United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants
leave to proceed in forma pauperis.
was convicted of first-degree murder in the District Court of
Sedgwick County, Kansas. He is serving a Hard 40 sentence.
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the district courts
“must promptly examine” habeas corpus actions
filed by state prisoners and must dismiss those actions
“[i]f it plainly appears … that the petitioner
is not entitled to relief.” Likewise, the federal
courts must consider their jurisdiction sua sponte and must
dismiss any action in which subject matter jurisdiction is
lacking. See Fed.R.Civ.P. 12(h)(3).
or Successive Petitions Filed under Section 2254
28 U.S.C. § 2244(b), a petitioner may proceed in a
second or successive application for habeas corpus relief
under Section 2254 only upon obtaining prior authorization
from the appropriate federal court of appeals.
records in this district show that petitioner sought relief
from the same conviction he challenges in the present action
in an earlier petition. See Conley v. McKune, 2004
WL 3019431 (D. Kan. Dec. 30, 2004)(denying habeas corpus
result, the present petition is a successive habeas petition,
and petitioner must obtain authorization from the Tenth
Circuit Court of Appeals before bringing this action. 28
U.S.C. §2244(b)(3)(A). Because petitioner does not show
that he has obtained the necessary authorization, this Court
lacks jurisdiction to consider the filing. See In re
Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)(per curiam).
Tenth Circuit, “[w]hen a second or successive §
2254 … claim is filed in the district court without
the required authorization from this court, the district
court may transfer the matter to this court if it determines
it is in the interest of justice to do so under § 1631,
or it may dismiss the … petition for lack of
jurisdiction.” Cline, 531 F.3d at 1252. Having
considered the petition, which appears to assert claims that
were not presented to the state courts and which presents no
exceptional circumstances, the Court declines to transfer
this matter and will dismiss the petition for lack of
jurisdiction. This dismissal does not prevent the petitioner
from seeking authorization from the Tenth Circuit Court of
Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Court, “[t]he district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” A
district court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right, ” and the
court specifically identifies the issue or issues that
warrant additional review. 28 U.S.C. § 2253.
petitioner meets this standard by showing that the issues
presented are debatable among jurists, that a court could
resolve the claims differently, or that the questions warrant
additional review. Slack v. McDaniel, 529 U.S. 473
(2000)(citing Barefoot v. Estelle, 463 U.S. 880, 893
(1983)). Where a court's ruling is based on a procedural
ground, the petitioner must show that “jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
the Court finds no basis to issue a certificate of
appealability. The Court's procedural ruling that this
matter is a successive petition filed without the ...