Opinion
CIV-21-376-R
05-11-2021
RICKEY WHITE, Petitioner, v. OKLAOMA COURT OF CRIMINAL APPEALS, et. al., Respondents.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDG
Petitioner, a state prisoner appearing pro se and in forma pauperis, filed a Petition purportedly seeking a writ of mandamus. Doc. No. 1. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition, pursuant to 28 U.S.C. § 1915. For the following reasons, it is recommended the action be dismissed.
I. The Petition's Construction
In 1983, Petitioner was convicted of First Degree Murder. State v. White, District Court of Choctaw County, No. CRF-81-0083. In 1985, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the conviction. White v. State, 702 P.2d 1058 (Okla. Crim. App. 1985).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=choctawνmber=CRF-1981-00083&cmid=14086
On April 21, 2021, Petitioner filed this action as one in which he is seeking a writ of mandamus directing the OCCA to grant him a new appeal and therein, to vacate his conviction and sentence. Doc. No. 1. Federal courts lack the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought. See 28 U.S.C. § 1361 (“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” (emphasis added)). See Brownfield v. Stovall, 85 Fed.Appx. 123, 126-27 (10th Cir. 2003) (affirming lower court's dismissal of request for mandamus stating, “The court . . . possesses no jurisdiction to order Kansas officials to release [the plaintiff] to Oklahoma authorities.”); Stevens v. Sheriff of El Paso Cnty., 15 Fed.Appx. 740, 742 (10th Cir. 2001) (“We [] agree that a federal district court is without jurisdiction under [§] 1361 to compel state officials to perform any duty owed to a plaintiff under state law. Section 1361 by its terms is limited to actions to compel an officer or employee of the United States or any agency thereof to perform a duty.” (quotations omitted)); White v. Ward, 145 F.3d 1139, 1140 (10th Cir. 1998) (affirming the denial of a request for mandamus, stating, “The district court correctly determined that it lacked jurisdiction to direct a state court to perform its duty.”).
In the instant action, Petitioner seeks mandamus relief to compel the OCCA to grant him a new appeal and to vacate his state conviction and sentence. Thus, to this extent, the undersigned recommends the action be dismissed with prejudice for lack of jurisdiction. See, cf., Tuck v. United Services Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988) (holding that when the party seeking relief does not set forth the basis for the Court's exercise of jurisdiction, the Court must determine its jurisdiction sua sponte); Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (same).
To the extent that, broadly construed, Petitioner's action challenges his conviction and sentence, such claim would properly be brought under 28 U.S.C. § 2254. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (noting that petitions under § 2254 habeas are used to collaterally attack the validity of a conviction and sentence). However, as Petitioner has already challenged his conviction and sentence through multiple federal habeas actions, he was required to obtain Tenth Circuit authorization before filing another habeas challenge. 28 U.S.C. § 2244(b)(3)(A) (“Before 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.”).
II. Petitioner's History
Since Petitioner's conviction in 1983 and his unsuccessful appeal, Petitioner has attempted to challenge his conviction through federal habeas relief numerous times in both this Court and in the Eastern District of Oklahoma. See, e.g., Order, White v. Ward, No. CIV-95-00607-FHS-JHP (E.D. Okla. March 12, 1997), Doc. No. 14 (dismissing Petitioner's federal habeas action based on failure to exhaust); Order, White v. Gibson, No. CIV-00-00075-FHS-KEW (E.D. Okla. March 31, 2003), Doc. No. 94 (dismissing Petitioner's habeas action as untimely); White v. Sirmons, No. CIV-08-1316-R, 2009 WL 57094, at *1 (W.D. Okla. Jan. 7, 2009) (dismissing Petitioner's habeas action as second or successive); White v. Workman, No. CIV-09-0450-FHS-KEW, 2010 WL 2723216, at *1 (E.D. Okla. 2010) (dismissing habeas action as second or successive); Order, White v. Workman, No. CIV-12-0001-RAW-KEW (E.D. Okla. Jan. 12, 2012), Doc. No. 5 (dismissing habeas action as second or successive); Order, White v. Workman, No. CIV-12-00071-RAW-KEW (E.D. Okla. Feb. 24, 2012), Doc. No. 15 (dismissing habeas petition as second or successive); Order, White v. Workman, No. CIV-12-00196-FHS-KEW (E.D. Okla. June 13, 2012), Doc. No. 6 (construing Petitioner's action brought under 28 U.S.C. § 2241 as properly considered under § 2254 and dismissing as second or successive); White v. Workman, No. CIV-12-306-RAW-KEW, 2012 WL 2916874, at *1 (E.D. Okla. 2012) (construing Petitioner's writ of mandamus as a § 2254 challenge and dismissing it as second or successive); Order, White v. Trammel, No. CIV-13-0185-RAW-KEW (E.D. Okla. May 16, 2013), Doc. No. 11 (dismissing habeas petition as second or successive); Order, White v. Yates, No. CIV-18-1072, 2019 WL 99269, at *1 (W.D. Okla. 2019) (construing Petitioner's § 2241 action as properly brought pursuant to § 2254, declining to transfer the action to the Tenth Circuit, and dismissing as second or successive).
Likewise, Petitioner has unsuccessfully moved the Tenth Circuit for authorization to proceed with a second or successive habeas petition at least seven times. See Order, In re White, No. 20-7037 (10th Cir. July 31, 2020) (denying Petitioner request for authorization to file a second or successive habeas application); Order, In re White, No. 19-6026 (10th Cir. March 29, 2019) (denying what the court notes is Petitioner's sixth request to file a second or successive habeas action related to his 1985 First Degree Murder conviction). Thus, Petitioner has made six previous attempts to obtain authorization from the Tenth Circuit to file a second or successive petition, the last one in 2020. The court has denied each request.
The Tenth Circuit has instructed that a district court may consider whether, pursuant to 28 U.S.C. § 1631, the petition should be transferred to the Circuit, rather than dismissed, if the transfer would be in the interest of justice. In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Petitioner's history dictates dismissal rather than transfer. See Bird v. Wyoming Dep't of Corr. State Penitentiary Warden, 693 Fed.Appx. 762, 765 (10th Cir. 2017) (“It is [] beyond debate that the district court properly exercised its discretion to dismiss the habeas petition, rather than transfer it to this court to consider authorization of Bird's successive claim, in light of our recent denial of authorization for another version of the same claim.”); Thompson v. Bryant, No. CIV-18-288-F, 2018 WL 3733677, at *5 (W.D. Okla. 2018) (“Petitioner's repeated attempts to challenge his conviction and sentence while aware this Court lacks jurisdiction to consider the same is tantamount to abuse of the writ. The interests of justice would not be served by transfer of this case to the Tenth Circuit Court of Appeals for additional proceedings.”), adopted, 2018 WL 3732728 (W.D. Okla. 2018); see also Order, In re White, No. 09-6019 (10th Cir. Feb. 18, 2009) (affirming this Court's decision to dismiss, rather than transfer, Petitioner's second or successive petition to the Tenth Circuit where (1) Petitioner had already been advised this Court lacked jurisdiction over such a petition, (2) Petitioner's statute of limitations had expired, and (3) there was “no risk that a meritorious claim would be lost in light of the limitations bar”).
RECOMMENDATION
Based on the foregoing findings, the undersigned recommends that to the extent Petitioner seeks a writ of mandamus, this action should be dismissed with prejudice. Additionally, to the extent Petitioner is seeking a writ of habeas corpus action be dismissed without prejudice. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 31 st, 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, 950 F.2d 656 (10th Cir. 1991); 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.