Opinion
CIV-19-298-HE
05-01-2019
MICHAEL WAYNE MONCKTON, Petitioner, v. MARK WHITTEN, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner is a state prisoner seeking habeas relief under 28 U.S.C. § 2254. Chief Judge Joe Heaton referred the case to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B) and (C). Having examined the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in U.S. District Courts, the undersigned recommends that to the extent the petition seeks relief under Fed. R. Civ. P. 60(b), the request be denied. To the extent that the petition raises claims for habeas relief, it should be deemed a second or successive habeas petition and transferred to the Court of Appeals for authorization under 28 U.S.C. § 2244(b)(3).
Rule 4 requires federal district courts to promptly examine habeas petitions and determine whether it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in district court." If a petitioner is not entitled to relief, the court may dismiss the petition, or take other action that may be warranted. Here, it plainly appears that Petitioner is not entitled to relief. The petition is either a second or successive petition over which this Court currently has no jurisdiction, or it is a motion for relief from an earlier judgment that does not justify relief.
I. Procedural History.
This case comes to the Court with a complex procedural history. A jury convicted Petitioner of rape in the first degree and rape by instrumentation in 2012. Doc. 1-11 at 1. Petitioner received a 22-year sentence for the first-degree rape conviction, and a 10-year sentence for rape by instrumentation. Id. The sentences were ordered to run consecutively. Id. Petitioner appealed to the Oklahoma Court of Criminal Appeals ("OCCA"), which affirmed his conviction and sentence on January 9, 2014. Id. Petitioner then filed an application for post-conviction relief in the trial court. Id. The trial court denied the application in part but granted relief in part, finding Petitioner was entitled to a re-sentencing hearing, as he had not received the benefit of a pre-sentence investigation in his earlier sentencing. Id. The trial court re-sentenced Petitioner on July 1, 2015, imposing the same 22- and 10-year consecutive sentences. Id. at 3.
References to page numbers of documents refer to ECF document page numbers.
Petitioner then launched a flurry of legal filings. He attempted to appeal the trial court's post-conviction decision through a post-conviction appeal, but the OCCA declined jurisdiction as the filing was untimely. Id. He also filed a direct appeal from his re-sentencing. Id. at 3. Petitioner then filed a second post-conviction application in the state trial court, seeking permission to file a post-conviction appeal out-of-time. Id. at 3. That same day, he sought habeas relief in this court. See Petition, Monckton v. State of Oklahoma, No. 15-cv-883-HE (W.D. Okla. Aug. 14, 2015) ECF #1.
For the sake of clarity, the undersigned will refer to these appeals as the post-conviction appeal (appealing the trial court's post-conviction ruling) and the re-sentencing appeal (the direct appeal of the re-sentencing).
This Court dismissed Petitioner's federal habeas petition without prejudice due to the ongoing state court proceedings. See Order Adopting Report & Recommendation at 1, Monckton v. State of Oklahoma, No. 15-cv-883-HE (W.D. Okla. Nov. 29, 2015), Doc. 13. As for the state court proceedings, the state trial court eventually granted petitioner's request to file a post-conviction appeal out of time. Doc. 1, Att. 11, at 3. The OCCA then entered an order that dismissed the re-sentencing appeal and gave Petitioner permission to file a post-conviction appeal out of time. Id. at 10-14. Petitioner filed his post-conviction appeal, and the OCCA affirmed the trial court's ruling. Doc. 1, Att. 13. After that denial, Petitioner filed another federal habeas petition in this Court and filed a third application for post-conviction relief in the state trial court. See Petition, Monckton v. State of Oklahoma, No. 16-cv-1136-HE (W.D. Okla. Sept. 29, 2016), Doc. 1; Br. in Support of Mot. to Dismiss at Ex. 3, Monckton v. State of Oklahoma, No. 16-cv-1136-HE (W.D. Okla. Nov. 2, 2016), Doc. 10, Att. 3.
Petitioner admitted his claims were not exhausted and told the Court that he intended to file for habeas relief on claims that were still subject to state court proceedings.
OCCA rules provide that the proper appeal from a post-conviction ruling is a post-conviction appeal, not a direct appeal.
The State sought dismissal of the federal habeas petition due to abstention and exhaustion concerns, as the third post-conviction application was still pending. The Court determined that the claims raised had all been exhausted in the earlier state proceedings, and therefore denied the motion to dismiss. Monckton v. Bryant, No. CIV-16-1136-HE, 2017 WL 4324537, at *1-2 (W.D. Okla. Sept. 28, 2017) (order adopting report & recommendation). The Court then denied relief on the merits of the petition.
Petitioner now returns to the court with two new claims: (1) that the OCCA violated his due process rights by dismissing his re-sentencing appeal and instead requiring a post-conviction appeal, and (2) that this Court lacked jurisdiction to rule on his earlier petition.
