United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United Stales District Judge
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.
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).
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(unpublished), appeal dismissed, 700 Fed.Appx. 872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). 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
Id. (citing Trujillo v. Williams, 465 F.3d
1210, 1222-23 (10th Cir. 2006)).
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):
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
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(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.
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.