United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
motion filed pursuant to 28 U.S.C. § 2255, Natasha
Harper asks that the court vacate her conviction, arguing her
guilty plea is invalid because the federal government has
adopted a policy permitting the housing of biologically male
preoperative transexual prisoners with biologically female
prisoners. She contends that the new policy operates as an
ex post facto modification of the terms of her
confinement, and renders her plea involuntary. The court
finds that Harpers's motion is a second or successive
§ 2255 motion and denies the motion.
the court's decision denying her first § 2255
motion, and anticipating the application of the bar on
successive claims, Harper stresses that “the former
president, Barack Obama, ” made the transgender
prisoner policy “official in January 2017.” (Dkt.
40). She argues her claim is not successive, therefore,
because the policy was not in place at the time of her
original petition, citing decisions such as In re
Cain, 137 F.3d 234, 235-37 (5th Cir.
as the Fifth Circuit has observed, Cain should not
be interpreted mean that a claim is automatically
nonsuccessive whenever it presents arguments
“unavailable at the time of the first petition.”
Leal Garcia v. Quarterman, 573 F.3d 214, 220 (5th
Cri. 2009). Rather, such a claim may be nonsuccessive
“[i]f ... the purported defect did not arise, or the
claim did not ripen, until after the conclusion of the
previous petition.” Id. at 222 (5th Cir.
2009) (emphasis added).
Leal, the government argued that the second petition
- advancing an “Avena” decision based on
Article 36 of the Vienna Convention for failure to notify the
Mexican consulate in capital cases involving Mexican
nationals - was successive because the defendant “could
have amended his federal petition to include the
Avena-based claim” before that petition was
denied in 2004. The court held under the facts of the case
the petition was not barred because the claim did not mature
immediately on the Avena decision, but only after
further action by the Bush administration and the State of
Texas - “well after the resolution of Leal's first
habeas petition.” Id.
could have moved to amend her original petition before its
resolution, but did not do so. Her first § 2255 motion
was decided on the merits. (Dkt. 39). Cf. Reeves v.
Little, 120 F.3d 1136 (10th Cir. 1997) (collecting cases
holding that a collateral attack is nonsuccessive where the
previous challenge was denied without prejudice, without
resolution on the merits). See Stanko v. Davis, 617
F.3d 1262, 1270 (10th Cir. 2010). A collateral claim may be
barred “as either successive (because it contains only
claims that have already been adjudicated in earlier habeas
proceedings) or abusive (because it contains claims that
could have been raised in such earlier proceedings but were
not).” Hill v. Davis, 504 Fed.Appx. 683, 686
(10th Cir. 2012).
district court does not have jurisdiction to address the
merits of a second or successive § 2255 ... claim until
[the Tenth Circuit] has granted the required
authorization.” In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008). Because Harper presents a successive
§ 2255, the court must either dismiss the petition for
lack of jurisdiction, or transfer the matter to the Tenth
Circuit if it is in the interest of justice to do so under
§ 1631. See Spitznas v. Boone, 464 F.3d 1213,
1227 (10th Cir.2006). In deciding whether to transfer a
matter, the court considers:
whether the claims would be time barred if filed anew in the
proper forum, whether the claims alleged are likely to have
merit, and whether the claims were filed in good faith or if,
on the other hand, it was clear at the time of filing that
the court lacked the requisite jurisdiction.
Cline, 531 F.3d at 1251.
the court declines to transfer the matter. Harper presents no
reason to believe she will face any real or substantial
actual danger from preoperative transexual prisoners. She has
also failed to cite any authority holding that prison
transexual policy is unconstitutional or violates the rights
of other prisoners.
ACCORDINGLY ORDERED this 27th day of July, 2017, that
defendant's Motion to Vacate (Dkt. 40) is hereby denied
 The Bureau of Prison Program Statement
for the Transgender Offender Manual is available at
However, while the Statement (which addresses a number of
issues relating to transgendered prisoners) was issued
January 18, 2017, the court notes that the portion of the
statement relating to the initial placement of transgendered
prisoners has been in effect for ...