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Monckton v. Whitten

United States District Court, W.D. Oklahoma

May 1, 2019

MICHAEL WAYNE MONCKTON, Petitioner,
v.
MARK WHITTEN, Warden, Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner seeking habeas relief under 28 U.S.C. § 2254. Chief Judge Joe Heaton referred the case to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B) and (C). Having examined the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in U.S. District Courts, the undersigned recommends that to the extent the petition seeks relief under Fed.R.Civ.P. 60(b), the request be denied. To the extent that the petition raises claims for habeas relief, it should be deemed a second or successive habeas petition and transferred to the Court of Appeals for authorization under 28 U.S.C. § 2244(b)(3).

         Rule 4 requires federal district courts to promptly examine habeas petitions and determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in district court.” If a petitioner is not entitled to relief, the court may dismiss the petition, or take other action that may be warranted. Here, it plainly appears that Petitioner is not entitled to relief. The petition is either a second or successive petition over which this Court currently has no jurisdiction, or it is a motion for relief from an earlier judgment that does not justify relief.

         I. Procedural History.

         This case comes to the Court with a complex procedural history. A jury convicted Petitioner of rape in the first degree and rape by instrumentation in 2012. Doc. 1-11 at 1.[1] Petitioner received a 22-year sentence for the first-degree rape conviction, and a 10-year sentence for rape by instrumentation. Id. The sentences were ordered to run consecutively. Id. Petitioner appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed his conviction and sentence on January 9, 2014. Id. Petitioner then filed an application for post-conviction relief in the trial court. Id. The trial court denied the application in part but granted relief in part, finding Petitioner was entitled to a re-sentencing hearing, as he had not received the benefit of a pre-sentence investigation in his earlier sentencing. Id. The trial court re-sentenced Petitioner on July 1, 2015, imposing the same 22- and 10-year consecutive sentences. Id. at 3.

         Petitioner then launched a flurry of legal filings. He attempted to appeal the trial court's post-conviction decision through a post-conviction appeal, but the OCCA declined jurisdiction as the filing was untimely. Id. He also filed a direct appeal from his re-sentencing.[2] Id. at 3. Petitioner then filed a second post-conviction application in the state trial court, seeking permission to file a post-conviction appeal out-of-time. Id. at 3. That same day, he sought habeas relief in this court. See Petition, Monckton v. State of Oklahoma, No. 15-cv-883-HE (W.D. Okla. Aug. 14, 2015) ECF #1.

         This Court dismissed Petitioner's federal habeas petition without prejudice due to the ongoing state court proceedings.[3] See Order Adopting Report & Recommendation at 1, Monckton v. State of Oklahoma, No. 15-cv-883-HE (W.D. Okla. Nov. 29, 2015), Doc. 13. As for the state court proceedings, the state trial court eventually granted petitioner's request to file a post-conviction appeal out of time. Doc. 1, Att. 11, at 3. The OCCA then entered an order that dismissed the re-sentencing appeal[4] and gave Petitioner permission to file a post-conviction appeal out of time. Id. at 10-14. Petitioner filed his post-conviction appeal, and the OCCA affirmed the trial court's ruling. Doc. 1, Att. 13. After that denial, Petitioner filed another federal habeas petition in this Court and filed a third application for post-conviction relief in the state trial court. See Petition, Monckton v. State of Oklahoma, No. 16-cv-1136-HE (W.D. Okla. Sept. 29, 2016), Doc. 1; Br. in Support of Mot. to Dismiss at Ex. 3, Monckton v. State of Oklahoma, No. 16-cv-1136-HE (W.D. Okla. Nov. 2, 2016), Doc. 10, Att. 3.

         The State sought dismissal of the federal habeas petition due to abstention and exhaustion concerns, as the third post-conviction application was still pending. The Court determined that the claims raised had all been exhausted in the earlier state proceedings, and therefore denied the motion to dismiss. Monckton v. Bryant, No. CIV-16-1136-HE, 2017 WL 4324537, at *1-2 (W.D. Okla. Sept. 28, 2017) (order adopting report & recommendation). The Court then denied relief on the merits of the petition.

         Petitioner now returns to the court with two new claims: (1) that the OCCA violated his due process rights by dismissing his re-sentencing appeal and instead requiring a post-conviction appeal, and (2) that this Court lacked jurisdiction to rule on his earlier petition.

         II. Analysis.

         Because this is the second petition-not including the first petition dismissed without prejudice-that Petitioner has filed in this court regarding the same conviction and sentence, his petition is a “second or successive” petition. See Burton v. Stewart, 549 U.S. 147, 152-53 (2007); 28 U.S.C. § 2244. District courts are required to dismiss (or transfer for appellate authorization) claims that could have been presented in an original habeas petition but were not. 28 U.S.C. § 2244(b). This Court has no jurisdiction to address the petition unless and until the Court of Appeals grants authorization. See Burton, 549 U.S. at 153; 28 U.S.C. § 2244(b)(3)(A)-(D).

         The only potential avenue for this Court to review any of Petitioner's claims is to construe the petition as a motion for reconsideration under Fed.R.Civ.P. 60(b). Ordinarily, Rule 60(b) motions regarding habeas petitions are construed as second or successive petitions, as they request a court to review their claims on the merits a second time. See Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). But if a Rule 60(b) motion challenges a habeas court's procedural ruling or a defect in the integrity of the proceeding, the court can address the motion. Id.

         This case presents an atypical situation. Here, Petitioner argues in a second or successive petition that the Court's earlier ruling on the merits of petitioner's habeas claims are void, as the Court lacked jurisdiction. That claim-a lack of jurisdiction-is the type of claim that warrants review if presented as a Rule 60(b) motion. See Green v. Reynolds, No. CIV-93-702-D, 2008 WL 782480 at *2 (W.D. Okla. Mar. 7, 2008). But Petitioner has framed this argument as a claim in a habeas petition, not a motion. Still, applying liberal construction, courts have construed habeas petitions as motions for relief under Rule 60(b) in similar situations. See Clay v. Smith, 365 Fed.Appx. 98, 101 (10th Cir. 2010) (affirming denial of motion where “[t]he district court construed [petitioner's] most recent filing in his § 2254 case as a Rule 60(b)(6) motion seeking a stay of the habeas proceedings”); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL 3943702, at *2-3 (N.D. Fla. Sept. 20, 2010) (even “liberally construing” petition as a Rule 60(b) motion, petitioner failed “to show ‘extraordinary circumstances' justifying the reopening of a final judgment”); Whitmore v. Avery, 179 F.R.D. 252, 258-59 (D. Neb. 1998) (construing habeas petition as a Rule 60(b) motion, and delineating the “unusual event[s]” that amount to “exceptional circumstance[s]” under Rule 60(b), and recommending reopening of the judgment). That appears the best course of action here.

         Rule 60(b) provides that litigants can receive relief from a judgment or order for several reasons, including that the judgment is void. Petitioner's argument fits within that provision, as he argues the Court lacked jurisdiction in the earlier habeas proceeding. Specifically, Petitioner asserts that the Court addressed his claims under his ...


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