United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
a state prisoner appearing pro se, brings this action
pursuant to 28 U.S.C. § 2254 seeking a writ of habeas
corpus. United States District Judge Stephen P. Friot has
referred the matter for initial proceedings consistent with
28 U.S.C. § 636(b)(1)(B) and (C). In accordance with
Rule 4, Rules Governing Section 2254 Cases in the United
States District Courts, the Petition [Doc. No. 1] has been
promptly examined, and for the reasons set forth below, it is
recommended that the action be summarily dismissed.
2011, Petitioner was convicted, by a jury, of First Degree
Malice Aforethought Murder (Count 1) and Assault and Battery
With a Deadly Weapon (Count 2), in Case No. CF-2007-3563,
District Court of Oklahoma County, State of Oklahoma.
See Pet. [Doc. No. 1] at pp. 1-2, ¶¶
1-7.The Oklahoma Court of Criminal Appeals
affirmed the conviction. See id. at pp. 2-3.
2014, Petitioner filed a prior federal habeas petition
challenging this same conviction. See Kincaid v.
Bear, Case No. CIV-14-736-F (W.D. Okla.) (Pet. filed
July 11, 2014). On November 22, 2016, the Court denied the
petition. See id. Order Adopting R.&R. [Doc.
No.34] and Judgment [Doc. No. 35]. On April 26, 2017, the
Tenth Circuit Court of Appeals entered an Order Denying
Certificate of Appealability. See id., Order [Doc.
commenced the present action on October 16, 2017. Petitioner
responded “yes” to the question on the form
Petition: “Have you previously filed any type of
petition, application, or motion in a federal court regarding
the conviction that you challenge in this petition?”
See Pet. at p. 11, ¶ 14. Petitioner states that
“due to mental disabilities, unable to properly answer
this.” See id. He further references the fact
that an “application to 10th Cir. for permission to
file a 2nd 2254 has been mailed.” See id. at
p. 13, ¶ 18. Thus, Petitioner acknowledges that his
current Petition is second or successive. Because Petitioner
has not obtained prior authorization from the Tenth Circuit
Court of Appeals to proceed with this action, it must be
courts must review habeas petitions and summarily dismiss a
petition “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief . . . .” Rule 4, Rules Governing Section 2254
Cases in the United States District Courts. Likewise, the
Court has “an independent obligation to determine
whether subject-matter jurisdiction exists” and may
raise the issue sua sponte at any time. 1mage Software,
Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048
(10th Cir. 2006); see also Fed. R. Civ. P.12(h)(3).
Grounds for Relief
action, Petitioner brings four grounds for federal habeas
relief. In Ground One, Petitioner claims the Oklahoma courts
lacked jurisdiction over him and, therefore, his conviction
is void. Petitioner contends that because he is “an
Indian, victim was an Indian, co-defendants were Indians,
crime took place inside Indian reservation
(Indian-County)” the federal courts have exclusive
jurisdiction over his crime. See Pet. at p. 5. He
relies on a recent opinion of the Tenth Circuit Court of
Appeals, Murphy v. Royal, 866 F.3d 1164 (10th Cir.
2017), to support his claim. Petitioner further claims that
his conviction is void because there was no grand jury
indictment. He also appears to challenge the sentence
imposed, although the precise nature of the claim is unclear.
In Ground Two, Petitioner claims that new evidence and
witnesses prove his actual innocence. He further claims
“jury summoning process deprived petitioner of a fair
trial”; the state court lacked jurisdiction and
“denial of due process and 6th amend.
violations.” Id. at p. 6. In Ground Three,
Petitioner again references the Tenth Circuit's decision
in Murphy and claims he is in custody in violation
of “federal constitution, laws and treaty.”
Id. at p. 8. Finally, in Ground Four, Petitioner
challenges Oklahoma's post-conviction
“process” contending it is inadequate to protect
his federal constitutional rights. Id. at p.
to 28 U.S.C. § 2244(b)(2), “[t]he filing of a
second or successive § 2254 application is tightly
constrained[.]” Case v. Hatch, 731 F.3d 1015,
1026 (10th Cir. 2013). “Before a court can consider a
second claim, an applicant must first ‘move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.'”
Id. (quoting 28 U.S.C. §
2244(b)(3)(A)). “Section 2244's gate-keeping
requirements are jurisdictional in nature, and must be
considered prior to the merits of a § 2254
petition.” Id. at 1027 (citing Panetti v.
Quarterman, 551 U.S. 930, 942-47 (2007)); see also
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 . . . §
2254 claim until this court has granted the required
Petitioner expressly acknowledges that he must seek prior
authorization and that he purportedly has a request pending
before the Tenth Circuit. Because he has not yet obtained
that authorization, this Court lacks jurisdiction over the
Petition and it should be dismissed without prejudice.
Tenth Circuit has instructed that a district court may
consider whether, pursuant to 28 U.S.C. § 1631, the
petition should be transferred to the Circuit, rather than
dismissed, if the transfer would be in the interest of
justice. In re Cline, 531 F.3d at 1252.
Petitioner's acknowledgment that Circuit authorization is
required, but that he proceeded to file the instant Petition
without first securing such authorization, dictates against a
transfer. See id. (citing Trujillo v.
Williams, 465 F.3d 1210, 1223 n. 16 (10th Cir. 2006)
(suggesting it is not in the interest of justice ...