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Morgan v. Bear

United States District Court, W.D. Oklahoma

April 13, 2018

DAVID BRIAN MORGAN, Petitioner,
v.
CARL BEAR, Warden, [1] Respondent.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE

         Petitioner David Brian Morgan, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2241. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636. For the reasons outlined below, it is recommended that the action be dismissed.

         BACKGROUND

         Petitioner is serving a sentence of life imprisonment after his 2011 plea of guilty to rape, weapons possession, molestation, and kidnapping in Case Number CF-2010-7695, District Court of Oklahoma County, State of Oklahoma. See Am. Pet. (Doc. No. 10) at 1, 3. This is the eighth case Petitioner has filed in this Court seeking habeas relief, each challenging in one way or another the 2011 state-court conviction and sentence of life imprisonment.

         The undersigned takes notice of the records of proceedings in this Court. In April 2014, Petitioner filed a 28 U.S.C. § 2254 habeas petition challenging his 2011 conviction in Oklahoma County Case Number CF-2010-7695. See Morgan v. Addison (“Morgan I”), No. CIV-14-337-R (W.D. Okla. filed Apr. 7, 2014). This Court dismissed that petition as time-barred. Morgan I, Order (Doc. No. 11); id., J. (Doc. No. 12). The Tenth Circuit denied a certificate of appealability and dismissed Petitioner's appeal. Morgan v. Addison, 574 Fed.Appx. 852 (10th Cir. 2014). The United States Supreme Court denied certiorari. Morgan v. Addison, 135 S.Ct. 1496 (2015).

         In July 2015, Petitioner filed a habeas petition, purportedly pursuant to 28 U.S.C. § 2241(c) for a “Writ of Coram Nobis, ” again challenging his 2011 conviction in Oklahoma County Case Number CF-2010-7695. See Morgan v. Bear (“Morgan II”), No. CIV-15-782-R (W.D. Okla. filed July 17, 2015). The assigned Magistrate Judge construed the petition in that case as seeking relief under both 28 U.S.C. §§ 2241 and 2254 and recommended dismissal of all of Petitioner's claims. Morgan II, R. & R. (Doc. No. 8). On September 10, 2015, the District Judge accepted this recommendation, dismissing Petitioner's § 2241 claims for lack of merit and dismissing Petitioner's § 2254 claims as unauthorized and second or successive. Morgan II, Order (Doc. No. 10); id., J. (Doc. No. 11). The docket for Morgan II does not reflect that Petitioner appealed this disposition or otherwise sought relief from the dismissal.

         Petitioner's third action was purportedly brought pursuant to the All Writs Act. See Morgan v. Bear (“Morgan III”), No. CIV-15-1279-R (W.D. Okla. filed Nov. 17, 2015). The undersigned recommended that the action be dismissed so Petitioner could properly bring a Rule 60(b) motion before the Court regarding Morgan II. Morgan III, R. & R. (Doc. No. 5). On December 17, 2015, the District Judge adopted this recommendation, dismissing the action. Morgan III, Order (Doc. No. 7); id., J. (Doc. No. 8). On appeal, the Tenth Circuit denied a certificate of appealability and dismissed the case. See Morgan v. Bear, 652 Fed.Appx. 597 (10th Cir. 2016).

         In Morgan v. Bear (“Morgan IV”), No. CIV-16-688-R (W.D. Okla. filed June 20, 2016), Petitioner purportedly sought relief pursuant to 28 U.S.C. § 1651 for “Post Conviction Application, Extraordinary Writ.” See also Morgan IV, Am. Pet. Under § 2241 (Doc. No. 8). The Court denied the application on November 14, 2016. Id., Order (Doc. No. 14) id., J. (Doc. No. 15). The Tenth Circuit subsequently denied Petitioner authorization to file those claims in a second or successive 28 U.S.C. § 2254 habeas application. Id., Tenth Cir. Order of Dec. 29, 2016 (Doc. No. 18).

         Petitioner's fifth action, Morgan v. State of Oklahoma (“Morgan V”), No. CIV-16-1003-R (W.D. Okla. filed Aug. 30, 2016), was purportedly brought pursuant to 28 U.S.C. § 2255. The assigned Magistrate Judge recommended dismissal because Petitioner is not a federal prisoner and has no federal sentence to challenge. Morgan V, R. & R. (Doc. No. 5). On October 26, 2016, the District Judge adopted this recommendation, dismissing the action. Morgan V, Order (Doc. No. 11); id., J. (Doc. No. 12).

         Petitioner's sixth attempt to obtain habeas relief, Morgan v. United States of America (“Morgan VI”), No. CIV-17-80-R (W.D. Okla. filed Jan. 26, 2017), was captioned “Post-Conviction Motion for Modification under Liberty Violation.” The assigned Magistrate Judge recommended dismissal based on Petitioner's failure to cure deficiencies in the Petition. Morgan VI, R. & R. (Doc. No. 8). On March 22, 2017, the District Judge adopted this recommendation, dismissing the action. Morgan VI, Order (Doc. No. 9); id., J. (Doc. No. 10).

         In his seventh action, Morgan v. Bear (“Morgan VII”), No. CIV-17-322-R (W.D. Okla. filed Mar. 17, 2017), Petitioner submitted a Petition for Habeas Corpus on a form for actions brought pursuant to 28 U.S.C. § 2254. This action challenged his conviction and sentence as well as the conditions of his confinement. The assigned Magistrate Judge recommended dismissal of the habeas claims because the Petition was second or successive and dismissal of the conditions-of-confinement claims because they should have been brought pursuant to 42 U.S.C. § 1983. Morgan VII, R. & R. (Doc. No. 8). On May 8, 2017, the District Judge adopted the recommendation, dismissing the action. Morgan VII, Order (Doc. No. 9); id., J. (Doc. No. 10).

         Petitioner commenced the instant action by filing what he labeled a “Post Conviction Motion to File § 2241(c) Prosecutorial Misconduct.” See Pet. (Doc. No. 1) at 1. Noting procedural deficiencies in the original pleading, and that the substance of Petitioner's allegations implicate a challenge to the conviction and sentence for which he is currently imprisoned, the Court directed Petitioner to refile a petition using the Court's approved form for 28 U.S.C. § 2254 habeas actions. See Order (Doc. No. 6) at 2. Petitioner subsequently moved to file his action as a petition under 28 U.S.C. § 2241. See Pet'r's Mot. (Doc. No. 7). The Court granted that request but advised Petitioner that “any pleading submitted will be ‘construed so as to do justice, ' and the pleading's substance rather than its caption will be subject to review when the determination is made whether Petitioner is ‘entitled to relief.'” Order (Doc. No. 8) at 2-3 (citing Fed.R.Civ.P. 8(e), 81(a)(4); R. 1(b), 4, R. Governing § 2254 Cases in U.S. Dist. Cts.[2])).

         ANALYSIS

         A. ...


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