Shabazz v. Kaiser

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 8, 1997
• Docket: 96-6404
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 8 1997 TENTH CIRCUIT PATRICK FISHER Clerk ISA ABD' ALLAH RAMADAN SHABAZZ,

Plaintiff-Appellant,

v. No. 96-6404 (D.C. No. CIV-88-2239-R) STEPHEN W. KAISER, (W. Dist. Okla.)

Defendant-Appellee.

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

Plaintiff Isa Abd' Allah Ramadan Shabazz, also known as Jimmy Phillips, appeals

the denial of his motion for relief from judgment. On October 8, 1996, the district court

adopted the magistrate's findings and recommendations, finding plaintiff's objections to

the magistrate's findings were not timely filed and that plaintiff thereby waived review of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. those findings. The court construed plaintiff's motion as a habeas application pursuant to

28 U.S.C. § 2254, finding it was another attempt to file a successive habeas action and to

avoid preconditions for filings imposed on plaintiff on February 16, 1989, that the motion

did not demonstrate extraordinary circumstances warranting relief under Fed. R. Civ. P.

60(b)(6), and that plaintiff had shown no supervening change in law subsequent to entry

of judgment which warranted review. The court also found plaintiff's motion for

appointment of counsel was untimely and denied it as moot.

On appeal, plaintiff contends (1) a change in law warrants relief from judgment;

(2) a change in law warrants the issuance of a certificate of appealability; (3) the waiver

rule as a procedural bar does not apply; (4) the state district court was without jurisdiction

to impose the 1970 judgment and sentence; (5) he was denied due process because the

court did not instruct on penetration; and (6) he was afforded ineffective assistance of

counsel at the trial and appellate levels.

Plaintiff was convicted of rape in Oklahoma in 1970 and was sentenced to 1,000

years in prison. He has filed numerous habeas petitions based on the argument that the

jury was not instructed on the element of penetration. At the time of the 1989 order

imposing preconditions for filings, plaintiff had filed at least twenty-two habeas actions,

including at least seven relating to the 1970 conviction. In 1992, plaintiff changed

strategies and filed a Rule 60(b) motion for relief from judgment, raising the same issues

as in his habeas actions. The district court denied the motion and we dismissed the appeal

in Phillips v. Kaiser, No. 92-6172 (1992). The present Rule 60(b) motion for relief from

judgment was filed July 31, 1995. The magistrate's findings were filed September 20,

1995. Plaintiff requested and received one extension of time to file objections and

-2- requested another extension, which was not addressed. He filed his objections after

expiration of the first extension.

Plaintiff's failure to timely object to the magistrate's findings precludes our review

of the district court's order. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.

1991). Where, as here, an objection is filed before any ruling on a timely request for

extension, a remand is generally required to assure failure to grant the extension was not

merely clerical error. United States v. Morales, 108 F.3d 1213, 1224 (10th Cir. 1997).

However, a remand is not necessary here as we conclude plaintiff's motion must be

dismissed in any event.

The Antiterrorist and Effective Death Penalty Act of 1996 deprived the district

court of jurisdiction to hear a second or successive habeas application without an order

from the court of appeals authorizing the district court to consider the application. See 28

U.S.C. § 2244(b)(3)(A). Statutes conferring or ousting jurisdiction generally apply to

actions pending at the time of the statute's enactment. Landgraf v. USI Film Products,

511 U.S. 244 (1994). Consequently, the district court lacked jurisdiction to rule on

plaintiff's motion (see Williams v. Stegall, 945 F. Supp. 145, 148 (E.D. Mich. 1996)), and

the court should have transferred the case to the court of appeals upon deciding to treat

the motion as a successive habeas application (see Coleman v. United States, 106 F.3d

339, 340-41 (10th Cir. 1997)). We therefore treat plaintiff's action before us as a motion

to authorize the district court to consider his successive habeas application. We may

grant such authorization only if we determine "the application makes a prima facie

showing that the application satisfies the requirements" of § 2244(b). See 28 U.S.C. §

2244(b)(3)(C).

-3- "A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. §

2244(b)(1). Plaintiff has asserted his present claim in prior habeas actions and he is not

entitled to again bring the claim. See In re Mills, 101 F.3d 1369 (11th Cir. 1996)

(applying § 2244(b)(1)). This limitation applies to Rule 60(b) motions filed subsequent to

denials of applications for writs of habeas corpus when treated as successive habeas

applications. See In re Medina, 109 F.3d 1556 (11th Cir. 1997); Felker v. Turpin, 101

F.3d 657 (11th Cir.), cert. denied 117 S. Ct. 451 (1996); McQueen v. Scroggy, 99 F.3d

1302, 1334 (6th Cir. 1996).

Plaintiff also contests the district court's order imposing a filing fee under the

Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915(b)(2), arguing the Act does not

apply to habeas actions. We agree and vacate the court's December 12, 1996, order

imposing a $105 filing fee. See United States v. Simmonds, 1997 WL 177560 **3-6

(10th Cir. 1997).

Plaintiff has filed with this court a motion to recall mandates and assume

jurisdiction over his prior appeals from district court orders denying habeas relief. We

find no merit to this motion and it is DENIED.

We DENY plaintiff's motion seeking authorization to file a successive habeas

application and REMAND to the district court with directions to DISMISS this action.

The district court's order imposing a filing fee is VACATED. The mandate shall issue

forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge

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