Mosier v. Dowling

Filing 40

OPINION AND ORDER by Judge John E Dowdell ; denying certificate of appealability; finding as moot 29 Motion for Miscellaneous Relief; finding as moot 31 Motion for Hearing; finding as moot 33 Motion for Hearing; finding as moot [3 4] Motion for Appointment of Counsel; finding as moot 35 Motion for Miscellaneous Relief; finding as moot 36 Motion for Miscellaneous Relief; finding as moot 37 Motion for Miscellaneous Relief; finding as moot 38 Motion for Miscellaneous Relief; finding as moot 39 Motion for Miscellaneous Relief; dismissing 5 Petition for Writ of Habeas Corpus (2241/2254); finding as moot 13 Motion to Dismiss; finding as moot 1 Petition for Writ of Habeas Corpus (2241/2254); finding as moot 25 Motion for Judgment (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOHN ALLEN MOSIER,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
JANET DOWLING, Warden,
Respondent.

Case No. 16-CV-067-JED-FHM

OPINION AND ORDER
On February 5, 2016, Petitioner, a pro se state prisoner, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and paid the $5.00 filing fee (Doc. 2). At the direction
of the Court, he filed an amended petition on March 17, 2016 (Doc. 5). Respondent has filed a
motion to dismiss the amended petition for Petitioner’s failure to obtain leave to prosecute a second
or successive habeas petition (Doc. 13).1 For the reasons set forth below, the Court finds the
amended petition must be dismissed.
I. First Habeas Corpus Petition
Petitioner is attacking his conviction and life sentence for First Degree Murder in Mayes
County District Court Case No. CRF-1980-41 (Doc. 1 at 1). The record shows that Petitioner filed
a previous habeas corpus petition in this Court on July 12, 1982, in Case No. 82-C-676-B,
challenging this same conviction (Doc. 14-1 at 2). Respondent asserts the file for Petitioner’s earlier
case cannot be located, but Petitioner listed the habeas claims from the first petition in his
Appellant’s Brief in Chief for his appeal to the Tenth Circuit in Mosier v. Murphy, No. 84-2106:

1

The Court notes that Respondent’s motion references Petitioner’s original habeas petition
in this action (Doc. 1). The Court, however, finds Respondent’s arguments in the motion also are
responsive to the amended petition (Doc. 5).

A.

The denial [of Petitioner’s post-conviction application] was against the clear
weight of the evidence. The plea bargain was not voluntary.

B.

The plea was the product of duress, coercion, threats, and intimidation, a
violation of constitutional rights.

C.

Denied effective assistance of counsel due to a conflict of interest existing in
my attorney at the time of plea.

(Doc. 14-2).
Petitioner’s brief to the Tenth Circuit stated that District Judge Thomas R. Brett denied
Petitioner’s § 2254 petition on July 26, 1984 (Doc. 14-2 at 8). The Tenth Circuit affirmed the
district court’s denial in Mosier v. Murphy, 790 F.2d 62 (10th Cir. 1986) (Doc. 14-3), and the
Supreme Court denied Petitioner’s petition for writ of certiorari in Case No. 86-5134, 479 U.S. 988
(1986) (Doc. 14-4).
II. Second and Successive Petition
In this current amended habeas petition, filed almost 30 years after the Tenth Circuit affirmed
this Court’s denial of the first habeas petition, Petitioner raises two grounds for habeas corpus relief:
Ground I: DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE
LAW BY THE TRIAL COURT. Violation of 14th Amendment of Bill of Rights to
U.S. Constitution and Article I, section 1, and Article II, section 7, of Constitution
of Oklahoma. The trial court did not follow established State or Federal law in
taking plea. I was never placed under oath before testifying.
(Doc. 5 at 4).
Ground II: Trial Court failed to get an adequate factual basis for plea on October 28,
1980. Trial court asked if I effected the [victim’s] death, did not ask how. Did not
ask if I shot him.
(Doc. 5 at 6).
Petitioner’s second and successive amended petition that now is before the Court is
unauthorized, because he failed to seek authorization from the Tenth Circuit to file it, pursuant to
2

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 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 (10th Cir. 2008).
Factors 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
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.
Id. (citing Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006)).
Further, an applicant seeking authorization to file a second or successive application for writ
of habeas corpus must meet the requirements of 28 U.S.C. § 2244(b)(2):
A claim presented in a second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
Id.
The Court finds that neither of the claims raised by Petitioner meets the requirements of 28
U.S.C. § 2244(b). Petitioner has not identified any new rule of constitutional law or alleged any new
3

factual predicates for his claims that could satisfy the requirements of § 2244(b)(2)(A) or (B) for a
second or successive federal habeas review. Furthermore, as discussed below, the Cline factors
weigh heavily against a transfer.
A. Statute of Limitations
The first Cline factor weighs against a transfer, because Petitioner’s claim clearly is barred
by the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA):
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1).
Because petitioner’s conviction and sentence became final before enactment of the AEDPA,
he had until April 24, 1997, to initiate this habeas corpus action. See United States v. Hurst, 322
F.3d 1256, 1261 (10th Cir. 2003); Hoggro v. Boone, 150 F. 3d 1223, 1226 (10th Cir. 1998). The

