Jackson v. Workman

Filing 25

OPINION AND ORDER by Judge James H Payne ; adding party Anita Trammell terminating party Randy Workman (Warden) ; denying certificate of appealability; granting 10 Motion to Dismiss; finding as moot 23 Petition for Writ of Mandamus; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (pll, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ROBERT EARL JACKSON,
Petitioner,
vs.
ANITA TRAMMELL, Warden,1
Respondent.

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Case No. 13-CV-198-JHP-FHM

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Before the Court is Respondent’s motion
to dismiss petition for habeas corpus as time barred by the statute of limitations (Dkt. # 10). In the
supporting brief (Dkt. # 11), filed contemporaneously with the motion to dismiss, Respondent also
asserts that the petition should be dismissed because Petitioner is not “in custody” pursuant to the
challenged judgment of conviction. Id. Petitioner, a state inmate appearing pro se, filed a response
(Dkt. # 16) to the motion to dismiss, along with a supporting brief (Dkt. # 17), and a supporting
memorandum (Dkt. # 18). On December 31, 2013, Petitioner filed a document titled “petition for
writ of mandamus” (Dkt. # 23), providing additional supporting arguments for his habeas claims.
As discussed below, the Court lacks jurisdiction to consider Petitioner’s claims. For that
reason, Respondent’s motion to dismiss shall be granted. Any claim directly challenging the
conviction entered in Tulsa County District Court, Case No. CF-1995-4408, is dismissed without
prejudice for lack of subject matter jurisdiction based on Petitioner’s failure to satisfy the “in
custody” requirement of 28 U.S.C. § 2254(a). To the extent Petitioner claims his current sentences,

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Anita Trammell is the current warden of Oklahoma State Penitentiary where Petitioner is
in custody. Pursuant to Rule 2(a), Rules Governing Section 2254 Cases, and Rule 25(d)(1), Federal
Rules of Civil Procedure, Anita Trammell is hereby substituted as the respondent in this case. The
Court Clerk shall be directed to note such substitution on the record.

entered in Tulsa County District Court, Case No. CF-2000-1569, were improperly enhanced with
the allegedly invalid conviction entered in Case No. CF-1995-4408, his petition is a second or
successive petition filed without prior authorization from the Tenth Circuit Court of Appeals and
is dismissed without prejudice for lack of jurisdiction. The “petition for writ of mandamus” is
declared moot.
BACKGROUND
In his petition (Dkt. # 1), Petitioner lodges a direct challenge to the validity of his conviction
entered in Tulsa County District Court, Case No. CF-1995-4408. In that case, Petitioner entered a
plea of nolo contendere to Possession of a Controlled Drug (Cocaine), on March 19, 1996. See Dkt.
# 11-1 at 5. The trial judge sentenced Petitioner to two (2) years imprisonment. Id. Petitioner filed
a motion to withdraw his nolo contendere plea. On April 19, 1996, the trial judge denied the motion
at the conclusion of a hearing. Id. at 7. Petitioner perfected a certiorari appeal to the Oklahoma
Court of Criminal Appeals (OCCA). In an unpublished summary opinion, filed November 1, 1996,
in Case No. C-96-512, the OCCA denied the petition for certiorari. See Dkt. # 11-2. Petitioner did
not seek certiorari review at the United States Supreme Court.
On May 4, 2001, Petitioner filed the first of at least six (6) applications for post-conviction
relief. See Dkt. # 11-1 at 10. On May 24, 2001, the state district judge denied the application. Id.
On July 16, 2001, Petitioner’s attempted appeal was dismissed by the OCCA. See www.oscn.net.
Petitioner states that he raised the claims contained in his habeas petition to the state courts
by filing an application for post-conviction relief. The record reflects that, on April 30, 2012,
Petitioner filed a sixth application for post-conviction relief. See Dkt. # 11-1 at 16. As alleged by
Petitioner, that application was denied on August 3, 2012. Id. at 18. Petitioner appealed. By order

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filed December 6, 2012, in Case No. PC-2012-774, the OCCA affirmed the denial of relief. See
www.oscn.net.
In his federal petition for writ of habeas corpus (Dkt. # 1), filed April 4, 2013, Petitioner
states that he is challenging the judgment of conviction entered in Tulsa County District Court, Case
No. CF-1995-4408. He raises four (4) grounds of error. Although Petitioner’s handwriting is, at
times, difficult to discern, he appears to claim the following:
Ground 1:

