Opinion
CIV-23-822-PRW
10-04-2023
LAWERANCE MAYES, Petitioner, v. STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
Lawerance Mayes, a pro se Oklahoma prisoner housed at the Dick Conner Correctional Center, has filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in this Court challenging his Oklahoma County conviction, Case No. CF-2003-3169. Doc. 1.United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6. 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 dismissal of this habeas petition 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.
I. Procedural history.
A jury convicted Petitioner in 2005 of robbery with a firearm in the District Court of Oklahoma County, in Case No. CF-2003-3169. Doc. 1, at 1-2. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction and modified his forty-five-year sentence to thirty-five years' imprisonment. See State v. Mayes, No. CF-2003-3169, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=cf-2003-3169 (last visited Sept. 27, 2023), Docket Entry Dated July 22, 2005 (Judgment and Sentence); Mayes v. State, No. F-2005-737, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&numbe r=F-2005-737&cmid=91866 (last visited Sept. 27, 2023), Docket Entry Dated November 14, 2006 (Summary Opinion).
The undersigned takes judicial notice of docket entries in Petitioner's state-court case. 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”).
Petitioner previously filed six § 2254 habeas petitions challenging this same conviction and sentence. The first challenged the OCCA's modification of his sentence, and this Court dismissed it as untimely. See Mayes v. Province, No. CIV-09-484-C, 2009 WL 2005067 (W.D. Okla. July 8, 2009) (Mayes I). Petitioner sought a certificate of appealability from the Tenth Circuit, which the court denied. See Mayes v. Province, 353 Fed.Appx. 100, 101 (10th Cir. 2009). The Tenth Circuit then denied Petitioner's several attempts to obtain authorization to file a second or successive § 2254 habeas application regarding this conviction. See Mayes I, Doc. 34 (W.D. Okla. Sept. 14, 2012) and Doc. 36 (W.D. Okla. Nov. 24, 2020).
When asked on the habeas corpus form whether he had “previously filed any type of petition, application, or motion in a federal court regarding the conviction that [he] challenge[s] in this petition,” Petitioner wrote “N/A.” Doc. 1, at 14.
Petitioner filed a second § 2254 petition challenging the validity of the same conviction and sentence, and the Court dismissed it for lack of jurisdiction as an unauthorized second or successive § 2254 habeas application. See Mayes v. Oklahoma, No. CIV-13-1080-C, 2013 WL 6154588 (W.D. Okla. Nov. 20, 2013) (Mayes II). Petitioner appealed to the Tenth Circuit and that court denied a certificate of appealability holding this Court had “properly held that the novel label [Petitioner] had applied to this latest pleading . . . did not alter the fact that it was a second-or-successive habeas petition.” Mayes v. Oklahoma, 558 Fed.Appx. 829 (10th Cir. 2014). Petitioner also sought Tenth Circuit authorization to file a second or successive § 2254 habeas petition, which the court once again denied, noting that it was Petitioner's “seventh motion for authorization in which he has failed to meet the requirements for authorization.” Mayes II, Doc. 25, at *2 (W.D. Okla. Nov. 18, 2016). The court also warned Petitioner that any “future motion for authorization concerning this same underlying conviction or sentence in which he presents arguments in favor of authorization substantially similar” would be dismissed without further notice. Id.
In 2020, Petitioner filed his third habeas petition challenging his sentence in Case No. CF-2003-3169. This Court dismissed it for a lack of jurisdiction as an unauthorized second or successive § 2254 habeas corpus petition. Mayes v. Dowling, No. CIV-20-480-C, 2020 WL 5486770 (W.D. Okla. Sept. 10, 2020) (Mayes III). This Court warned Petitioner that “future attempts to raise issues that have been previously raised and rejected will result in imposition of filing restrictions.” Id. at *1. Petitioner did not appeal.
In 2021, Petitioner filed his fourth habeas petition challenging this same conviction and sentence along with his conviction and sentence in Oklahoma County Case No. CF-2002-6331. Mayes v. Hunter, No. CIV-21-142-C, 2021 WL 1773519, at *1-2 (W.D. Okla. Apr. 1, 2021) (Mayes IV). Magistrate Judge Gary M. Purcell recommended the Court dismiss the petition for a lack of jurisdiction. Id. at *4. The Court adopted the recommendation and dismissed the case without prejudice. Mayes IV, 2021 WL 1771880 (W.D. Okla. May 4, 2021). Petitioner did not appeal.
In 2022, Petitioner filed his fifth habeas corpus petition asking the Court to correct his “illegal sentence” in Oklahoma County Case No. CF-2003-3169. Mayes v. Dep't of Corrs., No. CIV-22-27-C, 2022 WL 1026998 (W.D. Okla. April 6, 2022) (Mayes V). The undersigned recommended dismissing the case for lack of jurisdiction as second or successive and the Court adopted that recommendation. Id. at *1. The Court imposed filing restriction on Petitioner after he failed to show cause for why the Court should not impose those restrictions. Id. at 2 & Doc. 12 (Order entered May 13, 2022). The Court prohibited Petitioner from filing “another § 2254 case in this district unless [he] is represented by counsel or, if he proceeds pro se, provides a copy of [his] authorization from the Tenth Circuit Court of Appeals.” Doc. 12. The Court further required Petitioner to submit with any new proposed petition an affidavit listing all his previous actions and providing notice of the Court's filing restriction. Id. Petitioner did not appeal.
