Opinion
CIV-22-740-R
09-20-2022
CARL DEAN WYATT, JR., Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, MAGISTRATE JUDGE
Carl Dean Wyatt, Jr., a pro se Oklahoma state prisoner housed at the Davis Correctional Facility, has filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in this Court challenging his Oklahoma County, Oklahoma convictions and sentences. Doc. 1. United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 6. After a careful examination of the petition, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends dismissal of this habeas petition for lack of jurisdiction as a second or successive habeas petition without the Tenth Circuit Court of Appeals' authorization. See 28 U.S.C. § 2244(b)(3)(A).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Procedural history.
An Oklahoma County court convicted Petitioner of first-degree murder and conspiracy to commit robbery with a firearm in Case No. CF-1997-424. Doc. 1, at 1. The state court sentenced him to consecutive sentences of life imprisonment without parole for the murder and sixty years' imprisonment for the conspiracy. Id.
Petitioner has filed two prior habeas corpus actions in this Court. In Case No. CIV-00-1326-R, Petitioner challenged his convictions and sentences in Case No. CF-1997-424. See Wyatt v. Fatkin, No. CIV-00-1326-R, Doc. 1 (W.D. Okla. July 31, 2000) (Wyatt I). United States Magistrate Judge Valerie K. Couch recommended the Court deny the petition on the merits in a Report and Recommendation issued April 25, 2001. See id. at Doc. 14 (W.D. Okla. Apr. 25, 2001). After reviewing de novo the pleadings, including Petitioner's objection to the Report and Recommendation, United States District Judge David L. Russell adopted the Report and Recommendation, denied the petition for writ of habeas corpus, and denied Petitioner a certificate of appealability. See Wyatt I, Doc. 22 (W.D. Okla. Dec. 21, 2001) & Doc. 26 (W.D. Okla. Feb. 13, 2002). Petitioner appealed the denial of his petition to the Tenth Circuit, which denied him a certificate of appealability on August 4, 2003. Wyatt v. Fatkin, No. 026039 (10th Cir. Aug. 4, 2003) (Wyatt II).
Petitioner raised five grounds for relief. In Ground One, Petitioner alleged the state denied him a fair trial when the trial court failed to instruct the jury on corroboration of accomplice testimony. Wyatt I, Doc. 14, at 2. In Ground Two, Petitioner alleged the state trial court erred when it failed to determine whether a conspiracy existed before allowing the prosecution to proceed with its case. Id. In Ground Three, Petitioner alleged the jury was not fully informed of the “deals” his co-defendants made with the prosecution in exchange for their cooperation. Id. In Ground Four, Petitioner alleged his trial counsel was ineffective. Id. And, in Ground Five, Petitioner alleged his sentences were excessive. Id.
In Case No. CIV-07-681-R, Petitioner filed a second habeas corpus petition challenging his Oklahoma County convictions and sentences in Case No. CF-1997-424. Wyatt v. Sirmons, No. CIV-07-681-R, 2007 WL 2693042, at *1 (W.D. Okla. Sept. 10, 2007) (Wyatt III). He alleged in that petition that his trial counsel had been ineffective at Petitioner's trial and that, since his trial, the Oklahoma Court of Criminal Appeals (OCCA) had reversed some of his trial counsel's other criminal cases and his trial counsel was disbarred in 2003. Id. at *1. Magistrate Judge Doyle W. Argo conducted an initial review of the petition and determined the Court lacked jurisdiction to consider it because it was a second or successive petition that Petitioner had filed without the Tenth Circuit's authorization. Id. at *1-2. Judge Argo recommended the Court transfer the petition to the Tenth Circuit under 28 U.S.C. § 1631. Id. Judge Russell reviewed the case de novo, adopted the Report and Recommendation, and transferred the petition to the Tenth Circuit. Id. at *1. The Tenth Circuit then denied Petitioner authorization to file a second or successive habeas corpus petition. In re Carl Dean Wyatt, No. 07-6216, at 2-3 (10th Cir. Oct. 12, 2007) (Wyatt IV); see also Wyatt III, Doc. 13. The Tenth Circuit held that Petitioner was attempting to raise claims he had raised in his first habeas corpus petition, and he had not adequately explained why he could not have previously discovered the “new facts” he was raising or that those facts, if proven, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the crimes. Wyatt IV, at 2.
