United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE.
10, 2017, Petitioner, a state inmate appearing pro se, filed
a 28 U.S.C. § 2254 petition for writ of habeas corpus
(Dkt. # 1). On June 8, 2017, Petitioner filed a “motion
to clarify” (Dkt. # 4). Petitioner has now paid the
$5.00 filing fee (Dkt. # 6). For the reasons discussed below,
the petition shall be dismissed without prejudice for lack of
jurisdiction. Petitioner's “motion to
clarify” shall be declared moot.
is no stranger to this Court. In a prior habeas action, N.D.
Okla. Case No. 04-CV-195-CVE-FHM, Petitioner challenged the
validity of his convictions and sentences entered in Tulsa
County District Court, Case No. CF-2000-1569. In that habeas
case, the Court denied the petition, Petitioner appealed, and
the Tenth Circuit denied a certificate of appealability and
dismissed the appeal. Thereafter, Petitioner filed numerous
post-judgment motions arguing that the Court erred in denying
relief on claims related to the enhancement of his sentences.
The focus of Petitioner's improper enhancement claims has
been his allegation that, because one of his prior
convictions, entered in Tulsa County District Court, Case No.
CF-1995-4621, was vacated when the state district court
granted post-conviction relief, his appellate counsel
provided ineffective assistance in failing to challenge the
enhancement of his current sentences with another conviction,
entered in Tulsa County District Court, Case No.
CF-1995-4408. However, as noted by both this Court and
the Tenth Circuit Court of Appeals, the conviction used for
enhancement, Case No. CF-1995-4408, has not been vacated and
is valid. See N.D. Okla. Case No. 04-CV-195-CVE-FHM,
Dkt. ## 47, 62. The vacated conviction, CF-1995-4621, was not
used for enhancement of Petitioner's sentences in Case
No. CF-2000-1569. In addition, Petitioner has never
challenged the validity of another conviction, entered in
Tulsa County District Court, Case No. CF-1994-3960, also used
to enhance his current sentences entered in Case No.
petition filed in this case is not a model of clarity.
Nonetheless, the petition shall be dismissed without
prejudice for lack of jurisdiction. Petitioner complains that
the state courts have erred in failing to expunge his
appellate records because, in Case No. CF-2000-1569, his jury
assumed that “CF-95-4621 was a valid conviction”
for enhancement purposes. See Dkt. # 1 at 3. In
support of this claim, Petitioner attaches orders entered by
the Oklahoma Court of Criminal Appeals (OCCA) dismissing his
motion for expungement and denying rehearing. Id. at
federal court to have jurisdiction to grant a petition for a
writ of habeas corpus under § 2254, a petitioner must be
“in custody pursuant to the judgment of a State
court.” 28 U.S.C. § 2254(a); see also 28 U.S.C.
§ 2241(c)(3) (“The writ of habeas corpus shall not
extend to a prisoner unless . . . [h]e is in custody in
violation of the Constitution or laws or treaties of the
United States”). In Maleng v. Cook, 490 U.S.
488 (1989) (per curiam), the Supreme Court interpreted this
“statutory language as requiring that the habeas
petitioner be ‘in custody' under the conviction or
sentence under attack at the time his petition is
filed.” Id. at 490-91.
to the extent Petitioner brings a direct challenge to the
vacated conviction entered in Case No. CF-1995-4621 by
arguing that the state courts erred in failing to expunge his
conviction entered in that case, see id. at 4
(alleging that Petitioner “is entitled to have 4621
expunged because it has been found by the District Court to
be constitutionally void”), the petition shall be
dismissed. Because Petitioner cannot be “in
custody” pursuant to the vacated conviction, he cannot
satisfy the “in custody” requirement of section
2254(a). Therefore, any direct challenge to the conviction
entered in Case No. CF-1995-4621 is dismissed without
prejudice for lack of jurisdiction.
extent Petitioner reasserts his claim that his sentences in
Tulsa County District Court Case No. CF-2000-1569 were
improperly enhanced with an invalid conviction, his claim has
been thoroughly addressed by both this Court and the Tenth
Circuit Court of Appeals in the prior habeas action filed in
N.D. Okla. Case No. 04-CV-195-CVE-FHM. Because the Court has
previously determined the legality of Petitioner's
detention as to his convictions entered in Tulsa County
District Court, Case No. CF-2000-1569, the petition filed in
this case is a successive habeas petition as to those
convictions and Petitioner was required to obtain
authorization from the Tenth Circuit Court of Appeals before
filing this petition. See Moore v. Schoeman, 288
F.3d 1231, 1236 (10th Cir. 2002). Nothing suggests that
Petitioner received authorization from the Tenth Circuit
before filing his petition in this Court. See 28
U.S.C. § 2244(b)(3)(A).
Tenth Circuit has stated that “[w]hen a second or
successive § 2254 or § 2255 claim is filed in the
district court without the required authorization from this
court, the district court may transfer the matter to this
court if it determines it is in the interest of justice to do
so under § 1631, or it may dismiss the motion or
petition for lack of jurisdiction.” In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). In this
case, the Court finds it would not be in the interest of
justice to transfer the petition to the Tenth Circuit.
Therefore, to the extent Petitioner challenges his
convictions entered in Tulsa County District Court, Case No.
CF-2000-1569, the petition shall be dismissed without
prejudice for lack of jurisdiction as a second or successive
petition filed without prior authorization from the Tenth
Circuit Court of Appeals.
of Appeal ability
11, Rules Governing Section 2254 Cases in the United States
District Courts, instructs that “[t]he district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
Pursuant to 28 U.S.C. § 2253, the court may issue a
certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional
right, ” and the court “indicates which specific
issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues
raised are debatable among jurists, that a court could
resolve the issues differently, or that the questions deserve
further proceedings. Slack v. McDaniel, 529 U.S. 473
(2000) (citing Barefoot v. Estelle, 463 U.S. 880,
893 (1983)). In addition, when the Court's ruling is
based on procedural grounds, a petitioner must demonstrate
that “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
case, the Court concludes that a certificate of appealability
should not issue. Nothing suggests that the Court's
procedural ruling resulting in the dismissal of the petition
for lack of jurisdiction is debatable. A certificate of
appealability shall be denied.
IT IS HEREBY ORDERED that
petition for writ of habeas corpus (Dkt. # 1) is dismissed