Mays v. District Court of Tulsa County et al, The

Filing 9

OPINION AND ORDER by Judge Terence Kern - Dismissing without prejudice for lack of jurisdiction ; dismissing/terminating case (terminates case) ; dismissing 5 Petition for Writ of Habeas Corpus (2241/2254); finding as moot 1 Petition for Writ of Habeas Corpus (2241/2254) (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JERRY LEE MAYS,
Petitioner,
vs.
TRACY McCOLLUM, Warden,
Respondent.

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Case No. 14-CV-113-TCK-TLW

OPINION AND ORDER
On March 13, 2014, the Court received a document from Petitioner, a state inmate appearing
pro se, titled “On Behalf of Order Declining Jurisdiction Motion to Precede [sic] in Light” (Dkt. #
1). In that document, Petitioner cited 28 U.S.C. § 2254 and Okla. Stat. tit. 22, § 1080, and wrote one
paragraph, stating that “defendant is not requesting a post-conviction[,] defendant was asking The
District Court to correct his illegal sentence which violates the Jeopardy provision both Oklahoma
and United States Constitutions.” Id. Based on Petitioner’s representations, the Clerk of Court
opened this 28 U.S.C. § 2254 habeas corpus action.
By Order filed April 8, 2014 (Dkt. # 2), the Court directed Petitioner to file an amended
petition to cure deficiencies and to either pay the $5 filing fee or file a motion to proceed in forma
pauperis. On April 28, 2014, Petitioner filed an amended petition (Dkt. # 5),1 a supporting brief
(Dkt. # 6), and supporting exhibits (Dkt. # 7). He also paid the $5 filing fee. See Dkt. # 8. For the
reasons discussed below, the Court finds the amended petition for writ of habeas corpus shall be
dismissed without prejudice for lack of jurisdiction as a second or successive petition filed without
prior authorization from the Tenth Circuit Court of Appeals.
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The Court notes that the amended petition (Dkt. # 5) replaces and supersedes the original
petition (Dkt. # 1). For that reason the original petition shall be declared moot.

In his amended petition, Petitioner challenges the constitutionality of his conviction and
sentence entered in Tulsa County District Court, Case No. CF-2004-4929. Petitioner has in the past
filed another habeas corpus action in this Court, N.D. Okla. Case No. 07-CV-671-GKF-PJC,
challenging the same conviction and sentence at issue in this case. In the prior habeas case, the
Court denied the petition by Opinion and Order entered March 21, 2011. In denying habeas relief,
the Court substantively addressed federal grounds for setting aside Petitioner’s state conviction.
Judgment in favor of Respondent was entered on March 21, 2011. Petitioner appealed to the Tenth
Circuit Court of Appeals. On October 14, 2011, the appellate court denied a certificate of
appealability and dismissed the appeal. The docket sheet for Case No. 07-CV-671-GKF-PJC also
reflects that on November 7, 2011, Petitioner filed a petition to file a successive petition for writ of
habeas corpus at the Tenth Circuit. That petition was denied on November 21, 2011.
Petitioner’s amended petition for writ of habeas corpus (Dkt. # 5) is not a model of clarity.
However, he appears to allege that his sentences entered in Case No. CF-2004-4929 violate double
jeopardy and that an unspecified Brady violation resulted in his convictions even though he claims
to be actually innocent. As discussed above, the Court has previously determined, in N.D. Okla.
Case No. 07-CV-671-GKF-PJC, the legality of Petitioner’s detention. Therefore, the amended
petition filed in this case is Petitioner’s second habeas petition and he was required to obtain
authorization from the Tenth Circuit Court of Appeals before filing this petition. 28 U.S.C. §
2244(b)(3)(A); see also Case v. Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). Petitioner does not
allege and nothing in the record suggests that he obtained the necessary authorization prior to
commencing this action. As a result, this Court lacks jurisdiction to consider Petitioner’s second or
successive filing. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

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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.” Cline, 531 F.3d at 1252. The
court in Cline discussed factors to be considered in determining whether a transfer is in the interest
of justice. See id.
Upon consideration of the appropriate factors, the Court finds that a transfer of the amended
petition to the court of appeals for authorization under § 2244(b)(3) is not warranted. Therefore, the
amended petition shall be dismissed for lack of jurisdiction.
ACCORDINGLY IT IS HEREBY ORDERED that:
1.

The original petition for writ of habeas corpus (Dkt. # 1) is declared moot.

2.

The amended petition for writ of habeas corpus (Dkt. # 5) 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.

3.

A separate judgment shall be entered in this matter.

DATED this 30th day of April, 2014.

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