4

petition, however, was not filed until February 5, 2016 (Doc. 1).
Pursuant to 28 U.S.C. § 2244(d)(2), the statute of limitations is tolled while a properly-filed
application for post-conviction relief or other collateral review of the judgment at issue is pending.
Only a state post-conviction petition filed within the year allowed by the AEDPA can toll the statute
of limitations. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); Burger v. Scott, 317 F.3d
1133, 1136-37 (10th Cir. 2003).
The docket sheet for Petitioner’s conviction in Mayes County District Court Case No. CRF1980-41 reveals that Petitioner had no post-conviction applications pending on April 27, 1997 (Doc.
14-8). Although he did litigate post-conviction applications in 1981-1982, 1987, 1998, and 2015
(Doc. 14-8), the Court finds he is not entitled to statutory tolling for actions that were filed after the
one-year limitation period ended on April 27, 1997. See May v. Workman, 339 F.3d 1236, 1237
(10th Cir. 2003) (citing 28 U.S.C. § 2244(d)(2)).
The Court further finds that Petitioner has not identified any pertinent right that the Supreme
Court has newly recognized. He cites the case of Santobello v. New York, 404 U.S. 257 (1971),
which was decided before Petitioner entered his guilty plea and was sentenced in 1980.2 Petitioner
does not allege any State-induced impediments to his filing a timely habeas petition, and he has not
asserted when the factual predicate of his claim could have been discovered through due diligence.3

2

Santobello concerned the prosecution’s failure to comply with its part of a plea bargain.
In Petitioner’s case, the State declined to seek the death penalty against Petitioner and dismissed
charges against his wife and mother-in-law, pursuant to the plea agreement (Doc. 1-4 at 117-18,
121). Petitioner has not alleged the State failed to fulfill its duty under his plea bargain.
3

Petitioner claims he did not discover the habeas claims in his amended petition until he
received a copy of his plea transcripts from the National Archives (Doc. 17 at 2). The Court finds
the content of the transcripts did not constitute “newly discovered evidence,” because the transcripts
have been available for decades. In addition, there is no indication that Petitioner exercised due
5

Petitioner’s claims that he was not sworn and that the trial court failed to develop a factual basis
were available at the time of his plea.
B. Lack of Merit
The second Cline factor is whether Petitioner’s claims are likely to have merit. It first must
be noted that the claims have been defaulted in the state court under independent and adequate state
law grounds. Even without the procedural bar prohibiting federal habeas review, Petitioner’s claims
are meritless. At most, his claims raise possible violations of state law which are not cognizable in
federal habeas proceedings.
1. Procedural Bar
In its Order Affirming Denial of Application for Post-Conviction Relief, the Oklahoma Court of
Criminal Appeals found both of Petitioner’s claims--failure to be properly sworn before entering a
plea and lack of a factual basis for the plea--were procedurally barred, because the claims could have
been raised during the plea proceedings or through a direct appeal. Mosier v. State, No. PC-2015647 (Okla. Crim. App. Nov. 18, 2015) (citing Logan v. State, 293 P.3d 969, 972 (Okla. Crim. App.
2013) and Okla. Stat. tit. 22, § 1086 (2011)) (Doc. 14-7).
Federal habeas petitioners may not obtain review of claims raised in a habeas petition “that
have been defaulted in state court on an independent and adequate state procedural ground, unless
the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” English
v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 749-50
(1991)). The Tenth Circuit has upheld Okla. Stat. tit. 22, § 1086 of the Post-Conviction Procedure
Act as an independent and adequate state ground for denying habeas relief. Smith v. Workman, 550

diligence in discovering the documents.
6

F.3d 1258, 1267 (10th Cir. 2008). Petitioner has not challenged the procedural bar of his claims or
asserted cause and prejudice to overcome the bar. Failure to allege cause for the procedural default
or prejudice, or to show that a fundamental miscarriage of justice will result if the claim is not
reviewed, precludes federal habeas review. Hawkins v. Mullin, 291 F.3d 658, 671 n.5 (10th Cir.
2002); Paxton v. Ward, 199 F.3d 1197, 1206 (10th Cir. 1999).
The fundamental miscarriage of justice exception is narrow and applies only in the
“extraordinary” case of one who is “innocent of the crime.” Gilbert v. Scott, 941 F.3d 1065, 1068
n.2 (10th Cir. 1991). The Tenth Circuit has explained this “very narrow exception” as follows:
To come within this “very narrow exception,” the petitioner must supplement his
habeas claim with a colorable showing of factual innocence. Such a showing does
not in itself entitle the petitioner to relief but instead serves as a “gateway” that then
entitles the petitioner to consideration of the merits of his claims. In this context,
factual innocence means that “it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.”
Demarest v. Price, 130 F.3d 922, 941-42 (10th Cir. 1997) (citations omitted). Evidence that “is
corroborating evidence, impeaching evidence, or evidence merely raising some suspicion or doubt
of [a petitioner’s] guilt” is not “persuasive evidence of ‘actual innocence.’” Stafford v. Saffle, 34
F.3d 1557, 1561 (10th Cir. 1994), cert. denied, 514 U.S. 1099 (1995). ‘“[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24
(1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
The record shows that when the trial judge asked Petitioner whether he “did effect the death
of one Billy Wayne Butler,” Petitioner answered in the affirmative (Plea Tr. at 7; Doc. 14-6 at 11).
Almost 30 years later, Petitioner now alleges in this habeas action that he was present at the murder,
but he claims he did not actually shoot the victim (Doc. 17 at 3). Instead, he alleges he saw the
actual shooter coming, but he did not try to stop the shooter or warn the victim (Doc. 17 at 3).
7

