Opinion
CIV-20-757-JD
09-18-2020
LUTHER BARNETT, Petitioner, v. STATE OF OKLAHOMA, et al., Respondents.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). U.S. District Judge Jodi W. Dishman has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned has examined the Petition and taken judicial notice of various state court records. After review, the undersigned recommends dismissal of the Petition.
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”).
I. 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).
II. BACKGROUND
In March 1989, following a jury trial, an Oklahoma County District Court convicted Mr. Barnett of assault and battery with intent to kill, after two former felony convictions, in Case No. CF-1988-2006. Barnett v. Hargett, 174 F.3d at 1131; ECF No. 1:1. Petitioner was deemed competent for his trial in March 1989, was determined incompetent thereafter, and was not sentenced until August 1989, when he regained competency. See Barnett v. Hargett, 174 F.3d at 1131.
See also https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1988-2006 (August 17, 1989 entry of Judgment and Sentence).
On June 30, 1997, Mr. Barnett filed a petition in this court under 28 U.S.C. § 2254 seeking habeas relief. See ECF No. 2, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. June 30, 1997). There, Petitioner alleged: (1) two procedural competency claims- that the state court failed to hold a competency hearing and the denial of said hearing was based on application of the wrong standard and (2) his appellate counsel was ineffective for not pursuing a procedural competency claim in a petition for rehearing in his direct appeal. Barnett v. Hargett, 174 F.3d at 1132-1134. On April 30, 1998, United States District Judge Wayne Alley granted a conditional writ, allowing the State ninety days to conduct a feasibility determination hearing and, if a retrospective competency determination was feasible, another ninety days to conduct such a hearing or set the case for a new trial. ECF No. 35, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. April 30, 1998). The failure to make the requisite determination would result in the Petitioner's release from custody. See Barnett v. Hargett, 174 F.3d at 1131; see also ECF No. 35, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. April 30, 1998).
The Respondent appealed, the Tenth Circuit affirmed, and on June 17, 1999, Judge Alley directed the State to comply with his original order. See Barnett v. Hargett, 174 F.3d 1128; ECF No. 64, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. June 17, 1999). Following an extension of time, the state district court conducted the feasibility hearing on October 27, 1999. See ECF No. 6:7, Barnett v. Hargett, Case No. CIV-99-1602 (W.D. Okla. Dec. 14, 1999). Other extensions of time were granted and the State was ultimately given until May 24, 2000 to hold the competency hearing. See id.
Apparently unhappy with the delay, on September 15, 1999, Mr. Barnett filed another habeas petition in this Court under 28 U.S.C. § 2254. See ECF No. 1, Barnett v. Hargett, Case No. CIV-99-1602 (W.D. Okla. Sept. 15, 1999). In the petition, Mr. Barnett argued that the State of Oklahoma had violated the Tenth Circuit's mandate, by failing to hold a timely hearing or new trial. See ECF No. 6:7, Barnett v. Hargett, Case No. CIV-991602 (W.D. Okla. Dec. 14, 1999). The magistrate judge recommended summary dismissal of the petition, noting that the record belied any assertion that the State of Oklahoma was responsible for any delay in holding either the feasibility hearing or the competency hearing. See ECF No. 6:3-8, Barnett v. Hargett, Case No. CIV-99-1602 (W.D. Okla. Dec. 14, 1999). In doing so, the Court explained that the petition would not be considered “second or successive” requiring dismissal and/or authorization from the Tenth Circuit Court of Appeals. See ECF No. 6:5, n.2, Barnett v. Hargett, Case No. CIV-99-1602 (W.D. Okla. Dec. 14, 1999). The District Judge adopted the magistrate judge's recommendation and dismissed the case. See ECF No. 7, Barnett v. Hargett, Case No. CIV-99-1602 (W.D. Okla. Jan. 10, 2000).
Under 28 U.S.C. § 2244(b)(3)(A), a prisoner may not file a second or successive § 2254 habeas claim unless he first obtains an order from the court of appeals authorizing the district court to consider the claim.
On March 8, 2002, a jury found that Mr. Barnett had been competent to stand trial in 1989. On March 12, 2002, the trial court made findings to this effect and signed a verdict accordingly. On March 27, 2002, Petitioner filed a Notice of Intent to Appeal in the Oklahoma Court of Criminal Appeals (OCCA). On September 18, 2003, the OCCA dismissed the appeal, finding that it had lacked jurisdiction because the lower court decision arose out of the federal lawsuit.
See https;//wwwioscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-19882006 .
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1988-2006 .
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2002- 402&cmid=81837.
