Franklin v. Oklahoma State of et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CORTEZ L. FRANKLIN, )
)
Petitioner, )
)
v. ) Case No. CIV-12-865-SLP
)
DAVID LOUTHAN, Warden, )
)
Respondent. )
O R D E R
Before the Court is the Motion for Leave to Proceed FRCP 60(a)(b)(4) [Doc. No.
43] filed by Petitioner Cortez L. Franklin, appearing pro se. Petitioner previously filed a
Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, raising seven grounds
for relief. The matter was referred to a Magistrate Judge who entered a Report and
Recommendation [Doc. No. 23] (R.&R.) recommending the Petition be denied as to all
seven grounds. The Court adopted the R.&R., denied the Petition and entered Judgment
in favor of Respondent. See Order [Doc. No. 25] and Judgment [Doc. No. 26].1 The Court
further denied Petitioner’s motion for reconsideration. See Order [Doc. No. 30]. Petitioner
then filed an appeal as to three of his seven claims and the Tenth Circuit denied a certificate
of appealability. See Order [Doc. No. 41].
More than a decade has passed since the Tenth Circuit’s ruling. Petitioner now
claims that the Magistrate Judge did not apply the correct legal standard in issuing the
1 District Judge Stephen P. Friot originally presided over this case. It was transferred to the
undersigned on October 29, 2025. See Order [Doc. No. 44].
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R.&R. He appears to address his prior claim raised in Ground Six of the Petition, that he
was denied, at trial, a jury comporting with constitutional standards. But he now also
purports to challenge whether the grand jury returning his indictment was selected in a
manner comporting with constitutional standards – a new claim not previously raised.
Although Petitioner frames his filing as a motion brought pursuant to Rule 60 of the
Federal Rules of Civil Procedure, upon review, Petitioner is attempting to bring a second
or successive habeas petition. See Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir.
2006). As the Supreme Court has explained, “a motion for relief from judgment under
Federal Rule of Civil Procedure 60(b) (filed, obviously, after the judgment has issued)
counts as a second or successive application if that filing ‘attacks the federal court’s
previous resolution of a claim on the merits’ or ‘seeks to add a new ground for relief’ not
addressed by the judgment.” Rivers v. Guerrero, 605 U.S. 443, 453 (2025) (quoting
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis deleted)). The Court, therefore,
construes Petitioner’s motion as a § 2254 petition.
Before filing a second or successive habeas petition, a petitioner must obtain
authorization from the Tenth Circuit. 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.”). Nothing in the record before the Court demonstrates that
Petitioner has obtained such prior authorization. Accordingly, the Court lacks jurisdiction
over Petitioner’s second or successive habeas 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
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a second or successive . . . § 2254 claim until [the Tenth Circuit] has granted the required
authorization.”).
The Court may transfer the matter to the Tenth Circuit if it is in the interests of
justice to do so. Spitznas, 464 F.3d at 1217; 28 U.S.C. § 2244(b). But here, the Court finds
it is not in the interest of justice to transfer the matter. To the extent Petitioner’s Rule
60(b) Motion presents claims that were raised in his first petition, the claims must be
dismissed. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior application shall
be dismissed.”). And with respect to any new claims, Petitioner has not identified the
existence of a new rule of constitutional law made retroactive or that the factual predicate
of his claim could not have been discovered previously through the exercise of due
diligence. See 28 U.S.C. § 2244(b)(2). Nor does it appear that any new claims have been
timely filed. See 28 U.S.C. § 2244(d) (providing that a § 2254 petition is typically time-
barred unless filed within one year after the judgment of conviction becomes final). As
noted, more than ten years have passed since the Court ruled on Petitioner’s initial Petition.
Accordingly, the Court finds dismissal, rather than transfer, is appropriate.
IT IS THEREFORE ORDERED that Petitioner’s Motion for Leave to Proceed
FRCP 60(a)(b)(4) [Doc. No. 43] is DISMISSED without prejudice for lack of jurisdiction;
a certificate of appealability is DENIED;2 and a separate judgment of dismissal shall be
2 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court finds the absence
of jurisdiction is not reasonably debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(certificate of appealability can only issue in a habeas proceeding where petitioner “demonstrates
that reasonable jurists would find the district court’s assessment . . . debatable or wrong.”).
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entered.
IT IS SO ORDERED this 27th day of February, 2026.
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