Opinion
CIV-22-86-HE
05-11-2022
GERALD WARLEDO, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). 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 Court DISMISS the Petition for lack of jurisdiction.
I. PROCEDURAL BACKGROUND
In May 1988, a Pottawatomie County jury convicted Mr. Warledo of injury to a child and sentenced him to 104 years of incarceration. (ECF No. 1:1-2). On October 23, 1990, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. See ECF No. 1:2; State Court Docket Sheet, Warledo v. State of Oklahoma, Case No. F-1988-941 (Okla. Ct. Crim. App. Oct. 23, 1990). In 1994, Petitioner filed an Application for Post-Conviction Relief, which was denied by the Pottawatomie County District Court on November 30, 1994 and affirmed by the OCCA on January 24, 1995. See ECF No. 1:3; State Court Docket Sheet, Warledo v. State of Oklahoma, Case No. PC-1994-1337 (Okla. Ct. Crim. App. Nov. 30, 1994 & Jan. 24, 1995). On April 5, 2021, Mr. Warledo filed a second Application for Post-Conviction Relief in the Pottawatomie County District Court, challenging the jurisdiction of the trial court pursuant to McGirt v. Oklahoma, -- U.S.---, 140 S.Ct. 2452 (2020). The district court denied relief on Aug. 19, 2021 and the OCCA affirmed the denial on Jan. 5, 2022. See ECF No. 1:13; Order, Warledo v. State of Oklahoma, Case No, CF-1987-315 (Aug. 19, 2021) & Order Affirming Denial of Post-Conviction Relief, Warledo v. State of Oklahoma, Case No. PC-2021-1065 (Jan. 5, 2022).
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”) (citation omitted).
In his habeas Petition, Mr. Warledo states that he filed the second Application for PostConviction Relief on July 1, 2021. See ECF No. 1:4. But the State Court Docket Sheet indicates that the application was filed on April 5, 2021. See State Court Docket Sheet, State of Oklahoma v. Warledo, Case No. CF-1987-315.
On January 28, 2022, Mr. Warledo filed the habeas Petition in this case, attacking the validity of his conviction by arguing a lack of jurisdiction in the trial court pursuant to McGirt. (ECF No. 1).
II. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading, ” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct. 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).
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, at 1026. If the petitioner does not heed the statutory directive in 28 U.S.C. § 2244(b)(3)(A), the district court has no jurisdiction to consider his second or successive filing. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
On March 29, 1995, Mr. Warledo filed a habeas corpus petition in this Court, challenging the merits of his conviction in his underlying state court criminal case- Pottawatomie County District Court Case No. CF-1987-315. See ECF No. 2, Warledo v. Cody, Case No. CIV-95-488-M (W.D. Okla. Mar. 29, 1995). On July 28, 1995, this Court denied the petition on the merits. See ECF Nos. 12 & 13, Warledo v. Cody, Case No. CIV-95-488-M (W.D. Okla. July 28, 1995). And once again, Petitioner has challenged the underlying conviction by filing the instant habeas Petition. See supra. Because the Petition in the instant case challenges the same conviction has been previously challenged, Mr. Warledo would have to seek permission in the Tenth Circuit Court of Appeals before proceeding in this Court. See supra 28 U.S.C. § 2244(b)(3)(A). But a review of the appellate court docket sheet does not show that Petitioner sought such authorization prior to filing the instant case. As a result, this Court has no jurisdiction over the Petition. To the extent Mr. Warledo argues that authorization from the Circuit is not required based on the jurisdictional nature of his claim, the Court should reject such argument. See Cowan v. Crow, 804 Fed.Appx. 893, 894 (10th Cir. 2020) (affirming dismissal of habeas petition for lack of jurisdiction as second or successive where petition challenged state court's jurisdiction); Dopp v. Martin, 750 Fed.Appx. 754, 757 (10th Cir. 2018) ('“[T]he jurisdictional nature of Dopp's claim does not exempt his § 2254 application from dismissal for lack of jurisdiction as a successive and unauthorized application.”). Accordingly, dismissal of the Petition for lack of jurisdiction is appropriate.
IV. TRANSFER IS NOT WARRANTED
When faced with an unauthorized second or successive § 2254 petition, the court has two choices. It may dismiss the petition for lack of jurisdiction, or if it is in the interest of justice, it may transfer the matter to the Tenth Circuit pursuant to 28 U.S.C. § 1631. See, In re Cine, 531 F.3d 1249, 1252 (10th Cir. 2008). "A transfer is not in the interest of justice when the claims raised in the successive petition clearly do not meet the requirements set forth in 28 U.S.C. § 2244(b)(2).” Crawfordv. Milyard, 350 Fed.Appx. 240, 242 (10th Cir. 2009) (citing In re Clne, 531 F.3d at 1252).
28 U.S.C. § 2244(b)(2) states:
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 for 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 have found the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(2).
The Court should conclude that Petitioner's sole ground for relief does not meet the requirements of 28 U.S.C. § 2244(b)(2). First, the claim does not rely on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). The Tenth Circuit recently denied a motion for authorization to file a second or successive § 2254 petition raising claims based upon McGirt, finding the decision did not establish a new rule of constitutional law, but even if it did, the Supreme Court did not explicitly make the rule retroactive to cases on collateral review. See In re Morgan, Case No. 20-6123 (10th Cir. Sept. 18, 2020), Order, p. 4; Jones v. Pettigrew, No. CIV-20-758, 2021 WL 640834, at *2 (W.D. Okla. Feb. 18, 2021) (declining to transfer second and successive habeas petition to the Tenth Circuit Court of Appeals for authorization because the petitioner's McGirt claim did not meet the requirements of 28 U.S.C. § 2244(b)(2)).
Mr. Warledo argues that State exrel. Matoff v. Wallace, 2021 OK CR 21, 2021 497 P.3d 686 (Okla. Crim. App. Aug. 12, 2021) “created a new rule, and changed the procedure for appeals raising jurisdiction matters, as was well recognized by the Federal Courts.” (ECF No. 1:11). In Matloff, the OCCA held that the rule in McGirt v. Oklahoma did not apply retroactively to convictions that were final at the time it was decided. But Matoff does not help Petitioner succeed under 28 U.S.C. § 2244(b)(2), because it was issued by the OCCA, not the United States Supreme Court. See 28 U.S.C. § 2244(b)(2)(A).
V. RECOMMENDATION
The Court should dismiss the Petition (ECF No. 1) for lack of jurisdiction and decline transfer to the Tenth Circuit Court of Appeals.
VI. NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by April 15, 2022, 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).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.