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McElhaney v. Bear

United States District Court, E.D. Oklahoma

July 30, 2018

ALBERT McELHANEY, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. White United Stales District Judge

         Petitioner, a pro se state prisoner in the custody of the Oklahoma Department of Corrections, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). He is attacking his conviction and sentence in McIntosh County District Court Case No. CF-2009-76 for Murder in the Second Degree, After Former Conviction of Two or More Felonies.

         Construing Petitioner's petition liberally, Haines v. Kerner, 404 U.S. 519 (1972), he is alleging he is an Indian, and his crime occurred on an Indian reservation. He argues the state court lacked jurisdiction, pursuant to Murphy v. Royal, 866 F.3d 1164 (10th Cir. (2017), modified on denial of reh'g en banc, 875 F.3d 896 (10th Cir. 2017), cert. granted, 138 S.Ct. 2026 (2018). Petitioner also asserts the state court was deprived of jurisdiction because he was not informed of his right to get a waiver of a grand jury indictment. He requests the following relief: “Conduct a hearing on the merits of claims or certify questions to U.S. Supreme Court, or order state release Petitioner from detention/confinement” (Dkt. 1 at 14).

         The record shows this is Petitioner's second § 2254 habeas petition challenging this conviction, with his previous case having been dismissed as barred by the statute of limitations. See McElhaney v. Bear, No. 16-107-JHP-KEW, 2017 WL 1277486 (E.D. Okla. Mar. 31, 2017) (unpublished), appeal dismissed, 700 Fed.Appx. 872 (10th Cir. 2017).[1] This second or successive petition that now is before the Court is unauthorized, because Petitioner failed to seek authorization from the Tenth Circuit to file it, pursuant to 28 U.S.C. § 2244(b)(3)(A). “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” Id. Petitioner's failure to obtain authorization is undisputed, leaving only the question of whether to dismiss the petition or, “if it is in the interest of justice, ” transfer the amended petition to the Court of Appeals for possible authorization. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.

Id. (citing Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006)).

         Further, an applicant seeking authorization to file a second or successive application for writ of habeas corpus must meet the requirements of 28 U.S.C. § 2244(b)(2):

         A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Id.

         The Court finds that neither of the claims raised by Petitioner meets the requirements of 28 U.S.C. § 2244(b). Furthermore, as discussed below, the factors weigh heavily against a transfer.

         Grand ...


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