See https//wwwoscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2002402&cmid=81837 (OCCA docket entry); see also ECF No. 104, Barnett v Hargett, Case No. CIV-97-1072, (W.D. Okla. Feb. 11, 2004) (Order from Tenth Circuit detailing the OCCA's reason for dismissing the 2002 appeal).
In Case No. CIV-97-1072, on November 13, 2003, Petitioner filed a “Motion for Leave to File Motion to Reopen Case/Modification of Court Orders” requesting his release from custody because the State had failed to hold a timely hearing pursuant to the Court's original order. See ECF No. 102, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. Nov. 13, 2003). In ruling on the motion, Judge Alley stated that to the extent Mr. Barnett was seeking to challenge the retrospective competency hearing, he would have to obtain authorization from the Tenth Circuit Court of Appeals to file a second or successive habeas petition. See ECF No. 103, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. Nov. 13, 2003). Mr. Barnett sought such authorization in the Tenth Circuit Court of Appeals, but ultimately, that court deemed authorization unnecessary, concluding that any challenge stemming from the conditional grant of his first habeas petition would not constitute a “second or successive” petition. See ECF No. 104, Barnett v. Hargett, Case No. CIV-97-1072 (W.D. Okla. Feb. 11, 2004).
On August 3, 2020, Mr. Barnett filed the instant habeas petition, seeking relief under 28 U.S.C. § 2254. (ECF No. 1). In the Petition, Mr. Barnett again challenges the legality of the 1989 conviction in Oklahoma County District Court. (ECF No. 1). In the Petition, Mr. Barnett presents three Grounds for relief:
1. the trial court lacked jurisdiction over his case;
2. ineffective assistance of counsel; and
3. a violation of Double Jeopardy.(ECF No. 1:5-8).
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, 731 F.3d at 1026. If the petitioner does not heed this statutory directive, the district court has no jurisdiction to consider his second or successive filing. See In re Clne, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
As stated, Mr. Barnett previously challenged the validity of the underlying conviction via a habeas petition in Case No. CIV-97-1072 (W.D. Okla.). See supra. And subsequent to that filing, Mr. Barnett filed: (1) another habeas petition in this Court in Case No. CIV-99-1602 and (2) a motion in Case No. CIV-97-1092 which was suggestive of a request for habeas relief. See supra. But as discussed, neither pleading was or would be considered “second or successive, ” requiring authorization from the Circuit Court. See supra. The same cannot be said for the instant Petition. Because the Petition in the instant case challenges the same conviction that was challenged and decided on the merits in Case No. CIV-97-1072, Petitioner would have to seek authorization in the Tenth Circuit Court of Appeals before proceeding now. See supra, 28 U.S.C. § 2244(b)(3)(A). Mr. Barnett is obviously aware of this requirement and familiar with the procedure, as he filed for authorization to challenge the retrospective competency hearing pursuant to Judge Alley's directive in ruling on Petitioner's “Motion for Leave to File Motion to Reopen Case/Modification of Court Orders.” See supra. Even so, it does not appear that Petitioner sought such authorization prior to filing the instant case. As a result, this Court has no jurisdiction over the current Petition.
Ultimately, the Tenth Circuit deemed authorization unnecessary to challenge the retrospective competency hearing, noting that such a challenge would not be considered “second or successive.” See ECF No. 104, Barnett v. Hargett, Case No. 97-1072 (W.D. Okla. Feb. 11, 2004). But the instant Petition does not appear to challenge the retrospective competency hearing, foreclosing any finding that the Tenth Circuit's reasoning would apply to allow the instant case to proceed without authorization. See ECF No. 1.
Mr. Barnett suggests that the petition is not “second or successive” because: (1) “subject matter jurisdiction can be challenged at any time” and (2) the claims did not become ripe until July 9, 2020 when the United States Supreme Court decided McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). (ECF No. 1:5-9, 13). The Tenth Circuit Court of Appeals rejected similar arguments in Dopp v. Martin, 750 Fed.Appx. 754 (10th Cir. 2018).
In Dopp, a federal district court dismissed a habeas petition brought pursuant to 28 U.S.C. § 2254 for lack of jurisdiction, finding that the application was “successive and unauthorized.” Dopp v. Martin, 750 Fed.Appx. at 756. The petitioner appealed and although he did not dispute that he had filed a previous petition, he argued that the subsequent petition was not “second or successive” because: (1) a jurisdictional claim can be brought at any time and cannot be waived or forfeited, and (2) his claim was not ripe until the Tenth Circuit issued its decision in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted, - U.S.----, 138 S.Ct. 2026 (2018). Rejecting both arguments, the Tenth Circuit affirmed the district court's dismissal.
