Opinion
CV-21-1030-R
10-26-2021
DAVID BRIAN MORGAN, et al., Petitioner, v. UNITED STATES, et. al., Respondents.
REPORT AND RECOMMENDATION
GARY M. PURCELL, JUDGE.
Petitioner, a state prisoner appearing pro se, filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The undersigned has undertaken a review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed.
Although Petitioner purports to bring this case alongside an additional 29 Petitioners, see generally Doc. No. 1 at 7, there is no authority for permitting multiple petitioners to file a single habeas petition under 28 U.S.C. § 2254, and doing so is generally not permitted. Acord v. California, No. 1:17-cv-01089-MJS (HC), 2018 WL 347770, at *1 (E.D. Cal. Jan. 10, 2018); see also Watkins v. Hedgpeth, No. 1:07-cv-00767 AWI DLB HC, 2007 WL 2109255, at *1 (E.D. Cal. July 23, 2007) (“[I]f [two petitioners] seek relief by way of section 2254 petition, each must file an individual petition. The Court cannot proceed with a petition which contains two named petitioners.”); Yancey v. Corbett, No. 07-cv-1251, 2007 WL 1149884, at *1 (E.D. Pa. Apr. 12, 2007) (“There is no authority for permitting multiple petitioners to file one single petition for habeas corpus relief under 28 U.S.C. § 2254; moreover, there is nothing to indicate that any or all of the six petitioners here were convicted in the same state criminal proceeding; moreover there is nothing to indicate that any or all of the six petitioners played a role in committing the same crime.”).
I. Background
On March 30, 2011, Petitioner was convicted on thirteen counts, including rape, molestation, kidnapping, and weapons possession. See Oklahoma State Courts Network, State v. Morgan, Oklahoma County District Court, Case No. CF-2010-7695. Since then, Petitioner has filed a litany of pleadings in this Court challenging these convictions. In Morgan v. Oklahoma, Case No. CV-19-482-R, the Court outlined Mr. Morgan's history as follows:
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF- 2010-7695
. . . Petitioner has persistently challenged th[e] [2011] conviction[s], 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. CV-14-337-R, 2014 WL 2197995, at *1 (W.D. Okla. May 27, 2014) []. 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. CV-17-797-R, 2018 WL 2210449, at *1-2 (W.D. Okla. Apr. 13, 2018) [] (chronicling Petitioner's attempts to challenge his State court conviction[s] in federal court), adopted, 2018 WL 2209526 (W.D. Okla. May 14, 2018) []. The Court dismissed several of these actions as unauthorized second or successive habeas petitions. See id., *1-2, 4. 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. Finally, and most recently, Petitioner challenged his conviction in an action invoking a “Writ of Qui Tam” and a “Writ of Ad Subjiciendum, ” in this Court on February 22, 2019. See Morgan v. United States, Case No. CV-19-171-F, [Doc. No. 5]. A Report and Recommendation, recommending that the action be construed as arising under 28 U.S.C. § 2254 and then dismissed as second or successive, is pending. See id., [Doc. No. 7].Morgan v. Oklahoma, No. CV-19-482-R, 2019 WL 3210600, at *2 (W.D. Okla. May 29, 2019). On July 16, 2019, Petitioner's habeas action was dismissed as second and successive. Morgan v. Oklahoma, No. CV-19-482-R, 2019 WL 3208650 (W.D. Okla. July 16, 2019).
The final referenced Report and Recommendation was subsequently adopted on June 25, 2019. Morgan v. United States, No. CV-19-171-F, 2019 WL 2601559 (W.D. Okla. June 25, 2019). On October 2, 2019, the Tenth Circuit denied Petitioner's request for a certificate of appealability. Morgan v Oklahoma, 778 Fed.Appx. 610 (10th Cir. 2019).
Petitioner subsequently filed another action in this Court, once again challenging the underlying 2011 convictions. Petition, Morgan v. Oklahoma, No. CV-19-929-R (W.D. Okla. Oct. 8, 2019), Doc. No. 1. The Court construed the action, in part, as arising under 28 U.S.C. § 2254 and dismissed the habeas claims for lack of jurisdiction as a second or successive habeas petition filed without authorization from the Tenth Circuit Court of Appeals. Morgan v. Oklahoma, No. CV-19-929-R, 2020 WL 412127, at *1-2 (W.D. Okla. Jan. 24, 2020). The Tenth Circuit denied a certificate of appealability on the habeas claims. Morgan v. Oklahoma, 814 Fed.Appx. 353, 355 (10th Cir. May 13, 2020).
Finally, on September 14, 2020, Petitioner filed yet another action in this Court seeking habeas corpus relief against the 2011 convictions. Petition, Morgan v. United States, No. CV-20-932-F (W.D. Okla. Sept. 14, 2020), Doc. No. 1. This Court dismissed the action as an unauthorized second and successive habeas action. Morgan v. Pettigrew, No. CV-20-932-R, 2020 WL 7410103, at *2 (W.D. Okla. Dec. 17, 2020).
Petitioner filed the current action on October 20, 2021, again attempting to challenge his 2011 convictions. Doc. No. 1. Relying on McGirt v. State of Oklahoma, __ U.S. __, 140 S.Ct. 2452 (2020), he argues the State lacked jurisdiction over his criminal proceedings because the underlying crimes occurred on Indian land. Id.
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits ....” Id. (quotations omitted); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
III. Analysis
As previously explained, Petitioner has already sought habeas relief regarding the convictions at issue herein. See supra. “The filing of a second or successive § 2254 application is tightly constrained by the provisions of [the Antiterrorism and Effective Death Penalty Act].” Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). See Burton v. Stewart, 549 U.S. 147, 153 (2007) (concluding second-in-time habeas petition was “second or successive” under 28 U.S.C. § 2244(b) because state prisoner “twice brought claims contesting the same custody imposed by the same judgment of a state court”). Notably, “[b]efore a second or successive [§ 2254] application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A); accord Case, 731 F.3d at 1026. If the petitioner does not heed this statutory directive, the district court has no jurisdiction to consider his second or successive filing. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Thus, 28 U.S.C. § 2244(b) limits the circumstances in which a petitioner may proceed with a second or successive habeas corpus action under § 2254. This statutory requirement for prior authorization is jurisdictional. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (“The district court had no jurisdiction to decide [the petitioner's] successive § 2254 petition without authority from the court of appeals.”).
Petitioner has not requested authorization from the Tenth Circuit to file a second or successive petition with regard to his convictions. Without such authorization, this Court lacks jurisdiction over the Petition. Because Petitioner did not obtain the requisite authorization, the Court should dismiss his unauthorized successive petition for lack of jurisdiction. See In re Cline, 531 F.3d at 1251 (“A district court does not have jurisdiction to address the merits of a second or successive . . . § 2254 claim until [the appropriate court of appeals] has granted the required authorization.”).
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed based on a lack of jurisdiction. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 15th , 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.