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Mosier v. Dowling

United States District Court, N.D. Oklahoma

August 22, 2019

JOHN MOSIER, Petitioner,
v.
JANET DOWLING, Respondent.

          OPINION AND ORDER

          CLAIRE V. EACAN UNITED STATES DISTRICT JUDGE

         Petitioner John Mosier, a state inmate appearing pro se, commenced this action on August 14, 2019, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1). He paid the filing fee in full on August 15, 2019. Dkt. # 2. For the reasons that follow, the Court finds that the petition is an unauthorized successive petition and that the petition shall be dismissed without prejudice for lack of jurisdiction.

         I.

         This is Mosier's third-in-time § 2254 petition seeking federal habeas relief from the judgment and sentence entered against him in the District Court of Mayes County, No. CRF-1980-41. See Dkt. # 1, at 1; Mosier v. Dowling, No. 16-CV-067-JED-FHM, 2017 WL 653261, at *1, 6 (N.D. Okla. 2017) (unpublished) (discussing Mosier's first § 2254 petition, filed July 12, 1982, in N.D. Okla. No. 82-C-676-B, and dismissing Mosier's second § 2254 petition, filed February 5, 2016, as unauthorized second or successive petition); Mosier v. Murphy, 790 F.2d 62, 66-67 (10th Cir. 1986) (affirming district court's order denying Mosier's first § 2254 petition). In that case, Mosier pleaded guilty to first degree murder, and the trial court imposed a sentence of life without the possibility of parole. Dkt. # 1, at 1-2; Mosier v. Dowling, 2017 WL 653261, at *1.

         In his first § 2254 petition, Mosier claimed that (1) he was improperly denied post-conviction relief in state court because his guilty plea was not voluntary, (2) his guilty plea was the product of duress, coercion, threats, and intimidation, and (3) he was denied his right to the effective assistance of counsel because his attorney had a conflict of interest. See Mosier v. Dowling, 2017 WL 653261, at *1 (identifying claims asserted in first § 2254 petition). The court denied relief on the merits, and the Tenth Circuit Court of Appeals affirmed. Id.; Mosier v. Murphy, 790 F.2d at 64-67.

         In his second § 2254 petition, Mosier claimed that (1) the trial court violated his 14th Amendment rights to due process and equal protection by failing to place him under oath before accepting his guilty plea, and (2) the trial court “failed to get an adequate factual basis for [the] plea on October 28, 1980” because the trial court did not ask Mosier if he shot the victim. Mosier v. Dowling, 2017 WL 653261, at *1. The court determined that Mosier's second § 2254 petition was an unauthorized second or successive petition, under 28 U.S.C. § 2244(b)(3)(A). Id. at *1. Following thorough consideration of the factors identified in In re Cline, 531 F.3d 1249 (10th Cir. 2008), the court declined to transfer the second § 2254 petition to the Tenth Circuit Court of Appeals for authorization. Id. at *2-5. The court, instead, dismissed the petition and declined to issue a certificate of appealability. Id. at *5-6.

         In the instant § 2254 petition, Mosier reasserts his claim that the trial court violated his 14th Amendment rights to due process and equal protection by failing to place him under oath before accepting his guilty plea. Dkt. # 1, at 7-8.

         II.

         The Antiterrorism and Effective Death Penalty Act (AEDPA), governs review of “second or successive” § 2254 habeas petitions. Specifically, 28 U.S.C. § 2244(b) provides:

(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 of 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 ...

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