Berry v. Sharp

Filing 12

OPINION AND ORDER by Chief Judge John F Heil, III ; dismissing/terminating case (terminates case) ; denying certificate of appealability; dismissing 2 Petition for Writ of Habeas Corpus (2241/2254); granting 6 Motion to Dismiss (Re: 2 PETITION for Writ of Habeas Corpus - 2254 (paid $5 filing fee; receipt number BOKNDC-2860560), 6 MOTION to Dismiss For Lack of Subject Matter Jurisdiction ) (JFH1, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STACEY D. BERRY,
Petitioner,
v.

Case No. 23-CV-0356-JFH-CDL

DAVID LOUTHAN, Warden, 1
Respondent.
ORDER
Petitioner Stacey D. Berry (“Berry”), an Oklahoma prisoner appearing through counsel,
seeks federal habeas relief, under 28 U.S.C. § 2254, through a Petition for a Writ of Habeas Corpus
by a Person in State Custody (“Petition”). Dkt. No. 2. Berry claims he is in state custody, in
violation of his Fourteenth Amendment right to due process, under the criminal judgment entered
against him in Craig County District Court Case No. CF-2014-36.

Before the Court is

Respondent’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (“Motion”). Dkt. No. 6.
Respondent contends this Court lacks jurisdiction to adjudicate the Petition because the Petition is
an unauthorized second or successive habeas petition. Having considered the Petition, the Motion
and Brief in Support of the Motion [Dkt. No. 7], the Response in Opposition to the Motion
(“Response”) [Dkt. No. 11], and applicable law, the Court GRANTS the Motion and DISMISSES
the Petition.

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Berry presently is incarcerated at the Lexington Correctional Center in Lexington, Oklahoma.
The Court therefore substitutes the warden of that facility, David Louthan, in place of Tommy
Sharp as party respondent. See 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 on the record this
substitution.

I.
In December 2015, Berry pleaded guilty to four counts of child sexual abuse (counts one
through four) and one count of sexual battery (count five) in Craig County District Court Case No.
CF-2014-36. Dkt. No. 7-1 at 9-10. In January 2016, the trial court sentenced Berry to prison terms
of twenty years each as to counts one through four; ordered the terms imposed as to counts one
and two to run concurrently with each other; ordered the terms imposed as to counts three and four
to run concurrently with each other but consecutively to the terms imposed as to counts one and
two; sentenced Berry to a prison term of five years as to count five; and ordered the five-year
sentence to be served consecutively to the other sentences. Id. at 10-11. Berry did not file an
appeal in the Oklahoma Court of Criminal Appeals (“OCCA”) to seek direct review of his
judgment and sentence. Dkt. No. 2 at 7; Dkt. No. 7 at 7.
Between 2017 and 2023, Berry sought postconviction relief in state court. Dkt. No. 2 at 7;
Dkt. No. 7 at 7-10. As relevant to this habeas proceeding, Berry filed a second application for
postconviction relief in state district court in August 2020. Dkt. No. 7-8. Relying on McGirt v.
Oklahoma, 591 U.S. ___, 140 S. Ct. 2452 (2020), Berry asserted that the State of Oklahoma lacked
jurisdiction to prosecute him for crimes he committed in Indian country. Dkt. Nos. 7-8, 7-9. In
April 2021, the state district court issued a minute order finding, based on stipulated facts, that
Berry is Indian and that he committed his crimes in Indian country. Dkt. Nos. 7-14, 7-15. The
state district court concluded that the State lacked jurisdiction to prosecute Berry, granted
postconviction relief, and “order[ed the] case dismissed and defendant released from custody.”
Dkt. No. 7-14. The state district court immediately stayed execution of its decision for thirty days,
“pending appeal of State pursuant to 22 O.S. 1087,” and directed Berry’s counsel to draft a journal

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entry. Id. The state court docket sheet does not reflect that a journal entry was filed. Dkt. No. 71; see also Dkt. No. 7-20 (Berry’s writ of mandamus, filed in June 2022, seeking an order from
the OCCA directing the state district court to “sign a Journal Entry consistent with the record from
April 14, 2021, post-conviction relief order”). The State did not file an appeal after the state district
court issued the minute order. Dkt. No. 2 at 10, 15. In June 2021, the State filed a motion to
continue the stay, and the state district court granted the motion. Dkt. Nos. 7-16, 7-17. In
September 2021, the state district court issued an order lifting the stay, reversing its prior order,
and denying Berry’s second application for postconviction relief based on the OCCA’s holding in
State ex rel. Matloff v. Wallace, 497 P.3d 686, 688 (Okla. Crim. App. 2021), that McGirt “shall
not apply retroactively to void a conviction that was final when McGirt was decided.” Dkt. No.
7-18. Berry filed an out-of-time postconviction appeal, and the OCCA affirmed the denial of his
second application for postconviction relief in March 2023. Dkt. No. 7-25.
Berry filed the instant Petition in August 2023. He claims he is in custody in violation of
his Fourteenth Amendment right to due process because he “had a substantial and legitimate
expectation OCCA would honor the respondent’s final order dismissing his case because the State
had defaulted for failing to appeal and thus respondent was barred by estoppel.” Dkt. No. 2, at 2,
11-15.
II.
Respondent contends, and the Court agrees, that the Petition is an unauthorized second or
successive petition that must be dismissed for lack of jurisdiction. Dkt. Nos. 6, 7. The phrase
“second or successive” is not defined in 28 U.S.C. § 2244(b), but the United States Supreme Court
has explained that a second or successive petition filed by a state prisoner seeking relief from the
same underlying state criminal judgment challenged in a first petition, with no new intervening

