Brown v. McCollum

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION for 5 Report and Recommendation, The petition is DISMISSED, as more fully set out. Signed by Honorable David L. Russell on 11/24/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LYLE Q. BROWN,
Petitioner,
v.
TRACY McCOLLUM,
Respondent.

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Case No. CIV-14-1137-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Suzanne Mitchell entered November 3, 3014. Doc. No. 5. Petitioner has filed an
Objection to the Magistrate Judge’s conclusions in the Report and Recommendation.
Doc. No. 6. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and
Recommendation de novo in light of Petitioner’s objections.
Petitioner, a state prisoner appearing pro se, brings a Petition for Writ of Habeas
Corpus challenging his conviction and sentence. Doc. No. 1, at 5. He alleges that he was
denied a competency hearing in violation of his due process rights and his right against
self-incrimination. Id. at 5-6. The Magistrate Judge recommends dismissing the petition
because Petitioner has already filed a petition for habeas relief under 28 U.S.C. § 2254
challenging his conviction, that petition was denied as untimely, and Petitioner has not
obtained an order from the Tenth Circuit authorizing the Court to consider his second
petition. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner argues that the Court should not construe his petition filed under 28
U.S.C. § 2241 as a second petition under § 2254 because he is challenging the execution

of his sentence, not the validity of his conviction. Doc. No. 6, at 4. The Court construes
Petitioner’s filings liberally because is a pro se litigant. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). This means that “if the court can reasonably read the pleadings to
state a valid claim on which the [petitioner] could prevail, it should do so despite the
[petitioner’s] failure to cite proper legal authority, his confusion of various legal theories,
his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Id. (footnote omitted). But the court will not “assume the role of advocate
for the pro se litigant.” Id.
The Court is unable to reasonably read the petition as challenging the execution of
Petitioner’s sentence. Petitioner alleges that “the conviction for first degree murder is
constitutionally defective because he was denied a competency hearing,” none of his
family members were called to testify to his “thirty year history of alcohol abuse and
irrational behavior,” the state court prevented him from directly appealing his conviction,
and he could not knowingly and intelligently waive his right to an appeal because he was
incompetent. Doc. No. 1, at 5-10. The only reasonable way to construe the petition is as a
challenge to the validity of Petitioner’s conviction and sentence, which is brought under
§ 2254.
The undersigned agrees with the thorough and well-reasoned Report and
Recommendation of the Magistrate Judge. This Court lacks jurisdiction over Petitioner’s
successive petition for habeas relief under § 2254, and there is no risk that a meritorious
claim would be lost by dismissing the petition instead of transferring it to the Tenth

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Circuit. Accordingly, the Report and Recommendation is ADOPTED in its entirety and
the petition [Doc. No. 1] is DISMISSED.

IT IS SO ORDERED this 24th day of November, 2014.

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