United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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.
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. 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.
Court dismissed Petitioner's federal habeas petition
without prejudice due to the ongoing state court
proceedings. 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 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.
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.
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.
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).
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.
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.
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 ...