United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE.
February 5, 2016, Petitioner, a pro se state
prisoner, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) and paid the $5.00 filing
fee (Doc. 2). At the direction of the Court, he filed an
amended petition on March 17, 2016 (Doc. 5). Respondent has
filed a motion to dismiss the amended petition for
Petitioner's failure to obtain leave to prosecute a
second or successive habeas petition (Doc. 13). For the reasons
set forth below, the Court finds the amended petition must be
First Habeas Corpus Petition
is attacking his conviction and life sentence for First
Degree Murder in Mayes County District Court Case No.
CRF-1980-41 (Doc. 1 at 1). The record shows that Petitioner
filed a previous habeas corpus petition in this Court on July
12, 1982, in Case No. 82-C-676-B, challenging this same
conviction (Doc. 14-1 at 2). Respondent asserts the file for
Petitioner's earlier case cannot be located, but
Petitioner listed the habeas claims from the first petition
in his Appellant's Brief in Chief for his appeal to the
Tenth Circuit in Mosier v. Murphy, No. 84-2106:
A. The denial [of Petitioner's post-conviction
application] was against the clear weight of the evidence.
The plea bargain was not voluntary.
B. The plea was the product of duress, coercion, threats, and
intimidation, a violation of constitutional rights.
C. Denied effective assistance of counsel due to a conflict
of interest existing in my attorney at the time of plea.
brief to the Tenth Circuit stated that District Judge Thomas
R. Brett denied Petitioner's § 2254 petition on July
26, 1984 (Doc. 14-2 at 8). The Tenth Circuit affirmed the
district court's denial in Mosier v. Murphy, 790
F.2d 62 (10th Cir. 1986) (Doc. 14-3), and the Supreme Court
denied Petitioner's petition for writ of certiorari in
Case No. 86-5134, 479 U.S. 988
Second and Successive Petition
current amended habeas petition, filed almost 30 years after
the Tenth Circuit affirmed this Court's denial of the
first habeas petition, Petitioner raises two grounds for
habeas corpus relief:
Ground I: DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE
LAW BY THE TRIAL COURT. Violation of 14th Amendment of Bill
of Rights to U.S. Constitution and Article I, section 1, and
Article II, section 7, of Constitution of Oklahoma. The trial
court did not follow established State or Federal law in
taking plea. I was never placed under oath before testifying.
(Doc. 5 at 4).
Ground II: Trial Court failed to get an adequate factual
basis for plea on October 28, 1980. Trial court asked if I
effected the [victim's] death, did not ask how. Did not
ask if I shot him.
(Doc. 5 at 6).
second and successive amended petition that now is before the
Court is unauthorized, because he failed to seek
authorization from the Tenth Circuit to file it, pursuant to
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.”
Id. Petitioner's failure to obtain authorization
is undisputed, leaving only the question of whether to
dismiss the petition or, “if it is in the interest of
justice, ” transfer the amended petition to the Court
of Appeals for possible authorization. In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008).
Factors considered 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
Id. (citing Trujillo v. Williams, 465 F.3d
1210, 1222-23 (10th Cir. 2006)).
an applicant seeking authorization to file a second or
successive application for writ of habeas corpus must meet
the requirements of 28 U.S.C. § 2244(b)(2):
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, ...