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Richards v. McCoy
United States District Court, E.D. Oklahoma
August 12, 2019
JOE K. RICHARDS, Petitioner,
SHARON McCOY, Warden, Respondent.
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE
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. Â§ 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.
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
(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.
(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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