WINROW v. DINWIDDIE

BANA ROBERTS, Magistrate Judge

Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2241 seeking a writ of habeas corpus. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). In accordance with Rule 4, Rules Governing Section 2254 Cases, the petition has been promptly examined. Because the petition is a second or successive application for habeas relief, this Court is without jurisdiction over the matter. It is therefore recommended that the petition be transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A) and 28 U.S.C. § 1631.

Petitioner is challenging his conviction on July 17, 1998, in the District Court of Pottawatomie County, Case No. CF-97-403, for robbery with a firearm after conviction of two or more felonies. He was sentenced to a term of 102 years imprisonment. According to the petition the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's conviction on direct appeal, Case No. F-98-984. Petitioner acknowledges and this Court's records confirm that he filed a prior application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, challenging the same conviction involved in the present action. See Winrow v. Hines, Case No. CIV-01-663-C. That application was denied by Judge Cauthron on October 11, 2001. See Docket, Case No. CIV-01-663-C, Report and Recommendation [Doc. # 15] and Order Adopting [Doc. # 19]. The Tenth Circuit dismissed the appeal from that denial. Id. Mandate [Doc. # 25].

In the instant petition, Petitioner asserts three grounds for habeas relief. In Ground One, he claims that the Information in his state court case is void; in Ground Two, he alleges he was denied counsel and his right to testify; and in Ground Three he alleges that he was denied due process. Petition at 5.

Title 28 U.S.C. § 2244(b) limits the circumstances in which a petitioner may proceed with a second or successive habeas corpus action under § 2254 and further provides that "[b]efore 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)(3)(A). The statutory requirement for prior authorization is jurisdictional. See Lopez v. Douglas, 141 F.3d 974, 975-76 (10^th Cir. 1998) (because the petitioner did not obtain prior authorization to file a successive habeas petition, "the district court lacked jurisdiction to decide his unauthorized second petition"). Thus, when a petitioner files a second or successive petition in this district court without the required authorization, the Court should transfer the action to the Tenth Circuit Court of Appeals. See Coleman v. United States, 106 F.3d 339, 341 (10^th Cir. 1997) ("when a second or successive petition for habeas corpus relief under § 2254 . . . is filed in the district court without the required authorization by [the Tenth Circuit Court of Appeals], the district court should transfer the petition or motion to this court in the interest of justice pursuant to § 1631").

Petitioner has failed to demonstrate that he has received prior authorization from the Tenth Circuit Court of Appeals to consider his second application for federal habeas relief challenging his conviction in Case No. CF-97-403, District Court of Pottawatomie County, State of Oklahoma. Therefore, this Court is without jurisdiction to consider his petition. Lopez, 141 F.3d at 975-76. Accordingly, it is recommended that this action be transferred to the Tenth Circuit pursuant to 28 U.S.C. § 1631 (authorizing transfer to cure lack of jurisdiction). Upon transfer, Petitioner may seek authorization to pursue a second or successive petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2244(b)(3).

For the reasons discussed herein, it is the recommendation of the undersigned Magistrate Judge that the petition for a writ of habeas corpus be transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. §§ 1631 and 2244(b)(3)(A). Petitioner is advised of his right to object to this Report and Recommendation by the 22nd day of June, 2006, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives any right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10^th Cir. 1991).

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.