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Richards v. McCoy

United States District Court, E.D. Oklahoma

August 12, 2019

JOE K. RICHARDS, Petitioner,
v.
SHARON McCOY, Warden, Respondent.

          OPINION AND ORDER

          RONALD A. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Respondent's motion to dismiss Petitioner's second amended petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Dkt. 20). Petitioner is a pro se prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Jess Dunn Correctional Center in Taft, Oklahoma. He is attacking the execution of his sentence in Comanche County District Court Case No. CRF-98-231, raising the following grounds for relief:

I. Not given Marendez [sic] warning; officer during pliminary [sic] testified to that fact.
II. In-court identification by policeman Curt Short.
III. Preliminary hearing was held on Information sheet: Possession of CDS --charge was changed to Trafficing [sic] without proper statutory notice.
IV. Ineffective assistance of counsel; Gordon Edwards in preliminary hearing stipulated to allow criminalist report to be submitted no evidence for state (state's Exhibit 1), not demanding chemist to be cross examined on report.

         Respondent alleges Petitioner's second amended habeas petition is a second or successive petition, and Petitioner is seeking to have this Court undertake a second review of the merits of his conviction. This action, however, is prohibited by 28 U.S.C. § 2244(b):

(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(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.
(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 ...

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