Also in 2022, Petitioner filed his sixth habeas corpus petition again seeking to “modify” his sentence in Oklahoma County Case No. CF-2003-3169. Mayes v. Dowling, No. CIV-22-437-PRW (W.D. Okla. May 27, 2022) (Mayes VI), Doc. 1. The Court dismissed it after Petitioner failed to pay the filing fee as the Court had ordered. Doc. 10.
On September 18, 2023, Petitioner filed this § 2254 habeas petition challenging the same Oklahoma County case. Doc. 1. He is proceeding pro se, but he did not attach authorization from the Tenth Circuit Court of Appeals as this Court had ordered him to do in Mayes V.
In his petition he raises one ground for relief. Petitioner alleges “newly discovered evidence state courts lacks the jurisdiction to prosecute on tribal lands is a denial of due process of federal laws.” Doc. 1, at 5. He explains that he is a “bona fide sovereign African citizen and resides on a federal reservation and is only subjected to the federal laws of the Indian Civil Right Act and the Oklahoma Indian Welfare Act, which were created and put in full force for the Indian reservations and all the Black towns and communities and lawful residents.” Id. at 6. “These laws are still in force today,” he claims. Id. Petitioner admits he has not exhausted his claim in state court and states it is a “[f]ederal question.” Id. at 6.
II. Screening.
Rule 4 requires this Court to promptly review habeas petitions and promptly dismiss a petition “[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, Rules Governing 2254 Cases in the United States District Courts. 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).
Section 2244(b) requires that before this Court may consider a second or successive § 2254 habeas petition, Petitioner “shall move in the [Tenth Circuit] for an order authorizing the district court to consider the application.” 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.
Petitioner seeks to have this Court review the validity of his conviction and sentence in Oklahoma County Case No. CF-2003-3169. Doc. 1, at 1. But “[t]he dismissal of [his] first habeas petition as time-barred was a decision on the merits.” In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011). Thus, “any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” Id. As set forth above, Petitioner has filed numerous habeas petitions challenging this same conviction 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 this second or successive 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 it should be dismissed without prejudice. See, e.g., Dopp v. Martin, 750 Fed.Appx. 754, 757 (10th Cir. 2018) (holding that the “jurisdictional nature” of the petitioner's claim did not “exempt his § 2254 application from dismissal for lack of jurisdiction as a successive and unauthorized application”); see also Burchett v. Pettigrew, 2021 WL 5066099, at *2 (N.D. Okla. Nov. 1, 2021) (finding that, “contrary to [the petitioner's] arguments, there is no exception to § 2244(b)(3)(A)'s pre-authorization requirement for claims that challenge the trial court's subject-matter jurisdiction and the Supreme Court's decision in McGirt [v. Oklahoma, 140 S.Ct. 2452 (2020)] did not nullify” the federal court's prior decision denying the petitioner's first habeas corpus petition).
As the undersigned noted above, Petitioner has made several attempts to obtain the Tenth Circuit's authorization to file a second or successive habeas corpus petition. So Petitioner is aware of this requirement.
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. These exceptions do not apply to Petitioner's claim.
Petitioner cites no new principles of constitutional law underlying the claims he raised in his § 2254 habeas petition. See id. § 2244(b)(2)(A). Although he implicitly references McGirt and argues the Oklahoma courts had no jurisdiction over him or his crime, McGirt did not recognize a new rule of constitutional law made retroactive to cases on collateral review that was previously unavailable. See, e.g., Donahue v. Harding, No. CIV-21-183-PRW, 2021 WL 4714662, at *4 (W.D. Okla. Sept. 15, 2021) (finding “McGirt did not recognize a new constitutional right” because “the Court addressed whether the Muscogee (Creek) Nation ‘remained an Indian reservation for purposes of federal criminal law,' . . . a non-constitutional issue” (quoting 140 S.Ct. at 2459)), adopted 2021 WL 4711680 (W.D. Okla. Oct. 8, 2021); see also Cannon v. Mullin, 297 F.3d 989, 993 (10th Cir. 2002) (“[T]he only way [the Supreme Court] could make a rule retroactively applicable is through a holding to that effect.” (internal quotation marks omitted)).
And Petitioner alleges only facts known or discoverable by him at the time of his crimes and subsequent criminal proceedings and before he filed his first habeas petition. See Dopp, 750 Fed.Appx. at 757 (“To the extent Dopp contends that he did not discover the factual predicate underlying his jurisdictional claim until this court's decision in Murphy [v. Royal, 875 F.3d 896 (10th Cir. 2017)], a recent discovery of facts is not sufficient to establish that a claim was previously unripe.”). The exception to the bar only “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 [petitioner's] first motion.'” Id. (quoting United States v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015)). Petitioner does not identify any facts underlying his jurisdictional claim that did not exist in 2009 when he filed his first § 2254 application.
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 § 2254 habeas petition in its entirety.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal without prejudice of this habeas petition for lack of jurisdiction as a second or successive habeas petition without Tenth Circuit authorization. The undersigned further recommends the Court deny Petitioner's motion for leave to proceed in forma pauperis as moot. Doc. 3.
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 October 25, 2023, 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.