Funkhouser v. Tulsa County District Court State of Oklahoma

Filing 9

OPINION AND ORDER by Judge Claire V Eagan - The Clerk of Court shall note on the record the substitution of Scott Nunn, the JCCC's interim warden, in place of Rick Whitten, the JCCC's former warden, as party respondent. Respondent&# 039;s motion to dismiss (Dkt. # 5) is granted. The petition for writ of habeas corpus (Dkt. # 1) is dismissed without prejudice as an unauthorized second petition. Petitioner's request for appointment of habeas counsel is dismissed a s moot. A certificate of appealability is denied. ; denying certificate of appealability; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254); granting 5 Motion to Dismiss for Lack of Jurisdiction (Re: 5 MOTION to Dismiss for Lack of Jurisdiction Second or Successive Petition for Writ of Habeas Corpus for Lack of Jurisdiction, 1 PETITION for Writ of Habeas Corpus - 2254 ) (RGG, Chambers)

Case 4:20-cv-00337-CVE-CDL Document 9 Filed in USDC ND/OK on 11/16/20 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

DENNIS STEVEN FUNKHOUSER,
Petitioner,
v.
SCOTT NUNN, Interim Warden,1
Respondent.

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Case No. 20-CV-0337-CVE-CDL

OPINION AND ORDER
Petitioner Dennis Steven Funkhouser, a state inmate appearing pro se, brings this action to
challenge the judgment and sentence entered against him in the District Court of Tulsa County, Case
No. CF-1983-2315. Before the Court is respondent’s motion (Dkt. # 5) to dismiss petitioner’s 28
U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1) as an unauthorized second or successive
petition. Respondent filed a brief (Dkt. # 6) in support of the motion, and petitioner filed a response
(Dkt. # 7) opposing the motion. On the record presented and on consideration of the parties’
arguments and applicable law, the Court finds that the petition is an unauthorized second petition
under 28 U.S.C. § 2244(b). The Court therefore dismisses the petition, without prejudice, for lack
of jurisdiction.

1

Petitioner is currently incarcerated at the James Crabtree Correctional Center (JCCC) in
Helena, Oklahoma. The Court therefore substitutes Scott Nunn, the JCCC’s interim warden,
in place of Rick Whitten, the JCCC’s former warden, as party respondent. FED. R. CIV. P.
25(d); Rule 2(a), Rules Governing Section 2254 Cases in the United States District Courts.
The Clerk of Court shall note this substitution on the record.

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I.

Background
In July 1984, a jury convicted petitioner of first degree burglary and first degree felony

murder in the District Court of Tulsa County, Case No. CF-1983-2315. Dkt. # 6-1, at 1.2 The state
district court imposed sentences of 20 years’ imprisonment and life imprisonment and ordered the
sentences to be served consecutively. Id. In an unpublished opinion filed July 25, 1989, in Case No.
F-85-70, the Oklahoma Court of Criminal Appeals (OCCA) affirmed petitioner’s judgment and
sentence, as to the murder conviction, and reversed the judgment and sentence, as to his burglary
conviction because the two offenses merged. Id. at 1, 8-9. Based on the reversal of the burglary
conviction, the OCCA remanded the case to the state district court with instructions to dismiss the
burglary conviction. Id. at 8-9.
Petitioner filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the District Court for
the Eastern District of Oklahoma on April 6, 1990. Dkt. # 6-3, at 3. In January 1991, after the case
was transferred to the District Court for the Northern District of Oklahoma, petitioner filed a
supplemental brief in support of the petition. Dkt. # 6-4. In an order filed September 18, 1991, in
N.D. Okla. Case No. 90-C-1046-E, the district court adopted the magistrate judge’s report and
recommendation and denied the petition. Dkt. ## 6-5, 6-6. The district court later gave petitioner
additional time to file objections to the report and recommendation and, on June 24, 1992, issued
an order overruling petitioner’s objections and reaffirming the denial of the petition. Dkt. # 6-7.
Petitioner appealed the denial of his habeas petition, and the U.S. Court of Appeals for the Tenth

2

For consistency, the Court’s record citations refer to the CM/ECF header page number
located in the upper right-hand corner of the page.
2

