Charlton v. Harding

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

CLARENCE ELDON CHARLTON, )

)

Petitioner, )

)

v. ) Case No. CIV-24-701-G

)

RANDY HARDING, )

)

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Clarence Eldon Charlton (“Petitioner”), a state prisoner appearing pro

se,1 has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1).2

United States District Judge Charles B. Goodwin referred the matter to the undersigned

Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C).

(Doc. 4). For the reasons set forth below, the undersigned recommends that the Court

DISMISS this habeas Petition for lack of jurisdiction as a second or successive habeas

petition filed without Tenth Circuit authorization. See 28 U.S.C. § 2244(b).

1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard

than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court

cannot serve as Petitioner’s advocate, creating arguments on his behalf. See Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF

pagination.

I. Screening

The Court must review habeas petitions and summarily dismiss a petition “[i]f it

plainly appears from the petition and any attached exhibits that the petitioner is not entitled

to relief . . . .” Rule 4, Rules Governing § 2254 Cases. As part of this initial review, the

Court may examine whether it lacks jurisdiction over a habeas petition because it is a

second or successive petition. See 1mage Software, Inc. v. Reynolds & Reynolds Co., 459

F.3d 1044, 1048 (10th Cir. 2006) (holding that courts may sua sponte examine their own

jurisdiction at any stage in a proceeding).

“[B]efore acting on its own initiative, a court must accord the parties fair notice and

an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006).

This Report and Recommendation provides Petitioner with notice, and he can present his

position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL

396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate

judge raising an issue sua sponte where the petitioner could “address the matter by

objecting” to the report and recommendation).

II. Procedural History

Petitioner is a state inmate currently incarcerated at the Dick Conner Correctional

Center in Hominy, Oklahoma. (Doc. 1, at 30); see Oklahoma Department of Corrections

OK Offender, https://okoffender.doc.ok.gov/ (OK DOC #474078). Petitioner was

convicted by a jury in Oklahoma County District Court of three counts of assault and

battery with a dangerous weapon (Counts One, Four, and Five), one count of domestic

abuse (Count Two), and one count of kidnapping (Count Three). (Doc. 1, at 1-3); see

Oklahoma County District Court, Case No. Case No. CF-2002-1166.3 Petitioner was

sentenced to a term of forty-five years of imprisonment (Count One), a term of one year of

imprisonment (Count Two), a term of twenty years of imprisonment (Count Three), a term

of thirty years of imprisonment (Count Four), and a term of twenty-five years

imprisonment (Count Five), with Counts One, Three, Four, and Five to run consecutively,

and Count Two to run concurrently with Count One. Oklahoma County District Court,

Case No. Case No. CF-2002-1166.

As Petitioner acknowledges, (see Doc. 1, at 28-29; id. at Ex. 1), on May 2, 2006,

Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 in this Court,

challenging his Oklahoma County conviction in Case No. CF-2002-1166. See Charlton v.

Franklin, Case No. CIV-06-486-M (W.D. Okla.) (Doc. 1, at 1). Petitioner raised six rounds

for relief, asserting:

(1) the trial court improperly admitted testimony regarding his other

crimes, wrongs, or acts;

(2) the trial court violated his rights under the Fifth and Fourteenth

Amendments when it admitted his confession without properly

conducting a hearing under Jackson v. Denno and without properly

instructing the jury;

(3) prosecutorial misconduct;

(4) his sentences were excessive;

3 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-

2002-1166&cmid=1494456 (Docket Sheet) (last visited Oct. 9, 2024). The undersigned

takes judicial notice of the docket sheets and related documents in Petitioner’s state

criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir.

2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court

and certain other courts concerning matters that bear directly upon the disposition of the

case at hand”) (citation omitted).

(5) the trial court abused its discretion by refusing to consider imposing

concurrent sentences; and

(6) cumulative error.

Id. (Doc. 1, at 5-6). The court denied the petition on the merits. Id. (Docs. 26, 32).

Subsequently, the Tenth Circuit denied a Certificate of Appealability and dismissed

Petitioner’s appeal. Id. (Doc. 43, at Ex. 1).

III. The Instant Petition

Petitioner filed the instant Petition on July 9, 2024. (Doc. 1, at 31). He challenges

the same Oklahoma County conviction as he did in his first habeas petition. (Id. at 1).

Petitioner lists three grounds for relief in the Petition. In Ground One, Petitioner appears

to argue that his postconviction action in state court should not have been considered time-

barred because of his “factual innocence.”4 (Id. at 5-16). In Grounds Two and Three,

Petitioner asserts ineffective assistance of appellate counsel. (Id. at 17-24).

