United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 as second and successive
(Dkt. 8). Petitioner, a pro se state inmate currently
incarcerated at James Crabtree Correctional Center in Helena,
Oklahoma, is challenging his convictions and sentences in
Okmulgee County District Court Case No. CF-2000-5044. He
raises three grounds for relief:
I. Denial of due process when Petitioner never was accused of
Assault and Battery with a Dangerous Weapon.
II. Denial of due process when Petitioner never was accused
of Unauthorized Use of a Motor Vehicle.
III. Sentencing judge entered Malicious Injury to Property as
a felony, with a more stringent sentence than what was
instructed to the jury for the misdemeanor offense.
alleges the petition must be dismissed as second and
successive. The record shows Petitioner filed his first
petition for a writ of habeas corpus in this Court on
November 19, 2003, and it was dismissed for failure to
exhaust state court remedies. Scott v.
Franklin, No. CIV 03-641-RAW-KEW (E.D. Okla. Sept. 10,
2004), aff'd No. 04-7097 (10th Cir. Feb. 18,
2005). On July 30, 2008, he filed a second
petition for habeas corpus relief in this Court in Case No.
CIV 08-287-RAW-KEW. On November 19, 2008, the petition was
dismissed as barred by the statute of limitations, and the
Tenth Circuit Court of Appeals denied a certificate of
appealability in Scott v. Parker, No. 08-7118, 317
Fed. App'x 758 (10th Cir. Mar. 16, 2009), cert.
denied, 558 U.S. 903 (2009).
habeas corpus petition now before the Court is unauthorized,
because Petitioner 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 for lack of jurisdiction 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, 1251-52 (10th Cir.
2008). It is, however, a waste of judicial resources to
require the transfer of a frivolous, time-barred case.
Id. at 1252 (citing Phillips v. Seiter, 173
F.3d 609, 610 (7th Cir. 1999)).
the Court finds Petitioner's present claims clearly are
barred by the statute of limitations pursuant to 28 U.S.C.
§ 2244(d)(1). Petitioner's second habeas petition in
Case No. CIV 08-287-RAW-KEW, filed on July 30, 2008, was
dismissed as time-barred. This present petition, filed more
than eight years later on December 23, 2016, also is
argues in his response to the motion to dismiss that
extraordinary factors prevented him from asserting his
constitutional claims for federal habeas review within the
statutory one-year limitation period (Dkt. 10 at 2). He
alleges the adversary's conduct, the prosecutor's
different charges not in the indictment or information,
retained counsel's failure to utilize potent impeachment
evidence, and the trial court's intentional impediments
to access of trial transcripts and orders support equitable
tolling of the limitation period. Id. Petitioner
further asserts that “[h]ad this actual innocence
evidence been available to the jury at trial, ” his
innocence would not be debatable. Id.
tolling of § 2244(d)(1)'s one-year statute of
limitations is available “only in rare and exceptional
circumstances, ” York v. Galetka, 314 F.3d
522, 527 (10th Cir. 2003), and a petitioner carries the
burden of establishing equitable tolling, Yang v.
Archuleta, 525 F.3d 925, 929 (10th Cir. 2008).
Generally, equitable tolling requires a litigant to establish
two elements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.” Lawrence v. Florida, 549
U.S. 327, 336 (2007) (citation omitted). The Court finds that
apart from his unsupported allegations, there is no evidence
in the record to suggest he is actually innocent of the
charges of which he stands convicted, or that uncontrollable
circumstances impeded him from timely filing his federal
claim. See Gibson v. Klinger, 232 F.3d 799, 808
(10th Cir. 2000). Therefore, the petition must be dismissed
for lack of jurisdiction as an unauthorized and untimely
Court further finds Petitioner has failed to make a
“substantial showing of the denial of a constitutional
right, ” as required by 28 U.S.C. § 2253(c)(2). In
addition, he has not shown “at least, 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 [this]
court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, a
certificate of appealability cannot be issued.
Respondent's motion to dismiss petition as second and
succesive (Dkt. 8) is GRANTED, and this action is, in all
respects, DISMISSED WITHOUT PREJUDICE for lack of
jurisdiction. Furthermore, Petitioner is DENIED a certificate