Opinion
Case No. CIV-08-839-F.
September 18, 2008
REPORT AND RECOMMENDATION
Petitioner, appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined. For the reasons set forth below, the Court is without jurisdiction over this matter. Therefore, it is recommended that the Petition be dismissed.
I. Background
In this action, Petitioner challenges three judgments and convictions from the District Court of Canadian County, State of Oklahoma, Case Nos. CF-2000-116, CF-2001-33 and CF-2001-56, all entered, pursuant to guilty pleas, on July 10, 2001. See Petition [Doc. #1] Attachments 1-3. Petitioner received a ten-year sentence in Case No. CF-2000-116 and twenty-year sentences in the other two cases. All sentences are to run concurrently. Id.
Petitioner challenges the convictions and sentences entered in these cases on the following grounds: (1) the sentences are excessive or unduly harsh; (2) his guilty pleas were not made knowingly and voluntarily; and (3) his trial counsel rendered ineffective assistance by failing to fully inform him as to the nature and consequences of the pleas.
II. Prior Federal Habeas Action
III. Analysis
28 U.S.C. § 225428 U.S.C. § 225428 U.S.C. § 2244See 28 U.S.C. § 2244See Lopez v. Douglas, 141 F.3d 974975-76th overruled on other grounds by Spitznas v. Boone,464 F.3d 12131215th 28 U.S.C. § 2244
Until recently, district courts routinely transferred unauthorized second or successive § 2254 petitions to the Tenth Circuit Court of Appeals for the requisite authorization pursuant to 28 U.S.C. § 1631, 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"). However, the Tenth Circuit has now instructed that Coleman "should not be read to limit the traditional discretion given to district courts under § 1631." In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Instead, the district court may transfer the action to the Tenth Circuit for prior authorization if it is in the interest 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.28 U.S.C. § 1631.
Here, it would not be in the interests of justice to transfer this action to the Tenth Circuit Court of Appeals. As set forth above, Petitioner has already brought a federal habeas action pursuant to § 2254 raising the identical claims he raises in the instant Petition and the claims have been rejected as time-barred. Moreover, the Petition contains no allegations demonstrating that Petitioner could satisfy the requirements for filing a successive petition, that is: (1) that his claim relies on a new rule of constitutional law made retroactively applicable to cases pending on collateral review; or (2) that the factual predicate of his claim could not have been discovered previously through the exercise of due diligence and that clear and convincing evidence exists such that no reasonable factfinder would have found Petitioner guilty of the underlying offense. See 28 U.S.C. § 2244(b)(2). Under these circumstances, the Court finds it is not in the interests of justice to transfer this action to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631. Accordingly, it is recommended that the Petition be dismissed for lack of jurisdiction.
RECOMMENDATION
It is recommended that the Petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 be dismissed for lack of jurisdiction.
NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objections should be filed with the Clerk of this Court by October 8th , 2008. Petitioner is further advised that failure to file a timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to Warden Harmon and the Attorney General of Oklahoma.