After careful review, the Court finds Petitioner has not demonstrated that a miscarriage of
justice would result if he is prevented from proceeding on the merits by the procedural bar. He has
presented nothing more than an unsupported, self-serving new version of the murder, and he has
failed to make a colorable claim of actual innocence.
2. Alleged Unsworn Guilty Plea
Petitioner alleges in Ground I of the amended petition that his guilty plea was invalid,
because he was not sworn to tell the truth at the time of the plea (Doc. 5 at 4). He, however, has
provided no authority that supports his position. Respondent asserts there is no Oklahoma law
stating that failure of a defendant to be sworn renders his plea invalid, and this Court has located no
authority to support Petitioner’s claim. The Court, however, finds that even if Petitioner’s unsworn
plea violated Oklahoma law, it cannot support federal habeas review:
The habeas statute “unambiguously provides that a federal court may issue a writ of
habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.’” Wilson v. Corcoran,
562 U.S. 1, 16 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). “We have stated
many times that ‘federal habeas corpus relief does not lie for errors of state law.’”
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764,
780 (1990)).
Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
Furthermore, Tenth Circuit precedent provides that “the administering of the oath to a
witness may be waived.” Wilcoxon v. United States, 231 F.2d 384, 387 (10th Cir.), cert. denied, 351
U.S. 943 (1956). Petitioner has failed to show there is any merit in his Ground I claim.
3. Alleged Lack of Factual Basis in Plea Colloquy
Petitioner alleges in Ground II of the amended petition that his guilty plea was invalid,
because the trial court did not establish a factual basis for the plea (Doc. 5 at 6). A plea of guilty

8

“waives all non-jurisdictional challenges to [a] conviction.” United States v. Wright, 43 F.3d 491,
494 (10th Cir. 1994) (citations omitted). “Having pleaded guilty, a defendant’s only avenue for
challenging his conviction is to claim that he did not voluntarily or intelligently enter his plea.” Id.
The absence of a state court record showing a factual basis for a plea is not an independent ground
for invalidating the plea in a federal habeas proceeding. Sena v. Romero, 617 F.2d 579, 581 (10th
Cir. 1994) (citing Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001
(1971)). This claim for habeas relief also is meritless.
C. Lack of Good Faith
The third Cline factor also weighs against the transfer of Petitioner’s amended petition to the
Tenth Circuit. “[T]he second or successive authorization requirements are no longer new, and it is
by now well-established that under the plain language of . . . § 2244(b)(3), prisoners must first obtain
circuit-court authorization before filing a second or successive habeas claim in district court.” Cline,
531 F.3d at 1252. Because Petitioner has not shown why he failed to file his petition in the circuit
court, this Court finds Petitioner’s amended petition for a writ of habeas corpus (Doc. 5) was not
made in good faith. Id. (citing Trujillo v. Williams, 465 F.3d 1210, 1222-23 n.16 (10th Cir. 2006)).
III. Conclusion
Based on the reasoning set forth above, the Court finds it is not in the interest of justice to
transfer Petitioner’s amended petition under 28 U.S.C. § 1631. Therefore, Respondent’s motion to
dismiss (Doc. 13) is granted, and all other pending motions are denied as moot.
IV.

Certificate of Appealability
Rule 11(a), 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

9

final order adverse to the applicant.” Pursuant to 28 U.S.C. § 2253(c)(2), the court may issue a
certificate of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 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, 483-84 (2000) (citing Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)). In addition, when the Court’s ruling is based on procedural
grounds, 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.
In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Tenth Circuit would find this Court’s application of AEDPA standards to the
amended petition is debatable among jurists of reason. See Dockins v. Hines, 374 F.3d 935, 938
(10th Cir. 2004). As for the claims denied on a procedural basis, Petitioner has failed to show that
the Court’s ruling resulting in the denial of the petition on procedural grounds is 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. Therefore, a certificate of appealability is denied.

10

ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Petitioner’s amended petition for a writ of habeas corpus (Doc. 5) is dismissed
without prejudice as a second or successive habeas corpus petition filed without
prior authorization from the Tenth Circuit Court of Appeals.

2.

All pending motions are denied as moot.

3.

Petitioner is denied a certificate of appealability.

4.

This is a final Order terminating this action.

SO ORDERED this 16th day of February, 2017.

11