Opinion
CIV-22-315-D
05-31-2022
CURTIS BERNARD SEALS, Plaintiff, v. SCOTT CROW, Department of Corrections, Defendant.
REPORT AND RECOMMENDATION
Suzanne Mitchell, Judge.
Petitioner, a state prisoner appearing pro se, filed a petition for writ of habeas corpus challenging his conviction under 28 U.S.C. § 2254. Docs. 1, 7.Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. 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 without prejudice for lack of jurisdiction, as this is 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.
Petitioner applied for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). Doc. 2. After the Court ordered him to cure a deficiency in his application, Petitioner paid the $5.00 filing fee. See 28 U.S.C. § 1914(a); Docs. 5, 6. Petitioner's in forma pauperis application is therefore moot.
I. Procedural history.
Petitioner pleaded no contest to five counts of indecent or lewd acts with a child under the age of sixteen in the District Court of Oklahoma County. Doc. 1, at 1-2. He was sentenced to twenty years under Department of Corrections supervision-nine years in custody, to run concurrently with the remaining eleven years, “9 in/11 out.” Id.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2016-1220&cmid=3365798 (last visited May 25, 2022). The undersigned takes judicial notice of the docket report in Petitioner's state-court proceeding. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
Petitioner previously challenged his conviction and sentence in a § 2254 habeas petition that was dismissed as untimely under 28 U.S.C. § 2244(d). Seals v. Smith, No. CIV-19-1069-D, 2020 WL 3605027, at *3 (W.D. Okla. July 2, 2020), appeal dismissed, 829 Fed.Appx. 378 (10th Cir. 2020). He then filed another habeas petition challenging the same conviction and sentence, this one dismissed as a second or successive petition filed without Tenth Circuit authorization. Seals v. Oklahoma, No. CIV-21-536-D, 2021 WL 3719269, at *4 (W.D. Okla. June 8, 2021), adopted, 2021 WL 3711207 (W.D. Okla. Aug. 20, 2021).
Petitioner filed the instant § 2254 habeas petition challenging the same conviction and sentence and bringing three claims for relief. Doc. 7. Petitioner first claims the state of Oklahoma lacked jurisdiction to convict him under the Major Crimes Act because “Petitioner and/or the victim are Indians within the meaning of federal law and the [crime] in Indian Country,” see 18 U.S.C. § 1151, as agreed to in the Treaty of Dancing Rabbit Creek. Doc. 7, at 5; Doc. 1, at 1. Petitioner next claims he received ineffective assistance of trial counsel because they “became of aware of [Petitioner's] Native American status and refused to use that information.” Doc. 7, at 6-7. Finally, Petitioner claims his convictions violated the double jeopardy clause, U.S. CONST. amend. V, because he was charged with “five [] counts of the same crime (lewd acts) with two of the count[s] happening on the same date and time.” Id. at 8.
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 receive Tenth Circuit authorization before filing this habeas petition.
Petitioner brings several habeas corpus claims relating to his state conviction. Docs. 1, 7. But because Petitioner previously challenged his state conviction and sentence in this Court, he needs 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. This Court therefore 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) (holding that the “jurisdictional nature” of the petitioner's claim did not “exempt his § 2254 application from dismissal for lack of jurisdiction as a successive and unauthorized application”).
The Court notes that Petitioner has already been advised of his burden to obtain Tenth Circuit authorization before filing a second or successive habeas petition. In Seals, No. CIV-21-536-D, 2021 WL 3719269, at *2, the undersigned recommended dismissal of Petitioner's habeas petition as second or successive and filed without Tenth Circuit authorization. Although Petitioner raises some new claims in the petition now before the Court, none of those claims satisfy the exceptions to the rule against second or successive petitions in 28 U.S.C. § 2244(b)(2). See infra. § II.B.
B. Transfer to the Tenth Circuit Court of Appeals is not warranted.
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 (citing Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006)). “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, 465 F.3d at 1222-23.
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. See In re Cline, 531 F.3d at 1252 (citing Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.1999)); see also Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization “only if he 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 28 U.S.C. § 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.28 U.S.C. § 2244(b)(2). These exceptions do not apply to Petitioner's claims.
Petitioner cites no new principles of constitutional law underlying his habeas claims. See id. § 2244(b)(2)(A). He claims Oklahoma courts lacked jurisdiction to convict him under the Major Crimes Act. Supra. § I. Although the Supreme Court recently recognized that the Muscogee (Creek) Nation “remains an Indian reservation for purposes of federal criminal law” and reversed the state court's judgment of conviction, McGirt v. Oklahoma, 140 S.Ct. 2452, 2459, 2482 (2020), that case did not recognize a previously-unavailable rule of constitutional law made retroactive to cases on collateral review. See Eckardt v. Crow, No. CIV-22-61-D, 2022 WL 1298575, at *3 (W.D. Okla. Apr. 13, 2022), (“The Tenth Circuit recently denied a motion for authorization to file a second or successive § 2254 petition raising claims based upon McGirt, finding the decision did not establish a new rule of constitutional law . . . .” (citing In re Morgan, Case No. 20-6123 (10th Cir. Sept. 18, 2020)), adopted, 2022 WL 1296082 (W.D. Okla. Apr. 29, 2022); Donahue v. Harding, No. CIV-21-183-PRW, 2021 WL 4714662, at *4-5 (W.D. Okla. Sept. 15, 2021) (explaining that “McGirt did not recognize a new constitutional right” because “the Court addressed whether the Muscogee (Creek) Nation ‘remain[ed] an Indian reservation for purposes of federal criminal law,' a non-constitutional issue.” (citation omitted)), adopted, 2021 WL 4711680 (W.D. Okla. Oct. 8, 2021). In fact, “the only way it could make a rule retroactively applicable is through a ‘holding' to that effect.” Cannon v. Mullin, 297 F.3d 989, 993 (10th Cir. 2002) (citing Tyler v. Cain, 533 U.S. 656, 663 (2001)).
And Petitioner alleges only facts discoverable at the time of his crime and subsequent criminal proceedings and before he filed his first habeas petition. See Dopp, 750 Fed.Appx. at 757 (“To the extent [the petitioner] contends that he did not discover the factual predicate underlying his jurisdictional claim until this court's decision . . ., a recent discovery of facts is not sufficient to establish that a claim was previously unripe.”). The exception to the bar only “applies ‘where the factual basis for a claim does not yet exist-not where it has simply not yet been discovered-at the time of a [petitioner's] first motion.'” Id. (quoting United States v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015)). Petitioner does not identify any facts underlying his jurisdictional claim that did not exist in 2019 when he filed his first § 2254 application.
As for Petitioner's related ineffective assistance of counsel claim, Petitioner also could have discovered the factual predicate for that claim-his attorney's failure to raise the facts relevant to state jurisdiction under the Major Crimes Act-before or at the time of his trial. See 28 U.S.C. § 2244(b)(2)(B)(i); cf. Sanders v. Pettigrew, 2021 WL 3291792, at *6 (E.D. Okla. Aug. 2, 2021) (finding petitioner was not entitled to equitable tolling of the habeas limitations period because where the “sole ground for relief [was] a claim of ineffective assistance of counsel with respect to a jurisdictional claim under McGirt”). Likewise, Petitioner could have discovered the factual predicate for his double jeopardy claim-that is, the nature of his charges- “before he filed his first habeas petition.” Seals, No. CIV-21-536-D, 2021 WL 3719269, at *3.
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 § 2254 habeas petition in its entirety.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss this petition without prejudice for lack of jurisdiction, as the undersigned has determined it is a second or successive habeas petition without Tenth Circuit authorization.
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 June 21, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff 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.