United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EACAN UNITED STATES DISTRICT JUDGE
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
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(N.D. Okla. 2017) (unpublished) (discussing Mosier's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.
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.
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.
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.
Antiterrorism and Effective Death Penalty Act (AEDPA),
governs review of “second or successive” §
2254 habeas petitions. Specifically, 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 of the claim could not have been
discovered previously through the exercise of due diligence;
(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 ...