Payton (ID 66352) v. Werholtz et al

Filing 5

MEMORANDUM AND ORDER: The Court grants Petitioner's motion for leave to proceed in forma pauperis (Doc. 3 ); it is further ordered this matter is dismissed; and the court declines to issue a Certificate of Appealability. Signed by District Judge Sam A. Crow on 4/29/2013. (Mailed to pro se party Walter Almon Payton by regular mail.) (bt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WALTER ALMON PAYTON,
Petitioner,
v.

CASE NO. 13-3066-SAC

ROGER WERHOLTZ, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is before the court on a petition for habeas corpus
filed 28 U.S.C. § 2254. Petitioner asserts claims of prosecutorial
misconduct and claims that he is entitled to review on the ground of
actual innocence, having been excluded on the basis of DNA evidence.
Background
Petitioner filed two earlier petitions challenging his 1998
conviction. The first, Payton v. McKune, Case No. 03-3460-CM, was
denied due to petitioner’s failure to commence the action within the
governing one-year limitation period. See 28 U.S.C. § 2244(d). The
denial was affirmed on appeal. The second petition, Payton v. McKune,
Case No. 09-3205-SAC, was dismissed as a successive application.
The present action again challenges petitioner’s 1998
conviction, and it is a successive application for relief.
Discussion
A petitioner may not present a successive petition under § 2254
unless he obtains authorization from the circuit court allowing the
district court to review the claims. 28 U.S.C. §2244 (b)(3)(A). 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 this court has granted the
required authorization.”) Petitioner does not suggest that he has been
granted authorization to proceed in this matter.
When a petitioner presents a successive application without the
necessary authorization, the district court “should transfer the
petition or motion to [the appellate court] in the interest of justice
pursuant to [28 U.S.C.] § 1631.” Coleman v. United States, 106 F.3d
339, 341 (10th Cir. 1997). However, when the court finds that there
is no risk that a meritorious claim will be lost, a district court
may dismiss the successive action rather than transferring the matter
to the appellate court. Cline, 531 F.3d at 1252.
The court has examined the record and concludes this matter is
properly dismissed. Not only is this petitioner’s third petition for
habeas corpus relief, it appears that he presented similar claims in
the petition filed in 2003. The claim identified as Ground 1 in that
action reads “Insufficient evidence to convict, Denial of Movant’s
5th & 8th and 14th Const., Denial of DNA evidence that excluded movant.”1
Petitioner presents no new ground that merits the transfer of this
matter to the Tenth Circuit Court of Appeals.
IT IS, THEREFORE BY THE COURT ORDERED petitioner’s motion for
leave to proceed in forma pauperis (Doc. 3) is granted.
IT IS FURTHER ORDERED this matter is dismissed.
IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases in the United States District Courts,
the court declines to issue a Certificate of Appealability.
A copy of this order shall be transmitted to the petitioner.
1

A copy of the relevant page of that petition is attached.

IT IS SO ORDERED.
DATED:

This 29th day of April, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge