Hobbs v. United States Court of Appeals

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 11 of Magistrate Judge Gary Purcell in its analysis of plaintiff's claims, but concludes the case should be transferred to the United States Court of Appeals for the Tenth Circuit for the necessary threshold determination. Signed by Honorable Joe Heaton on 10/07/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAMES HOBBS,
Plaintiff,
vs.
UNITED STATES COURT OF
APPEALS
Defendant.

)
)
)
)
)
)
)
)
)

NO. CIV-13-0279-HE

ORDER
Plaintiff James Hobbs, a state prisoner appearing pro se, filed this action seeking a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 He is challenging his conviction for
Murder in the First Degree entered against him in the District Court of Oklahoma County,
Oklahoma, Case No. CRF-95-2841. He is serving a term of life imprisonment without
possibility of parole.
Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred for initial
proceedings to U. S. Magistrate Judge Gary M. Purcell, who recommended that plaintiff’s
petition be denied. Plaintiff has filed an objection to the report and recommendation. After
conducting a de novo review of the issues to which plaintiff has objected, the court concludes
the case should be transferred to the Tenth Circuit Court of Appeals for a determination of
whether a successive petition should be permitted. See 28 U.S.C. § 2244(b)(3)(A).
The magistrate judge determined that this is plaintiff’s second petition seeking habeas

1

Plaintiff termed his filing a “Notice of Appeal Writ of Mandamus.” The magistrate
judge treated the action as a § 2254 petition.

relief and noted that “absent prior authorization from the Tenth Circuit Court of Appeals, this
Court lacks jurisdiction to consider the instant Petition.” [Doc. #11, pg. 3-4]; see 28 U.S.C.
§ 2244(b)(3)(A).2 However, concluding that there was no risk that a meritorious claim
would be lost by a denial now, he recommended that plaintiff’s petition be denied rather than
transferred to the Court of Appeals. The magistrate judge noted that the habeas petition is
barred by the one year limitation in 28 U.S.C. § 2244(d)(1),3 and that plaintiff had not shown
a basis for equitable tolling. The latter conclusion was based in part on skepticism as to
plaintiff’s most recent “mind control” theory of defense.
In his objection, plaintiff contends that he has made “several attempts” to file writs
with the Court of Appeals or other courts but has been denied access to the courts by various
state actors. The exact nature of those efforts is not clear from plaintiff’s objection. While
the court agrees with Judge Purcell’s analysis of plaintiff’s potential claims and their
likelihood of success, including his skepticism as to plaintiff’s current theory of defense, it
concludes, in light of plaintiff’s statements of various attempts to seek circuit review of some
sort, that the present petition should be transferred to the Court of Appeals for a
determination as to whether his successive petition should be permitted. Accordingly, the
court ADOPTS the Report and Recommendation [Doc. #11] in its analysis of plaintiff’s
claims, but concludes the case should be, and is, TRANSFERRED to the United States

2

“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.” 28 U.S.C. 2244(b)(3)(A).
3

“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.” 28 U.S.C. 2244(d)(1).

Court of Appeals for the Tenth Circuit for the necessary threshold determination.
IT IS SO ORDERED.
Dated this 8th day of October, 2013.