Conley (ID 66437) v. Cline et al
MEMORANDUM AND ORDER ENTERED: Petitioner's motion to proceed in forma pauperis 2 is granted. This matter is dismissed without prejudice for lack of jurisdiction. No certificate of appealability shall issue. Signed by U.S. Senior District Judge Sam A. Crow on 05/31/17. Mailed to pro se party Anthony Conley by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3091-SAC
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis.
Petitioner was convicted of first-degree murder in the District
Court of Sedgwick County, Kansas. He is serving a Hard 40 sentence.
Under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the district courts “must promptly
examine” habeas corpus actions filed by state prisoners and must
dismiss those actions “[i]f it plainly appears … that the petitioner
is not entitled to relief.” Likewise, the federal courts must consider
their jurisdiction sua sponte and must dismiss any action in which
subject matter jurisdiction is lacking. See Fed.R.Civ.P. 12(h)(3).
Second or Successive Petitions Filed under Section 2254
Under 28 U.S.C. § 2244(b), a petitioner may proceed in a second
or successive application for habeas corpus relief under Section 2254
only upon obtaining prior authorization from the appropriate federal
court of appeals.
Court records in this district show that petitioner sought relief
from the same conviction he challenges in the present action in an
earlier petition. See Conley v. McKune, 2004 WL 3019431 (D. Kan. Dec.
30, 2004)(denying habeas corpus relief)1.
As a result, the present petition is a successive habeas
petition, and petitioner must obtain authorization from the Tenth
Circuit Court of Appeals before bringing this action. 28 U.S.C.
§2244(b)(3)(A). Because petitioner does not show that he has obtained
the necessary authorization, this Court lacks jurisdiction to
consider the filing. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
In the Tenth Circuit, “[w]hen a second or successive § 2254 …
claim is filed in the district court without the required
authorization from this court, the district court may transfer the
matter to this court if it determines it is in the interest of justice
to do so under § 1631, or it may dismiss the … petition for lack of
jurisdiction.” Cline, 531 F.3d at 1252. Having considered the
petition, which appears to assert claims that were not presented to
the state courts and which presents no exceptional circumstances, the
Court declines to transfer this matter and will dismiss the petition
for lack of jurisdiction. This dismissal does not prevent the
petitioner from seeking authorization from the Tenth Circuit Court
Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Court, “[t]he district court must issue or deny
Court records confirm that the petitioner in that action, Case No. 04-3144-KHV,
and in this action have the same prisoner number and challenge the same conviction,
though on different grounds.
a certificate of appealability when it enters a final order adverse
to the applicant.” A district court may issue a certificate of
appealability “only if the applicant has made a substantial showing
of the denial of a constitutional right,” and the court specifically
identifies the issue or issues that warrant additional review. 28
U.S.C. § 2253.
A petitioner meets this standard by showing that the issues
presented are debatable among jurists, that a court could resolve the
claims differently, or that the questions warrant additional review.
Slack v. McDaniel, 529 U.S. 473 (2000)(citing Barefoot v. Estelle,
463 U.S. 880, 893 (1983)). Where a court’s ruling is based on a
procedural ground, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Here, the Court finds no basis to issue a certificate of
appealability. The Court’s procedural ruling that this matter is a
successive petition filed without the necessary prior authorization
is not reasonably debatable.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
proceed in forma pauperis (Doc. #2) is granted.
IT IS FURTHER ORDERED this matter is dismissed without prejudice
for lack of jurisdiction.
IT IS FURTHER ORDERED no certificate of appealability shall
IT IS SO ORDERED.
This 31st day of May, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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