Henderson v. Farris
Filing
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OPINION AND ORDER by Judge Frank H. Seay : Granting 5 Motion to Dismiss. Transferring case to 10th Circuit Court (re: 2nd or Successive 2254/2255 Petition) (case terminated) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MIKEL RAY HENDERSON,
Petitioner,
v.
JIM FARRIS, Warden,
Respondent.
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No. CIV 15-080-FHS-KEW
OPINION AND ORDER
This matter is before the court on the respondent’s motion to dismiss or transfer
petitioner’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Petitioner, an inmate incarcerated at Lexington Correctional Center in Lexington, Oklahoma,
is challenging his conviction in Love County District Court Case No. 2006-27 for Possession
of Pseudoephedrine with Intent to Manufacture a Controlled Dangerous Substance.
Petitioner alleges he was wrongfully denied the benefit of an intervening change in
Oklahoma law that would exonerate him, specifically the Postconviction DNA Act, Okla.
Stat. tit. 22, § 1373 (2013). He asserts DNA testing would prove his innocence by showing
that DNA on the evidence presented at trial belonged to someone other than himself.
The record shows that on July 16, 2010, petitioner filed a habeas petition in this court
in Case No. CIV-10-283-JHP-KEW, challenging the same conviction. The petition was
denied on July 18, 2011, and the Tenth Circuit Court of Appeals denied a certificate of
appealability and dismissed petitioner’s appeal on January 9, 2012, in Case Nos. 11-7060 and
11-7067.
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). It is, however, a waste
of judicial resources to require the transfer of a frivolous, time-barred case. Id. (citing
Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)).
The respondent claimed in his motion (Dkt. 5) that the petition is barred by the statute
of limitations set forth in 28 U.S.C. § 2244(d)(1)-(2). Petitioner contested this allegation
(Dkt. 9), and after further investigation, the respondent conceded that the petition was timely
(Dkt. 13). The respondent now argues the petition should be dismissed as second and
successive, or in the alternative, transferred to the Tenth Circuit Court of Appeals. Here, the
court finds that because dismissal could result in an issue regarding the statute of limitations,
the petition should be transferred to the Tenth Circuit Court of Appeals. See Cline, 531 F.3d
1249, 1252-53.
ACCORDINGLY, the respondent’s motion to dismiss or transfer the petition (Dkt.
5) is GRANTED, and this action is TRANSFERRED to the Tenth Circuit Court of Appeals
in the interest of justice pursuant to 28 U.S.C. § 1631.
So Ordered this 19th day of February, 2016.
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