Opinion
CIV-23-695-HE
08-16-2023
ANTHONY SHRONE PERSON, Plaintiff, v. RAMONA M. JONES et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Mr. Person, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. United States District Judge Joe Heaton has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be DISMISSED for lack of jurisdiction.
Mr. Person filed a “Motion [to] ‘Commence Criminal Proceedings Pursuant Fed Rule 3 and 4 Criminal Procedure 5603.02(1)(2)(a)(b)(c)(d) ‘Designation of Records.' ” (ECF No. 1). But for the reasons discussed, the undersigned has construed the pleading as a habeas petition under Section 2254. See infra.
I. SCREENING REQUIREMENT AND JURISDICTION
The Court is required to review habeas petitions promptly and to dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases. Likewise, courts are obligated to examine their jurisdiction sua sponte and dismiss any action where subject-matter jurisdiction is lacking. See Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006); Berryhill v. Evans, 466 F.3d 934, 938 (10th Cir. 2006).
II. PROCEDURAL BACKGROUND
On June 11, 2021, Petitioner was convicted on eighteen counts of sexual assault in Mason County Superior Court Case No. 20-1-00147-23, in Mason County, Washington. (ECF No. 1:13). On October 20, 2022, in the Eastern District of Washington, Mr. Person filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, but the petition was transferred to the Western District of Washington, where it was assigned Case No. 22-cv-05863-DGE. See Person v. State of Washington, ECF No. 15, Case No. 22-cv-05863-DGE (W.D. Wash. Nov. 28, 2022). Ultimately, that Court dismissed the petition because Mr. Person had not exhausted his state court remedies. See id., ECF Nos. 31, 36 & 47.
See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
On March 23, 2023, the Washington State Court of Appeals affirmed Mr. Person's criminal conviction and he filed a second habeas petition in the Western District of Washington on June 30, 2023. See ECF No. 1:13; Person v. Andrewjeski, ECF No. 19, Case No. 23-cv-05434-BJR-TLF (W.D. Wash. June 30, 2023). That petition is currently pending. See Docket Sheet, Person v. Andrewjeski, Case No. 23-cv-05434-BJR-TLF (W.D. Wash.). On August 7, 2023, Mr. Person filed a pleading in this Court titled: “Motion [to] ‘Commence Criminal Proceedings Pursuant Fed Rule 3 and 4 Criminal Procedure 5603.02(1)(2)(a)(b)(c)(d) ‘Designation of Records.' ” (ECF No. 1). In the Motion, Mr. Person challenges the validity of his conviction in Case No. 20-1-00147-23, and requests this Court to commence criminal proceedings against four individuals whom he believes are responsible for him having been falsely convicted. See ECF No. 1. Based on the nature of Mr. Person's complaints in his “Motion,” the Court construes the pleading as one arising under 28 U.S.C. § 2254. See Mclntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) ('“[Section] 2254 habeas . . . proceedings . . . are used to collaterally attack the validity of a conviction and sentence.” (citations omitted)).
III. UNAUTHORIZED SECOND OR SUCCESSIVE HABEAS PETITION
"The filing of a second or successive § 2254 application is tightly constrained by the provisions of AEDPA.” Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). 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. See In re Clne, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
In the Western District of Washington, in Case No. 22-cv-05863-DGE, Mr. Person challenged the validity of the conviction in Mason County, Washington Case No. 20-100147-23 by filing a habeas petition. See supra. But because the District Court dismissed the petition without prejudice due to Mr. Person's failure to exhaust his state court remedies, it does not count as a "first” habeas petition when determining whether a subsequent petition would be considered “second or successive.” See Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir. 2000) ("a habeas petition filed after a prior petition had been dismissed without prejudice for failure to exhaust state court remedies was not a successive petition under § 2244(b).”) (citing Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998)).
Mr. Person's second habeas petition, Western District of Washington Case No. 23-cv-05434-BJR-TLF, also challenges the validity of the underlying criminal conviction with similar arguments being made in both that case and the instant habeas petition. Compare ECF No. 1 with Person v. Andrewjeski, ECF No. 19, Case No. 23-cv-05434-BJR-TLF (W.D. Wash. June 30, 2023). Because the current petition is pending, Mr. Person would have to seek authorization in the appropriate Circuit Court of Appeals before filing an additional petition. See supra, 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has failed to do so, this Court has no jurisdiction over the current petition.
