Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kincaid v. Bear

United States District Court, W.D. Oklahoma

November 8, 2017

ROGER FRANK KINCAID, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         I. Background

         In 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.[1]The Oklahoma Court of Criminal Appeals affirmed the conviction. See id. at pp. 2-3.

         In July 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. No. 42].

         Petitioner 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 dismissed.

         II. Screening Requirement

         District 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).

         III. Grounds for Relief

         In this 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. 9.[2]

         IV. Analysis

         Pursuant 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 authorization.”).

         Here, 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.