CAMPBELL v. BEAR

Case No. CIV-17-211-R.

DANNY R. CAMPBELL, Petitioner, v. CARL BEAR, Warden, Respondent.

United States District Court, W.D. Oklahoma.

Editors Note
Applicable Law: 28 U.S.C. § 2254
Cause: 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State)
Nature of Suit: 530 Habeas Corpus (General)
Source: PACER


Attorney(s) appearing for the Case

Danny R Campbell, Petitioner, Pro Se.


REPORT AND RECOMMENDATION

CHARLES B. GOODWIN, Magistrate Judge.

Petitioner Danny R. Campbell, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 1). United States District Judge David L. Russell has referred this matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules"), the undersigned has examined the Petition and recommends dismissal.

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." Section 2254 R. 4. 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. Second or Successive Petitions Under 28 U.S.C. § 2254

Section 2244(b) of Title 28 of the United States Code limits the circumstances in which a petitioner may proceed with a second or successive habeas corpus action under § 2254:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) 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. (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.

28 U.S.C. § 2244(b)(1)-(3)(A). "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 Court of Appeals] has granted the required authorization." In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008); see 28 U.S.C. § 2244(b)(3); Section 2254 R. 9.

III. Discussion

1. Petitioner's Petition Is "Second or Successive" Under 28 U.S.C. § 2244(b)

In January 1979, Petitioner was convicted of first-degree murder in the District Court of Oklahoma County, Oklahoma, and sentenced to a term of life imprisonment. Pet. at 1;2 Campbell v. Bear, No. CIV-16-526-R, 2016 WL 4078598, at *1 (W.D. Okla. June 27, 2016) (R. & R.) [hereinafter Campbell III], adopted, 2016 WL 4077250 (W.D. Okla. July 29, 2016); see State v. Campbell, No. CF-1978-2706 (Okla. Cnty. Dist. Ct.).3 His conviction and sentence were affirmed on direct appeal. Pet. at 2; Campbell III, 2016 WL 4078598, at *1; see Campbell v. State, 636 P.2d 352 (Okla. Crim. App. 1981).

Petitioner has previously challenged his 1979 state-court conviction through several habeas proceedings in this Court. In Campbell v. Cowley [hereinafter Campbell II], Petitioner's § 2254 petition was dismissed as successive and as an abuse of the writ. See Campbell II, No. CIV-92-2413-T (W.D. Okla.) (R. & R., May 24, 1993 (Doc. No. 22); J., June 10, 1993 (Doc. No. 24)). In that 1992 habeas action, the Court identified Petitioner's first federal habeas corpus challenge to the conviction to have been filed in 1988 and then denied. See Campbell II, R. & R. at 2-3 (citing Campbell v. Cowley, No. CIV-88-1407-T (W.D. Okla.) [hereinafter Campbell I]).

In May 2016, Petitioner filed two more habeas actions in this Court. In Campbell III, Petitioner's § 2254 petition was dismissed as an untimely and unauthorized successive habeas petition. See Campbell III, 2016 WL 4078598, at *4. In Campbell v. Bear, No. CIV-16-530-R (W.D. Okla.) [hereinafter Campbell IV], Petitioner's pleading was likewise dismissed for lack of jurisdiction to the extent Petitioner was challenging his state-court conviction through an unauthorized second or successive habeas petition. See Campbell IV (R. & R., May 31, 2016 (Doc. No. 6); Order, June 24, 2016 (Doc. No. 8)).

In the current action, Petitioner again seeks to challenge his 1979 state-court conviction and sentence.4 See Pet. at 1. As evidenced by the file-stamped headings on the Petition, Petitioner has largely resubmitted the same pleading as the petition that already was dismissed in Campbell III. See id. at 2-15 (bearing the file-stamped page numbers docketed in Case Number CIV-16-526-R); Pet. Exs. 1-18 passim (Doc. Nos. 1-1 to 1-18) (same). As in that previous case, Petitioner's 22-page Petition

is accompanied by over 400 pages of miscellaneous documents, including institutional grievance forms, request for health services forms, custody assessment forms, parole docket forms, adjustment review forms, offender statement reports, inmate transaction list forms, requests for legal research assistance, offender's request for disbursement of legal costs forms, copies of personal correspondence, and a copy of a notice advising Petitioner he was placed on a 12-month grievance restriction. None of these documents are relevant to the habeas action Petitioner has filed herein.

Campbell III, 2016 WL 4078598, at *2; see Pet. at 1-22; Pet. Exs. 1-18. And as in his previous habeas actions, Petitioner "has not alleged specific facts sufficient to discern his constitutional claims," and his filings are interspersed with equations and largely "illegible." Campbell III, 2016 WL 4078598, at *2; Campbell IV, Order at 2.

More significantly, however, because Petitioner's previous habeas actions challenged the same state-court conviction and were either denied on the merits or dismissed as second/successive, the current Petition is "second or successive" for purposes of § 2244(b). 28 U.S.C. § 2244(b)(1)-(2); see In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011); Campbell II, R. & R. at 2-3; id., J. at 1; Campbell III, 2016 WL 4077250, at *1; Campbell IV, Order at 1-2. In the instant matter, there is no indication that Petitioner has received an order from the Tenth Circuit Court of Appeals authorizing this Court to consider this pleading, which is at least his fifth § 2254 Petition challenging his January 1979 state-court judgment and sentence in Oklahoma County District Court Case Number CF-1978-2706. See Pet. at 3-4; 28 U.S.C. § 2244(b)(3)(A).

To any extent Petitioner's present habeas claims were raised in any prior § 2254 petition, these claims must be dismissed. See 28 U.S.C. § 2244(b)(1) (prescribing that a previously presented claim presented in a second or successive § 2254 application "shall be dismissed"); see, e.g., Hall v. Falk, 535 F. App'x 762, 763 (10th Cir. 2013); Allen v. Massie, 236 F.3d 1243, 1244-45 (10th Cir. 2001).

With respect to any new claims now raised by Petitioner that "challeng[e] the same conviction" as did any of Petitioner's prior habeas petitions, this Court lacks jurisdiction to consider the claims. In re Rains, 659 F.3d at 1275; see also Hall, 535 F. App'x at 763; In re Cline, 531 F.3d at 1251.

When a second or successive § 2254 . . . claim is filed in the district court without the required authorization from [the appellate] court, the district court may transfer the matter to [the appellate] court if it determines it is in the interest of justice to do so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for lack of jurisdiction.

In re Cline, 531 F.3d at 1252. "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 to [the appellate] court for authorization." Id.

2. Transfer of the Instant Petition Is Not in the Interest of Justice

a. 28 U.S.C. § 2244(b)(2)

In this case, it would not further the interest of justice to transfer the matter to the Tenth Circuit Court of Appeals because Petitioner cannot satisfy the requirements of 28 U.S.C. § 2244(b)(2) to obtain authorization to proceed with a successive habeas petition. By statute, a new habeas claim presented in a second or successive habeas petition

shall be dismissed unless . . . 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 . . . the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and . . . 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)(A)-(B).

Petitioner's conclusory allegations in the Petition cannot reasonably be said to rely upon a new rule of constitutional law or a factual predicate alleged to have been previously undiscoverable. See Pet. at 1-22; 28 U.S.C. § 2244(b)(2)(A), (B)(i). Nor has Petitioner presented underlying facts for his claims sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found him guilty of his first-degree murder offense. See Pet. at 1-22; 28 U.S.C. § 2244(b)(2)(B)(ii).

b. 28 U.S.C. § 2244(d)

Moreover, the "interest of justice" does not support transfer of this petition because the one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1) for filing a habeas action "expired many years prior to the date on which Petitioner filed the instant Petition." Campbell III, 2016 WL 4078598, at *3; accord Campbell IV, R. & R. at 6; see Carey v. Saffold, 536 U.S. 214, 217 (2002) ("Because [the petitioner's] conviction became final before AEDPA took effect, the federal limitations period began running on AEDPA's effective date, April 24, 1996, giving [the petitioner] one year from that date (in the absence of tolling) to file a federal habeas petition."). This action, initiated February 27, 2017, is therefore untimely absent application of statutory or equitable tolling or an exception to the one-year time limit.

First, there is no basis for statutory tolling alleged in the Petition or reflected in the relevant public filings. See 28 U.S.C. § 2244(d)(2); Pet. at 1-22; State v. Campbell, No. CF-1978-2706 (Okla. Cnty. Dist. Ct.); Campbell v. State, No. F-79-428 (Okla. Crim. App.); Campbell v. State, No. PC-1988-165 (Okla. Crim. App.); Campbell II, No. CIV-92-2413-T (W.D. Okla.); Campbell III, No. CIV-16-526-R (W.D. Okla.); Campbell IV, No. CIV-16-530-R (W.D. Okla.); see also Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Nor is Petitioner entitled to statutory tolling for the period that any of his other habeas petitions were pending in this Court or in the Tenth Circuit. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001); Brown v. Poppel, 98 F. App'x 785, 788 (10th Cir. 2004).

Next, the AEDPA filing deadline may be equitably tolled in "extraordinary circumstances." Clark, 468 F.3d at 714 (internal quotation marks omitted); see also York v. Galetka, 314 F.3d 522, 527-28 (10th Cir. 2003). To be entitled to equitable tolling, Petitioner must "show both extraordinary circumstances preventing timeliness and diligent pursuit of his claim." See Clark, 468 F.3d at 714; accord Holland v. Florida, 560 U.S. 631, 649 (2010); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Petitioner presents no extraordinary circumstance that prevented his timely pursuit of federal habeas corpus relief. See Pet. at 1-22. Merely filing a prior federal habeas petition does not entitle Petitioner to equitable tolling. See Duncan, 533 U.S. at 181-82; Brown, 98 F. App'x at 788. Petitioner's presumed lack of knowledge of the law and lack of legal assistance generally are insufficient as well. See Marsh, 223 F.3d at 1220; Johnson v. Jones, 502 F. App'x 807, 810 (10th Cir. 2012). The lack of "extraordinary circumstances preventing timeliness" and lack of "diligent pursuit" of Petitioner's federal claims are clear on the face of the Petition, and Petitioner has not shown that equitable tolling is warranted. See Clark, 468 F.3d at 714; Brown, 98 F. App'x at 788.

Finally, "a credible showing of actual innocence" "may allow a prisoner to pursue his constitutional claims" as to his conviction, under an exception to procedural bars and statutes of limitations addressed by the Supreme Court in McQuiggin v. Perkins, 133 S.Ct. 1924, 1928, 1931-32 (2013). Successful actual-innocence claims are rare due to the strong evidentiary requirements for such claims. See id. at 1928, 1931, 1936; House v. Bell, 547 U.S. 518, 538 (2006). "[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). In the Petition, Petitioner conclusorily alleges that his conviction violates the Ten Commandments and the First through Eighth and Fourteenth Amendments, but Petitioner "provide[s] no new evidence that was not presented at his trial" and "has not shown that in light of new evidence a reasonable juror would not have found him guilty of the murder offense beyond a reasonable doubt." Campbell III, 2016 WL 4078598, at *3; see Pet. at 5; Pet. Exs. 1-18. Petitioner's claims therefore do not invoke the actual-innocence equitable exception. See McQuiggin, 133 S. Ct. at 1928.

IV. Summary

Because all claims of the Petition were either: (i) "presented in a prior application," 28 U.S.C. § 2244(b)(1); or (ii) do not meet the criteria for the Court's consideration under 28 U.S.C. § 2244(b)(2); and (iii) would be subject to dismissal as untimely under 28 U.S.C. § 2244(d), "there is no risk that a meritorious successive claim will be lost" absent a transfer to the appellate court. In re Cline, 531 F.3d at 1252. The Petition should be dismissed rather than transferred to the Tenth Circuit. See id.; Campbell III, 2016 WL 4078598, at *3-4; Campbell IV, Order at 1.

RECOMMENDATION

For the foregoing reasons, it is recommended that the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 1) be dismissed in its entirety. Further, Petitioner's application for leave to proceed in forma pauperis (Doc. No. 3) should be denied as moot. See Campbell IV, R. & R. at 7.

NOTICE OF RIGHT TO OBJECT

Petitioner is advised of his right to file an objection to the Report and Recommendation with the Clerk of this Court by April 25, 2017, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues 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 the present case. The Court Clerk is directed to serve copies of the Petition and this Report and Recommendation on Respondent and the Attorney General of the State of Oklahoma through electronic mail sent to fhc.docket@oag.state.ok.us.

FootNotes


1. Petitioner names forty-two respondents in his pleading. Because Petitioner is currently incarcerated at Joseph Harp Correctional Center ("JHCC"), JHCC Warden Carl Bear is hereby identified as the sole Respondent in this habeas proceeding. See Section 2254 R. 2(a), 12; Fed. R. Civ. P. 25(d), 81(a)(4).
2. References to page numbers in Petitioner's filings use the CM/ECF pagination.
3. The undersigned takes judicial notice of the dockets for Petitioner's state-court proceedings, which are publicly available through http://www.oscn.net.
4. Petitioner filed four other habeas actions concurrently with the instant case. See Case Nos. CIV-17-216-R, CIV-17-217-R, CIV-17-218-R, CIV-17-219-R (W.D. Okla.).

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