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Cross v. Bear

United States District Court, W.D. Oklahoma

December 12, 2017

LAWRENCE M. CROSS, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). Pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, the undersigned has reviewed the Petition and recommends that the Petition be dismissed.

         I. Background

         In his Petition, Petitioner attempts to challenge his convictions entered in the District Court of Stephens County, Oklahoma, in Case No. CF-2009-316. In that case, Petitioner pled guilty in 2010 to multiple drug trafficking offenses. He is serving the sentences entered for those convictions, and he is currently confined at the Joseph Harp Correctional Center in Lexington, Oklahoma. Petitioner is no stranger to this Court, having previously sought § 2254 relief concerning the same convictions and sentences.

         In Cross v. Franklin, Case No. CIV-12-39-D, Petitioner challenged his convictions and sentences in Case No. CF-2009-316. Petitioner alleged that his guilty plea entered in the state criminal proceeding was not knowingly and voluntarily entered. The case was referred to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), and the undersigned entered a Report and Recommendation on June 27, 2012, addressing each of Petitioner's claims and recommending that the petition be denied. United States District Judge DeGiusti adopted the Report and Recommendation and entered Judgment denying habeas relief.

         Petitioner appealed this decision. In an Order Denying Certificate of Appealability entered April 1, 2013, the Tenth Circuit Court of Appeals affirmed this Court's decision. The appellate court rejected Petitioner's claim that his guilty plea was not knowingly and voluntarily entered. The court found, specifically, that Petitioner had presented no evidence showing that his judgment was impaired at the time he entered his guilty plea and that Petitioner's claims he (1) misunderstood the charges, (2) did not know the punishment range of the charges filed against him lacked merit, and (3) was coerced into pleading guilty due to his attorney's lack of preparation for a possible trial lacked merit. Cross v. Franklin, 520 Fed.App'x 671 (10th Cir. 2013)(unpublished op.).

         In 2015, Petitioner filed a second 28 U.S.C. § 2254 habeas action challenging the same convictions and sentences entered in Stephens County in 2010. The Court dismissed the action, finding Petitioner “fail[ed] to provide any factual or legal basis for proceeding directly in this Court on what is clearly a second or successive habeas petition, or for transferring his Petition to the Tenth Circuit in the interest of justice.” Cross v. Bear, 2015 WL 7272245 (W.D.Okla. 2015)(DeGiusti, D.J.)(Order). Petitioner appealed this decision. On April 1, 2016, the Tenth Circuit Court of Appeals entered an order denying Petitioner's application for a certificate of appealability and dismissing the appeal.

         II. Third Habeas Petition

         Without so much as a hint that he has previously sought habeas relief in this Court on multiple occasions challenging the same convictions and sentences, Petitioner has now filed what constitutes his third Petition seeking federal habeas relief concerning his convictions and sentences in Case No. CF-2009-316.

         In his first ground for habeas relief, Petitioner contends that his convictions and sentences are unlawful because “Petitioner is Indian, victim was Indian, crime took place on Indian land, in Indian country, inside an Indian reservation.” Petition (Doc. # 1), at 5. In his second ground for habeas relief, Petitioner contends he is incompetent and “state courts suspended access to courts, due process and habeas corpus due to Petitioner's disabilities.” Petition (Doc. # 1), at 6. In ground three, Petitioner contends “counsel should have been appointed and hearing conducted” due to his “history of mental incompetence for years before arrest” and “D.O.C. medical records.” Petition (Doc .# 1), at 8.

         In response to the question on the habeas form inquiring as to any previously filed petition, application, or motion in a federal court regarding the challenged convictions, Petitioner stated, “Unknown.” Petition (Doc. # 1), at 11. Petitioner also stated that he was “unable to understand or answer” the question on the habeas form concerning the timeliness of the Petition under 28 U.S.C. § 2244(d) “due to mental and physical incompetency and disabilities.” Petition (Doc. # 1), at 13.

         III. The Court Lacks Jurisdiction to Review Petitioner's Unauthorized Successive Petition

         Pursuant to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive [§2254] application . . . 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.” Petitioner is well aware of this statutory authorization requirement in light of the fact that his previous habeas petition was dismissed as an unauthorized second or successive petition. “A district court does not have jurisdiction to address the merits of a second or successive . . . 28 U.S.C. § 2254 claim until [the Tenth Circuit Court of Appeals] has granted the required authorization.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008); see 28 U.S.C. § 2244(b)(3).

         Here, there is no indication that Petitioner has sought and received an order from the Tenth Circuit Court of Appeals authorizing this Court to consider the merits of the claims presented in the instant Petition. “When a second or successive § 2254 . . . claim is filed in the district court without the required authorization from [the appellate] court, the district court may transfer the matter to [the appellate] court if it determines it is in the interest of justice to do so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for lack of jurisdiction.” Id. at 1252. “When there is no risk that ...


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