Opinion
CIV-21-10-R
02-09-2021
THOMAS EARL GREER, Petitioner, v. STATE OF OKLAHOMA, Respondent.
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 1999, Petitioner was convicted of Murder in the First Degree. Doc. No. 8 (“Am. Pet.”) at 7-8; see also Oklahoma State Courts Network, Comanche County District Court, Case No. CF-1998-470. The state court sentenced Petitioner to life without the possibility of parole. Id. Petitioner did not file a direct appeal.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF-1998-470
On June 15, 2011, Petitioner filed an application for postconviction relief in Comanche County District Court, asserting various defects in his trial proceedings. Am. Pet. at 8. The district court denied the application on July 28, 2011, and the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed that decision on October 6, 2011. Am. Pet. at 8; see also Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. PC-2011-751. The United States Supreme Court denied Petitioner's petition for writ of certiorari, as well as his subsequent petition for rehearing. Greer v. Oklahoma, 565 U.S. 1266, reh'g denied, 567 U.S. 956 (2012).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2011-751&cmid=107733
On June 4, 2012, Petitioner filed a second application for postconviction relief in Comanche County District Court, seeking a recommendation that Petitioner be permitted to file a direct appeal out of time. Am. Pet. at 8; see also Okla. Stat. tit. 22, ch. 18 app., R. 2.1(E)(1). The district court initially denied the application on October 18, 2012, and Petitioner appealed. Am. Pet. at 8. The OCCA remanded the matter to the district court for an appropriate appealable order. See Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. PC-2013-507. The district court again denied the application on May 1, 2013. See Oklahoma State Courts Network, Comanche County District Court, Case No. CF-1998-470.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2013-507&cmid=112107
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF-1998-470
On September 10, 2014, Petitioner filed a Petition for Writ of Habeas Corpus with this Court raising four grounds for relief. Greer v. Bryant, No. CIV-14-972-R, 2015 WL 4542537 (W.D. Okla. July 27, 2015). On July 27, 2015, this Court dismissed Petitioner's habeas action as untimely. Id.
On February 12, 2019, Petitioner filed a third application for postconviction relief with the state district court arguing that he had newly discovered evidence supporting involuntary intoxication, prosecutorial misconduct, and ineffective assistance of counsel. Am. Pet. at 8-9; see also Oklahoma State Courts Network, Comanche County District Court, Case No. CF-1998-470. The state court denied the application on December 12, 2019, finding that the bases for his claims do not constitute new evidence. Doc. No. 8-7. The court also found that his alleged bases for ineffective assistance of counsel did not meet the necessary standards under Strickland v. Washington, 466 U.S. 668 (1984). Id. Petitioner appealed that denial to the OCCA, which affirmed the same on March 11, 2020. Doc. No. 8-8.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&number=CF-1998-470
Petitioner initially filed the current habeas case on January 7, 2021. Doc. No. 1. The Court ordered Petitioner to amend his pleading and he filed his Amended Petition on February 5, 2021. Similar to his third post-conviction application, in this action, Petitioner contends that newly discovered evidence supports an involuntary intoxication defense, as well as prosecutorial misconduct and ineffective assistance of counsel based on a failure to investigate and failure to file an appeal.
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 Report and Recommendation, and he has an opportunity to present his position by filing an objection to the 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. 93-2229, 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. Analysis
As previously explained, Petitioner has already sought habeas relief regarding his conviction in Case No. CF-1998-470. See supra. “The filing of a second or successive § 2254 application is tightly constrained by the provisions of [the Antiterrorism and Effective Death Penalty Act].” 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. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Because this Court previously denied a habeas Petition regarding the same conviction at issue in the present Petition, Petitioner must seek authorization in the Tenth Circuit Court of Appeals before proceeding now. 28 U.S.C. § 2244(b)(3)(A). It does not appear Petitioner sought such authorization prior to filing the instant case. As a result, this Court has no jurisdiction over the current Petition.
The Tenth Circuit has explained, “When a second or successive § 2254 . . . claim is filed in the district court without the required authorization from this court, the district court may transfer the matter to this court if it determines it is in the interest of justice to do so under [28 U.S.C] § 1631, or it may dismiss the motion or petition for lack of jurisdiction.” 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 to this court for authorization.” Id. The Tenth Circuit has listed several factors to consider in deciding whether to dismiss or transfer an improperly filed action. Such factors include whether the new action would be time-barred, whether the claims are likely to have merit, and whether 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) (quotations omitted).
Upon reviewing Petitioner's grounds for relief as well as the procedural history of this case, the undersigned concludes this Court should decline to transfer this action to the Court of Appeals. First, presuming, as the state district court and the OCCA concluded, that the bases for Petitioner's grounds for relief do not constitute new evidence, then this action is untimely. See 28 U.S.C. §2244(d)(1) (setting a one-year statute of limitations from the date a petitioner's conviction becomes final to request habeas relief); see also Lowe v. Braggs, No. CIV-20-427-J, 2020 WL 5242887, at *6 (W.D. Okla. May 29, 2020) (dismissing a second or successive habeas because “the instant petition would still be considered untimely, thereby providing justification to not transfer it to the Tenth Circuit.”); Huddleston v. Coffman, No. 15-cv-02848-GPG, 2016 WL 8650109, at *3 (D. Colo. June 21, 2016) (finding that because the ground for relief raised in a second or successive habeas petition was “untimely, transfer to the Tenth Circuit for authorization is not warranted.” (citing 28 U.S.C. § 1631)).
Second, presuming the bases for his claims do constitute new evidence, Petitioner is not barred from asking the Court of Appeals for authorization to file his second or successive petition. If Petitioner can establish that the evidence was newly discovered when he filed his third application for post-conviction relief based on the same, then with the application of statutory tolling, Petitioner still has at least two months to request permission to file his second or successive habeas action based on that evidence. See 28 U.S.C. § 2244(d)(1)(D) (providing a one-year statute of limitations to file a habeas action beginning on “the date . . . the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence”); see also Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“[S]tate petitions for post-conviction relief filed within the one year allowed by [the] AEDPA will toll the statute of limitations.”).
As noted, “[w]here there is no risk that a meritorious successive claim will be lost” absent a transfer, the district court properly may exercise its discretion to dismiss the petition. In re Cline, 531 F.3d at 1252. There is no such risk here. 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 Report and Recommendation with the Clerk of this Court by March 1st, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this 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 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.