Petitioner presented a claim of actual and factual innocence as he was
convicted and sentenced in violation of fundamental fairness and due process
after facts uncovered reveal police officer committed perjury.
After Tulsa World newspaper revealed a scandal within Tulsa Police Dept.
that established a profile that could be spot on to fit the corruption, especially
Officer T. J. Yates. Petitioner challenges a conviction that relied upon
misinformation. The conviction resulted from police false swearing by oath
in an affidavit stating AF-2399 lab report was positive for cocaine. The
affidavit itself was sole evidence relied upon as probable cause for false
charges and used during proceedings. A false document submitted to cover
the theft of $139.00 lab report AF-2399 only proved presence of alcohol and
not cocaine. No evidence of cocaine. The factual and legal bases of this
claim of police corruption was unavailable until Tulsa World released news
of scandal. Upon receiving proof, Petitioner filed for relief and as of March
25, 2013, writ of certiorari was dismissed.

Ground 2:

Prosecutorial misconduct due to failure to correct perjured testimony and
failure to disclose evidence favorable to the accused.
During these proceedings, a motion to produce was filed. However, the
prosecutor failed in its obligation to turn over any exculpatory evidence. It
was clear from the record that there never was a lab report that proved
Petitioner was in possession of unlawful drug -- cocaine. This information
was available to prosecutor, hence the prosecutor was aware the officer
committed perjury by false swearing in an affidavit. It is likely this evidence
may have been suppressed. As a result of Official interference, Petitioner
never had notice affidavit was based on lies.

Ground 3:

Fundamental miscarriage of justice exception applies because Petitioner was
actually and factually innocent.
In his Ground One, Petitioner stated facts that show that his conviction is
invalid as a matter of law. Upon information and belief that prosecution was
well aware that there was no lab report to support the officer’s affidavit.
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Without proof of cocaine there was no proof Petitioner committed cocaine
alleged. Petitioner provided proof of a false statement made by police and
newly discovered evidence to make exception 22 § 1086.
Ground 4:

Newly discovered evidence and sufficient reason under 22 O.S. § 1086 due
to misinformation conviction was void at its inception.
In his Ground One, presented newly discovered evidence that was previously
unavailable. Based on the unavailability of the factual and legal basis of
claim of police corruption that was established by outbreak of police scandal
as reported by Tulsa World. Because conviction based on deliberate
falsehood is void ab initio the issue was not knowing and voluntary waived.
The plea was not knowing and voluntary. Without the Tulsa World story
there was no factual or legal bases of a scandal. Sufficient reason was
asserted to meet 22 § 1086 and good cause prejudice.

See Dkt. # 1.
ANALYSIS
For a federal court to have subject matter jurisdiction over a habeas proceeding, the
petitioner must be “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a);
accord Maleng v. Cook, 490 U.S. 488, 490-91 (1989). As a result, federal courts normally lack
jurisdiction over petitions challenging a conviction with a completely expired sentence. “[O]nce the
sentence imposed for a conviction has completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a
habeas attack upon it.” Maleng, 490 U.S. at 492; see also Lackawanna Cnty Dist. Att’y v. Coss, 532
U.S. 394, 401 (2001). The mere fact that a petitioner’s prior conviction was used to enhance his
current sentence does not render him “in custody” with respect to that conviction. See Maleng, 490
U.S. at 492. Thus, the Court lacks jurisdiction to consider an attack on the prior, expired conviction
because the petitioner is no longer in custody for it.2

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In Lackawanna, the Court concluded that consideration of a challenge to the enhanced
sentence of a subsequent conviction was limited to cases where the prior conviction suffered from
4

