United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Supplemental
Report and Recommendation [Doc. No. 10] issued by United
States Magistrate Judge Gary M. Purcell on December 12, 2017,
pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and Rule 4 of
the Rules Governing Section 2254 Cases. Judge Purcell
recommends dismissal of the Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus [Doc. No. 1] for lack of
jurisdiction because it is an unauthorized successive
petition. See 28 U.S.C. § 2244(b)(3)(A). Judge
Purcell finds that a transfer of the Petition to the court of
appeals is not in the interest of justice because it does not
allege circumstances to satisfy the requirements of §
2244(b)(2) and it is untimely under § 2244(d)(1).
has filed a timely written objection. Thus, the Court must
make a de novo determination of portions of the
Report to which a specific objection is made, and may accept,
modify, or reject the recommended decision in whole or in
part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
who appears pro se, seeks to challenge his 2010
convictions and sentences for drug trafficking offenses in
the District Court of Stephens County, Oklahoma, in Case No.
CF-2009-316. Petitioner has unsuccessfully sought relief from
these same convictions and sentences in both state and
federal courts on two prior occasions. See Cross v.
Franklin, 520 Fed.Appx. 671, 672-73 (10th Cir. 2013)
(denying certificate of appealability; stating prior
procedural history and claims presented in first habeas
petition); Cross v. Bear, 644 Fed.Appx. 836, 837
(10th Cir. 2016) (denying certificate of appealability;
finding it “not debatable that his § 2254 petition
is second or successive or that the district court had no
jurisdiction to consider it”).
initial examination of the Petition in light of publicly
available court records, Judge Purcell finds that the
Petition should be dismissed for lack of jurisdiction, for
reasons stated supra. Although not entirely clear,
Petitioner appears to argue in his Objection that the
Petition should not be considered statutorily barred because
he is mentally incompetent and lacks legal assistance, and
that he is not presenting a successive § 2254 petition
but is seeking some other type of relief, such as a writ of
habeas corpus under § 2241. See Petr's Obj.
[Doc. No. 11].
de novo consideration of the issues raised by
Petitioner's Objection, which is liberally construed, the
Court fully concurs in Judge Purcell's well-reasoned
analysis. Petitioner fails to provide any factual or legal
basis for proceeding directly in this Court on what is
clearly a successive habeas petition, or for transferring his
Petition to the Tenth Circuit in the interest of
justice. Petitioner does not present any argument
or authority that would undermine Judge Purcell's finding
that this Court lacks jurisdiction to address
Petitioner's claims regarding the same state court
convictions challenged in prior federal habeas cases, or
Judge Purcell's recommendation that the Petition be
dismissed rather than transferred to the Tenth Circuit. The
Court therefore concurs in the recommendation to dismiss the
Petition for lack of jurisdiction due to Petitioner's
failure to satisfy the requirements of 28 U.S.C. §
2244(b)(3)(A), and his failure to allege any circumstances
that might warrant a transfer of the Petition to the court of
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 10] is ADOPTED in its entirety, and the Petition [Doc.
No. 1] is DISMISSED without prejudice. A separate judgment of
dismissal shall be entered.
FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases, the Court must issue or deny a
certificate of appealability (COA) when it enters a final
order adverse to a petitioner. A COA may issue only upon
“a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. §
2253(c)(2). “When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, 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 the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Upon consideration, the Court finds the requisite standard is
not met in this case. Therefore, a COA is denied. The denial
shall be included in the judgment.
 In the Objection, like the Petition,
Petitioner fails to disclose or acknowledge his prior federal
filings or to allege facts that might ...