Gales (ID 73659) v. Frame et al

Filing 2

ORDER ENTERED: Petitioner's "motion" is construed as an application for habeas corpus relief under 28 U.S.C. 2254 and dismissed for lack of jurisdiction. Signed by Senior District Judge Sam A. Crow on 11/22/2013. (Mailed to pro se party Gregory Lynn Gales by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GREGORY LYNN GALES,
Petitioner,
v.

CASE NO. 13-3190-SAC

MARK FRAME, County
Attorney, et al.,
Respondents.
O R D E R
This case was opened when the court received a document
entitled “Motion” from Mr. Gales with the number but not the
same respondents as in the caption of one of his closed cases,
Gales v. Cline, No. 09-3189-RDR.

The clerk was directed to

docket this “motion” as a habeas corpus petition filed by a
state inmate pursuant to 28 U.S.C. § 2254 for the reason that it
is another in a long line of improper attempts by Mr. Gales to
challenge his 2001 state convictions1 after he has repeatedly
been

informed

challenges.

of

the

singular

proper

procedure

for

such

The court finds that this pleading amounts to a

successive application for habeas corpus review and that this
action must be dismissed for lack of jurisdiction because there
is no indication that Mr. Gales obtained preauthorization from
the Tenth Circuit Court of Appeals before its filing.
1

Mr. Gales is the petitioner in 9 and the plaintiff in 3 cases that have
been filed in this court. All 12 cases have been attempts to challenge his
2001 state convictions in federal court.

1

In 2001, Mr. Gales was convicted of intentional seconddegree murder and arson in the District Court of Edwards County,
Kansas.

See State v. Gales, 74 P.3d 594 (Kan.App.), review

denied (Kan. Nov. 12, 2003), cert. denied, 541 U.S. 1076 (2004).
In Gales v. Cline, Case No. 09-3096-SAC, 2009 WL 1421197 (May
20,

2009),

the

history

is

set

forth

of

Mr.

Gale’s

initial

filings in federal court challenging his 2001 state convictions.
Included in this history is Gales v. Morrison, 2008 WL 1925067
(D.Kan. May 1, 2008), appeal dismissed, App.No. 08-3124, 283
Fed.Appx. 656

(10th

Cir. July 1, 2008) in which his federal

habeas corpus petition was dismissed as time-barred.

In that

order, Mr. Gales was also plainly informed that:
Under
28
U.S.C.
§
2244(b)(3)(A),
a
second
or
successive § 2254 habeas petition may be filed in the
district court only if the applicant first obtains an
order from the appropriate federal court of appeals
authorizing the federal district court to consider the
petition.
Id. at 4.

He was also informed that this statutory requirement

for

authorization

prior

omitted).

is

jurisdictional.

Id.

(citations

Nevertheless, in August 2009, Mr. Gales filed a civil

rights complaint attempting to challenge his state convictions,
which was dismissed.
2009).

In

September

Gales v. Meeks, Case No. 09-3180 (Oct. 30,
2009,

Mr.

Gales

filed

a

habeas

corpus

petition pursuant to 28 U.S.C. § 2241 attempting to challenge
his 2001 convictions, which was dismissed.

2

Gales v. Cline,

Case. No. 09-3189-RDR (October 2, 2009).
was

dismissed

for

failure

to

Petitioner’s appeal

prosecute.

After

the

appeal

mandate, Mr. Gales filed a post-judgment motion that was denied.
In the order denying that motion, he was reminded that the case
was dismissed as his obvious attempt to challenge his state
convictions
exclusive
2254.”

and

“to

remedy

for

avoid
doing

statutory
so,

which

restrictions
is

a

on

petition

his

under

§

Mr. Gales has continued to be an abusive habeas corpus

litigant, despite filing restrictions that were imposed upon him
on April 22, 2010, in Gales v. Cline, Case No. 10-3091-MLB.
This court could have directed the clerk to docket this
most recent ambiguous pleading from Mr. Gales in closed case 093189, even though the caption is incorrect, and simply denied it
as stating no grounds for relief from judgment.
not

a

true

post-judgment

motion.

Instead,

However, it is
it

is

another

improper and abusive attempt by Mr. Gales to challenge his 2001
state

convictions

without

following

the

requisite

statutory

procedures of which he has repeatedly been notified in federal
court.

Thus, even if this pleading had been docketed as a post-

judgment motion, it would be considered a successive application
for habeas relief that required Circuit preauthorization.
Mr. Gales has repeatedly been informed that in order to
raise any old or new challenge to his state convictions, he must
adhere to the requisite statutory procedures.
3

Here, as well as

in the future, any allegation presented by Mr. Gales that is a
challenge to his 2001 state convictions may only be raised by
his submission of a new, complete application for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 that is presented upon
court-approved forms.
the

filing

fee

of

forma

The new petition must be accompanied by
$5.00

or

pauperis

a

that

properly-supported
is

also

upon

motion

to

proceed

in

court-approved

forms.

Furthermore, in accord with 28 U.S.C. § 2244(b)(3),

before a new § 2254 petition may be filed by Mr. Gales in this
court, he must have sought and obtained preauthorization to file
a successive habeas application from the Tenth Circuit Court of
Appeals.

Mr. Gales may no longer avoid the local court rules,

the statutory fee requirement, and the statutory prerequisites
for

submitting

successive

habeas

claims

by

filing

improper

motions and pleadings that are not a § 2254 petition.
In the instant application, Mr. Gales vaguely complains of
“conflicting statutes in the record” and “long standing issues
of

a

(sic)

expert

witness.”

He

attaches

copies

of

letters

regarding his criminal prosecution, appeals, and an autopsy of
the victim as well as the “General Appearance Docket” in State
of Kansas v. Gregory Gales, Case No. 00CR00084.

He does not

explain the import of these exhibits; however, it is clear from
his “motion” and the attached exhibits that he is once again
attempting

to

challenge

his

2001
4

state

convictions.

This

application for habeas corpus relief is not upon court-provided
forms for filing a § 2254 petition.
the

filing

indication
Tenth

fee

of

$5.00.

that

Mr.

Gales

Circuit

application.

Court

of

Most
obtained

Appeals

Consequently,

this

to

Nor is it accompanied by
importantly,

there

preauthorization
file

court

a

from

successive

lacks

is

no
the

habeas

jurisdiction

to

consider Mr. Gales habeas corpus claims, and this action must be
dismissed.
IT

IS

THEREFORE

ORDERED

that

petitioner’s

“motion”

is

construed as an application for habeas corpus relief under 28
U.S.C. § 2254 and dismissed for lack of jurisdiction.2
IT IS SO ORDERED.
Dated this 22nd day of November, 2013, at Topeka, Kansas.

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

2

The interests of justice would not be served by the transfer of this
application to the Tenth Circuit for consideration of preauthorization
because the matter is time-barred.

5