4 Both the state district court and the Oklahoma Court of Criminal Appeals determined

Petitioner’s post-conviction action was untimely under Oklahoma law. (Doc. 1, at Ex. 4,

at 6-10, 15-18). Petitioner describes events or circumstances to show the State inhibited

his ability to file for relief including: the state trial court denied his request for a transcript,

the State made it difficult for another inmate to raise a claim in post-conviction relief, he

had difficulty using tablets to performing legal research, the Attorney General’s office and

the “Governmental Tort Claims Agency” did not assist him, and lockdowns affected the

ability of inmates to perform legal research. (Doc. 1, at 7-14). He also contends the state

should not be able to retroactively apply the state statute of limitations for post-conviction

actions to his case. (Id. at 14).

IV. Analysis

A. The Petition Is An Unauthorized Second or Successive Petition.

Because Petitioner previously challenged his state conviction under § 2254 in this

Court, he needed to obtain authorization from the Tenth Circuit to file a second or

successive § 2254 habeas petition. See 28 U.S.C. § 2244(b)(3)(A) (“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.”). Petitioner has not provided any evidence that he sought

permission to file a second or successive habeas petition, and a search of the Tenth Circuit’s

docket does not show any application from Petitioner for such permission. This Court

therefore has no jurisdiction to entertain Petitioner’s second or successive habeas corpus

petition. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not

have jurisdiction to address the merits of a second or successive [ ] 28 U.S.C. § 2254 claim

until [the Tenth Circuit] has granted the required authorization.”).

B. Transfer to The Tenth Circuit for Possible Authorization Is Not in the

Interest of Justice.

When an action is filed in a court that lacks jurisdiction, the court “shall, if it is in

the interest of justice, transfer such action or appeal to any other court . . . in which the

action or appeal could have been brought at the time it was filed or noticed.” 28 U.S.C. §

1631 (emphasis added). Thus, a district court may either transfer an unauthorized second

or successive § 2254 petition to the court of appeals if “it is in the interest of justice to do

so under § 1631, or it may dismiss the . . . petition for lack of jurisdiction.” In re Cline,

531 F.3d at 1252. Under the interest of justice analysis,

factors warranting transfer rather than dismissal . . . include finding that the

new action would be time barred, that the claims are likely to have merit, and

that the original action was filed in good faith rather than filed after plaintiff

either realized or should have realized that the forum in which he or she filed

was improper.

Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006) (internal quotation marks

and citations omitted). “Where there is no risk that a meritorious successive claim will be

lost absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it

is not in the interest of justice to transfer the matter . . . for authorization.” In re Cline, 531

F.3d at 1252.

Transferring this case to the Tenth Circuit is not in the interest of justice. Ground

One seeks relief unavailable in a habeas action. While Petitioner argues his state post-

conviction action was timely, “habeas relief is unavailable when the error involves only

the post-conviction procedures rather than the imposition of the conviction or sentence.”

Graham v. White, 101 F.4th 1199, 1205 (10th Cir. 2024). Because the claim lacks merit,

it would not be in the interest of justice to transfer it.

Grounds Two and Three do not meet the requirements for a second or successive

application. Pursuant to 28 U.S.C. § 2244(b)(3)(C), “[t]he court of appeals may authorize

the filing of a second or successive application only if it determines that the application

makes a prima facie showing that the application satisfies the requirements of [28 U.S.C.

§ 2244(b)]. See Johnson v. Allbaugh, 742 F. App’x 395, 396 n.2 (10th Cir. 2018) (noting

the Tenth Circuit will grant authorization “only if [petitioner] is able to demonstrate that

he has new claims” that meet the statutory requirements under 28 U.S.C. § 2244(b)(2)(A)-

(B)).

Under § 2244(b)(2), a court must dismiss any claims presented in a second or

successive habeas corpus petition that were not presented in a prior petition unless:

(A) the applicant shows that the claim relies on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

(B)

(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence;

and

(ii) the facts underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that, but for constitutional error,

no reasonable factfinder would have found the applicant guilty

of the underlying offense.

28 U.S.C. § 2244(b)(2). “[A] recent discovery of facts is not sufficient to establish that a

claim was previously unripe.” Dopp v. Martin, 750 F. App’x 754, 757 (10th Cir. 2018).

Indeed, the exception to the bar on second or successive petitions only “applies ‘where the

factual basis for a claim does not yet exist — not where it has simply not yet been

discovered — at the time of a [petitioner’s] first motion.’” Id. (quoting United States v.

Williams, 790 F.3d 1059, 1068 (10th Cir. 2015)).

These exceptions do not apply to Grounds Two and Three. First, Petitioner cites no

new principles of constitutional law underlying the ineffective-assistance-of-appellate-

counsel claims he raises in the instant § 2254 habeas petition. (See Doc. 1). Petitioner

stated he did not raise Ground One on direct appeal because McQuiggin v. Perkins, 569

U.S. 383 (2013), was not available to him when he filed his original habeas petition in

2006. (Doc. 1, at 7). Petitioner cites McQuiggin again in his discussion of Ground Three,

implying again that he makes a claim of actual innocence. (Id. at 24). But “McQuiggin

did not announce a new rule of constitutional law.” In re Everett, 797 F.3d 1282, 1293

(11th Cir. 2015).

Second, the facts on which Petitioner relies in support of Grounds Two and Three

were either actually known or discoverable by him when he filed his first habeas petition.

In support of Ground Two – in which Petitioner asserts his appellate counsel should have

argued the State did not prove each element of kidnapping – Petitioner cites the trial record

(including the factual summary from the Report and Recommendation in Case No. CIV-

06-486-M, which was supported by the trial transcript). (Doc. 1, at 19-20; id. at Ex. 1).

This information was known to Petitioner prior to filing his first habeas action. And

Petitioner does not supply any facts in support of Ground Three except to allege his

appellate counsel failed to read the applicable statute. (Doc. 1, at 22-24). Petitioner’s

direct appeal preceded his first habeas action, so this too does not assist him in satisfying

the requirements to file a second-or-successive petition.

Petitioner also references actual innocence, but a claim of actual innocence remains

subject to the requirements of 28 U.S.C. § 2244(b)(2)(B). See McQuiggin, 569 U.S. at

395-96 (“Congress did not simply incorporate the [actual innocence and] miscarriage of

justice exception into §[] 2244(b)(2)(B) . . . . Rather, Congress constrained the application

of the exception. . . . Section 2244(b)(2)(B) limits the exception to cases in which ‘the

factual predicate for the claim could not have been discovered previously through the

exercise of due diligence,’ and the petitioner can establish that no reasonable factfinder

‘would have found [him] guilty of the underlying offense’ by ‘clear and convincing

evidence.’ Congress thus required second-or-successive habeas petitioners attempting to

benefit from the miscarriage of justice exception to meet a higher level of proof (‘clear and

convincing evidence’) and to satisfy a diligence requirement that did not exist prior to

AEDPA’s passage.”); Barrientez v. Martin, 778 F. App’x 614, 616 (10th Cir. 2019) (“In

enacting the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Congress adopted

a stringent actual-innocence exception in the context of second and successive habeas

petitions, requiring both undiscoverability, [28 U.S.C.] § 2244(b)(2)(B)(i), and ‘clear and

convincing evidence that, but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense,’ § 2244(b)(2)(B)(ii).”). According to

Petitioner, “the new reliable evidence” in support of his actual innocence is statements

made by Sandra Carter, a victim of the underlying crimes. (Doc. 1, at 16). Two of

statements predate the first habeas action. (Doc. 1, at Ex. 3; id. at Ex. 4, at 1-4). In a third

statement to the Pardon and Parole Board dated January 12, 2011, Ms. Carter argued

Petitioner’s sentence was too harsh. (Id. at Ex. 2). She asserted that Petitioner did not

kidnap her or her daughter because Petitioner only told her to get in a car with him and she

had signed a form giving Petitioner permission to pick up her daughter at school. (Id.) She

also described her injuries. (Id.) These facts would have or could have been known to

Petitioner prior to filing the first petition. As such, they do not satisfy the requirements of

28 U.S.C. § 2244(b)(2)(B)(i).

Because the Petition does not meet the statutory requirements for the authorization

of a second or successive petition, it would be a waste of judicial resources to transfer this

case to the Tenth Circuit. See Jn re Cline, 531 F.3d at 1252. Thus, the Court should dismiss

Petitioner’s § 2254 habeas petition.

V. Recommendation and Notice of Right to Object

For the foregoing reasons, it is recommended that the Petition for a Writ of Habeas

Corpus (Doc. 1) be DISMISSED for lack of jurisdiction as an unauthorized second or

successive petition.

Petitioner is advised of the right to file an objection to this Report and

Recommendation with the Clerk of Court by October 30, 2024, in accordance with 28

U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner 1s further advised that failure to timely

object to this Report and Recommendation waives the right to appellate review of both

factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th

Cir. 1991).

This Report and Recommendation disposes of all issues referred to the undersigned

Magistrate Judge and terminates the referral unless and until the matter is re-referred.

ENTERED this 9th day of October 2024.

UNITED STATES MAGISTRATE JUDGE

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