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Circuit affirmed the denial of habeas relief on February 3, 1993. Funkhouser v. Saffle, 986 F.2d
1427 (10th Cir. 1993) (unpublished), cert. denied 509 U.S. 926 (1993).
On March 20, 2018, petitioner, appearing pro se, filed a motion for an order nunc pro tunc
in the District Court of Tulsa County. Dkt. # 1, at 3, 16-20. In the motion, petitioner noted that the
OCCA reversed his burglary conviction in 1989, argued that the evidence was insufficient to sustain
his murder conviction, and urged the court to order DNA testing on blood found on his belt buckle,
claiming the test results would prove his innocence. Id. at 16-20. The state district court denied the
motion on March 26, 2018. Id. at 29. On January 17, 2019, the state district court signed an order
nunc pro tunc, agreed to by the State and petitioner, who then appeared through counsel. Dkt. # 1,
at 40-41. In the order, the state district court found “that as the District Court previously failed to
dismiss Count I in accordance with mandate from the [OCCA], Petitioner is entitled to an Order of
Nunc Pro Tunc.” Id. at 40-41. The order further stated, “All parties hereby agree that Count I must
be dismissed, an Amended Judgment and Sentence is being issued on the date of this Order.” Id. at
40. Pursuant to the order, the state district court filed an amended judgment and sentence on January
22, 2019, reflecting dismissal of the burglary conviction. Id. at 36-39; Dkt. # 6-2.
Petitioner filed an application for postconviction relief in state district court on December
23, 2019. Dkt. # 1, at 9, 43. The state district court denied the application on January 14, 2020,
petitioner filed a postconviction appeal, and the OCCA filed an order on March 13, 2020, in Case
No. PC-2020-177, declining jurisdiction and dismissing the appeal. Id. at 59, 63.
Petitioner filed the instant 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1) on
July 13, 2020. Petitioner identifies four grounds for relief. First, he asserts what he describes as a
double jeopardy claim and appears to argue the evidence was insufficient to show that he was present
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at the murder scene. Dkt. # 1, at 5. He alleges he raised this issue on direct appeal. Id. at 6.
Second, petitioner appears to claim he is actually innocent and alleges a DNA test of blood found
on his belt buckle, which the State alleged was used as a murder weapon, would prove his innocence.
Id. at 7. He states that he raised this issue in a “motion to dismiss” filed March 19, 2019.3 Id. Third,
petitioner asserts that the Tulsa County District Court “lost jurisdiction of subject matter” and
alleges, “petition in error PC-2020-177 failing to rule on postconviction.” Id. at 8. He raised this
issue in the application for postconviction relief he filed December 23, 2019. Id. at 9, 43. Fourth
and finally, petitioner references a “motion to reconsider OCCA filed March 25, 2020 PC 2020-177”
and alleges, without further explanation, “the need to correct a clear error or prevent manifest
injustice.” Id. at 10.4 In his request for relief, petitioner seeks a “DNA test to prove that [he is] not
guilty, therefore freedom, and compensatory and punitive compensation.” Id. at 15.
II.

Analysis
Respondent moves to dismiss the habeas petition, arguing that this Court lacks jurisdiction

because the petition is second or successive, within the meaning of 28 U.S.C. § 2244(b), and
petitioner did not obtain prior authorization from the Tenth Circuit before filing the petition, as
required by § 2244(b)(3)(A). Dkt. ## 5, 6. Petitioner objects to respondent’s request for dismissal,
asserting that he is actually innocent. Dkt. # 7, at 1-3. In his response to the dismissal motion,

3

With his petition, petitioner submitted a copy of an order, filed March 19, 2019, reflecting
that the state district court dismissed his motion to dismiss. Dkt. # 1, at 23.

4

With his petition, petitioner submitted a copy of a “motion to reconsider” styled for filing in
the OCCA and stamped as “received” on March 25, 2020. Dkt. # 1, at 69. The motion does
not bear a stamp indicating it was filed on that date, or on any other date. Id.
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petitioner also asks this Court to appoint counsel to represent him in this habeas action, to “[g]rant
a DNA test,” and to “set him free.” Dkt. # 7, at 4.
The Court agrees with respondent that the instant petition is an unauthorized second petition
and must be dismissed. Under § 2244(b), a federal district court generally must dismiss claims
asserted in a second or successive § 2254 petition for writ of habeas corpus.