II. Analysis.
Because this is the second petition—not including the first petition dismissed without prejudice—that Petitioner has filed in this court regarding the same conviction and sentence, his petition is a "second or successive" petition. See Burton v. Stewart, 549 U.S. 147, 152-53 (2007); 28 U.S.C. § 2244. District courts are required to dismiss (or transfer for appellate authorization) claims that could have been presented in an original habeas petition but were not. 28 U.S.C. § 2244(b). This Court has no jurisdiction to address the petition unless and until the Court of Appeals grants authorization. See Burton, 549 U.S. at 153; 28 U.S.C. § 2244(b)(3)(A)-(D).
The only potential avenue for this Court to review any of Petitioner's claims is to construe the petition as a motion for reconsideration under Fed.R.Civ.P. 60(b). Ordinarily, Rule 60(b) motions regarding habeas petitions are construed as second or successive petitions, as they request a court to review their claims on the merits a second time. See Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). But if a Rule 60(b) motion challenges a habeas court's procedural ruling or a defect in the integrity of the proceeding, the court can address the motion. Id.
This case presents an atypical situation. Here, Petitioner argues in a second or successive petition that the Court's earlier ruling on the merits of petitioner's habeas claims are void, as the Court lacked jurisdiction. That claim—a lack of jurisdiction—is the type of claim that warrants review if presented as a Rule 60(b) motion. See Green v. Reynolds, No. CIV-93-702-D, 2008 WL 782480 at *2 (W.D. Okla. Mar. 7, 2008). But Petitioner has framed this argument as a claim in a habeas petition, not a motion. Still, applying liberal construction, courts have construed habeas petitions as motions for relief under Rule 60(b) in similar situations. See Clay v. Smith, 365 F. App'x 98, 101 (10th Cir. 2010) (affirming denial of motion where "[t]he district court construed [petitioner's] most recent filing in his § 2254 case as a Rule 60(b)(6) motion seeking a stay of the habeas proceedings"); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL 3943702, at *2-3 (N.D. Fla. Sept. 20, 2010) (even "liberally construing" petition as a Rule 60(b) motion, petitioner failed "to show 'extraordinary circumstances' justifying the reopening of a final judgment"); Whitmore v. Avery, 179 F.R.D. 252, 258-59 (D. Neb. 1998) (construing habeas petition as a Rule 60(b) motion, and delineating the "unusual event[s]" that amount to "exceptional circumstance[s]" under Rule 60(b), and recommending reopening of the judgment). That appears the best course of action here.
Rule 60(b) provides that litigants can receive relief from a judgment or order for several reasons, including that the judgment is void. Petitioner's argument fits within that provision, as he argues the Court lacked jurisdiction in the earlier habeas proceeding. Specifically, Petitioner asserts that the Court addressed his claims under his original sentence, not the sentence he received on July 1, 2015 following his re-sentencing hearing.
Petitioner's argument fails on two key points. First, Petitioner had been re-sentenced by the time he filed the habeas petition that the Court ultimately denied. Petitioner offers no evidence, other than the State's reliance on the earlier sentence, to show that the Court was somehow relying on a defunct sentence. At the time Petitioner filed his original petition, he was in custody pursuant to his July 1, 2015 sentence. That is the same sentence under which he is incarcerated now.
Second, the earlier petition dealt with claims all solely related to guilt, not sentencing. As the re-sentencing and various state proceedings never undermined Petitioner's actual conviction, it is unlikely that re-sentencing would somehow strip the Court of its jurisdiction to rule on the merits of claims that had been fully tried and exhausted. In fact, Petitioner himself argued that those claims were exhausted. Response to State's Mot. to Dismiss Habeas Pet. at 1, Monckton v. State of Oklahoma, No. 16-cv-1136-HE (W.D. Okla. Nov. 21, 2016), Doc. 12. And even if the claims were not exhausted, that fact would still not strip the court of jurisdiction to rule on the merits of the claims. See Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994) ("[E]xhaustion is not jurisdictional" in the habeas context).
Petitioner fails to show that the Court's earlier denial of habeas relief was marred by procedural defect. Therefore, to the extent his petition is construed as a Rule 60(b) motion, it should be denied.
All that remains is the second or successive habeas, over which this Court has no jurisdiction. The Court must determine, however, whether the second or successive petition should be dismissed or transferred. Under 28 U.S.C. § 1631, transfer is warranted when it is in the "interests of justice." One factor to be considered is whether the Petitioner may encounter problems with a statutory limitations period. See Young v. State Gov't of Okla., 98 F. App'x 760, 763 (10th Cir. 2004). Here, it is unclear whether such a problem exists. Petitioner has filed many post-conviction applications, appeals, and petitions for writs of mandamus in state court. It seems likely that the limitations period has already expired. However, in the absence of any clear indication of when the limitations period ended, and in order to avoid any such concerns, it is recommended that that Court transfer the petition to the Court of Appeals.
Establishing the exact dates, including tolling for post-conviction applications, would likely require the entire state court record as well as briefing from the parties. It seems that such a course would be a waste of judicial resources, especially where that particular issue will likely have no effect on the ultimate resolution of the petition.
III. Recommendation and notice of right to object
For the reasons addressed above, the undersigned recommends that to the extent the petition is construed as a motion under Rule 60(b), that motion be denied. Otherwise, the undersigned recommends that the Court find the petition is a second or successive petition and transfer the matter to the Court of Appeals.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before May 22, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 1st day of May, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE