Morgan v. State of Oklahoma

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION for 10 Motion for Order filed by David Brian Morgan, 8 Report and Recommendation, Report and Recommendation ishereby ADOPTED and this matter is hereby dismissed. Petitioners Motion to File Nunc Pro Tunc is hereby DENIED AS MOOT. Signed by Honorable David L. Russell on 10/26/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID BRIAN MORGAN,
Petitioner,
v.
STATE OF OKLAHOMA,
Respondent.

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CIV-16-1003-R

ORDER
On August 30, 2016 Petitioner initiated this action by filing a “Motion to File §
2555.” Pursuant to 28 U.S.C. § 636(b)(1)(B) the matter was referred to United States
Magistrate Judge Suzanne Mitchell for preliminary review. On October 4, 2016, Judge
Mitchell issued a Report and Recommendation wherein she recommended dismissal of the
motion because Petitioner failed to state a basis for relief under 28 U.S.C. § 2255. The
matter is currently before the Court on Petitioner’s timely objection to the report and
recommendation (Doc. No. 9) and a Motion to File Nunc Pro Tunc (Doc. No. 10) filed by
Mr. Morgan. The objection obligates the Court to undertake a de novo review of those
portions of the Report and Recommendation to which Petitioner makes specific objection.
Having conducted this de novo review, the Court finds as follows.
As noted by Judge Mitchell, it is apparent from Petitioner’s submissions that he is
not currently in the custody of the federal government and that he is not currently serving
a federal sentence. Rather, as noted in footnote 3 of the Report and Recommendation, and
not challenged by the Petitioner, he is apparently serving multiple sentences from a multi-

count conviction in the District Court of Oklahoma County. However, only a federal
prisoner may challenge his conviction and sentence by relying on 28 U.S.C. § 2255.
Furthermore, it is apparent from the objection that Petitioner is challenging his conviction
in state court by his argument related to the Oklahoma statute for non-murder cases cited
in his objection to the Report and Recommendation. Accordingly, to the extent Petitioner
was attempting to challenge his conviction and sentence in Case No. CF-2010-7695, in
District Court of Oklahoma County via 28 U.S.C. § 2254, his efforts must fail as he
previously sought relief under that same provision and therefore cannot, without leave of
the Tenth Circuit Court of Appeals, file a second or successive application for habeas
corpus relief addressing those convictions. See 28 U.S.C. § 2244(b)(3)(A). Mr. Morgan
was informed of this limitation in Morgan v. Bear, Case No. CIV-15-782-R, when his case
was dismissed by this Court on July 17, 2015, in part for lack of jurisdiction over his second
or successive petition. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Thus it appears
to the undersigned that Petitioner is attempting to avoid the dismissal of the instant petition
wherein he challenges his state court conviction by invoking 28 U.S.C. § 2255. Having
failed to establish that he is “[a] prisoner under sentence of a court established by Act of
Congress” Mr. Morgan cannot prevail. Accordingly, the Report and Recommendation is
hereby ADOPTED and this matter is hereby dismissed. Petitioner’s Motion to File Nunc
Pro Tunc is hereby DENIED AS MOOT.
IT IS SO ORDERED this 26th day of October, 2016.