 2012); White v. Workman, No. CIV 12-306-RAW (E.D. Okla. July 17, 2012); White v. Trammel, No. CIV 13-185-RAW-KEW (E.D. Okla. May 16, 2013); White v. Allbaugh, No. CIV 19-080-JHP-KEW (E.D. Okla. Apr. 19, 2019), authorization for second or successive petition denied, No. 19-7026 (10th Cir. May 21, 2019); White v. Crow, No. CIV 20-116-RAW-KEW (E.D. Okla. July 14, 2020), appeal docketed, No. 20-7036 (10th Cir. July 20, 2020); and White v. Farris, No. CIV 20-371-JFH-KEW (Dec. 22, 2020).”); Yates, 2018 WL 6928921, at *2 (“Petitioner has made four attempts to obtain authorization from the Tenth Circuit to file a second or successive petition, the last one as recently as April 2018.”).
The undersigned recommends that:
1. Petitioner must present all future habeas petitions, whether filed under § 2254 or § 2241, upon the form petition provided for such use in the District of its filing. No additional pages shall be attached or inserted.
2. All future petitions must include a signed and sworn attachment listing every petition or other application for post-conviction relief filed by Petitioner in this or any other court of law or equity (whether state or federal). Each case must be listed in the following manner: by style (title) of the case; docket number; court; date filed; description of the case; and disposition and date thereof.
3. All of Petitioner's petitions must include an affidavit (1) citing to the order imposing these filing restrictions; (2) stating affirmatively that he has complied with all filing restrictions; and (3) concluding with a paragraph that Petitioner has signed the petition, the list of prior litigation, and the affidavit “[i]n Accordance with Rule 11 of the Federal Rules of Civil Procedure, in full acknowledgment of the representations that are being made to the Court thereby.”
The undersigned finds these proposed restrictions leave Petitioner with adequate access to this Court for any future habeas actions and are narrowly tailored to stem his abusive and repetitious habeas litigation. Should Petitioner continue his abuse of the writ by filing actions that are in essence successive challenges to his conviction or sentence, more stringent restrictions should be considered.
Accordingly, it is recommended that the Petition be summarily dismissed with prejudice as an unauthorized second or successive § 2254 habeas petition and as an abuse of the writ.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss the petition.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before August 16, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned also advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See 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 in this matter.