In limited

circumstances, the district court may consider claims presented in a second or successive § 2254
petition if those claims were not presented in a prior petition. 28 U.S.C. § 2244(b)(2). However,
before a state prisoner files a “second or successive” habeas petition in federal district court, the
prisoner must first file a motion “in the appropriate court of appeals for an order authorizing the
district court to consider” the petition. Id. § 2244(b)(3)(A). If the court of appeals authorizes the
filing of a second or successive petition, the district court must then consider whether the individual
claims asserted in the petition must be dismissed under § 2244(b). Case v. Hatch, 731 F.3d 1015,
1026-27 (10th Cir. 2013).
Here, the record is clear that the instant petition is petitioner’s second § 2254 petition; he
filed his first petition more than 30 years ago. And nothing in the record shows that petitioner either
sought or obtained authorization from the Tenth Circuit before filing the instant petition. But the
U.S. Supreme Court has held that not all second-in-time habeas petitions are “second or successive”
within the meaning of § 2244(b). See Magwood v. Patterson, 561 U.S. 320, 332 (2010) (stating that
“it is well settled that the phrase does not simply ‘refe[r] to all § 2254 applications filed second or
successively in time’” (alteration in original) (quoting Panetti v. Quarterman, 551 U.S. 930, 944
(2007))). The Magwood Court held that “the phrase ‘second or successive’ must be interpreted with
respect to the judgment challenged.” Id. at 333. Thus, the Magwood Court concluded, “where . . .
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there is a ‘new judgment intervening between the two habeas petitions,’ . . . an application
challenging the resulting new judgment is not ‘second or successive’ at all.” Magwood, 561 U.S.
at 341-42 (quoting Burton v. Stewart, 549 U.S. 147, 156 (2007)); see also id. at 338 (explaining that
“the existence of a new judgment is dispositive” on the issue of whether a second or successive
§ 2254 petition is “second or successive” under § 2244(b)). In Magwood, the habeas petitioner was
convicted of murder and sentenced to death. Id. at 323. After unsuccessfully challenging his
judgment and sentence in state court, through a direct appeal and postconviction proceedings, the
petitioner filed a federal habeas petition challenging both his conviction and his sentence. Id. The
federal district court conditionally granted the writ as to the sentence. Id. Pursuant to the conditional
writ, the state trial court conducted a new sentencing hearing and again imposed the death penalty.
Id. The petitioner filed a second federal habeas petition challenging his new sentence and the federal
district court granted a conditional writ, finding constitutional defects in the new sentence. Id. The
Court of Appeals for the Eleventh Circuit reversed the district court order granting relief, concluding
“that [the petitioner’s] challenge to his new death sentence was an unreviewable ‘second or
successive’ challenge under 28 U.S.C. § 2244(b) because he could have mounted the same challenge
to his original death sentence.” Id. The Supreme Court disagreed, holding that the petitioner’s
“resentencing led to a new judgment, and his first application challenging that new judgment cannot
be ‘second or successive’ such that § 2244(b) would apply.” Id. at 331. The Magwood Court
reasoned, in part, that it was “especially clear” that the petitioner in that case was challenging a new
judgment because “the state court conducted a full resentencing and reviewed the aggravating
evidence afresh.” Id. at 339.

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This case, however, is different. Here, the state district court entered a judgment and
sentence against petitioner in 1984. Five years later, he OCCA upheld petitioner’s murder
conviction and his life sentence, reversed his burglary conviction based on the merger doctrine, and
remanded with instructions for the state district court to dismiss the burglary conviction. The state
district court failed to amend the judgment and sentence to reflect the dismissal of the burglary
conviction until nearly 30 years later, on January 22, 2019, when it did so pursuant to an agreed order
for nunc pro tunc. Under Oklahoma law, a nunc pro tunc order “may neither be invoked as a vehicle
to review a judgment (or to excise legal errors found in it) nor as a means to enter a different
judgment.” Stork v. Stork, 898 P.2d 732, 737 (Okla. 1995). Thus, in this case, the entry of the
amended judgment and sentence did not create a new judgment similar to the new judgment in
Magwood.
Further, as respondent argues, the OCCA’s 1989 remand for dismissal of the reversed
burglary conviction “was purely ministerial.” Dkt. # 6, at 6; see Burrell v. United States, 467 F.3d
160, 164 (2d Cir. 2006) (“A ‘ministerial’ duty is one that ‘involves obedience to instructions or laws
instead of discretion, judgment, or skill.’” (quoting Black’s Law Dictionary 1017 (8th ed. 2004))).
In Burrell, the U.S. Court of Appeals for the Second Circuit discussed the mandate rule in
determining when a federal defendant’s judgment became final when the appellate court affirmed
the defendant’s conviction on one charge but vacated his conviction on a second charge “because
it was a lesser included offense of the [other] conviction.” 467 F.3d at 162. The Second Circuit
noted that its mandate instructed the federal district court to “correct the judgment to reflect the
dismissal of only the [vacated] conviction.” Id. As relevant here, the Second Circuit concluded its
remand order was “ministerial” because it “directed the district court to undertake a single non7

