Opinion
CIV-24-264-R
03-19-2024
DAVID BRIAN MORGAN, Petitioner, v. JOE BIDEN,[1] Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
David Brian Morgan, a pro se Oklahoma prisoner housed at the Joseph Harp Correctional Center in Lexington, Oklahoma, has filed a petition asking this Court to “vacate” his “unlawful imprisonment.” Doc. 1. Petitioner originally filed his petition in the United States District Court for the District of Columbia, but that court transferred the matter to this Court, citing a lack of jurisdiction as Petitioner is not confined in that District. Doc. 3. United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 9. 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).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
The court there noted that the caption of the petition identified seven petitioners but only Petitioner Morgan had submitted an in forma pauperis application. Doc. 3. So the court proceeded “with Mr. Morgan as the sole petitioner.” Id. The Court should do so here as well. Cf. 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”).
I. Procedural history.
Petitioner pleaded guilty in 2011 in Oklahoma County to thirteen counts of rape, kidnapping, molestation, and weapon possession in Oklahoma County Case No. CF-2010-7695. See Morgan v. Addison, No. CIV-14-337-R, 2014 WL 2197995, at *2 (W.D. Okla. May 27, 2014). He did not appeal in state court. Id. at *1.
In 2014, Petitioner filed his first 28 U.S.C. § 2254 habeas corpus petition in this Court challenging his convictions and sentences in CF-2010-7695. Id. This Court dismissed the petition as untimely filed outside the one-year statute of limitations applicable to habeas corpus actions. Id. (citing 28 U.S.C. § 2244(d)). Petitioner appealed and the Tenth Circuit Court of Appeals denied him a certificate of appealability. Morgan v. Addison, 574 Fed.Appx. 852, 853 (10th Cir. 2014). The United States Supreme Court also denied him a writ of certiorari. Morgan v. Addison, 574 U.S. 1194 (2015).
Petitioner filed another habeas petition challenging his same state court convictions in July 2015. This Court construed the petition as seeking relief under 28 U.S.C. § 2241 and § 2254. Morgan v. Bear, No. CIV-15-782-R, Doc. 10 (W.D. Okla. Sept. 10, 2015). The Court dismissed Petitioner's section 2254 claims as unauthorized second or successive claims under 28 U.S.C. § 2244(b). Id. Doc. 10, at 2.
“Since then, [Petitioner] has mounted multiple other unsuccessful challenges to his convictions and sentences, both in this circuit and others.” Morgan v. United States, 2023 WL 5622932, at *1 (10th Cir. 2023) (citing Morgan v. Oklahoma, 778 Fed.Appx. 610, 611 (10th Cir. 2019) (noting that Morgan had “filed several successive habeas petitions” and that the “action [at issue was] Morgan's latest attempt to file yet another” one); Morgan v. United States, 2022 WL 3704682 (S.D. Ind. May 13, 2022); and Morgan v. United States, 2023 WL 2496878 (D.D.C. Mar. 13, 2023)); see also Morgan v. Rogers, No. 23-1097-R, Doc. 13 (W.D. Okla. Jan. 18, 2024) (order adopting recommendation to dismiss second or successive petition for lack of jurisdiction); Morgan v. Rogers, No. 23-1109-R, Doc. 10 (W.D. Okla. Feb. 6, 2024 (same); Morgan v. Biden, No. 24-2-R, Doc. 9 (W.D. Okla. Feb. 9, 2024) (same). He has also “unsuccessfully sought leave from the United States Court of Appeals for the Tenth Circuit to file a successive § 2254 petition challenging his conviction on three occasions as required by 28 U.S.C. § 2244(b)(3).” Morgan v. Crow, No. 22-726-R, Doc. 7 (W.D. Okla. Sept. 22, 2022) (citing In re David Brian Morgan, No. 20-6123 (10th Cir. Sept. 18, 2020)).
Because Petitioner is “well known” to the Court, see Morgan, No. 22-726-R, Doc. 7, at 1, the undersigned will not list every one of Petitioner's past habeas cases. But, at last count, Petitioner has made at least nineteen attempts to challenge his state court judgment in Case No. CF-2010-7695.
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.”).
A. Petitioner did not move for or receive the Tenth Circuit court's authorization before filing this habeas corpus petition.
Petitioner has styled his petition as a “Petition to the Court, Motion to Vacate” and states the Court has “Federal Question Jurisdiction” under 28 U.S.C. § 1331. Doc. 1. In the petition he asserts criminal defendants are entitled to counsel under the Sixth Amendment and that he is being held in custody in violation of the constitution. Id. at 2-3. He seeks immediate release from custody because his “imprisonment is unlawful.” Id. at 3-4. He states this Court should not consider his petition as second or successive because the writ of habeas corpus “shall not be suspended.” Id. at 3.
Petitioner's allegations constitute “an attack on his conviction and sentence” and “must therefore be brought under § 2254.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008); see also Morgan v. United States, No. CIV-21-1067-D, 2022 WL 263205, at *3 (W.D. Okla. Jan. 5, 2022) (noting Morgan's pleading attacked the validity of his conviction and was properly construed under § 2254), adopted, 2022 WL 256332 (W.D. Okla. Jan. 26, 2022).
Because Petitioner seeks to have this Court review the validity of his state court convictions and sentences, “any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011). As set forth above, Petitioner has filed numerous habeas petitions challenging this same case.
The AEDPA requires a prisoner who has previously challenged his convictions and sentences to obtain 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) (upholding district court's dismissal for lack of jurisdiction of petitioner's “fourth § 2254 application attacking the same judgment”).
As the undersigned noted above, Petitioner has made several attempts to obtain the Tenth Circuit's authorization to file a second or successive habeas corpus petition. So Petitioner is aware of this requirement.
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. “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 v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006).
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; see also Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization “only if [petitioner] 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 § 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.Id. Petitioner does not assert that any of these exceptions apply to his latest habeas petition attacking the same judgment he has previously attacked.
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 latest § 2254 habeas petition.
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 also recommends Petitioner's in forma pauperis motion, Doc. 2, be denied as moot.
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 April 9, 2024, 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.