Loggins v. Hannigan, et al

Filing 35

ORDER ENTERED: Petitioner's motion 34 to proceed in forma pauperis is denied as unnecessary and moot. The motion 32 to vacate judgment is treated as a successive 2254 application and dismissed for lack of jurisdiction. Signed by Senior District Judge Sam A. Crow on 9/20/2011. (Mailed to pro se party Kevin D. Loggins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN D. LOGGINS, Sr.,
Petitioner,
v.

CASE NO.

99-3102-SAC

ROBERT D. HANNIGAN,
et al.,
Respondents.
O R D E R
This pleading entitled “Motion to Vacate Judgment as Null
and Void” was filed by Mr. Loggins who is an inmate of the
Hutchinson Correctional Facility, Hutchinson, Kansas.

Petitioner

has also filed an unnecessary Motion for Leave to Proceed in forma
pauperis, which shall be denied as moot.
In this pleading, Mr. Loggins moves the court to vacate the
judgment entered in this case in 2001 denying his petition for writ
of habeas corpus filed pursuant to 28 U.S.C. § 2254.

In his

“Memorandum in Support of Motion to Vacate,” petitioner argues that
the court lacked jurisdiction based on challenges to his state
court

conviction,

and

again

claims

that

the

Sedgwick

County

District Court failed to arraign him because he was not present,
and that the state criminal judgment is void as a result.

The

court finds that this action is another attempt by Mr. Loggins to
file a successive federal habeas corpus petition.

See Gray v.

Mullin, 171 Fed.Appx. 741, 743, 745 FN1 (10th Cir. 2006), cert.
denied, 549 U.S. 905 (2006).

28 U.S.C. § 2244(a) pertinently provides:
No circuit or district judge shall be required to
entertain an application for a writ of habeas
corpus to inquire into the detention of a person
pursuant to a judgment of a court of the United
States if it appears that the legality of such
detention has been determined by a judge or court
of the United States on a prior application for a
writ of habeas corpus . . . .
Id.

Section 2244(b) pertinently provides:
(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.

Id.
In this § 2254 habeas corpus action filed by Mr. Loggins in
1999, he challenged his convictions in Case No. 95-CR-1859.

The

first federal petition was denied on the merits on September 11,
2001.

In addition, petitioner filed a Motion for Reconsideration

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of the denial of his first habeas petition, and that motion was
denied on October 5, 2001.

He appealed to the Tenth Circuit Court

of

a

Appeals,

which

denied

dismissed the appeal.

certificate

of

appealability

and

In his motion for reconsideration, Mr.

Loggins sought a stay while he exhausted additional arguments in
state court.

However, the district court found, and the Tenth

Circuit cited its finding, that “any issues petitioner seeks to
exhaust are already foreclosed as untimely under 28 U.S.C. §
2244(d)(1), and petitioner cannot possibly show that he exercised
due diligence in raising his claims.”

From the foregoing, the

court concludes that the instant application is a second and
successive petition.

Woodward v. Williams, 263 F.3d 1135, 1142

(10th Cir. 2001), cert. denied, 535 U.S. 973 (2002).
Under 28 U.S.C. § 2244(b)(3)(A),1 a second or successive
petition for writ of habeas corpus may be filed in federal district
court only if the applicant first obtains an order from the
appropriate federal court of appeals authorizing the district court
to consider the petition.

See also Gonzalez v. Crosby, 545 U.S.

524 (2005)(“any claim that has not already been adjudicated must be
dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of
actual innocence,” and “before the district court may accept a

1

§ 2244(b)(3)(A) provides in pertinent part:

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.

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successive petition for filing, the court of appeals must determine
that it presents a claim not previously raised that is sufficient
to

meet

§

2244(b)(2)’s

new-rule

or

actual-innocence

provisions.”)(citing § 2244(b)(2),(3)).
Petitioner in this case did not comply with the provisions
of

§

2244(b)(3)(A),

but

filed

his

motion/application

without

obtaining prior authorization from the Tenth Circuit Court of
Appeals. As a result, this court lacks jurisdiction to address the
merits of any § 2254 claim asserted.

In re Cline, 531 F.3d 1249,

1251 (10th Cir. 2008); see United States v. Nelson, 465 F.3d 1145,
1148 (10th Cir. 2006).

This district court may either transfer

this action to the Tenth Circuit pursuant to 28 U.S.C. § 16312 for
prior authorization, if it finds it is in the interest of justice
to do so, or dismiss the matter for lack of jurisdiction.
531 F.3d at 1252.

Cline,

The court finds that the interest of justice

would not be served by transfer of the instant matter to the Tenth
Circuit, and that it should be dismissed instead.
The

three

primary

considerations

governing

a

court’s

decision whether to transfer or dismiss are: (1) whether the action
was in good faith filed in the wrong court; (2) whether dismissal

2

Section 1631 provides in relevant part:
Whenever a civil action is filed . . . and [the] court
finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer
such action . . . to any other such court in which the
action . . . could have been brought at the time it was
filed. . . .

Id.

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might make it difficult for the petitioner to comply with the
one-year federal limitations period; and (3) whether the claim is
likely to have merit. See Cline, at 1251. The first consideration
does not support transfer in this case because the statutory
requirement for prior authorization of second or successive habeas
petitions has been in effect for well over a decade, making it
difficult for petitioner to show that the initial filing of his
petition in this Court was done in good faith.

See id. at 1252.

Moreover, the one-year statute of limitations has clearly expired
for any attempt to amend his first petition to add a new claim.
See U.S. v. Espinoza-Saenz, 235 F.3d 501, 504 (10th Cir. 2000). In
any event, this second and successive habeas application is filed
over ten years after his first petition was denied.

See Marsh v.

Soares, 223 F.3d 1217, 1219 (10th Cir. 2000), cert. denied, 531
U.S. 1194 (2001).
concludes

that

Because this case is time-barred, the court

transfer

interests of justice.

of

this

action

would

not

serve

the

Petitioner has been previously advised of

all the foregoing, most recently in Loggins v. Kansas Dept. of
Corrections, 11-3106-SAC (July 6, 2011).
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s
Motion

to

Proceed

in

forma

pauperis

(Doc.34)

is

denied

as

unnecessary and moot.
IT IS FURTHER ORDERED that this motion to vacate judgment
(Doc. 32) is treated as a successive § 2254 application and
dismissed for lack of jurisdiction.

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IT IS SO ORDERED.
Dated this 20th day of September, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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