UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA

CLAYTON ORVILLE KING, ) ) Petitioner, ) ) v. ) Case No. CIV-23-262-J ) WARDEN DAVID ROGERS, ) ) Respondent. )

ORDER

Petitioner, a state prisoner appearing pro se, filed a Petition pursuant to

seeking habeas relief from a state court conviction (Pet.) [Doc. No. 1]. The matter was referred for initial proceedings to United States Magistrate Judge Suzanne Mitchell consistent with

(b)(1)(B), (C). Judge Mitchell examined the Petition under Rule 4 of the Rules Governing Section 2254 Cases and issued a Report and Recommendation recommending that the Petition be dismissed as second or successive (Rep. & Rec.) [Doc. No. 16]. Petitioner has objected (Petr.’s Obj.) [Doc. No. 17], triggering de novo review. I. Background Petitioner was convicted of first-degree murder in Osage County District Court in 2003. In 2008, using a

amended petition form, Petitioner challenged that conviction in the Northern District of Oklahoma. See King v. Oklahoma, CIV-08-93-TCK-FHM, Doc. No. 3 (N.D. Okla. Mar. 10, 2008). That court granted the respondent’s motion to dismiss and dismissed the § 2254 petition as untimely. See King v. Addison,

(N.D. Okla. Feb. 25, 2009). Petitioner filed the instant Petition in March 2023, challenging the same state court conviction. See Pet., passim. II. The Report and Recommendation Findings On review, Judge Mitchell noted the procedural history and concluded that because Petitioner had already filed one § 2254 petition, the current Petition constitutes a second or successive request for habeas relief. As such, Petitioner must have the Tenth Circuit’s authorization to proceed. See Rep. & Rec. at 5 (citing

(b)(3)(A)). Judge Mitchell

further concluded that Petitioner had not provided any argument that would support authorization under § 2244(b)(2)(A)-(B), and thus the Petition should be dismissed rather than transferred to the Tenth Circuit. See id. at 6-8. III. Petitioner’s Objection With liberal construction, Petitioner argues that his Northern District case was improperly construed as a § 2254 petition and thus the instant action is “certifiably the [first] one.” Petr.’s Obj. at 1. However, as noted above, Petitioner used a § 2254 form when he filed his amended petition, and a review of that case finds no objection from Petitioner regarding its construction. See supra at 1; see also King, CIV-08-93-TCK-FHM, passim.

Petitioner’s remaining arguments either reiterate his underlying claims for habeas relief or urge the Court not to dismiss the action; however, they do not specifically address § 2244’s authorization requirement or articulate grounds that would encourage the Court to transfer, rather than dismiss, the action. See Petr.’s Obj., at 1-2. IV. Conclusion Having carefully reviewed the Petition, Report and Recommendation, and Petitioner’s objection de novo, the Court agrees with Judge Mitchell’s analysis. Accordingly, the Court ADOPTS the Report and Recommendation [Doc. No. 16] and DISMISSES Petitioner’s Petition [Doc. No. 1] as second or successive. The Court further DENIES Petitioner’s motion to compel a ruling [Doc. No. 8] as moot. Finally, a certificate of appealability is DENIED, as the Court concludes Petitioner has not made “a substantial showing of the denial of a constitutional right.”

(c)(2). IT IS SO ORDERED this 12™ day of September, 2023.

BERNARD M. JONES UNITED STATES DISTRICT JUDGE