United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
matter is before the Court for review of the Report and
Recommendation [Doc. No. 13] issued by United States
Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Upon preliminary review of the Petition
for a Writ of Habeas Corpus Under 28 U.S.C. § 2241,
Judge Erwin finds that the Petition should be summarily
dismissed without prejudice because Petitioner fails to state
a claim upon which relief can be granted under § 2241
and his pleading should not be recast as a § 2254
the time period to object, Petitioner has made a pro
se filing, entitled “Motion for Hearing and Motion
to Deny Report and Recommendation” [Doc. No. 14], which
is construed as a timely objection. Thus, the Court must make
a de novo determination of the portions of the
Report to which a specific objection is made, and may accept,
reject, or modify the recommended decision, in whole or in
part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
objects to Judge Erwin's conclusion that the Petition
appears to challenge in all of Grounds One through Four, a
state court conviction for which Petitioner is now confined
at Joseph Harp Correctional Center in Lexington, Oklahoma.
Although Petitioner's arguments are not entirely clear,
he states in highlighted text: “[T]here is no
conviction in this case! None! No
records of a crime, arrest, trial, or conviction!
None! (proved in state courts).”
See Obj. at 1 (emphasis in original). Taken in the
context of the claims asserted in the Petition, the Court
understands Petitioner's position is that state courts
lacked jurisdiction over criminal charges against an Indian
for an offense committed in Indian country. See Murphy v.
Royal, 875 F.3d 896 (10th Cir. 2017), pet. cert.
filed, No. 17-1107 (Feb. 6, 2018).
de novo consideration of the issues raised by
Petitioner's Objection, the Court finds no viable basis
to permit this habeas case to proceed under § 2241.
Further, taking judicial notice of pertinent case files and
records, the Court notes that Petitioner has previously
attempted to obtain release from state custody by seeking
relief under § 2241 on multiple occasions. See
Martin v. Bear, Case No. CIV-15-682-D, Pet. (W.D. Okla.
June 23, 2015); Martin v. Bear, Case No.
CIV-16-1170-D, Pet. (W.D. Okla. Oct. 7, 2016); Martin v.
Bear, Case No. CIV-17-1300-D, Pet. (W.D. Okla. Dec. 4,
2017). In fact, this is Petitioner's second case raising
similar claims to the ones asserted in the instant Petition;
the earlier case was summarily dismissed (as were prior
cases) because “‘§ 2241 in not an
appropriate vehicle for relief.'” See Martin v.
Bear, Case No. CIV-17-1300-D, Order at 1 (W.D. Okla.
Jan. 23, 2018) (quoting Martin v. Bear, 683
Fed.Appx. 729, 730 (10th Cir.), cert. denied, 138
S.Ct. 142 (2017) (unpublished)), appeal pending, No.
18-6017 (10th Cir. Jan. 31, 2018). Apparently seeking to avoid
the same result, Petitioner filed this case in the United
States District Court for the Western District of Arkansas,
but it was promptly transferred to this district.
See 1/30/18 Order [Doc. No. 2]. Petitioner cannot
avoid the unfavorable rulings in prior cases by simply
refiling another § 2241 case.
these reasons, the Court fully concurs with Judge Erwin's
findings that the Petition fails to state a claim cognizable
under § 2241, and his recommendation for dismissal of
the Petition without prejudice to a future action seeking an
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 13] is ADOPTED in its entirety. The Petition for a Writ
of Habeas Corpus Under 28 U.S.C. § 2241 is DISMISSED
without prejudice to a future filing. Judgment shall be
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 if Petitioner “has made 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). Upon consideration, the Court finds the
requisite standard is not met in this case. Therefore, a COA
 In Petitioner's 2016 case, the
Tenth Circuit found that his denial of being “arrested,
charged, tried, and convicted of a crime . . . is false,
” and took “judicial notice of his 1985 state
court conviction for first degree murder and accompanying
life sentence.” See Martin, 683 Fed.Appx. at
730 (citing State v. ...