In this case, Petitioner directly challenges the validity of his conviction entered in Case No.
CF-1995-4408. According to records maintained by the Oklahoma Department of Corrections,
Petitioner discharged his two year sentence entered in that case on March 31, 1998. See Dkt. # 11-3.
As a result, the Court lacks subject matter jurisdiction to consider his claims directly challenging
his conviction in Case No. CF-1995-4408.
The Court recognizes that, in very limited circumstances, the “in custody” requirement may
be satisfied where a petitioner challenges a “conviction [that] was used to enhance the sentence he
is now serving.” Anderson-Bey v. Zavaras, 641 F.3d 445, 453 (10th Cir. 2011) (citing Lackawanna,
532 U.S. at 401). In response to the motion to dismiss, Petitioner provides several exhibits, see Dkt.
# 17, including Judgments and Sentences entered in Tulsa County District Court, Case No. CF-20001569, reflecting that his sentences in that case were enhanced with his conviction entered in Case
No. CF-1995-4408. See id. at 18-23. However, Petitioner has not framed his habeas petition as an
attack on his current sentence, on the ground that it was improperly enhanced by his allegedly
invalid 1995 conviction. See Neiberger v. Rudek, 450 F. App’x 719, 725-26 (10th Cir. Dec. 6,
2011) (unpublished).3
Nonetheless, even if the petition in this case could be liberally construed as a challenge to
Petitioner’s sentences entered in Case No. CF-2000-1569, the petition must be dismissed. As noted
by Respondent, Petitioner already has filed an unsuccessful petition challenging his convictions
entered in Case No. CF-2000-1569. See Dkt. # 11-4 (attached Opinion and Order, entered in N.D.

such radical constitutional defects as the denial of trial counsel under Gideon v. Wainwright, 372
U.S. 335 (1963). See Lackawanna, 532 U.S. at 404. Petitioner does not allege and the record does
not reflect that he was denied counsel in Case No. CF-1995-4408.
3

This unpublished opinion is cited for persuasive value. See 10th Cir. R. 32.1(A).
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Okla. Case No. 04-CV-195-CVE-FHM). Thus, to the extent the instant habeas petition could be
construed as a challenge to the validity of Petitioner’s current sentences, entered in Case No. CF2000-1569, it is a second or successive petition. Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005).
In Gonzalez, the Court stated as follows:
The relevant provisions of the AEDPA-amended habeas statutes, 28 U.S.C. §§
2244(b)(1)-(3), impose three requirements on second or successive habeas petitions:
First, any claim that has already been adjudicated in a previous petition must be
dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated
must be dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual innocence. §
2244(b)(2). Third, before the district court may accept a successive petition for
filing, the court of appeals must determine that it presents a claim not previously
raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence
provisions. § 2244(b)(3).
Id. Because this Court has previously considered and denied Petitioner’s request for habeas corpus
relief as to his convictions and sentences entered in Case No. CF-2000-1569, Petitioner was required
to obtain authorization from the Tenth Circuit Court of Appeals before filing a second or successive
habeas petition. Because Petitioner did not receive authorization from the Tenth Circuit before
filing his petition, he has failed to comply with the requirements of 28 U.S.C. § 2244(b)(3) and the
Court lacks jurisdiction to consider his claims. See Burton v. Stewart, 549 U.S. 147, 153 (2007).
The Tenth Circuit has determined that “[w]hen a second or successive § 2254 or § 2255
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 motion or petition for lack of jurisdiction.” In re Cline, 531 F.3d 1249,
1252 (10th Cir. 2008). Citing Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006), the
appellate court stated that “[f]actors considered in deciding whether a transfer is in the interest of
justice include whether the claims would be time barred if filed anew in the proper forum, whether
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the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on
the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.”
Cline, 531 F.3d at 1251. “Where there is no risk that a meritorious successive claim will be lost
absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the
interest of justice to transfer the matter to this court for authorization.” Id. at 1252 (citing Phillips
v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (noting that it is a waste of judicial resources to require
the transfer of frivolous, time-barred cases)).
Upon examination of the petition and the record filed in this case, the Court finds that it
would be a waste of judicial resources to transfer the petition for authorization. The Court
recognizes that a petitioner may obtain review of a prior conviction used to enhance a current
sentence if he has obtained “compelling evidence that he is actually innocent of the crime for which
he was convicted, and which he could not have uncovered in a timely manner.” See Lackawanna,
532 U.S. at 405 (describing other circumstances in which a petitioner cannot be faulted for failing
to obtain timely review of a constitutional claim concerning a prior conviction). In this case,
Petitioner believes he has uncovered “new evidence” demonstrating his actual innocence in Case
No. CF-1995-4088.4 However, the Court finds Petitioner’s argument that he has uncovered “new
evidence” demonstrating the unconstitutionality of his conviction in Case No. CF-1995-4408 to be