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discretionary act,” namely, the entry of a corrected judgment reflecting the dismissal of a vacated
conviction, and it “foreclosed the district court from modifying” the conviction and sentence the
Second Circuit had affirmed on appeal. Burrell, 467 F.3d at 165-66.
Because the facts in this case are more analogous to those in Burrell than they are to those
in Magwood, the Court agrees with respondent that petitioner cannot rely on the amended judgment
and sentence to avoid § 2244(b)’s “second or successive” bar. As a result, petitioner was required
to obtain authorization from the Tenth Circuit before filing the instant petition. 28 U.S.C.
§ 2244(b)(3)(A). And, as previously stated, nothing in the record demonstrates that petitioner did
so. The Court thus finds that the petition is an unauthorized second petition and that the petition
should be dismissed, without prejudice, for lack of jurisdiction. See In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008) (per curiam) (“A district court does not have jurisdiction to address the merits
of a second or successive . . . § 2254 claim until [the court of appeals] has granted the required
authorization.”).
The Court recognizes that it has discretion to transfer this matter to the Tenth Circuit as an
alternative to dismissal. See Cline, 531 F.3d at 1252; 28 U.S.C. § 1631. Nonetheless, the Court
agrees with respondent that the failure to transfer this matter will not place petitioner at risk of losing
any potentially meritorious claims. See Cline, 531 F.3d at 1250-53 (discussing factors to consider
in determining whether transfer under § 1631 is appropriate). Petitioner’s first ground for relief
appears to allege a double jeopardy violation and challenge the sufficiency of the evidence to support
his murder conviction. But this court denied habeas relief when petitioner asserted these same
challenges in his first § 2254 habeas petition. Dkt. ## 6-5, 6-6, 6-7. In his second ground for relief,
petitioner seeks DNA testing to prove his actual innocence. But neither his assertion of actual
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innocence nor his request for DNA testing presents a cognizable habeas claim. See Skinner v.
Switzer, 562 U.S. 521, 525 (2011) (holding “that a postconviction claim for DNA testing is properly
pursued in a § 1983 action” rather than a federal habeas action because “[s]uccess in the suit gains
for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory, or
inconclusive” and “[i]n no event will a judgment that simply orders DNA tests ‘necessarily impl[y]
the unlawfulness of the State’s custody’” (quoting Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)));
Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on newly
discovered evidence have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal proceeding.”). Lastly,
petitioner’s third and fourth grounds for relief, liberally construed, appear to allege that due process
violations occurred during his most recent state postconviction proceeding. But even if true, these
allegations would not support cognizable habeas claims because the alleged violations do not
collaterally attack his state-court judgment. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir.
1998) (noting that “no constitutional provision requires a state to grant post-conviction review” and
concluding that “because the constitutional error [the petitioner] raises focuses only on the State’s
post-conviction remedy and not the judgment which provides the basis for his incarceration, it states
no cognizable federal habeas claim”). For these reasons, the Court concludes that the petition should
be dismissed, without prejudice, rather than transferred.
In addition, because the Court finds that reasonable jurists would not debate the procedural
dismissal of petitioner’s unauthorized second petition, the Court declines to issue a certificate of
appealability. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c).

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ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The Clerk of Court shall note on the record the substitution of Scott Nunn, the JCCC’s
interim warden, in place of Rick Whitten, the JCCC’s former warden, as party respondent.

2.

Respondent’s motion to dismiss (Dkt. # 5) is granted.

3.

The petition for writ of habeas corpus (Dkt. # 1) is dismissed without prejudice as an
unauthorized second petition.

4.

Petitioner’s request for appointment of habeas counsel is dismissed as moot.

5.

A certificate of appealability is denied.

6.

A separate judgment shall be entered in this matter.
DATED this 16th day of November, 2020.

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