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Walker v. Bear

United States District Court, W.D. Oklahoma

December 19, 2017

ROBERT JOE WALKER, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE

         Robert Walker (Petitioner), a state prisoner appearing pro se, seeks habeas corpus relief under 28 U.S.C. § 2254. Doc. 1.[1] United States District Judge Timothy D. DeGiusti has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.

         As required by Rule 4 of the rules guiding § 2254 proceedings, [2] the undersigned has examined the petition, along with Petitioner's supporting brief and exhibits, and recommends the summary dismissal of Petitioner's four claims for relief and, consequently, the summary dismissal of this action.

         I. Petitioner's first federal action.

         Petitioner pleaded guilty in October 1971 to a charge of murder, for which he was sentenced to life imprisonment, Case No. CRF-71-1292, District Court of Oklahoma County. Doc. 1, at 1. He sought § 2254 habeas relief from this Court in April 1991 because the state court held “[n]o competency hearing, ” and “violat[ed his] right against self-incrimination.” (Walker v. Reynolds, Case No. CIV-91-590-T, Petition at 3 (W.D. Okla., filed and stamped April 30, 1991)). This Court dismissed the petition on the merits. Walker, Case No. CIV-91-590-T, Report and Recommendation (W.D. Okla., filed July 31, 1991), adopted, Order (W.D. Okla., filed Sept. 3, 1991). Petitioner did not appeal.

         In August 1995, Petitioner sought leave to amend the petition, but the magistrate judge found the petition “[was] a photocopy” of Petitioner's 1991 petition. This Court adopted the Magistrate Judge's Report and Recommendation and dismissed the second petition sua sponte according to Rule 9(b) of the Rules Governing § 2254 Cases. Walker v. Reynolds, Case No. CIV-95-541-T, Order (W.D. Okla., filed August 31, 1995).

         II. Petitioner's current petition.

         A. Petitioner does not acknowledge his previous federal petitions.

         Petitioner implicates the same conviction and sentence in the instant case, Doc. 1, at 1. But he neglects to acknowledge his previous federal petitions challenging the same. See id, passim.[3]

         B. Grounds for habeas relief.

         Petitioner requests habeas relief on four grounds, the first, that the “state trial court lacked jurisdiction.” Id. at 5. Second, he contends the state court violated due process “because of petitioner's disabilities” and because “state courts refused to comply with their own rules and laws.” Id. at 6. Then, third, he maintains the state courts denied due process by “issuing orders in conflict with clearly established federal laws.” Id. at 8. Last, Petitioner urges application of “new law” from the “D.C. Federal Appeals Court, ” which he contends “hold[s that] 30 years for murder . . . violates 8th. Amend[ment].” Id. at 9. He asks the court to “[g]rant habeas relief, or remand to state court for ‘further-processing' of a hearing, or bring Petitioner before this Court for an ‘inquiry.'” Id. at 14.

         III. Petitioner's action is second or successive.

         The dismissal of Petitioner's first § 2254 habeas petition was a decision on the merits and, consequently, his present habeas challenge to that same judgment and sentence is second or successive for purposes of 28 U.S.C. § 2244(b). See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam).

         Federal law provides that “[b]efore a second or successive 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.” 28 U.S.C. § 2244(b)(3)(A). When a petition is “second or successive, ” and the Tenth Circuit has not granted authorization, the court lacks jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). Petitioner does not allege that ...


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