Opinion
No. CIV-20-932-F
11-23-2020
DAVID BRIAN MORGAN, Petitioner, v. LUKE PETTIGREW, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed a Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). United States District Court Judge Stephen P. Friot has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned has examined the Petition and taken judicial notice of various other records. For the reasons discussed below, the Court should DISMISS the Petition for lack of jurisdiction.
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").
I. PROCEDURAL BACKGROUND
On March 30, 2011, an Oklahoma County District Court convicted Petitioner on thirteen counts, including rape, molestation, kidnapping, and weapons possession. (ECF No. 1:1) (the underlying conviction). In this Court, Mr. Morgan has filed a litany of pleadings challenging this conviction. In Case No. CIV-19-482-R, the Court outlined Mr. Morgan's history thus:
Petitioner has persistently challenged th[e] [2011] conviction, under many guises, in this Court. For example, in 2014, Petitioner filed his first § 2254 petition, which the Court dismissed as untimely. See Morgan v. Addison, No. CIV-14-337-R, 2014 WL 2197995, at *1 (W.D. Okla. May 27, 2014) (unpublished district court order). The Tenth Circuit denied a certificate of appealability and dismissed the appeal. See Morgan v. Addison, 574 F. App'x 852 (10th Cir. 2014). Thereafter, Petitioner attempted to challenge his conviction through: (1) a "Writ of Coram Nobis" in July 2015; (2) an "All Writs Act" in November 2015; (3) a "Post Conviction Application, Extraordinary Writ" in June 2016; (4) a 28 U.S.C. § 2255 action in August 2016; (5) a "Post-Conviction Motion for Modification under Liberty Violation" in January 2017; (6) another § 2254 action in March 2017; and (7) a "Post Conviction Motion to File § 2241(c) Prosecutorial Misconduct" in July 2017. See Morgan v. Bear, No. CIV-17-797-R, 2018 WL 2210449, at *1-2 (W.D. Okla. Apr. 13, 2018) (unpublished report and recommendation) (chronicling Petitioner's attempts to challenge his State court conviction in federal court), adopted, 2018 WL 2209526 (W.D. Okla. May 14, 2018) (unpublished district court order). The Court dismissed several of these actions as unauthorized second or successive habeas petitions. See id., *1-2, 4. The Tenth Circuit Court of Appeals has denied Petitioner's request to file a successive § 2254 habeas petition on at least one occasion. See id., *2. Finally, and most recently, Petitioner challenged his conviction in an action invoking a "Writ of Qui Tam" and a "Writ of Ad Subjiciendum," in this Court on February 22, 2019. See Morgan v. United States, Case No. CIV-19-171-F, [Doc. No. 5]. A Report and Recommendation, recommending that the action be construed as arising under 28 U.S.C. §
2254 and then dismissed as second or successive, is pending. See id., [Doc. No. 7].Morgan v. State of Oklahoma, No. CIV-19-482-R, 2019 WL 3210600, at *2 (W.D. Okla. May 29, 2019). On July 16, 2019, the Court dismissed Petitioner's habeas action in Case No. CIV-19-482-R as second and successive and entered judgment accordingly. ECF Nos. 13 & 14, Morgan v. State of Oklahoma, Case No. CIV-19-482-R (W.D. Okla. July 16, 2019).
The final referenced Report and Recommendation was subsequently adopted on June 25, 2019. See Morgan v. United States, Case No. CIV-19-171-F, ECF No. 12. On October 2, 2019, the Tenth Circuit denied Petitioner's request for a certificate of appealability. Morgan v. State of Okla., 778 F. App'x 610 (10th Cir. 2019). --------
Following CIV-19-482-R, Petitioner filed another action in this Court, CIV-19-929-R, once again challenging the underlying conviction. The Court construed the action, in part, as arising under 28 U.S.C. § 2254 and dismissed the habeas claims for lack of jurisdiction as a second or successive habeas petition filed without authorization from the Tenth Circuit Court of Appeals. See ECF Nos. 16 & 17, Morgan v. State of Oklahoma, Case No. CIV-19-929-R (W.D. Okla. Jan. 24, 2020). The Tenth Circuit Court of Appeals denied a certificate of appealability on the habeas claims. See ECF No. 33, Morgan v. State of Oklahoma, Case No. CIV-19-929-R (W.D. Okla. May 13, 2020).
II. THE CURRENT ACTION
On September 14, 2020, Mr. Morgan filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254, once again challenging the underlying conviction. (ECF No. 1). On September 16, 2020, Petitioner filed a "Motion to File Default Judgment." (ECF No. 4). On September 24, 2020, Petitioner filed a supplement to the Petition via a "Motion to Add to Habeas." (ECF No. 6). On September 29, 2020, Mr. Morgan filed a "Motion to Change Respondent," subtitled "Petitioner Changes Habeas to Rule 60 B for Fraud, Inadvertent Discovery and RICO." (ECF No. 8). In that pleading, Mr. Morgan has moved to "Change [the] Habeas [Petition] to Rule 60 B [motion]" and "dismiss without prejudice his habeas § 2254 and change it to attack his conviction." (ECF No. 8:1, 6). Although Mr. Morgan has attempted to couch ECF No. 8 as a Rule 60(b) motion, the Court should conclude that it is, instead, another supplement to the Petition.
Federal Rule of Civil Procedure 60(b) provides:
Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:Fed. R. Civ. P. Rule 60(b).
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
In Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006), the Tenth Circuit Court of Appeals announced a substantive rule dictating "when, ... a pleading denominated a Rule 60(b) motion that arises within a habeas context should be treated as a second or successive habeas petition and when it should be treated as a 'true' 60(b) motion." The Court stated:
Under Gonzalez [v. Crosby, 545 U.S. 524 (2005)], a 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction. Conversely, it is a "true" 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, id. at 2648 n. 4; or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.