Petitioner filed the instant § 2254 habeas petition challenging the same Oklahoma County convictions and sentences and bringing ten grounds for relief. Doc. 1. Petitioner claims in Ground One that he is actually and factually innocent and he has “newly discovered DNA evidence that proves [his] innocence.” Doc. 1, at 6. In Grounds Two and Three, Petitioner claims he “received ineffective assistance of counsel (appellate).” Id. at 12, 19. Petitioner asserts in Ground Four that “the trial court committed error when the court refused to rule on [his] newly discovered evidence claim.” Id. at 24. He asserts prosecutorial misconduct in Ground Five. Id. at 30. In Ground Six, Petitioner asserts the OCCA relied on erroneous evidence when affirming his convictions. Id. at 35. In Ground Seven, Petitioner claims he has newly discovered evidence of his trial counsel's ineffectiveness. Id. at 36. Petitioner asserts in Ground Eight that he and his evidentiary hearing counsel had a conflict of interest. Id. at 38. In Ground Nine, Petitioner argues his evidentiary hearing counsel was ineffective. Id. at 41. And in Ground Ten, Petitioner argues the trial court and the OCCA erred by failing to properly review the “DNA hearing record” or his briefs. Id. at 43.
II. Screening.
Rule 4 requires this Court to promptly review habeas petitions and promptly 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 2254 Cases in the United States District Courts. And this Court must dismiss an action sua sponte if it determines that it lacks jurisdiction. See Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006).
Section 2244(b) requires that before this Court may consider a second or successive § 2254 habeas petition, Petitioner “shall move in the [Tenth Circuit] for an order authorizing the district court to consider the application.” See 28 U.S.C. § 2244(b)(3)(A). This statutory requirement is jurisdictional. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to address the merits of a second or successive . . . 28 U.S.C. § 2254 claim until [the Tenth Circuit] has granted the required authorization.”).
A. Petitioner did not move for or receive the Tenth Circuit court's authorization before filing this habeas corpus petition.
Petitioner seeks to have this Court undertake another review of the merits of his murder and conspiracy convictions. Doc. 1. But because Petitioner previously challenged his state court convictions and sentences in this Court, he needs authorization from the Tenth Circuit to file a second or successive § 2254 habeas petition. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section 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.”). Petitioner has not confirmed he received prior authorization from the Tenth Circuit to file this second or successive habeas petition, nor has the undersigned determined that he has received such authorization. The Court, thus, has no jurisdiction to entertain Petitioner's habeas corpus petition. In re Cline, 531 F.3d at 1251.
B. The Court should dismiss the habeas corpus petition, rather than transfer it to the Tenth Circuit Court of Appeals.
A district court may either dismiss or transfer an unauthorized second or successive § 2254 habeas application. In re Cline, 531 F.3d at 1252. Under 28 U.S.C. § 1631, if a district court determines that it lacks jurisdiction, it “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.”
Factors the Court considers “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, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” In re Cline, 531 F.3d at 1251 (citing Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006)). “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.” Id. at 1252; see also Trujillo, 465 F.3d at 1222-23.
Transferring this case to the Tenth Circuit is not in the interest of justice. Petitioner asserts he has new timely claims (raised in state post-conviction proceedings and examined in a state court evidentiary hearing), which were resolved against him on June 10, 2022. Doc. 1, at 52. If these claims were to meet the standards required for authorization, then they would not be at risk for a time bar. See, e.g., 28 U.S.C. § 2244(3)(D) (“The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.”); see also Johnson v. Allbaugh, 742 Fed.Appx. 395, 396 n.2 (10th Cir. 2018) (noting that the Tenth Circuit will grant authorization “only if he is able to demonstrate that he has new claims” that meet the statutory requirements under 28 U.S.C. § 2244(b)(2)(A)-(B)). Yet Petitioner has neither sought authorization nor argued that his claims meet the authorization standards of 28 U.S.C. § 2244(b). The “second or successive authorization requirements are no longer new, and it is by now well-established that under the plain language of . . . [§]2244(b)(3), prisoners must first obtain circuit-court authorization before filing a second or successive habeas claim in district court.” In re Cline, 531 F.3d at 1252. Petitioner is aware of this requirement because he sought to file a second habeas corpus action in 2007 without authorization, which the Tenth Circuit ultimately denied. Under such circumstances, the undersigned concludes Petitioner's unauthorized filing, in a court he knew lacked the requisite jurisdiction to consider his petition, was not made in good faith. See id. (explaining that because “courts ha[d] “repeatedly explained to [petitioner] the statutory requirements of §§ 2255(h) and 2244(b),” “a district court might well conclude that his most recent unauthorized filing was not made in good faith”).
Because dismissal of this action will not result in the loss of any meritorious claims, the Court should therefore dismiss it without prejudice rather than transfer it to the Tenth Circuit.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal without prejudice of this habeas petition for lack of jurisdiction as a second or successive habeas petition without Tenth Circuit authorization. Doc. 1. The Court should also deny as moot Petitioner's “Motion to Exceed the Thirty Page Limit.” Doc. 2.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before October 11, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.
ENTERED