Opinion
CIV-24-49-HE
02-12-2024
VITALY KOLOSHA, Petitioner, v. DAVID ROGERS, WARDEN, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Vitaly Kolosha, a pro se Oklahoma prisoner housed at the Joseph Harp Correctional Center, has filed a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus, Doc. 1, challenging his “illegal imprisonment” resulting from his Tulsa County convictions in Case No. CF-2007-3180.United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 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 the Court construe the petition as one seeking federal habeas corpus relief under 28 U.S.C. § 2254 and dismiss it for lack of jurisdiction as a second or successive habeas petition without Tenth Circuit authorization. See 28 U.S.C. § 2244(a).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
The undersigned takes judicial notice of the Oklahoma Department of Corrections' offender information database and the docket entries in Petitioner's state-court case. See https://okoffender.doc.ok.gov/;https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=cf -2007-3180 (last visited Feb. 9, 2024); see also 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. Procedural history.
A Tulsa County jury convicted Petitioner of four counts of lewd molestation in Case No. CF-2007-3180. See Kolosha v. Bear, 2015 WL 4666045, at *1 (N.D. Okla. Aug. 6, 2015) (Kolosha I). The trial court sentenced him to twenty-seven years' imprisonment. Id. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the state district court's judgment and sentence. Id.
Petitioner filed his first 28 U.S.C. § 2254 habeas corpus petition in 2012 in the United States District Court for the Northern District of Oklahoma. Id. at *2. That court denied the petition on its merits. Id. at *15-16. Petitioner sought a certificate of appealability from the Tenth Circuit, which the court denied. See Kolosha v. Bear, 645 Fed.Appx. 655, 661 (10th Cir. 2016) (Kolosha II).
Petitioner has since filed four successive habeas corpus petitions in the Northern District without prior authorization from the Tenth Circuit. That court has dismissed each case for a lack of jurisdiction. See Kolosha v. Rogers, No. 23-CV-0481-GKF-JFJ, Doc. 6, at *3-4 (N.D. Okla. Dec. 27, 2023) (construing Mr. Kolosha's 28 U.S.C. § 2241 petition as a § 2254 petition and dismissing it after listing his prior habeas cases) (Kolosha III); see also Kolosha v. Pettigrew, 2021 WL 6137360, at *2 (10th Cir. Dec. 29, 2021) (noting Mr. Kolosha had filed, at that time, “three successive § 2254 habeas petitions that the district court dismissed for lack of jurisdiction because he had not received authorization,” and had sought authorization once “to file a successive § 2254 habeas petition in 2019” that the court “denied because he failed to meet the requirements for authorization in 28 U.S.C. § 2244(b)(2)”) (Kolosha IV).
On January 16, 2024, Petitioner filed a “Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Doc. 1. Petitioner claims his “judgement and commitment are void” and that his “illegal imprisonment is a denial of due process of law under the 4, 5, 6, 8, 9 and 14 amendments of the Constitution of the United States.” Id. at 1. He asserts “actual, factual and legal innocence.” Id. He further asserts his detention and restrain[t] . . . is unlawful and unconstitutional because the prosecution suppressed exculpatory evidence and the “Tulsa Co. Prosecutor” proceeded to prosecute him based on an invalid probable cause affidavit. Id. at 1-3. He asks this Court to order his release from custody. Id. at 4.
II. Screening.
Rule 4 requires this Court to promptly review a habeas petition and dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4. 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).
A petitioner must “move in the [Tenth Circuit] for an order authorizing the district court to consider” a second or successive § 2254 habeas petition. See 28 U.S.C. § 2244(b)(3)(A). This statutory requirement is jurisdictional. See 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.”).
A. Petitioner did not move for or receive the Tenth Circuit court's authorization before filing this habeas corpus petition.
Although Petitioner has styled his petition as one proceeding under § 2241, he alleges his Tulsa County judgment and sentence is “void” and his “illegal imprisonment” violates the Constitution. Doc. 1, at 1-2. These allegations constitute “an attack on his conviction and sentence” and “must therefore be brought under § 2254.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008); see also Kolosha III, at *2 (finding that “the substance of [Mr. Kolosha's] allegations show that he is seeking relief under 28 U.S.C. § 2254 [not § 2241] because he is challenging the validity of the judgment and sentence under which he is in state custody.” (citing Leatherwood v. Allbaugh, 861 F.3d 1034, 1041-42 (10th Cir. 2017)).
Because Petitioner seeks to have this Court review the validity of his state court judgment and sentence, “any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011). As set forth above, Petitioner has filed numerous habeas petitions challenging this same judgment and sentence.
The AEDPA requires a prisoner who has previously challenged his convictions and sentences to obtain authorization from the Tenth Circuit to file a second or successive § 2254 habeas petition. See 28 U.S.C. § 2244(b)(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.”). Petitioner has not confirmed he received prior authorization from the Tenth Circuit to file his sixth habeas petition, nor has the undersigned determined that he has received such authorization. The Court, thus, has no jurisdiction to entertain Petitioner's habeas corpus petition and the Court should dismiss it without prejudice. See, e.g., Kolosha IV, 2021 WL 6137360, at *1-2 (upholding district court's dismissal of Mr. Kolosha's fourth unauthorized habeas corpus petition for lack of jurisdiction).
B. The Court should dismiss the habeas corpus petition, rather than transfer it 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.” Factors the Court considers “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, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” In re Cline, 531 F.3d at 1251. “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. at 1252; see also Trujillo v. Williams, 465 F.3d 1210, 122223 (10th Cir. 2006).
Transferring this case to the Tenth Circuit is not in the interest of justice. Because Petitioner's petition does not meet the statutory requirements for authorization, it would be a waste of judicial resources to transfer this case to the Tenth Circuit. See In re Cline, 531 F.3d at 1252; see also Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization “only if [petitioner] is able to demonstrate that he has new claims” that meet the statutory requirements under 28 U.S.C. § 2244(b)(2)(A)-(B)).
Under § 2244(b)(2), a court may consider claims presented in a second or successive habeas corpus petition that were not presented in a prior application if:
(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.Id. Petitioner does not assert that any of these exceptions apply to his allegations attacking the same judgment he has previously attacked.
Because transfer to the Tenth Circuit would result in dismissal in any case, the interest of justice does not require it. The Court should thus dismiss Petitioner's latest § 2254 habeas petition.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss this habeas petition without prejudice for lack of jurisdiction as a second or successive habeas petition without Tenth Circuit authorization.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before March 4, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner 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.