Rackley v. Oklahoma State of et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION 18 of Magistrate Judge Suzanne Mitchell...the court concludes substantially for the reasons stated in the report and recommendation...defendants' motion to dismiss is granted and the petition is dismissed. Signed by Honorable Joe Heaton on 02/20/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEONARD RACKLEY,
Petitioner
vs.
STATE OF OKLAHOMA, et. al.,
Respondents.

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NO. CIV-14-0721-HE

ORDER
Plaintiff Leonard Rackley, a state prisoner appearing pro se and in forma pauperis,
filed this application for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his
conviction and sentence for Attempted Grand Larceny in the District Court of Custer County,
Oklahoma. Consistent with 28 U.S.C. § 636(b)(1)(B), this matter was referred for initial
proceedings to Magistrate Judge Suzanne Mitchell. Defendants subsequently filed a motion
to dismiss the petition as second and successive [Doc. #13], which Judge Mitchell
recommends should be granted [Doc. #18]. Plaintiff has objected to the Report and
Recommendation, requesting that the court transfer the case to the Tenth Circuit instead of
dismissing it [Doc. #19]. Having conducted a de novo review in light of plaintiff’s
objections, the court concludes the Report should be adopted for substantially the reasons
stated in the Report, as further addressed here.
This is the second habeas application that has been filed on plaintiff’s behalf
challenging the conviction referenced above. Cf. Rackley v. Keith, No. CIV-10-0131-HE.
As noted by Judge Mitchell, this court lacks jurisdiction over petitioner’s second application
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because he did not obtain an order from the Tenth Circuit Court of Appeals authorizing the
this court to consider his petition, as is required by 28 U.S.C. § 2244(b)(3)(A). See In re
Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). Though the court may, as plaintiff has
requested, transfer the case to the Tenth Circuit rather than dismiss the application altogether,
it need not do so here because plaintiff’s claims are time-barred, as was determined in this
court’s previous order dismissing plaintiff’s original application [Doc. #17 in CIV-10-0131HE]. Accordingly, the court concludes that it would be a waste of judicial resources and
therefore not in the interest of justice to transfer the case to the Tenth Circuit.
Having conducted a de novo review, the court concludes, substantially for the reasons
stated by Magistrate Judge Suzanne Mitchell, that the Report and Recommendation [Doc.
#18] should be and is adopted. Accordingly, defendants’ motion to dismiss [Doc. #13] is
GRANTED and the petition is DISMISSED.
IT IS SO ORDERED.
Dated this 20th day of February, 2015.

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