Jacobs v. Patton

Filing 13

OPINION AND ORDER by Judge Ronald A. White : Petitioners motion for leave to file a second or successive habeas petition 12 is DENIED WITHOUT PREJUDICE for lack of jurisdiction, and Petitioner is DENIED a certificate of appealability (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

AARON JEROME JACOBS,
Petitioner,
v.
JOE M. ALLBAUGH, DOC Director,
Respondent.

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Case No. CIV 15-025-RAW-KEW

OPINION AND ORDER
On March 29, 2018, Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, was denied (Dkt. 10). He did not pursue an appeal to the Tenth Circuit Court
of Appeals. On August 20, 2018, Petitioner filed in this Court a motion for leave to file a
second or successive habeas petition, alleging he has unspecified, newly-discovered evidence
that has not been presented in an appropriate forum (Dkt. 12).
“Before a state prisoner may file a second or successive motion under [§ 2254], the
prisoner first must obtain an order from the appropriate court of appeals authorizing the
district court to consider the motion.” In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008)
(citing 28 U.S.C. § 2244(b)(3)(A)). Petitioner has failed to obtain authorization.
When a second or successive § 2254 . . . claim is filed in the district court
without the required authorization from [the circuit court of appeals], the
district court may transfer the matter to [the circuit] court if it determines it is
in the interest of justice to do so under § 1631, or it may dismiss the motion or
petition for lack of jurisdiction.
In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (citations omitted).

Here, the Court finds no ground to transfer this matter to the Tenth Circuit, because
Petitioner has failed to set forth any facts concerning the basis of his new claim. Petitioner
may seek prior authorization from the Tenth Circuit Court of Appeals; however, this Court
will deny without prejudice his motion for leave to file a second or successive habeas petition
for lack of jurisdiction. See Cline, 531 F.3d at 1251 (holding that in the absence of such
authorization, a district court lacks jurisdiction to address the merits of a second or
successive § 2254 petition).
The Court further finds no basis for granting a certificate of appealability. See Troutt
v. Jones, 550 F. App’x 681, 682 (10th Cir. 2014) (denying certificate of appealability where
petitioner failed to seek authorization before filing successive petition).
ACCORDINGLY, Petitioner’s motion for leave to file a second or successive habeas
petition (Dkt. 12) is DENIED WITHOUT PREJUDICE for lack of jurisdiction, and
Petitioner is DENIED a certificate of appealability.
IT IS SO ORDERED this 27th day of August 2018.

Dated this 27th day of August, 2018.

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