Opinion
Case No. CIV-20-16-R
04-21-2020
DANNY R. CAMPBELL, Petitioner, v. CARL BEAR, Warden, et al. Respondents.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. United States District Judge David L. Russell has referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 5. 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 the petition.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Petitioner's claims.
Petitioner challenges his January 1979 conviction of first-degree murder in the District Court of Oklahoma County, Oklahoma, seeking relief based on various, mostly indiscernible, grounds. See Doc. 1. For Grounds One and Three, Petitioner asserts 'Ten Commandments violations,' accompanied in Ground One by an argument that the 'victim,' who was seeing Petitioner's wife, took Petitioner's children. Id. at 7, 10. Petitioner states he did not exhaust state remedies on Ground One because he was not allowed to speak on his own behalf at trial. Id. at 7. For Ground Two, Petitioner asserts that he was raped by a fellow inmate in 2017, and states he has not exhausted state remedies on this ground because he has not been allowed access to the law library. Id. at 8-9. He states he has only sought direct appeal of Ground One. Id. at 7-8. Petitioner seeks a "time cut," payment of billions of dollars, and to be "set [] free from imprisonment." Id. at 16.
II. Screening.
Rule 4 requires the court to review habeas petitions promptly and to summarily 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. A 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).
Generally, claims presented in a second or successive habeas petition under § 2254 are not allowed, except in limited circumstances:
(b) (2) (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
28 U.S.C. § 2244(b)(2). Additionally, before this Court can consider a second or successive application, Petitioner "shall move in the [Tenth Circuit Court of Appeals] for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3); 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.") (citing United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)); see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006).(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.
III. Discussion.
A. Dismissal of successive claims for lack of jurisdiction.
In January 1979, Petitioner was convicted of first-degree murder in the District Court of Oklahoma County, Oklahoma, and sentenced to life imprisonment. See Doc. 1, Att. 1, at 6. The Oklahoma Court of Criminal Appeals affirmed his conviction and sentence. Campbell v. State, 636 P.2d 352 (Okla. Crim. App. 1981). This Court denied his initial § 2254 petition. See Campbell v. Cowley, No. CIV-88-1407-T (W.D. Okla.).
Petitioner has previously attempted to challenge his 1979 conviction through successive habeas petitions at least five times. See Campbell v. Bear, No. CIV-17-219-R, 2017 WL 1402200, at *1 (W.D. Okla. Apr. 4, 2017) (Campbell V), adopted, , 2017 WL 1403304, at *1 (W.D. Okla. Apr. 19, 2017); Campbell v. Bear, No. CIV-16-526-R, 2016 WL 4078598, at *1 (W.D. Okla. June 27, 2016) (Campbell IV), adopted, 2016 WL 4077250 (W.D. Okla. July 29, 2016); Campbell v. Bear, No. CIV-16-530-R, Doc. 6 (W.D. Okla. May 31, 2016) (Campbell III), adopted, Doc. 8 (W.D. Okla. June 24, 2016); Campbell v. Cowley, No. CIV-92-2413-T, Doc. 22 (W.D. Okla. May 24, 1993) (Campbell II), adopted, Doc. 24 (W.D. Okla. June 10, 1993).
Petitioner filed five actions styled as habeas petitions in 2017. This Court disposed of all five actions in identical Orders adopting a Report and Recommendation. See generally Campbell v. Bear, No. CIV-17-211-R, CIV-17-216-R, No. CIV-17-217-R, No. CIV-17-218-R (W.D. Okla.). The Tenth Circuit Court of Appeals denied Petitioner's single application for a certificate of appealability for all five cases. Campbell v. Bear, 694 F. App'x 658, 659 (10th Cir. 2017).
This Court dismissed Campbell II, III, VI and V because it lacked jurisdiction in challenging his 1979 conviction through an unauthorized second or successive habeas petition. See Campbell V, 2017 WL 1402200, at *2. Petitioner's previous habeas applications failed to "allege[] specific facts sufficient to discern his constitutional claims, and his filings [were] interspersed with equations and nearly illegible." Id. (internal quotation marks omitted); see also Campbell IV, 2016 WL 4078598, at *2 (recommending dismissal of Petitioner's action "[b]ecause it plainly appears from the face of the Petition that Petitioner is not entitled to relief under [] § 2254"). His petitions were also "accompanied by hundreds of pages of miscellaneous [mostly irrelevant] documents." Id. (citation omitted).
Petitioner's current petition and attachments amount to ninety-two pages. He challenges the same conviction, fails to make discernable claims, contains incomputable equations and indecipherable biblical cites. See Doc. 1. As in his previous cases, Petitioner's filing also contains a swath of miscellaneous documents that bear little relevance to his action. See id., Atts. 2-4. Petitioner once again fails to "allege[] specific facts sufficient to discern his constitutional claims" that would entitle him to relief under § 2254. Campbell IV, 2016 WL 4078598, at *2.
Like the previous petitions, the current action is also successive—it challenges the same conviction, and § 2244(b)'s exceptions do not apply. See 28 U.S.C. § 2244(b)(2)(A)-(B); Campbell V, 2017 WL 1402200, at *2. And Petitioner once again has not received the Tenth Circuit's authorization for this Court to consider a successive § 2254 petition. 28 U.S.C. § 2244(b)(3)(A); Campbell V, 2017 WL 1402200, at *2. Petitioner's current habeas petition should be dismissed for lack of jurisdiction. See 28 U.S.C. § 2244(b)(1)-(2); In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) ("Under AEDPA, a claim presented in a previous § 2254 petition must be dismissed."); In re Cline, 531 F.3d at 1252 (holding that district courts may either dismiss unauthorized successive § 2254 petitions for lack of jurisdiction or transfer them to the Tenth Circuit if it is in the interest of justice).
B. Transfer to the Tenth Circuit Court of Appeals.
When a petitioner files a second or successive § 2254 petition without the required Tenth Circuit authorization, "the district court may transfer the matter to [the Tenth Circuit Court of Appeals] if it determines it is in the interest of justice to do so under [28 U.S.C.] § 1631." In re Cline, 531 F.3d at 1252. "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 to [the appellate] court for authorization." Id.
The transfer of the current matter to the Tenth Circuit would not be in the interest of justice because § 2244(b)(2)'s exceptions do not apply and the Tenth Circuit would not grant authorization to proceed with the successive petition. See Johnson v. Allbaugh, 742 Fed. Appx. 395, 396 n.2 (10th Cir. 2018) (The Tenth Circuit will grant authorization only if Petitioner can show the requirements of the exceptions to successive actions under 28 U.S.C. § 2244(b)(2)(A)-(B) are met.).
Even liberally construing his near-illegible claims, Petitioner's petition consists of mostly indiscernible claims, void of any connection to plausible legal arguments or grounds on which to challenge his conviction. As with his most recent petition,
Petitioner's conclusory allegations in the Petition cannot reasonably be said to rely upon a new rule of constitutional law or a factual predicate alleged to not have been discoverable previously. Nor has Petitioner presented underlying facts for his claims sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found him guilty of his first-degree murder offense.Campbell V, 2017 WL 1402200, at *3. Petitioner does not meet § 2244(b)(2)'s requirements.
Furthermore, Petitioner filed the current habeas petition on January 6, 2020, which is significantly outside the one-year limitations period under 28 U.S.C. § 2244(d)(1). See id. (The one-year limitations period "expired many years prior to the date on which Petitioner filed the instant Petition.") (quoting Campbell IV, 2016 WL 4078598, at *3). And Petitioner has not shown exceptional circumstances warranting that the court does not consider his petition untimely. Proven actual innocence would also allow Petitioner to bypass the limitations period bar. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). As in previous cases,
As before, Petitioner alleges no basis for statutory tolling. Campbell V, 2017 WL 1402200, at *4. Nor has he asserted any exceptional circumstances not in his control that would warrant equitable tolling, such as those "preventing timeliness and diligent pursuit of his claim." Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) ("[E]quitable tolling . . . [is] suitable only in 'extraordinary circumstances.'"). Petitioner access-to-library claims do not amount to valid extraordinary circumstance beyond his control that would warrant equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000) (holding that Petitioner's lack of legal knowledge as an incarcerated pro se inmate, inadequate assistance from a prison inmate law clerk, and lack of access to law library due to closures did not warrant equitable tolling). --------
Petitioner has stated legal conclusions, without benefit of any supporting facts . . . [and] Petitioner has provided no new evidence that was not presented at his trial to support such claims, and he has not shown that in light of new evidence a reasonable juror would not have found him guilty of the murder offense beyond a reasonable doubt.Campbell IV, 2016 WL 4078598, at *2; accord, Campbell V, 2017 WL 1402200, at *4. Therefore, the current petition should not be transferred to the Tenth Circuit.
IV. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the dismissal of Petitioner's § 2254 petition in its entirety for lack of jurisdiction.
Given Petitioner's abusive litigation history and duplicative collateral attacks on the same conviction without satisfying the prerequisites set forth in § 2244, the undersigned also recommends the Court consider the imposition of filings restrictions and/or sanctions to discourage further frivolous filings. See, e.g., United States v. Harper, 545 F.3d 1230, 1234 (10th Cir. 2008) (citing Gresham v. Miles, 82 F. App'x 396 (5th Cir.2003) (per curiam) (imposing $150 in sanctions upon repeated § 2255 movant)).
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before May 12, 2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned also advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.
ENTERED this 21st day of April, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE