GARY M. PURCELL, Magistrate Judge.
Petitioner, a state prisoner appearing pro se, has filed this action seeking relief under 28 U.S.C. § 2254. Petitioner is challenging his conviction and confinement for murder in the first degree entered in the District Court of Oklahoma County, Case No. CF-1993-918. Respondent has filed a Motion to Dismiss asserting the Petition is second or successive and should be dismissed. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be granted.
On June 17, 1994, Petitioner was convicted of murder in the first degree following a jury trial. Oklahoma Supreme Court Network, Case No. CF-1993-918.
The following year, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. Thompson v. Ward, Case No. CIV-1997-286-L. Therein, Petitioner raised the following grounds for relief: (1) the trial court erred in failing to give a lesser included offense instruction for second degree murder; (2) ineffective assistance of trial counsel for failing to request a lesser included offense instruction; and (3) insufficient evidence to support his conviction. United States Magistrate Judge Bana Roberts issued a Report and Recommendation, in which she recommended denying Petitioner's claims on the merits. See Thompson v. Sirmons, No. CIV-07-706-F, 2007 WL 2694341, at *1 n.1 (W.D. Okla. Sept. 12, 2007) (citing Thompson v. Ward, No. CIV-97-286-L, Report and Recommendation, p. 2 (W.D. Okla. Nov. 30, 1999) (Roberts, M.J.)). The Report and Recommendation was adopted by United States District Judge Tim Leonard on March 7, 2000. Id. at *1 n.1 (citing Thompson v. Ward, No. CIV-97-286-L, Order, p. 2 (Mar. 7, 2000) (Leonard, J.)). The Tenth Circuit Court of Appeals granted Petitioner's Certificate of Appealability and affirmed this Court's denial of Petitioner's request for habeas relief. Thompson v. Ward, 13 F. App'x. 782, 784 (10th Cir. 2001).
On June 25, 2007, Petitioner filed another Petition for Writ of Habeas Corpus in this Court challenging the same underlying murder conviction. Thompson v. Sirmons, Case No. CIV-07-706-F. Petitioner raised three grounds in support of his claim for relief. In Ground One, Petitioner alleged ineffective assistance of trial and appellate counsel because trial counsel failed to secure favorable preliminary hearing transcripts to impeach witnesses at trial. Additionally, appellate counsel failed to secure a complete record of lower court proceedings and failed to raise certain meritorious claims on appeal. Thompson v. Sirmons, Case No. CIV-07-706-F, Doc. No. 1 at 6-7; Doc. No. 2 at 14-17. In Ground Two, Petitioner claims the State violated its Brady obligation to disclose favorable evidence. Thompson v. Sirmons, Case No. CIV-07-706-F, Doc. No. 2 at 17-19. In Ground Three, Petitioner contends that he was denied access to the courts due to an absence of "state corrective process." Thompson v. Sirmons, Case No. CIV-07-706-F, Doc. No. 2 at 23-24.
On August 21, 2007, United States Magistrate Judge Doyle W. Argo issued a Report and Recommendation in which he explained:
Thompson v. Sirmons, No. CIV-07-706-F, 2007 WL 2694341, at *2 (W.D. Okla. Sept. 12, 2007). United States District Judge Stephen P. Friot adopted the Report and Recommendation on September 12, 2007, and the case was transferred to the Tenth Circuit Court of Appeals. Id. at *1.
Petitioner subsequently filed a Motion for Authorization with the Tenth Circuit requesting that he be permitted to "present claims in a second § 2254 petition that (1) he received constitutionally ineffective assistance of counsel because (a) his trial counsel failed to secure favorable preliminary hearing evidence; impeach certain government witnesses . . . raise suppression of evidence claims . . . and . . . (2) the state suppressed evidence that certain witnesses were given deals and assistance for testifying against him, and suppressed portions of the preliminary hearing transcripts relevant to this claim. . . ." Doc. No. 17-1 at 3-4. The Tenth Circuit denied Petitioner's request for authorization explaining, in relevant part:
Doc. No. 17-1 at 4-5.
In 2009, Petitioner filed a motion in his initial habeas action which the Court construed, in relevant part, as a second or successive § 2254 petition and dismissed it based on lack of jurisdiction. Thompson v. Workman, Case No. CIV-97-286-L, Order, Doc. No. 76 at 3-4. The Court specifically declined to transfer the case to the Tenth Circuit but instead stated, "With respect [to the habeas petition portion of the Motion], the court finds the interest of justice would not be served by transferring the motion to the Court of Appeals for certification under 28 U.S.C. § 1631. The court therefore dismisses that portion of petitioner's motion to vacate that constitutes a second or successive motion for habeas relief for lack of jurisdiction. See In re Cline, 531 F.3d [1249, 1252 (10th Cir. 2008)]." Id. at 5.
Petitioner appealed the dismissal to the Tenth Circuit and it affirmed this Court's decision to construe a portion of Petitioner's motion as a second or successive habeas petition as Petitioner had clearly raised the same issue in his original habeas action. Thompson v. Workman, 372 F. App'x 858, 862 (10th Cir. 2010). The Tenth Circuit also affirmed the Court's decision to dismiss rather than transfer the action, explaining:
Id.
Prior to the filing of the present matter, in February 2018, Petitioner filed another Motion for Authorization to File a Second or Successive Habeas Corpus Petition under 28 U.S.C. § 2244(b) with the Tenth Circuit. Doc. No. 17-3. Therein, he attacked the same 1994 murder conviction and indicated that his latest proposed Petition for Writ of Habeas Corpus, attached to the Motion, did not include claims that he had previously presented and that his claims relied on new evidence. Id. at 9-10. He stated, "The new evidence involves an undisclosed `deal' with a key witness (Dennis Day) in this case. The evidence was not previously disclosed due to prosecutor Miller's suppression of this evidence from Petitioner and defense counsel." Id.
In his proposed Petition, Petitioner set forth the following grounds for relief: (1) the State failed to disclose that Dennis Day, a witness in Petitioner's criminal trial, had received favorable treatment on a criminal case in exchange for his testimony; (2) the trial court erred by permitting admission of accomplice testimony without corroboration; and, (3) the State suppressed portions of the preliminary hearing transcript that included Mr. Day's testimony. Id. at 19, 20, 21, 22. On February 27, 2018, the Tenth Circuit denied Petitioner's Motion for Authorization, stating:
Doc. No. 17-4 at 1-2.
Following the Tenth Circuit's denial of Petitioner's request for authorization to file a second or successive habeas action, Petitioner initiated the present action. Petitioner's purported grounds for relief herein are (1) failure of the State to disclose that Dennis Day, a witness in Petitioner's criminal trial, had received favorable treatment on a criminal case in exchange for his testimony; (2) the State suppressed portions of the preliminary hearing transcript that were favorable to the defense; (3) ineffective assistance of trial counsel based on failure to use preliminary hearing transcript during cross-examination of Mr. Day; (4) ineffective assistance of appellate counsel.
Petitioner previously raised ineffective assistance of trial and appellate counsel based on similar allegations in Thompson v. Sirmons, Case No. CIV-07-706-F. This Court transferred the case to the Tenth Circuit, which subsequently denied Petitioner authorization to file a second or successive habeas petition based on these grounds. See Thompson v. Sirmons, No. CIV-07-706-F, 2007 WL 2694341, at *2 (W.D. Okla. Sept. 12, 2007); Doc. No. 17-1 at 4-5. As a result, those claims must be dismissed. See 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior action shall be dismissed.").
Further, as previously noted, under 28 U.S.C. § 2244(b)(3)(A), the Tenth Circuit Court of Appeals must authorize this Court to consider any second or successive petition permitted by § 2244(b). The Tenth Circuit has already twice denied Petitioner's request to file a second or successive habeas petition based on alleged undisclosed favorable treatment in criminal cases for State's witnesses and on allegations that the State suppressed portions of the preliminary hearing transcript favorable to the defense. Doc. No. 17-1 at 3-5; Doc. No. 17-4 at 1-2. As established, the latest denial was issued immediately prior to the filing of the present habeas. Doc. No. 17-4. Thus, Petitioner knew at the time of filing this action that this Court lacks jurisdiction over his successive habeas Petition.
"Where there is no risk that a meritorious successive claim will be lost" absent a transfer, the district court properly may exercise its discretion to dismiss the petition. In re Cline, 531 F.3d at 1252. There is no such risk here. Indeed, 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. See id. at 1251. Accordingly, it is recommended Petitioner's habeas claims be dismissed for lack of jurisdiction.
Based on the foregoing findings, it is recommended that Respondent's Motion to Dismiss (Doc. No. 16) be GRANTED and the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by
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 is denied.