Murphy v. Royal involved the same issue as McGirt and was resolved in the latter case. See McGirt v. Oklahoma, 140 S.Ct. at 2460 (“While Oklahoma state courts have rejected any suggestion that the lands in question remain a reservation, the Tenth Circuit has reached the opposite conclusion. Murphy v. Royal, 875 F.3d 896, 907-909, 966 (2017). We granted certiorari to settle the question.”).
Regarding the first argument, the Court stated: “[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.” Dopp v. Martin, 750 Fed.Appx. at 757 (citing Prost v. Anderson, 636 F.3d 578, 592 (10th Cir. 2011)). Regarding the “ripeness” argument, the Court stated:
Dopp also argues that his claims are not second or successive because they were not ripe until this court issued its decision in Murphy. In that case, we considered whether the land on which a crime occurred was Indian Country as defined in 18 U.S.C. § 1151. 875 F.3d at 904. After holding that Congress had not disestablished the Creek Reservation, we granted the prisoner's application for habeas relief under § 2254 because
the state court lacked jurisdiction to try him for a murder committed in Indian Country. Id. at 966.
Dopp is correct that a successive § 2254 application does not require this court's authorization if the claim asserted was not ripe at the time the prisoner filed his first habeas application. See In re Weathersby, 717 F.3d 1108, 1111 (10th Cir. 2013) (holding that a claim is not second or successive if the basis for the claim did not exist when prior proceedings under § 2255 were ongoing). To the extent Dopp contends that he did not discover the factual predicate underlying his jurisdictional claim until this court's decision in Murphy, a recent discovery of facts is not sufficient to establish that a claim was previously unripe. See United States v. Wiliams, 790 F.3d 1059, 1068 (10th Cir. 2015). In Williams we explained that the exception to the bar on unauthorized successive § 2255 motions 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 defendant's first motion.” Id. Here, Dopp does not identify any facts underlying his jurisdictional claim that did not exist in 2002 when he filed his first § 2254 application.
Nor was Dopp's jurisdictional claim unripe due to the unsettled state of the law regarding the boundaries of the Seneca-Cayuga Reservation. The law was likewise not settled when the prisoner in Murphy argued that his crime was committed in Indian Country. See 875 F.3d at 937 (applying the Supreme Court's framework to decide whether Congress has disestablished the Creek Reservation). Nothing prevented Dopp from asserting in his first § 2254 application a claim that the Oklahoma state court lacked jurisdiction because the crime he committed occurred in Indian Country. The fact that he, unlike the prisoner in Murphy, did not identify that argument does not establish that he could not have done so. Cf Prost, 636 F.3d at 588-89 (holding prisoner could have included in his first § 2255 motion a statutory construction argument that the Supreme Court later vindicated in another prisoner's § 2255 proceeding). We therefore reject Dopp's assertion that his jurisdictional claim was not ripe at the time of his initial § 2254 proceedings.Dopp v. Martin, 750 F. App'x. 754 at 757-58 (footnote omitted).
Here too, the Court should conclude: (1) the jurisdictional nature of Petitioner's claim does not exempt it from requiring authorization and (2) “a recent discovery of facts is not sufficient to establish that a claim was previously unripe” and “[n]othing prevented [Mr. Barnett] from asserting in his first § 2254 application a claim that the Oklahoma state court lacked jurisdiction because the crime he committed occurred in Indian Country.” Accordingly, dismissal for lack of jurisdiction is appropriate.
IV. TRANSFER NOT WARRANTED
When a habeas petitioner files a second or successive application for writ of habeas corpus, the district court is given the discretion, pursuant to 28 U.S.C. § 1631, to transfer the case to the appropriate Court of Appeals, if transfer of the case would be in the interest of justice, or to dismiss the case. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Before In re Clne, district courts in this circuit routinely transferred unauthorized second or successive § 2254 petitions to the Tenth Circuit Court of Appeals for the requisite authorization, often operating under the assumption that such a transfer was required by Circuit precedent interpreting § 2244(b). See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (stating that “when a second or successive petition for habeas corpus relief under § 2254 or a § 2255 motion is filed in the district court without the required authorization by this court, the district court should transfer the petition or motion to this court in the interest of justice pursuant to § 1631”). In In re Clne, however, the Tenth Circuit instructed that Coleman "should not be read to limit the traditional discretion given to district courts under § 1631.” In re Clne, at 1252. Instead, the district court may transfer the action to the Tenth Circuit for prior authorization if it is in the interests of justice to do so under § 1631, or the court may dismiss the petition for lack of jurisdiction. Id.
