Opinion
CIV-24-257-R
05-17-2024
LONNIE LOVE, Petitioner, v. KAMERON HARVANEK, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction and also seeking an evidentiary hearing. (ECF Nos. 1 & 4). United States District Judge David L. Russell has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Petition and Mr. Love's request for an evidentiary hearing be DENIED.
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. FelX, 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. PROCEDURAL BACKGROUND
On June 23, 2015, in Case No. CF-2013-218, a Caddo County District Court convicted Petitioner of sexual abuse of a child under twelve. (ECF No. 1:1). On October 5, 2016, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. (ECF Nos. 1:2). On July 17, 2017, in this Court, Petitioner filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. See ECF No. 1, Love v. Martin, Case No. CIV-17-761 (W.D. Okla. July 17, 2017). On November 2, 2018, Judge Russell denied the habeas petition on the merits and entered judgment accordingly. See id., ECF Nos. 24 & 25. On March 11, 2024, Mr. Love filed a second habeas petition in this Court, once again challenging the validity of his conviction in Caddo County Case No. CF-2013-218. 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 Cine, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
As stated, this Court previously denied a habeas Petition filed by Mr. Love which challenged the validity of the same conviction which is the subject of the instant Petition. As a result, Mr. Love would have to seek authorization in the Tenth Circuit Court of Appeals before proceeding in the instant case. See supra, 28 U.S.C. § 2244(b)(3)(A). But because it does not appear that Petitioner has sought such authorization prior to filing the instant case, this Court has no jurisdiction over the current Petition.
Mr. Love acknowledges that he has filed a previous petition for habeas relief but suggests that he is entitled to proceed in this Court without seeking authorization in the Circuit because he is “actually innocent.” See ECF No. 2:3 (“The instant Memorandum asserts the procedural foundation for the Petitioner's entitlement to file a successive writ of habeas corpus, invoking the exceptions to the procedural bar on the basis of actual innocence.”). Although actual innocence may serve as a gateway to overcome untimeliness and procedural default, it does not serve as a gateway by which a habeas petitioner may bypass receiving authorization from a circuit court before filing a second or successive habeas petition. See Davis v. Brownbac, 646 Fed.Appx. 637, 640 (10th Cir. 2016) (“Davis [claims he] made a showing of actual innocence allowing him to avoid the time bar in § 2244(d) . . . [b]ut that is irrelevant to the fatal deficiency in his second or successive habeas claims, which was lack of authorization by this court under § 2244(b)(3), not untimeliness.”).
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 Cine, 531 F.3d at 1252. 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 Cline, 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 Cine, at 1251. Upon consideration of these factors, the Court concludes a transfer is not in the interest of justice because Petitioner has not satisfied the high evidentiary hurdle to prove his claim of “actual innocence.”
“[A] credible showing of actual innocence” based on newly discovered evidence “may allow a prisoner to pursue his constitutional claims” as to his conviction, under an exception to 28 U.S.C. § 2244(d)(1)-established for the purpose of preventing a miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Successful actual-innocence claims, however, are rare due to the demanding evidentiary requirements for such claims. See id. at 383, 392, 401; House v. Bel, 547 U.S. 518, 538 (2006). “[Prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bel, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accordMcQuggin v. Perkins, 569 U.S. at 399 (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims must be based on “factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Here, in support of his “actual innocence" argument, Mr. Love states:
Petitioner's successive petition is grounded in the presentation of new evidence that substantiates a credible claim of actual innocence, thereby fulfilling the criteria set forth in Schlup and House for circumventing the procedural bar. . . . The Petitioner's filing of a successive writ of habeas corpus is both procedurally valid and substantively warranted. The new evidence supporting his actual innocence claim necessitates a thorough reevaluation of his conviction to uphold the principles of due process and justice enshrined in our legal system.(ECF No. 2:5). But the problem with Mr. Love's argument is that he fails to explain what exactly, his “new evidence" consists of, leaving the Court to speculate in this regard. And without any specific information regarding this “new evidence," Petitioner does not satisfy the high standards required to accompany a claim of actual innocence. As a result, it does not appear that Petitioner would be able to satisfy the requirements for prior authorization under 28 U.S.C. § 2244(b)(2). Accordingly, the Petition should be dismissed for lack of jurisdiction and not transferred to the Tenth Circuit Court of Appeals.
28 U.S.C. § 2244(b)(2) states: (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.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, the Court should: (1) deny the Petition and Mr. Love's request for an evidentiary hearing and (2) decline transfer to the Tenth Circuit Court of Appeals.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 26, 2024, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is 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).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.