Some examples of Rule 60(b) motions that should be treated as second or successive habeas petitions because they assert or reassert a federal basis for relief from the underlying conviction include: a motion seeking to present a claim of constitutional error omitted from the movant's initial habeas petition; a motion seeking leave to present "newly discovered evidence" in order to advance the merits of a claim previously denied; or a motion "seek[ing] vindication of" a habeas claim by challenging the habeas court's previous ruling on the merits of that claim.
By contrast, a 60(b)motion that challenges only the federal habeas court's ruling on procedural issues should be treated as true 60(b) motion rather than a successive petition. Thus, for example, a motion asserting that the federal district court incorrectly dismissed a petition for failure to exhaust, procedural bar, or because of the statute of limitations constitutes a true 60(b) motion.
A Rule 60(b) motion asserting fraud or other defect in the integrity of the federal habeas proceeding may also constitute a true 60(b) motion, although this type of motion requires a more
nuanced analysis. For example, whether a 60(b) motion that alleges a defect in the integrity of the habeas proceeding based upon a claim of fraud on the court constitutes a true 60(b) motion depends on the fraud alleged. If the alleged fraud on the court relates solely to fraud perpetrated on the federal habeas court, then the motion will be considered a true 60(b) motion. Thus, an allegation that the state presented fraudulent testimony before the habeas court that was separate and distinct from any previous fraud alleged to have tainted the initial conviction or direct appeal may be the subject of a true 60(b) motion. However, if the fraud on the habeas court includes (or necessarily implies) related fraud on the state court (or the federal district court that convicted and/or sentenced the movant in the case of a § 2255 motion), then the motion will ordinarily be considered a second or successive petition because any ruling would inextricably challenge the underlying conviction proceeding.Spitznas, at 1215-16 (footnote and internal citations omitted).
In ECF No. 8, Mr. Morgan alleges "he should have been tried in federal court because he is an Indian and the offense occurred in Indian Country." (ECF No. 8:1). According to Petitioner, for over 30 years the State of Oklahoma has engaged in "fraudulent behavior" by prosecuting cases that occurred in "Indian Country"—cases like his, which should have been prosecuted in federal court. (ECF No. 8:1, 6). Because these allegations constitute a direct attack on the underlying conviction-i.e.—whether jurisdiction was proper in the trial court—the Court should treat ECF No. 8 as another supplement to his habeas petition, seeking relief under 2254, rather than a "true" Rule 60(b) motion. See Spitznas, at 1216 ("if the [alleged] fraud ... includes (or necessarily implies) related fraud on the state court ... then the motion will ordinarily be considered a second or successive petition because any ruling would inextricably challenge the underlying conviction proceeding."); see also Faircloth v. Raemisch, 785 F. App'x 508, 511 (10th Cir. 2019) (noting that habeas petitioner's challenge to the state court's jurisdiction over his criminal proceedings was "not a 'true' Rule 60(b) claim, but rather, it [wa]s an unauthorized second or successive § 2254 claim because it challenge[d] his convictions.").
III. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to "summarily dismiss [a] petition without ordering a responsive pleading," Mayle v. Felix, 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).
IV. 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, at 1026. If the petitioner does not heed the statutory directive in 28 U.S.C. § 2244(b)(3)(A), the district court has no jurisdiction to consider his second or successive filing. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
As stated, Mr. Morgan has previously challenged the validity of the underlying conviction via numerous habeas petitions, the most recent case being Case No. CIV-19-929-R, which the Court dismissed for lack of jurisdiction as a second or successive habeas petition filed without authorization from the Tenth Circuit Court of Appeals. See supra.
Once again, Mr. Morgan has challenged the underlying conviction by filing the instant case. See supra. Because the Petition in the instant case challenges the same conviction that has been previously challenged on numerous occasions, Mr. Morgan would have to seek permission in the Tenth Circuit Court of Appeals before proceeding in this Court. See supra, 28 U.S.C. § 2244(b)(3)(A). Mr. Morgan is obviously aware of this requirement and familiar with the procedure, as it has been explained to him on numerous occasions. See supra. Even so, it does not appear that Petitioner sought such authorization prior to filing the instant case. As a result, this Court has no jurisdiction over the Petition.
Mr. Morgan states that the case "cannot be a successive & 2254 or an A.E.D.P.A. violation as the State lacked jurisdiction to prosecute making Petitioner's sentence illegal and expired." (ECF No. 1:23). This argument has been repeatedly rejected by the Tenth Circuit Court of Appeals. See Cowan v. Crow, 804 F. App'x 893, 894 (10th Cir. 2020) (affirming dismissal of habeas petition for lack of jurisdiction as second or successive where petition challenged state court's jurisdiction); Dopp v. Martin, 750 F. App'x 754, 757 (10th Cir. 2018) ("[T]he jurisdictional nature of Dopp's claim does not exempt his § 2254 application from dismissal for lack of jurisdiction as a successive and unauthorized application."). Accordingly, dismissal of the Petition for lack of jurisdiction is appropriate.
V. PETITIONER'S MOTION TO FILE DEFAULT JUDGMENT
Approximately two weeks after Mr. Morgan filed this action, he filed a "Motion to File Default Judgment," arguing that he was entitled to release because he had not received any response from the court" on the Petition. (ECF No. 4). Based on the forgoing recommendation, the Court should deny this motion.
VI. RECOMMENDATION
The Court should: (1) DISMISS the Petition for lack of jurisdiction as an unauthorized second or successive habeas petition; and (2) DENY the Motion to file Default Judgment.
VII. NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by December 10, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are 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).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on November 23, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE