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Cotner v. United States

United States District Court, W.D. Oklahoma

February 28, 2018

ROBERT COTNER, Petitioner,
v.
UNITED STATES OF AMERICA, WARDEN BEAR, and STATE OF OKLAHOMA Respondent.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.

         Robert 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 restrictions.

         SCREENING REQUIREMENT

         The 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).

         BACKGROUND

         Petitioner has a long history of filing frivolous and meritless actions in federal courts. To curb this abuse, this Court, 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 process”).

         Petitioner originally filed this action in the United States District Court for the Western District of Arkansas, Fort Smith Division. The district court in that district subsequently transferred the action to this Court pursuant to 28 U.S.C. § 1406(a). See Order of January 18, 2018 (Doc. No. 3) at 1-2. Petitioner is not subject to filing restrictions in the United States District Court for the Western District of Arkansas. However, this does not obviate Petitioner's obligation to follow the filing restrictions of the Court into which the action was transferred. See Housley v. Boone, No. 94-6026, 1994 WL 699172, at *1 (10th Cir. Dec. 14, 1994) (The transfer does “not preclude the [transferee Court] from dismissing the petition for failure to follow filing requirements. [The petitioner] was required to follow the valid restrictions imposed by the jurisdiction in which his action properly should have been filed.”); Housley v. Burrows, No. 98-6022, 1998 WL 764601, at *2 (10th Cir. Oct. 28, 1998) (The transfer did not “preclude the [transferee Court] from dismissing plaintiff's complaint for failing to follow the filing restrictions of the [transferee Court], where the case should have been filed initially.”).

         This action was transferred to this Court on January 18, 2018. As of the date of this Order, Petitioner has not submitted an Amended Petition compliant with this Court's filing restrictions nor has he submitted the information required under the restrictions in any other form or manner. Pursuant to these restrictions, Petitioner must 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 thereof.

Cotner v. McCollum, No. CIV-12-1398-C, 2013 WL 1776645, at *6 (W.D. Okla. Apr. 4, 2013) (R. & R.), adopted, 2013 WL 1773582 (W.D. Okla. Apr. 25, 2013). Petitioner's current filing is deficient, as it fails to include this attachment or any of the information required therein.

         This Court recently dismissed two habeas petitions filed by Petitioner on the grounds that the petitions failed to comply with the filing restrictions imposed by the Court.

         See Cotner v. Bear, No. CIV-17-1280-M, R. & R. at 2-5 (W.D. Okla. Dec. 28, 2017), adopted, Order (W.D. Okla. Jan. 18, 2018); 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); 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). Further, the Tenth Circuit Court of Appeals has dismissed an appeal of a § 2241 habeas action filed by Petitioner for failure to comply with filing restrictions. 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); 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.

         On January 25, 2018, Petitioner filed two motions challenging the transfer of the action: Motion to Recall Order of Transfer (Doc. No. 8) and Motion to Return Case Back to Arkansas Federal Court (Doc. No. 9). The Tenth Circuit has held that the transferee court generally cannot review the transfer order of the transferor court unless there is a change in the governing law, new evidence becomes available, or if the order is clearly erroneous or would work a manifest injustice. See Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991). Petitioner has failed to establish the existence of any of these factors. Since venue is proper in Oklahoma but not in Arkansas, [1]the transfer was neither erroneous nor unjust. Moreover, applications for writ of habeas corpus must “be filed in the district court for the district wherein [the petitioner] is in custody or in the district court for the district within which the State court was held which convicted and sentenced ...


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