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Mosier v. Dowling

United States District Court, N.D. Oklahoma

February 16, 2017

JANET DOWLING, Warden, Respondent.



         On 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).[1] For the reasons set forth below, the Court finds the amended petition must be dismissed.

         I. First Habeas Corpus Petition

         Petitioner 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.

(Doc. 14-2).

         Petitioner's 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

         (1986) (Doc. 14-4).

         II. Second and Successive Petition

         In this 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).

         Petitioner's 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 jurisdiction.

Id. (citing Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006)).

         Further, 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, ...

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