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judgment between the first and second or successive petition, is a second or successive petition
subject to the requirements of § 2244(b). Compare Burton v. Stewart, 549 U.S. 147, 153 (2007)
(concluding second-in-time habeas petition was “second or successive” under § 2244(b) because
state prisoner “twice brought claims contesting the same custody imposed by the same judgment
of a state court”), with Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (explaining that
“where, unlike in Burton, 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” (quoting
Burton, 549 U.S. at 156)). The instant Petition is Berry’s third-in-time habeas petition seeking
relief from the criminal judgment entered against him in Craig County District Court Case No.
CF-2014-36. Berry previously filed two habeas petitions in this court seeking relief from that
same judgment. In each case, Berry challenged the validity of his criminal judgment on the ground
that the State of Oklahoma lacked jurisdiction to prosecute him because he is Indian and he
committed his crimes in Indian country. See Dkt. No. 1, at 9-17, Berry v. Braggs, N.D. Okla. Case
No. 19-CV-0706-GKF-FHM; Dkt. No. 2, at Berry v. Whitten, N.D. Okla. Case No. 20-CV-0668CVE-JFJ. This court dismissed Berry’s first petition as barred by § 2244(d)(1)’s one-year statute
of limitations. Dkt. Nos. 22, 23, Berry v. Braggs, N.D. Okla. Case No. 19-CV-0706-GKF-FHM.
This court dismissed Berry’s second petition as an unauthorized second or successive habeas
petition. Dkt. Nos. 4, 5, Berry v. Whitten, N.D. Okla. Case No. 20-CV-0668-CVE-JFJ.
Relying on Magwood, Berry contends the Petition is not second or successive because the
state district court “reinstated [his] judgment and sentence, making it a new judgment and
sentence” that is not subject to § 2244(b)’s requirements. Dkt. No. 11. But Berry’s reliance on
Magwood is misplaced. Nothing in the record supports Berry’s assertion that the state district
court entered a “new” judgment after that court indicated in the April 2021 minute order that it

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was granting Berry’s second application for postconviction relief, dismissing his case, ordering his
release, and staying execution of its decision. Rather, the state court docket sheet shows: (1) that
a judgment and sentence was filed on January 20, 2016; (2) that an amended judgment and
sentence was filed on February 25, 2016; and (3) that no new or amended judgment and sentence
was filed in the case after the state district court granted, then later denied, Berry’s second
application for postconviction relief. Dkt. No. 7-1 at 11-12, 22-27. Berry filed his second habeas
petition in December 2020, and he filed the instant Petition in August 2023. Because the state
district court did not enter any new judgment intervening between these two habeas petitions, the
facts of this case are more analogous to those in Burton than those in Magwood. The Court thus
finds that the Petition is a second or successive petition subject to § 2244(b)’s requirements.
A district court must dismiss claims asserted in a second or successive petition filed by a
state prisoner if those claims were “presented in a prior application.” 28 U.S.C. § 2244(b)(1). In
limited circumstances, a district court may consider claims presented in a second or successive
petition filed by a state prisoner 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 petition in district court,
raising either previously presented claims or newly presented claims that might fall within §
2244(b)(2)’s narrow exceptions, the prisoner must first file a motion “in the appropriate court of
appeals for an order authorizing the district court to consider” the second or successive petition.
28 U.S.C. § 2244(b)(3)(A). If the state prisoner does not obtain the requisite authorization, the
district court does not have jurisdiction to adjudicate any claims raised in the second or successive
petition. 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.”). Berry does not argue, either in the

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Petition or the Response, that he obtained the requisite authorization. Instead, he fails to mention
in the Petition that he previously filed two habeas petitions in this court, and he argues in the
Response that he is not required to obtain authorization in light of Magwood. Dkt. Nos. 2, 11. On
the record presented, the Court thus finds that the Petition is an unauthorized second or successive
petition and concludes that Respondent’s Motion should be GRANTED and that the Petition
should be DISMISSED, without prejudice, for lack of jurisdiction. Because the absence of
jurisdiction is a plain procedural bar to relief, the Court further concludes that no certificate of
appealability should issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III.
IT IS THEREFORE ORDERED that (1) the Clerk of Court shall note on the record the
substitution of David Louthan, Warden, in place of Tommy Sharp as party respondent; (2) the
Motion to Dismiss for Lack of Subject Matter Jurisdiction [Dkt. No. 6] is GRANTED; (3) the
Petition for a Writ of Habeas Corpus by a Person in State Custody [Dkt. No. 2] is DISMISSED
without prejudice; (4) a certificate of appealability is DENIED; and (5) a separate judgment of
dismissal shall be entered in this matter.
Dated this 9th day of May, 2024.
____________________________________
JOHN F. HEIL, III
UNITED STATES DISTRICT JUDGE

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