Morgan v. Addison

Filing 4

OPINION AND ORDER by Judge Ronald A. White : Denying 1 Petition for Writ of Habeas Corpus. (acg, Deputy Clerk)

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

DAVID BRIAN MORGAN,
Petitioner,
v.
MIKE ADDISON, Warden,
Respondent.

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No. CIV-15-134-RAW-KEW

OPINION AND ORDER
Petitioner, an inmate in the custody of the Oklahoma Department of Corrections
(DOC), filed this action captioned “Post Conviction Relief Under 2241 Motion of Habeus
[sic] Corpus for Sending Me to a Private Prison.” (Dkt. 1). He has failed to provide his
criminal case number or any dates associated with the incidents of which he complains. A
review of the DOC website at http://www.ok.gov/doc, and the Oklahoma State Courts
Network at http://www.oscn.net, however, shows he was convicted on March 30, 2011, in
Oklahoma County District Court Case No. CF-2010-7695.
Petitioner is seeking to have his conviction and sentence vacated and to be released
from custody. (Dkt. 1 at 1, 13). He raises five grounds for habeas relief: (1) ineffective
assistance of counsel, (2) due process, (3) cruel and unusual punishment, (4) right to not selfincriminate, and (5) freedom of speech. (Dkt. 1 at 3).1
Petitioner also complains that after his sentencing, he was placed into the county jail
overflow for 40 days, in violation of Oklahoma law. He then was transferred to the Lawton
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Petitioner acknowledges the petition is untimely, but asserts the statute of limitations
should be equitably tolled because of his lack of access to the courts. (Dkt. 1 at 2).

Correctional Facility, a private prison in Lawton, Oklahoma, where he was incarcerated for
almost nine months. He asserts his incarceration in a non-DOC facility violated the
Oklahoma Constitution. Petitioner next was moved to Joseph Harp Correctional Center in
Lexington, Oklahoma, allegedly because that facility was seeking individuals for
telemarketing.
Construing petitioner’s allegations liberally, Haines v. Kerner, 404 U.S. 519 (1972),
the court finds he has included civil rights claims with his habeas corpus claims. For
example, his allegations concerning his cell partner in the Oklahoma County Jail and his
access to a telephone in jail clearly fall into the category of the conditions of his confinement
and cannot be considered in a habeas action. Such claims must be presented in a civil rights
complaint pursuant to 42 U.S.C. § 1983.
After careful review, the court finds petitioner’s habeas corpus claims arise under the
authority of 28 U.S.C. § 2254, because he is attacking his conviction and sentence. See
Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). Because petitioner was convicted
and sentenced in a state court located in the territorial jurisdiction of the United States
District Court for the Western District of Oklahoma, the court finds this matter may be more
properly addressed in that district. Therefore, plaintiff’s habeas corpus claims are dismissed
without prejudice. He can obtain the forms for filing a proper § 2254 habeas corpus petition
from the Clerk of the Western District Court.
As for petitioner’s claims about the conditions of his confinement, his petition alleges
those incidents also arose in the Western District of Oklahoma. Therefore, proper venue
does not lie in this district, see 28 U.S.C. § 1391(b), and his civil rights claims are dismissed
without prejudice pursuant to 28 U.S.C. § 1406(a). The proper forms for filing a civil rights
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complaint pursuant to 42 U.S.C. § 1983 also are available from the Clerk of the Western
District of Oklahoma.
ACCORDINGLY, this action is DISMISSED WITHOUT PREJUDICE in its
entirety.

IT IS SO ORDERED this 14th day of May 2015.

Dated this 14th day of May, 2015.

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