Opinion
CIV-21-1175-C
12-20-2021
JACKIE L. PETTY, Petitioner, v. SCOTT CROW, Director, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Jackie L. Petty, a pro se state prisoner housed at the James Crabtree Correctional Center, has filed a Petition for Writ of Habeas Corpus in this Court challenging his Oklahoma County conviction under 28 U.S.C. § 2254.Doc. 1. United States District Judge Robin J. Cauthron 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 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).
Petitioner has neither paid the filing fee nor moved to proceed without prepayment of the filing fee.
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.
Petitioner was convicted by a jury of first-degree murder in the District Court of Oklahoma County, in Case No. CF-2005-6689. Doc. 1, at 1-2. He was sentenced to life imprisonment. Id. at 1.
Petitioner, through counsel, filed one previous § 2254 habeas petition in this Court challenging his conviction and sentence in Case No. CF-2005-6689. See Petty v. Rudek, No. CIV-2010-1009-W, 2011 WL 1107133 (W.D. Okla. Feb. 7, 2011). United States Magistrate Judge Robert E. Bacharach recommended the petition be denied on the merits in a Report and Recommendation issued February 7, 2011. See id. at *11. After reviewing de novo the pleadings, including Petitioner's objection to the Report and Recommendation, United States District Judge Lee R. West adopted the Report and Recommendation, denied the petition for writ of habeas corpus, and entered judgment in favor of the respondent and against Petitioner. See Petty v. Rudek, No. CIV-2010-1009-W, 2011 WL 1107129 (W.D. Okla. Mar. 23, 2011). Petitioner appealed the denial of his petition to the Tenth Circuit Court of Appeals and that court denied a certificate of appealability on July 17, 2012. See Petty v. Rudek, 470 Fed.Appx. 713, 715 (10th Cir. 2012). The United States Supreme Court then denied Petitioner's writ of certiorari on January 7, 2013. See Petty v. Rudek, 568 U.S. 1088, 133 S.Ct. 856 (Mem.) (2013).
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 checked “no.” Doc. 1, at 7.
Petitioner alleged ineffective assistance of trial counsel, intimidation of jurors while investigating an attempt to bribe a juror, and insufficiency of the evidence. See Petty, 2011 WL 1107133, at *1.
Petitioner filed the instant § 2254 habeas petition challenging the same conviction and sentence and bringing two claims for relief. Doc. 1. Petitioner claims in Ground One that “Oklahoma lacked jurisdiction” because he has “some Indian Blood” and his crime occurred “within the past (Creek) Reservation” and fell within the “Major Crimes Act.” Doc. 1, at 4. In Ground Two, Petitioner claims “ineffective assistance of counsel, resulting in unfair trial” because his counsel and the court denied him “the use of 18 U.S.C. § 1152, and 1153.” Id. at 6. Petitioner admits he has not exhausted these claims in state court. Id. at 4-6.
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.”) (citation omitted).
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 undertake a second review of the merits of his murder conviction. Doc. 1. But because Petitioner previously challenged his state court conviction and sentence in this Court, he needs 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 preauthorization requirement for claims that challenge the trial court's subjectmatter 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).
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 (citing Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006)). “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, 465 F.3d at 1222-23.
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 (citing Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.1999)); see also Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization “only if he 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 28 U.S.C. § 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.28 U.S.C. § 2244(b)(2). These exceptions do not apply to Petitioner's claims.
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 states the Oklahoma courts had no jurisdiction over him or his crime, the Supreme Court case on which he implicitly relies to support his claims, McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), 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 McGirt, 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 crime 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, 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 2010 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.
As the undersigned noted above, Petitioner has not exhausted his claims in state court. But this is not one of the factors the Tenth Circuit considers in deciding whether to authorize a second or successive petition. See Dopp, 750 Fed.Appx. at 758-59 (“[E]xhaustion is not one of the factors this court would consider in deciding whether to authorize a successive § 2254 application.”).
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 advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before January 10, 2022, 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.
ENTERED.