Hernandez v. Oklahoma State of et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION for 9 Motion to Stay Case filed by Gregory Michael Hernandez, 8 Report and Recommendation. This action is dismissed for lack of jurisdiction. Signed by Honorable David L. Russell on 5/7/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
GREGORY MICHAEL HERNANDEZ,
Petitioner,
v.
JASON BRYANT, Warden,
Respondent.

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CIV-15-436-R

ORDER
Petitioner his filed a Motion to Stay in response to the Report and Recommendation
issued by Magistrate Judge Gary M. Purcell on April 27, 2015, wherein he recommends the
petition be dismissed because it is a second or successive petition and Petitioner has not
received permission from the Tenth Circuit to file such. (Doc. No. 8). Petitioner contends he
has submitted a request to the Tenth Circuit seeking the required authorization and asks that
this Court stay these proceedings pending a decision on his request.
28 U.S.C. § 2244(b)(3) provides that "[b]efore a second or successive application
authorized 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." Although the Court may transfer an application to the Circuit for consideration
of the issue of whether such authority should be granted, in the interests of justice, the Court
is unaware of any authority that would permit it to stay an action pending the § 2244(b)(3)
authorization process. The Tenth Circuit has instructed that district courts may either transfer
the action to that court for prior authorization or dismiss the petition for lack of jurisdiction.

The Court agrees with Judge Purcell's recommendation that the action be dismissed for lack
of jurisdiction. As such, the Report and Recommendation is hereby ADOPTED in its
ENTIRETY and this action is DISMISSED for lack of jurisdiction.
IT IS SO ORDERED this 7th day of May, 2015.

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