Opinion
CIV-23-1109-R
01-12-2024
DAVID BRIAN MORGAN, Petitioner, v. DAVID ROGERS,[1] Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed a Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). United States District Judge David L. Russell 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 and decline transfer to the Tenth Circuit Court of Appeals.
Mr. Morgan actually filed his habeas petition pursuant to 28 U.S.C. § 2241. See ECF No. 1:1. However, “[p]etitions under § 2241 are used to attack the execution of a sentence, in contrast to § 2254 habeas . . . proceedings, which are used to collaterally attack the validity of a conviction and sentence.” Mclntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (citations omitted)). Here, Mr. Morgan cites his state court conviction in Oklahoma County District Court Case No. CF-2010-7695 and alleges that he is being “held involuntarily” after having been sentenced in that case, which has deprived him of “his liberty [and] freedom” due to prosecutorial misconduct and ineffective assistance of counsel, for which Petitioner seeks release from confinement. See ECF No. 1:2-3. Based on these allegations, it is clear that Mr. Morgan is attacking the validity of his conviction and sentence, not the execution of the same. As a result, the Court should construe the Petition as arising under 28 U.S.C. § 2254.
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
In 2011, in Oklahoma County District Court Case No. CF-2010-7695, Petitioner pled guilty to thirteen counts of rape, kidnapping, molestation, and weapons possession. See Morgan v. Addison, No. CIV-14-337-R, 2014 WL 2197995, at *2 (W.D. Okla. May 27, 2014). Mr. Morgan did not file a direct appeal. Id. at *1.
In 2014, in this Court, Mr. Morgan filed his first habeas petition under 28 U.S.C. § 2254, challenging his convictions and sentences in Case No. CF-2010-7695. Id. This Court dismissed the petition as untimely. Id. Petitioner appealed, and the Tenth Circuit Court of Appeals denied a certificate of appealability. Morgan v. Addison, 574 Fed.Appx. 852, 853 (10th Cir. 2014). The United States Supreme Court subsequently denied a writ of certiorari. Morgan v. Addison, 574 U.S. 1194 (2015).
In July 2015, Petitioner filed another habeas petition challenging his same state court convictions. This Court construed the petition as seeking relief under 28 U.S.C. § 2241 and § 2254. Morgan v. Bear, No. CIV-15-782-R, Doc. 10 (W.D. Okla. Sept. 10, 2015). The Court dismissed Petitioner's section 2254 claims as unauthorized second or successive claims under 28 U.S.C. § 2244(b). Id. Doc. 10, at 2. “Since then, [Petitioner] has mounted multiple other unsuccessful challenges to his convictions and sentences, both in this circuit and others.” Morgan v. United States, 2023 WL 5622932, at *1 (10th Cir. 2023) (citing Morgan v. Oklahoma, 778 Fed.Appx. 610, 611 (10th Cir. 2019) (noting that Morgan had “filed several successive habeas petitions” and that the “action [at issue was] Morgan's latest attempt to file yet another” one); Morgan v. United States, 2022 WL 3704682 (S.D. Ind. May 13, 2022); and Morgan v. United States, 2023 WL 2496878 (D.D.C. Mar. 13, 2023)). He has also “unsuccessfully sought leave from the United States Court of Appeals for the Tenth Circuit to file a successive § 2254 petition challenging his conviction on three occasions as required by 28 U.S.C. § 2244(b)(3).” See ECF No. 7, Morgan v. Crow, No. 22-726-R (W.D. Okla. Sept. 22, 2022) (citing In re David Brian Morgan, No. 20-6123 (10th Cir. Sept. 18, 2020)). On October 16, 2023, Mr. Morgan filed the instant Petition in the District of Columbia, and that Court transferred the Petition here on November 16, 2023. The case was opened and referred to the undersigned on December 7, 2023. See ECF Nos. 1, 4 & 7.
Because Petitioner is “well known” to the Court, see ECF No. 7, Morgan, No. 22-726- R, the undersigned will not list all of Petitioner's past habeas cases.
II. 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).
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, 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 his convictions in Case No. CF-2010-7695 via numerous habeas petitions, with the most recent instance being Case No. CIV-23-1097-R. In that case, Magistrate Judge Suzanne Mitchell recommended dismissal of the petition for lack of jurisdiction as a second or successive habeas petition filed without authorization from the Tenth Circuit Court of Appeals. See ECF No. 12, Morgan v. Biden, Case No. CIV-23-1097-R (W.D. Okla. Dec. 19, 2023).
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 and dismissal of the Petition for lack of jurisdiction is appropriate.
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 Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Before In re Cline, 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 Cline, 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.
The Court should find that transferring this case to the Tenth Circuit is not in the interest of justice. Because the 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. Albaugh, 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 latest habeas petition attacking the same judgment he has previously attacked. See ECF No. 1. Because transfer to the Tenth Circuit would result in dismissal in any case, the interest of justice does not require it. Thus, the Court should thus dismiss the Petition.
V. RECOMMENDATION
The Court should: (1) dismiss the Petition for lack of jurisdiction as an unauthorized second or successive habeas petition and (2) decline to transfer the case to the Tenth Circuit Court of Appeals. Adoption of this Report and Recommendation would moot the pending Motion to Proceed In Forma Pauperis (ECF No. 2).
VI. 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 January 29, 2024, 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).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.