In addition to the fact that this Court lacks jurisdiction over the case, Mr. Person is asking this Court to commence criminal charges against individuals whom he believes are responsible for his conviction. See ECF No. 1. This Court is not authorized to grant this relief. See Presley v. Presie, 102 Fed.Appx. 636, 636-37 (10th Cir. 2004) (holding that any federal court order for "investigation or prosecution of various people for various crimes” would "improperly intrude upon the separation of powers”); Wilkinson v. Dickinson, No. 21-3068, 2021 WL 1251116, at *3 (D. Kan. Apr. 5, 2021) ("[T]o the extent plaintiff seeks the initiation of federal criminal charges as relief in this action, such relief is not available. This court cannot order the filing of criminal charges and cannot order state courts to open or close cases.”).
IV. TRANSFER NOT WARRANTED
When a habeas petitioner files a second or successive application for writ of habeas corpus, the district court is given the discretion, pursuant to 28 U.S.C. § 1631, to transfer the case to the appropriate Court of Appeals, if transfer of the case would be in the interest of justice, or to dismiss the case. See In re Clne, at 1252. Before In re Clne, district courts in this circuit routinely transferred unauthorized second or successive § 2254 petitions to the Tenth Circuit Court of Appeals for the requisite authorization, often operating under the assumption that such a transfer was required by Circuit precedent interpreting § 2244(b). See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (stating that “when a second or successive petition for habeas corpus relief under § 2254 or a § 2255 motion is filed in the district court without the required authorization by this court, the district court should transfer the petition or motion to this court in the interest of justice pursuant to § 1631”). In In re Cline, however, the Tenth Circuit instructed that Coleman "should not be read to limit the traditional discretion given to district courts under § 1631.” In re Clne, at 1252. Instead, the district court may transfer the action to the appropriate Circuit for prior authorization if it is in the interests of justice to do so under § 1631, or the court may dismiss the petition for lack of jurisdiction. Id.
Section 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time-barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or, if it was clear at the time of filing that the court lacked the requisite jurisdiction. In re Cline, at 1251. Here, the appropriate Circuit Court of Appeals would be the Ninth Circuit Court of Appeals, not the Tenth Circuit, because in addition to his Petition being barred as second or successive, Mr. Person has filed the Petition in the wrong federal district court.
Because Mr. Person is currently incarcerated in the State of Washington, his habeas petition should have named, as the respondent, the warden of the facility where he is being held, and the case should have been filed in either the federal judicial district where he is physically located or where he was convicted-which, in this case, includes both the Eastern District of Washington where Petitioner is incarcerated or the Western District of Washington where he was convicted. See Rumsfeld v. Padilla, 542 U.S. 426, 435, 443 (2004) ('“[T]he default rule is that the proper respondent is the warden of the facility where the prisoner is being held”; "[W]hen a petitioner is serving a state criminal sentence in a State that contains more than one federal district, he may file a habeas petition not only in the district court for the district wherein [he] is in custody, but also in the district court for the district within which the State court was held which convicted and sentenced him; and each of such district courts shall have concurrent jurisdiction to entertain the application.”). Thus, the appropriate Court of Appeals would lie in the Ninth Circuit.
However, it would not be in the interest of justice to transfer this action to the Ninth Circuit Court of Appeals for authorization because the allegations Mr. Person has raised in both the instant petition and the petition currently pending in the Western District of Washington are similar. See supra. "Where there is no risk that a meritorious successive claim will be lost absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the interest of justice to transfer the matter ... for authorization.” In re Clin, 531 F.3d at 1252 (citing Trujillo v. Wiliam, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006)). Thus, even if the claims asserted in the Petition here are "meritorious,” they are not at risk for being lost absent a transfer.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court DISMISS the petition in its entirety for lack of jurisdiction. Further, the Court's records reflect that Petitioner has neither paid the $5.00 filing fee to open a case nor applied to proceed without prepayment of fees. See LCvR3.2, 3.5. Should the Court order transfer rather than dismissal of this matter, Petitioner should be advised to pay the filing fee or to apply to proceed without prepayment of fees to the United States District Court for the Western District of Washington.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by September 5, 2023 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.