Section 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court 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 at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time-barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or, if it was clear at the time of filing that the court lacked the requisite jurisdiction. In re Cline, at 1251. Here, it would not be in the interest of justice to transfer this action to the Tenth Circuit Court of Appeals because Ground One is without merit and Grounds Two and Three are conclusory.
A. Ground One
In Ground One, Mr. Barnett alleges that the Oklahoma County District Court lacked jurisdiction over his state court case, rendering the conviction void. (ECF No. 1:5). According to Petitioner, his crime was committed within “Indian Country, ” and falls under the exclusive jurisdiction of a federal court. (ECF No. 1:5). Liberally construing the Petition, Mr. Barnett presents two theories in support of Ground One. Petitioner argues he is entitled to relief pursuant to: (1) the United States' Supreme Court's recent holding in McGirtv. Oklahoma, 140 S.Ct. 2454 (2020) and (2) the federal Major Crimes Act (MCA). (ECF No. 1:5). The Court should reject both arguments.
The MCA provides that, within “the Indian country, ” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a). In McGirt, the petitioner, an enrolled member of the Seminole Nation, was convicted in Oklahoma state court of three serious sexual offenses which occurred on the Creek Reservation. McGirt v. Oklahoma, 140 S.Ct. at 2459. Under the MCA, Mr. McGirt argued that the State lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. Id. Thus, the petitioner argued that he was entitled to a new trial, in federal court. Id.
The key question before the Supreme Court was whether the Creek Reservation qualified as “Indian Country” for purposes of the MCA. Id. Following a lengthy opinion outlining the history and the evolution of the land given to the Creek Nation as a reservation via a treaty with the federal government in 1833, the Supreme Court answered this question affirmatively. Id. at 2460-2482. In doing so, the Court emphasized the narrow scope of the holding, stating: “Each tribe's treaties must be considered on their own terms, and the only question before us concerns the Creek.” Id. at 2479.
Here, Mr. Barnett was convicted in Oklahoma County District Court. Oklahoma County lies outside the boundaries of the Creek Nation. Thus, the narrow holding in McGirt, which concerned only the Creek Nation, would not govern Mr. Barnett's jurisdictional challenge. To the extent Mr. Barnett seeks to invoke the general provisions of the MCA, Ground One also fails. As stated, the MCA established exclusive federal jurisdiction upon proof of three elements: (1) occurrence of the crime in “Indian Country, ” (2) by an Indian, (3) against another Indian. 18 U.S.C. § 1153(a). Here, Mr. Barnett alleges that his crime “was committed within Indian Country.” (ECF No. 1:5). But has not identified himself as a member of any Indian tribe, nor has he alleged that the crime of conviction was committed against another Indian. See ECF No. 1. In sum, the Court should conclude that: (1) Petitioner has not stated a claim for relief under McGirt or the Major Crimes Act and (2) it would not be in the interest of justice to transfer Ground One to the Tenth Circuit for consideration.
See https://www.bia.gov/sites/bia.gov/files/assets/public/webteam/pdf/idc1-028635.pdf.
B. Grounds Two and Three
In Grounds Two and Three, Petitioner has alleged ineffective assistance of counsel and a violation of Double Jeopardy. (ECF No. 1:6-8). But Mr. Barnett provides no substantive factual allegations in support of either claim, rather he limits his arguments to a recitation of the legal standards used in adjudicating each type of claim. See ECF No. 1:6-7 (identifying “Ground Two” as “ineffective assistance of counsel” and setting forth the legal framework under Strickland v. Washington, 466 U.S. 668 (1984)); ECF No. 1:8 (identifying “Ground Three” as “Double Jeopardy-prohibited by the Fifth Amendment” and quoting a portion of the Fifth Amendment). Transfer of these Grounds to the Tenth Circuit for consideration would be fruitless as they would likely be dismissed as conclusory. See Moore v. Gibson, 195 F.3d 1152, 1180 n. 17 (10th Cir. 1999) (Habeas action noting that the Court “do[es] not consider unsupported and undeveloped issues.”); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se plaintiffs must allege sufficient facts on which a recognized legal claim can be based, and that conclusory allegations will not suffice).
V. SUMMARY
The Court should treat Mr. Barnett's Petition as an unauthorized second or successive petition. Although the Court could transfer the case to the Tenth Circuit Court of Appeals for authorization to file a second or successive petition, the Court should decline to do so in the interest of justice and dismiss the action instead.
VI. RECOMMENDATION
The Court should DISMISS the petition on filing, without prejudice, based on a lack of jurisdiction and decline transfer to the Tenth Circuit Court of Appeals.
VII. 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 October 5, 2020, 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).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.