Scott v. Bryant

Filing 11

OPINION AND ORDER by Judge Ronald A. White : Granting 8 respondent's Motion to Dismiss. Denying 1 petitioner's Petition for Writ of Habeas Corpus (2254) and denying certificate of appealability. (acg, Deputy Clerk)

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

BRIAN TYRONE SCOTT,
Petitioner,
v.
JASON BRYANT, Warden,
Respondent.

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No. CIV 16-572-RAW-KEW

OPINION AND ORDER
This matter is before the Court on Respondent’s motion to dismiss Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as second and successive
(Dkt. 8). Petitioner, a pro se state inmate currently incarcerated at James Crabtree
Correctional Center in Helena, Oklahoma, is challenging his convictions and sentences in
Okmulgee County District Court Case No. CF-2000-5044. He raises three grounds for relief:
I.

Denial of due process when Petitioner never was accused of Assault
and Battery with a Dangerous Weapon.

II.

Denial of due process when Petitioner never was accused of
Unauthorized Use of a Motor Vehicle.

III.

Sentencing judge entered Malicious Injury to Property as a felony, with
a more stringent sentence than what was instructed to the jury for the
misdemeanor offense.

Respondent alleges the petition must be dismissed as second and successive. The
record shows Petitioner filed his first petition for a writ of habeas corpus in this Court on
November 19, 2003, and it was dismissed for failure to exhaust state court remedies. Scott

v. Franklin, No. CIV 03-641-RAW-KEW (E.D. Okla. Sept. 10, 2004), aff’d No. 04-7097
(10th Cir. Feb. 18, 2005).1 On July 30, 2008, he filed a second petition for habeas corpus
relief in this Court in Case No. CIV 08-287-RAW-KEW. On November 19, 2008, the
petition was dismissed as barred by the statute of limitations, and the Tenth Circuit Court of
Appeals denied a certificate of appealability in Scott v. Parker, No. 08-7118, 317 Fed. App’x
758 (10th Cir. Mar. 16, 2009), cert. denied, 558 U.S. 903 (2009).
The habeas corpus petition now before the Court is unauthorized, because Petitioner
failed to seek authorization from the Tenth Circuit to file it, pursuant to 28 U.S.C. §
2244(b)(3)(A). “Before a second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” Id. Petitioner’s failure to obtain
authorization is undisputed, leaving only the question of whether to dismiss the petition for
lack of jurisdiction or, “if it is in the interest of justice,” transfer the amended petition to the
Court of Appeals for possible authorization. In re Cline, 531 F.3d 1249, 1251-52 (10th Cir.
2008). It is, however, a waste of judicial resources to require the transfer of a frivolous,
time-barred case. Id. at 1252 (citing Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)).
Here, the Court finds Petitioner’s present claims clearly are barred by the statute of
limitations pursuant to 28 U.S.C. § 2244(d)(1). Petitioner’s second habeas petition in Case

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“[T]he court is permitted to take judicial notice of its own files and records . . . .”
Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds
by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
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No. CIV 08-287-RAW-KEW, filed on July 30, 2008, was dismissed as time-barred. This
present petition, filed more than eight years later on December 23, 2016, also is untimely.
Petitioner argues in his response to the motion to dismiss that extraordinary factors
prevented him from asserting his constitutional claims for federal habeas review within the
statutory one-year limitation period (Dkt. 10 at 2). He alleges the adversary’s conduct, the
prosecutor’s different charges not in the indictment or information, retained counsel’s failure
to utilize potent impeachment evidence, and the trial court’s intentional impediments to
access of trial transcripts and orders support equitable tolling of the limitation period. Id.
Petitioner further asserts that “[h]ad this actual innocence evidence been available to the jury
at trial,” his innocence would not be debatable. Id.
Equitable tolling of § 2244(d)(1)’s one-year statute of limitations is available “only
in rare and exceptional circumstances,” York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003),
and a petitioner carries the burden of establishing equitable tolling, Yang v. Archuleta, 525
F.3d 925, 929 (10th Cir. 2008). Generally, equitable tolling requires a litigant to establish
two elements: “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Lawrence v. Florida, 549 U.S. 327, 336
(2007) (citation omitted). The Court finds that apart from his unsupported allegations, there
is no evidence in the record to suggest he is actually innocent of the charges of which he
stands convicted, or that uncontrollable circumstances impeded him from timely filing his
federal claim. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Therefore, the

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petition must be dismissed for lack of jurisdiction as an unauthorized and untimely
successive petition.
Certificate of Appealability
The Court further finds Petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). In addition, he has
not shown “at least, 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 [this] court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Therefore, a certificate of appealability cannot be issued.
ACCORDINGLY, Respondent’s motion to dismiss petition as second and succesive
(Dkt. 8) is GRANTED, and this action is, in all respects, DISMISSED WITHOUT
PREJUDICE for lack of jurisdiction. Furthermore, Petitioner is DENIED a certificate of
appealability.
IT IS SO ORDERED this 30th day of August 2017.

Dated this 30th day of August, 2017.

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