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Petitioner claims that he discovered “new evidence” of the unconstitutionality of his
conviction, entered in Case No. CF-1995-4408, when, in 2011, he read a summary of the “Tulsa
Police Corruption Investigation,” prepared by a local attorney, Kevin D. Adams. See Dkt. # 17 at
25, 26-31. As noted by Adams, the Tulsa World newspaper reported, no later than July 2010, that
an investigation into corruption within the Tulsa Police Department was underway. According to
Petitioner, the “new evidence” of the investigation into police corruption supports his claim that
Tulsa Police Officer T. J. Yates prepared a false affidavit resulting in his arrest and conviction
entered in Case No. CF-1995-4408. See Dkt. # 1.
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meritless. With the exception of the police corruption information, the “new evidence” provided
by Petitioner, including the affidavit for arrest warrant, the forensic laboratory report, and the arrest
and booking data, see Dkt. # 17 at 13-17, was available when he entered his plea of nolo contendere
on March 19, 1996. It does not qualify as “new evidence.” As to the “new evidence” of police
corruption, the Court notes that Petitioner’s arrest and conviction in Case No. CF-1995-4408
predated the events giving rise to the corruption investigation in the Tulsa Police Department by
almost ten (10) years. In addition, Petitioner offers no evidence suggesting that Officer T. J. Yates
had any involvement in the police corruption investigation or that the reported “scandal” had
anything to do with his 1995 case. For those reasons, the Court finds that Plaintiff’s claims are not
meritorious and it would be a waste of judicial resources to transfer this matter to the Tenth Circuit
for authorization. Therefore, to the extent Petitioner claims that his sentences in Case No. CF-20001569 were improperly enhanced with a conviction of which he is actually innocent, the claim is
dismissed without prejudice for lack of jurisdiction. In re Cline, 531 F.3d at 1252; 28 U.S.C. §
2244(b).

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CONCLUSION
The Court lacks subject matter jurisdiction to consider Petitioner’s direct challenge to the
validity of his conviction entered in Tulsa County District Court, Case No. CF-1995-4408, because
he is not “in custody” pursuant to that conviction. To the extent Petitioner challenges the
enhancement of his sentences entered in Tulsa County District Court, Case No. CF-2000-1569, the
Court lacks jurisdiction to consider the second or successive petition filed without prior
authorization from the Tenth Circuit Court of Appeals. Respondent’s motion to dismiss petition for
habeas corpus for lack of jurisdiction is granted.
Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the 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 “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In addition,
when the Court’s ruling is based on procedural grounds, a petitioner must demonstrate 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.

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In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Court’s procedural rulings resulting in the dismissal of this action based on lack
of subject matter jurisdiction are debatable or incorrect. The record is devoid of any authority
suggesting that the Tenth Circuit Court of Appeals would resolve the issues in this case differently.
A certificate of appealability shall be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The Clerk of Court shall note on the record the substitution of Anita Trammell, Warden, in
place of Randy Workman, Warden, as party respondent.

2.

Respondent’s motion to dismiss petition for writ of habeas corpus (Dkt. # 10) is granted.

3.

To the extent Petitioner directly challenges the validity of his conviction entered in Tulsa
County District Court, Case No. CF-1995-4408, the petition (Dkt. # 1) is dismissed without
prejudice for lack of subject matter jurisdiction.

4.

To the extent Petitioner challenges the validity of his enhanced sentences entered in Tulsa
County District Court, Case No. CF-2000-1569, the petition (Dkt. # 1) is dismissed without
prejudice for lack of jurisdiction as a second or successive petition filed without prior
authorization from the Tenth Circuit Court of Appeals.

5.

Petitioner’s “petition for writ of mandamus” (Dkt. # 23) is declared moot.

6.

A separate Judgment shall be entered in this case.

7.

A certificate of appealability is denied.
DATED THIS 21st day of February, 2014.

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