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, 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
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.”).
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
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 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
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.
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.
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, 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 ...