Opinion
Case No. CIV-18-1072-R
11-28-2018
RICKY WHITE, Petitioner, v. JAMES YATES, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action seeking a writ of habeas corpus. See Petition [Doc. No. 1]. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). In accordance with Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, the Court has promptly examined the Petition, and for the reasons set forth below, recommends that the action be summarily dismissed as second or successive.
I. The Petition's Construction
Petitioner filed his habeas petition on a 28 U.S.C. § 2241 form and marked that he is challenging how officials are carrying out his sentence. See Pet. at 1-2. However, he is clearly challenging the validity of his sentence, alleging judicial bias and ineffective assistance of appellate counsel. See id., passim. Under such circumstances, the Court construes the Petition as arising under 28 U.S.C. § 2254. See McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) ("Petitions 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 . . . sentence." (citation omitted)).
Citations to the Petition reference the Court's CM/ECF pagination.
II. Petitioner's History
In 1983, Petitioner was convicted of first degree murder in the District Court of Choctaw County, State of Oklahoma, Case No. CRF-81-1983. See Pet. at 1. The Oklahoma Court of Criminal Appeals affirmed the conviction. See id. at 2. Since that time, Petitioner has attempted to challenge his conviction through federal habeas relief numerous times in both this Court and in the Eastern District of Oklahoma. See, e.g., White v. Ward, No. CIV-95-00607-FHS-JHP (E.D. Okla. filed Dec. 20, 1995) (dismissed for nonexhaustion); White v. Gibson, No. CIV-00-00075-FHS-KEW (E.D. Okla. filed Feb. 9, 2000) (dismissed as untimely); White v. Sirmons, No. CIV-08-1316-R (W.D. Okla. filed Dec. 2, 2008) (dismissed as second or successive); White v. Workman, No. CIV-09-0450-FHS-KEW (E.D. Okla. filed Oct. 19, 2009) (dismissed as second or successive); White v. Workman, No. CIV-12-0001-RAW-KEW (E.D. Okla. filed January 3, 2012) (dismissed as second or successive); White v. Workman, No. CIV-12-00071-RAW-KEW (E.D. Okla. filed January 4, 2012) (dismissed as second or successive); White v. Workman, No. CIV-12-00196-FHS-KEW (E.D. Okla. filed May 1, 2012) (dismissed as second or successive); White v. Workman, No. CIV-12-306-RAW-KEW (E.D. Okla. filed July 13, 2012) (construing Petitioner's writ of mandamus as a § 2254 challenge and dismissing it as second or successive); White v. Trammel, No. CIV-13-0185-RAW-KEW (E.D. Okla. filed Apr. 17, 2013) (dismissed as second or successive). Likewise, Petitioner has unsuccessfully moved the Tenth Circuit for authorization to proceed with a second or successive habeas petition at least four times. See In re White, No. 14-7011 (10th Cir. Mar. 12, 2014) (unpublished order noting it was Petitioner's third request to file a second or successive petition, denying the request, and cautioning Petitioner he could be sanctioned for further requests); In re White, No. 18-7021 (10th Cir. Apr. 25, 2018) (unpublished order denying Petitioner's request to file a second or successive habeas petition)
In all these cases, Petitioner spelled his first name "Rickey" rather than "Ricky." However, he used the same prison identification number - 127615 - and always challenged Choctaw County Case CRF-81-1983. --------
III. Screening Requirement
District courts must review habeas petitions and summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. Likewise, the Court has "an independent obligation to determine whether subject-matter jurisdiction exists" and may raise the issue sua sponte at any time. Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006); see also Fed. R. Civ. P.12(h)(3).
IV. Analysis
Pursuant to 28 U.S.C. § 2244(b)(2), "[t]he filing of a second or successive § 2254 application is tightly constrained[.]" Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). "Before a court can consider a second claim, an applicant must first 'move in the appropriate court of appeals for an order authorizing the district court to consider the application.'" Id. (quoting 28 U.S.C. § 2244(b)(3)(A)). "Section 2244's gate-keeping requirements are jurisdictional in nature, and must be considered prior to the merits of a § 2254 petition." Id. at 1027 (citing Panetti v. Quarterman, 551 U.S. 930, 942-47 (2007)); see also 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 . . . § 2254 claim until this court has granted the required authorization.").
Petitioner has made four attempts to obtain authorization from the Tenth Circuit to file a second or successive petition, the last one as recently as April 2018. That court has refused authorization, and without it, this Court lacks jurisdiction over the Petition and it should be dismissed without prejudice.
The Tenth Circuit has instructed that a district court may consider whether, pursuant to 28 U.S.C. § 1631, the petition should be transferred to the Circuit, rather than dismissed, if the transfer would be in the interest of justice. In re Cline, 531 F.3d at 1252. Petitioner's history dictates dismissal rather than transfer. See Bird v. Wyoming Dep't of Corr. State Penitentiary Warden, 693 F. App'x 762, 765 (10th Cir. 2017) ("It is also beyond debate that the district court properly exercised its discretion to dismiss the habeas petition, rather than transfer it to this court to consider authorization of Bird's successive claim, in light of our recent denial of authorization for another version of the same claim."); Thompson v. Bryant, No. CIV-18-288-F, 2018 WL 3733677, at *5 (W.D. Okla. July 9, 2018) (unpublished report and recommendation) ("Petitioner's repeated attempts to challenge his conviction and sentence while aware this Court lacks jurisdiction to consider the same is tantamount to abuse of the writ. The interests of justice would not be served by transfer of this case to the Tenth Circuit Court of Appeals for additional proceedings."), adopted, 2018 WL 3732728 (W.D. Okla. Aug. 6, 2018) (unpublished district court order), certificate of appealability denied, No. 18-6153, 2018 WL 4961556 (10th Cir. Oct. 15, 2018); see also In re White, No. 09-6019 (10th Cir. Feb. 18, 2009) (affirming this Court's decision to dismiss, rather than transfer, Petitioner's second or successive petition to the Tenth Circuit where (1) Petitioner had already been advised this Court lacked jurisdiction over such a petition, (2) Petitioner's statute of limitations had expired, and (3) there was "no risk that a meritorious claim would be lost in light of the limitations bar").
RECOMMENDATION
The Court construes the Petition [Doc. No. 1] as arising under § 2254 and finds that it is a second or successive action. Accordingly, it is recommended that the Petition be summarily dismissed without prejudice. Adoption of this Report and Recommendation will moot Petitioner's pending motions for evidentiary hearing, [Doc. Nos. 7, 8, 11] and motion for order, [Doc. No. 12]. Petitioner's motion for leave to proceed in forma pauperis, [Doc. No. 9], became moot when he paid the filing fee, [Doc. No. 10].
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 objection must be filed with the Clerk of the District Court by December 19, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make 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).
The Clerk of Court is directed to transmit a copy of this Report and Recommendation by electronic mail to the Attorney General of the State of Oklahoma on behalf of Respondent at fhc.docket@oag.state.ok.us.
STATUS OF REFERRAL
This Report and Recommendation disposes of all matters referred by the District Judge in this case and terminates the referral.
ENTERED this 28th day of November, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE