United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
Cotner, a state prisoner appearing pro se, seeks a writ of
habeas corpus under 28 U.S.C. § 2241. See Pet.
(Doc. No. 1) at 1-9. United States District Judge Vicki
Miles-LaGrange has referred the matter to the undersigned
Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636. As outlined herein, the undersigned
recommends that the Petition be dismissed without prejudice
for failure to comply with previously imposed filing
Court is required to review all habeas petitions and to order
dismissal “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” R. 4, R. Governing
§ 2254 Cases in U.S. Dist. Cts. The district court may
apply any or all of the rules governing § 2254 cases to
a habeas petition brought under 28 U.S.C. § 2241.
Id. R. 1(b); see also Boutwell v. Keating,
399 F.3d 1203, 1211 n.2 (10th Cir. 2005).
has a long history of filing frivolous and meritless actions
in federal courts. To curb this abuse, this Court, as well as
other federal district courts, the Tenth Circuit Court of
Appeals, and the United States Supreme Court, have placed
filing restrictions on Petitioner. See, e.g., Cotner v.
Boone, 530 U.S. 1271 (2000) (directing the Clerk to
reject future petitions for writ of certiorari from
Petitioner in civil matters unless he has paid the filing
fee); Cotner v. Boone, 48 Fed. App'x 287, 290
(10th Cir. 2002) (subjecting Petitioner to filing
restrictions in original habeas actions and appeals from the
denial of a habeas petition); Cotner v. Campbell,
618 F.Supp. 1091, 1098-99 (E.D. Okla. 1985) (reiterating
filing requirements imposed by the Court due to
Petitioner's continued “abuse of people and
filings in this case do not comply with the restrictions
previously imposed. First, the Court has required that
Petitioner present all habeas petitions upon the form
petition approved by the Court and neither attach nor insert
additional pages. See Cotner v. McCollum, No.
CIV-12-1398-C, 2013 WL 1776645, at *6-7 (W.D. Okla. Apr. 4,
2013) (R. & R.), adopted, 2013 WL 1773582 (W.D.
Okla. Apr. 25, 2013). Petitioner's filing in this case
includes an additional, handwritten page to the Petition
form, titled “Notice to Court of New Evidence.”
See Pet. Ex. 1 (Doc. No. 1-1).
the filing restrictions require that Petitioner include with
all habeas petitions
a signed and sworn attachment listing every petition or other
application for post-conviction relief filed by Mr. Cotner in
this or any other court of law or equity (whether state or
federal). Each case must be listed in the following manner:
by style (title) of the case, docket number, court, date
filed, description of the case, and disposition and date
Cotner, 2013 WL 1776645, at *6. Petitioner has
submitted a list of prior cases but it is deficient in
several respects: (1) it fails to identify the court
associated with each case; (2) it fails to include case
descriptions; and (3) it provides false information regarding
the disposition of several of the cases. See
Pet'r's Notice of Compliance with Filing Restrictions
(Doc. No. 7). With regard to the disposition deficiency,
Petitioner misrepresents that the majority of his prior cases
were “settled out of court.” See Id. In
a review of a random selection of these cases, the
undersigned failed to find any case in which the docket
reflected a settlement and voluntary dismissal by the
Court recently dismissed a habeas petition filed by
Petitioner on the grounds that, among other deficiencies, the
petition failed to comply with the filing restrictions
imposed by the Court. See Cotner v. Bear, No.
CIV-17-757-M, Suppl. R. & R. at 7-8 (W.D. Okla. Aug. 16,
2017), adopted, Order (W.D. Okla. Sept. 5, 2017).
The Court pointed to the same filing deficiencies as are
present here-namely, Petitioner's failure to identify
courts, failure to include case descriptions, and failure to
provide accurate information regarding the disposition of
Petitioner's other cases. Id. at 7-8; see
also Cotner v. Beck, No. CIV-07-076-RAW-KEW, 2008 WL
376351 (E.D. Okla. Feb. 11, 2008) (dismissing Mr.
Cotner's habeas petition solely on the basis of failure
to comply with filing restrictions).
the Tenth Circuit Court of Appeals has dismissed an appeal of
a § 2241 habeas action filed by Petitioner on
substantially similar grounds. See Cotner v. Bear,
No. CIV-15-1183-M (W.D. Okla. Jan. 29, 2016), appeal
dismissed, No. CIV-16-6040 (10th Cir. Mar. 3, 2016). The
Court predicated its dismissal on Petitioner's
noncompliance with the filing restrictions imposed upon him
by the Tenth Circuit, specifically noting deficiencies with
his submitted list of former cases. Order of USCA, Cotner
v. Bear, No. CIV-16-6040 (10th Cir. Mar. 3, 2016).
Similar to the deficiencies present in the instant case, the
Tenth Circuit highlighted Petitioner's failure to include
the originating court and failure to include accurate case
dispositions (including, instead, the phrase “settled
out of court”). Id. at 2; see also Stine
v. Oliver, 644 F. App'x 857 (10th Cir. 2016)
(affirming the district court's dismissal based solely on
the plaintiff's noncompliance with filing restrictions,
noting that “the district court acted within its
discretion in applying the filing restrictions”).
Accordingly, this action should be dismissed due to
Petitioner's failure to comply with the filing
restrictions imposed by this Court.
December 26, 2017, Petitioner filed a document titled
“New Evidence Proving Imminent Danger Exception,
” in which he asserts that he is entitled to a hearing
on his Motion to Proceed in forma pauperis
(“IFP”) (Doc. No. 3.) or an Order either granting
or denying this motion. Insofar as Petitioner seems to demand
an immediate ruling by the Court on the Motion to Proceed
IFP, the language of 28 U.S.C. § 1915(e)(2) imposes no
duty on the Court to take up that issue prior to reviewing
whether Petitioner has complied with the Court's filing
restrictions. See § 1915(e)(2). Moreover, the
imminent-danger exception raised by Petitioner is
inapplicable to this habeas corpus action. The Tenth Circuit
has determined that, while prisoners with three former
“strikes” may proceed in a civil action without
prepayment of the full filing fee if they make a specific and
credible allegation of imminent danger, Kinnell v.