Opinion
CIV-21-536-D
06-08-2021
CURTIS BERNARD SEALS, Petitioner, v. STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Curtis Bernard Seals, a pro se state prisoner housed at the Davis Correctional Facility, filed a Petition for Writ of Habeas Corpus challenging his conviction under 28 U.S.C. § 2254. Doc. 1. Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). 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.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
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, in Case No. CF-2016-1220. 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=oklahomaνmb er=CF-2016-1220&cmid=3365798 (last visited May 25, 2021). The undersigned takes judicial notice of the docket report in Petitioner's state post-conviction proceeding. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (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” (citation omitted)).
Petitioner filed one previous § 2254 habeas petition challenging his conviction and sentence. See Doc. 1, at 3-4. That petition 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).
Petitioner then filed the instant § 2254 habeas petition challenging the same conviction and sentence and bringing four claims for relief. First, Petitioner claims “[t]he state presented insufficient evidence to support Petitioner's convictions, ” based on a letter sent by the “district court” to Petitioner on October 24, 2018 (nearly a year before his first habeas petition was filed), “stating that there wasn't any evidence filed in the petitioner's [underlying criminal] case.” Doc. 1, at 5. Second, Petitioner claims his “multiple convictions violate the Constitutional protections against double jeopardy.” Id. at 6-7. Third, Petitioner claims “[t]he State secured Petitioner's convictions with the use of false or misleading evidence, ” by twice filing amendments to court documents laying out the dates Petitioner committed the charged offenses. Id. at 8. Finally, Petitioner claims he is “entitled to release from prison because the State did not respond to his motions within the time limits set by federal rules, ” presumably referring to a motion filed in his first habeas action. See Doc. 1, at 9.
See also Case No. CIV-19-1069-D, docket entry dated May 13, 2020, Doc. 25, Motion to Proceed with Newly Discovered Evidence and Motion to Quash, Dismiss, and Set Aside the Information.
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.”) (citation omitted).
A. Petitioner's second or successive habeas petition.
Because Petitioner previously challenged his conviction and sentence in Case No. CIV-19-1069-D, he needs authorization from the Tenth Circuit to file a second or successive § 2254 habeas petition, under 28 U.S.C. § 2244(b)(3)(A). See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011); Quezada v. Smith, 624 F.3d 514, 519-20 (2d Cir. 2010) (“[D]ismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction ‘second or successive' petitions under § 2244(b).”). Petitioner has not indicated 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.
B. Dismissal of habeas petition, rather than transfer 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.” “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.” In re Cline, 531 F.3d at 1252; see also Trujillo v. Williams, 465 F.3d 1210, 1222- 23 (10th Cir.2006).
Here, the interest of justice does not require transfer of this action to the Tenth Circuit. Because Petitioner does not meet the statutory requirements for authorization, the Tenth Circuit would not grant him permission to file a second or successive habeas petition even if it were transferred. See Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting the Tenth Circuit will grant authorization to file a successive habeas application only if Petitioner can show he meets the statutory requirements under 28 U.S.C. § 2244(b)(2)(A)-(B)). Under 28 U.S.C. § 2244(b), a court may consider second or successive habeas petitions in limited circumstances, if:
(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
(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 § 2244(b)(2) exceptions do not apply to Petitioner's claims.
Petitioner cites no new principles of constitutional law underlying the claims in the instant § 2254 habeas petition. See 28 U.S.C. § 2244(b)(2)(A). And for the most part, he alleges only facts established before the filing of his first habeas petition. See 28 U.S.C. § 2244(b)(2)(B).
Petitioner's first claim is based on a letter mailed from the “district court” nearly a year before his first habeas petition was filed. Doc. 1, at 5. His second claim that his multiple convictions “violate the Constitutional protections against double jeopardy, ” id. at 6-7, relies only on the fact of his convictions, which certainly were known to Petitioner before he filed his first habeas petition. Similarly, Petitioner's third claim that the prosecution put forth “false or misleading evidence” is based on its amendments of court filings before Petitioner was even convicted. See Id. at 8. Petitioner's fourth claim that he is “entitled to release from prison because the State did not respond to his motions within the time limits set by federal rules” refers to the State's response brief to Petitioner's Motion to Proceed with Newly Discovered Evidence and Motion to Quash, Dismiss, and Set Aside the Information, filed after his first habeas petition. See Id. at 9.
Unlike the facts underlying his first three claims, the “factual predicate” for Petitioner's fourth claim “could not have been discovered previously.” See 28 U.S.C. § 2244(b)(2)(B)(i). Even so, the State's alleged violation of “federal rules” governing filing deadlines does not amount to Constitutional error, much less one that would bear on whether a “reasonable factfinder would have found the applicant guilty of the underlying offense.” See 28 U.S.C. § 2244(b)(2)(B)(ii). And in any case, it does not appear that the State's response was indeed filed late. Petitioner filed his Motion to Quash on May 13, 2020, and the State responded on May 29, 2020, sixteen days later. This is well within the twenty-one day timeframe for a response established by Western District of Oklahoma's Local Court Rules. LCvR7.1(g). So this claim, like the first three, does not satisfy § 2244(b)(2)(B)'s requirements for newly-discovered factual predicates relevant to Petitioner's underlying conviction.
Because transfer to the Tenth Circuit would result in dismissal in any case, the interest of justice does not require it, and this Court should 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 dismissal of this habeas petition for lack of jurisdiction as a second or successive habeas petition without Tenth Circuit authorization.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before June 29, 2021, 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.