Opinion
CIV-20-1003-JD
02-11-2021
JAMES BAUHAUS, Petitioner, v. SCOTT CROW, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, filed this action for a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed without prejudice.
I. Background
In 1974, Petitioner was convicted, following a jury trial, of Murder in the First Degree. Doc. No. 1 (“Pet.”) at 1-2; Bauhaus v. State, 532 P.2d 434 (Okla. Crim. App. 1977). Petitioner was sentenced to life imprisonment. Id. Petitioner filed a direct appeal to the Oklahoma Court of Criminal Appeals, which affirmed Petitioner's conviction and sentence on February 19, 1975. Id.
In addition to at least one application for post-conviction relief Petitioner has filed with the state district court since his conviction and appeal, in 1996, Petitioner filed a petition for writ of habeas corpus with United States District Court for the Northern District of Oklahoma. Petition for Writ of Habeas Corpus, Bauhaus v. Reynolds, No. CIV-96-929-seh (N.D. Okla. Oct. 10, 1996), Doc. No. 1. In that action, Petitioner “claimed Oklahoma deprived him of due process by concealing blood and fingerprint evidence that he alleges conclusively demonstrates he is innocent of the crime; he did not receive a fast, speedy, fair, and impartial trial by an impartial jury or effective assistance of counsel; and his trial was tainted by ineffective counsel, police [and] media prejudice, non-fair-impartial trial, [and] judicial error.” Bauhaus v. Reynolds, No. 98-5054, 1998 WL 453679, at *1 (10th Cir. 1998) (quotations omitted). On March 31, 1998, the Northern District denied Petitioner's request for habeas relief. Order, Bauhaus v. Reynolds, No. CIV-96-929-seh (N.D. Okla. March 31, 1998), Doc. No. 41. Petitioner appealed the denial to the Tenth Circuit Court of Appeals, which denied his request for a certificate of appealability and dismissed his appeal on August 5, 1998. Bauhaus, 1998 WL 453679, at *2.
See Oklahoma State Courts Network, Tulsa County District Court, State v. Bauhaus, Case No. CF-1973-24, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-1973 24&cmid=3317627
In September 1998, Petitioner filed a second petition for writ of habeas corpus with the Northern District. Petition for Writ of Habeas Corpus, Bauhaus v. Oklahoma, No. CIV-98-725-TCK (N.D. Okla. Sept. 22, 1998), Doc. No. 1. Therein, Petitioner raised claims related to “alleged false testimony by two trial witnesses.” Order, Bauhaus v. Oklahoma, No. 98-5196 (10th Cir. Dec. 18, 1998). The court transferred the matter to the Tenth Circuit Court of Appeals, which denied Petitioner “permission to file a second or successive § 2254 petition.” Id.
On June 30, 2000, Petitioner filed a third petition for writ of habeas corpus with the Northern District. Petition for Writ of Habeas Corpus, Bauhaus v. Oklahoma, No. CIV-00-543-TCK-FHM (N.D. Okla. June 30, 2000), Doc. No. 1. Therein, Petitioner argued that “his conviction and sentence are invalid because the in-court identification contradicted descriptions made of the suspect soon after the crime. He also contend[ed] that his sentence should be reduced because of a comment made by the prosecutor at trial pertaining to the crime rate.” Order at 1, Bauhaus v. Oklahoma, No. 00-5146 (10th Cir. Sept. 14, 2000). The court transferred the matter to the Tenth Circuit Court of Appeals, which concluded that Petitioner's “identification argument is merely a rehashing of the arguments presented in his earlier attempts to obtain habeas relief. As for his prosecutorial misconduct contention, the law and the facts were available when the first § 2254 petition was filed in 1998.” Id. at 2. Accordingly, the court denied Petitioner authorization to file a second or successive § 2254 petition. Id.
Petitioner filed a fourth petition for writ of habeas corpus with the Northern District on September 21, 2000. Petition for Writ of Habeas Corpus, Bauhaus v. Oklahoma, No. CIV-00-813-joe-FHM (N.D. Okla. Sept. 21, 2000), Doc. No. 1. On October 17, 2000, the court dismissed the action based on Petitioner's failure to seek and obtain authorization from the Tenth Circuit to file a second or successive habeas action. Order at 2-3, Bauhaus v. Oklahoma, No. CIV-00-813-joe-FHM (N.D. Okla. Oct. 7, 2000), Doc. No. 2.
Petitioner filed his present Petition on October 2, 2020, raising grounds similar to those raised in his previous actions. Specifically, he contends the State concealed exculpatory evidence including blood/DNA evidence and a third eyewitness, Petitioner does not match descriptions given of the suspect soon after the crime occurred, police forced eye-witnesses to change their stories before trial regarding their suspect descriptions, and ineffective assistance of counsel. Pet. at 6, 7-8, 9, 11,
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[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). Petitioner has such notice by this Supplemental Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Supplemental Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 932229, 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).
III. Second or Successive Habeas Petitions 28 U.S.C. § Section 2244(b) limits the circumstances in which a petitioner may proceed with a second or successive habeas corpus action under § 2254:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed 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.
(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.28 U.S.C. § 2244(b)(1)-(3)(A). “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 Court of Appeals] has granted the required authorization.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008); see 28 U.S.C. § 2244(b)(2), (b)(3)(A).
IV. Analysis
As previously explained, Petitioner has already sought habeas relief regarding his conviction in Case No. CF-1973-24. See supra. Further, each of his current grounds for relief were presented in his previous petitions, which Petitioner appears to specifically acknowledge herein. Pet. at 7, 9, 10, 12, 14-15. A claim that “was presented in a prior application” under § 2254, and then is “presented in a . . . successive habeas corpus application under” that statute, “shall be dismissed.” 28 U.S.C. § 2244(b)(1); see, e.g, Hall v. Falk, 535 Fed.Appx. 762, 763 (10th Cir. 2013); Allen v. Massie, 236 F.3d 1243, 1244-45 (10th Cir. 2001).
Even presuming § 2244(b)(1) did not operate to preclude this Court from review of the Petition, Petitioner does not assert a basis to meet the standards set out in § 2244(b)(2) allowing the review of previously unraised grounds for relief as he does not rely on a new rule of constitutional law nor that the factual predicate underlying his claims was only recently discovered. Indeed, Petitioner states that he has been asserting these same claims for 50 years. Pet. at 12; see also Pet. at 14-15.
District courts may either dismiss an unauthorized second or successive § 2254 habeas petition for lack of jurisdiction, or they may transfer them to the Tenth Circuit if it is in the interest of justice to do so. In re Cline, 531 F.3d at 1252. “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.” Id.
Here, the interest of justice does not require transfer of this action for authorization because the Tenth Circuit has already determined Petitioner does not meet the statutory requirements of 28 U.S.C. § 2244(b)(2) and has denied him authorization. Accordingly, it is recommended Petitioner's habeas action be dismissed without prejudice for lack of jurisdiction.
RECOMMENDATION
Based on the foregoing findings, the undersigned recommends Petitioner's action be dismissed without prejudice. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by March 3rd, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein..