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Morgan v. State

United States District Court, W.D. Oklahoma

May 15, 2019

DAVID BRIAN MORGAN, Petitioner,
v.
STATE OF OKLAHOMA, and FEDERAL BUREAU OF PRISONS, Respondents.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, purports to brings this action - entitled “Private Attorney General” - on behalf of the “United States” but seeks his own “remova[l] from state custody” and “release” from his State sentence. [Doc. No. 5] (Amend. Pet.). United States District Judge Stephen P. Friot has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons discussed below, the Court construes Petitioner's action as arising under 28 U.S.C. § 2254 and, in accordance with Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, recommends that the action be summarily dismissed as second or successive.

         I. The Amended Petition's Construction

         Petitioner filed the present action on a 28 U.S.C. § 2241 form but marked out the form's title and wrote “Private Attorney General.” See Amend. Pet. at 1.[1] In the body, Petitioner invokes a “Writ of Qui Tam” and a “Writ of Ad Subjiciendum, ” and alleges that his State conviction is illegal because Oklahoma lacked jurisdiction to convict him. Id. at 7-8.

         A writ of qui tam arises under the False Claims Act (FCA), 31 U.S.C. § 3730, and “‘covers all fraudulent attempts to cause the government to pay out sums of money.'” United States ex rel. Reed v. KeyPoint Gov't Sols., __ F.3d __, 2019 WL 1907853, at *1 (10th Cir. Apr. 30, 2019) (citation omitted). Because even a successful FCA action would clearly not result in Petitioner's release from his State conviction, its citation is inapplicable here. See Id. (noting that the FCA permits “the recovery of civil penalties and treble damages”). Further, a writ of ad subjiciendum is simply the common-law habeas writ, see Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), and a party cannot cite the subjiciendum writ to circumvent 28 U.S.C. § 2254's requirements. See, e.g., Kiderlen v. United States, No. 4:13CV01518 ERW, 2013 WL 4094371, at *1 (E.D. Mo. Aug. 13, 2013) (unpublished district court order) (“The Court notes that movant did not title the instant motion as coming under § 2255: he calls it a petition for writ of habeas corpus ad subjiciendum. However, movant is not permitted to circumvent the AEDPA's second or successive petition requirements simply by labeling the motion as something other than what it is.”). Consequently, and because Petitioner is clearly challenging the validity of his conviction and seeking release from confinement, the Court construes his action as arising under § 2254. See Preiser, 411 U.S. at 484 (“Whether the petitioner ha[s] been placed in physical confinement by executive direction alone, or by order of a court, or even by private parties, habeas corpus [is] the proper means of challenging that confinement and seeking release.”); see also McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (“The fundamental purpose” of a § 2254 habeas proceeding is “an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.”).

         II. Petitioner's History

         In 2011, Petitioner was convicted on thirteen counts, including rape, molestation, kidnapping, and weapons possession, in Oklahoma County District Court, Case No. CF-2010-7695. See Amend. Pet. at 1. Since then, Petitioner has persistently challenged that conviction, under many guises, in this Court. For example, in 2014, Petitioner filed his first § 2254 petition, which the Court dismissed as untimely. See Morgan v. Addison, No. CIV-14-337-R, 2014 WL 2197995, at *1 (W.D. Okla. May 27, 2014) (unpublished district court order). The Tenth Circuit denied a certificate of appealability and dismissed the appeal. See Morgan v. Addison, 574 Fed.Appx. 852 (10th Cir. 2014). Thereafter, Petitioner attempted to challenge his conviction through: (1) a “Writ of Coram Nobis” in July 2015; (2) an “All Writs Act” in November 2015; (3) a “Post Conviction Application, Extraordinary Writ” in June 2016; (4) a 28 U.S.C. § 2255 action in August 2016; (5) a “Post-Conviction Motion for Modification under Liberty Violation” in January 2017; (6) another § 2254 action in March 2017; and (7) a “Post Conviction Motion to File § 2241(c) Prosecutorial Misconduct” in July 2017. See Morgan v. Bear, No. CIV-17-797-R, 2018 WL 2210449, at *1-2 (W.D. Okla. Apr. 13, 2018) (unpublished report and recommendation) (chronicling Petitioner's attempts to challenge his State court conviction in federal court), adopted, 2018 WL 2209526 (W.D. Okla. May 14, 2018) (unpublished district court order). The Court dismissed several of these actions as unauthorized second or successive habeas petitions. See id., *1-2, 4. Finally, the Tenth Circuit Court of Appeals has denied Petitioner's request to file a successive § 2254 habeas petition on at least one occasion. See id., *2.

         III. Screening Requirement

         District courts must review habeas petitions and summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. Likewise, the Court has “an independent obligation to determine whether subject-matter jurisdiction exists” and may raise the issue sua sponte at any time. 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006); see also Fed. R. Civ. P.12(h)(3).

         IV. Analysis

         Pursuant to 28 U.S.C. § 2244(b)(2), “[t]he filing of a second or successive § 2254 application is tightly constrained[.]” Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). “Before a court can consider a second claim, an applicant must first ‘move in the appropriate court of appeals for an order authorizing the district court to consider the application.'” Id. (quoting 28 U.S.C. § 2244(b)(3)(A)). “Section 2244's gate-keeping requirements are jurisdictional in nature, and must be considered prior to the merits of a § 2254 petition.” Id. at 1027 (citing Panetti v. Quarterman, 551 U.S. 930, 942-47 (2007)); see also In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to address the merits of a second or successive . . . § 2254 claim until this court has granted the required authorization.”).

         Petitioner has made at least one prior attempt to obtain authorization from the Tenth Circuit to file a second or successive petition, and that court refused his request. See supra at 3. This Court finds no other attempts, and without authorization, it lacks jurisdiction over the Amended Petition.

         Under such circumstances, the Tenth Circuit has instructed that a district court may consider whether, pursuant to 28 U.S.C. § 1631, the petition should be transferred to the Circuit, rather than dismissed, if the transfer would be in the interest of justice. See In re Cline, 531 F.3d at 1252. Petitioner's history dictates dismissal rather than transfer. See Bird v. Wyoming Dep't of Corr. State Penitentiary Warden, 693 Fed.Appx. 762, 765 (10th Cir. 2017) (“It is also beyond debate that the district court properly exercised its discretion to dismiss the habeas petition, rather than transfer it to this court to consider authorization of Bird's successive claim, in light of our recent denial of authorization for another version of the same claim.”); Thompson v. Bryant, No. CIV-18-288-F, 2018 WL 3733677, at *5 (W.D. Okla. July 9, 2018) (unpublished report and recommendation) (“Petitioner's repeated attempts to challenge his conviction and sentence while aware this Court lacks jurisdiction to consider the same is tantamount to abuse of the writ. The interests of justice would not be served by transfer of this case to the Tenth Circuit Court of Appeals for additional proceedings.”), adopted, 2018 WL 3732728 (W.D. Okla. Aug. 6, 2018) (unpublished district court order), certificate of appealability denied, No. 18-6153, 2018 WL 4961556 (10th Cir. Oct. 15, 2018); see also In re White, No. 09-6019 (10th Cir. Feb. 18, 2009) (affirming this Court's decision to dismiss, rather than transfer, Petitioner's second or successive petition to the Tenth Circuit where (1) Petitioner had already been advised this Court lacked jurisdiction over such a petition, (2) Petitioner's statute of limitations had expired, and (3) there was “no risk that a meritorious claim would be lost in light of the limitations bar”).

         RECO ...


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