Daniels v. Warden

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DAVID LEE DANIELS II, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-25-1085-R
)
WARDEN, JOSEPH HARP 	)
CORRECTIONAL CENTER, 	)
)
Respondent. 	)
ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Shon T. Erwin [Doc. No. 7]. Petitioner David Lee
Daniels II, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 challenging his convictions for Burglary in the First Degree
and Concealing Stolen Property [Doc. No. 1]. Judge Erwin recommends dismissal of the
Petition. Petitioner filed an Objection [Doc. No. 8] and the Court must therefore make a de
novo determination of the portions of the Report to which a specific objection is made. 28
U.S.C. § 636(b)(1).
LEGAL STANDARD
When a magistrate judge has issued a report and recommendation on a dispositive
motion or prisoner petition, parties may object to the findings before the district court
reviews them. See FED . R. CIV . P. 72(b). “‘[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de
novo review by the district court or for appellate review.’” Hall v. Miller, No. CIV-25-
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 1 of 8

2
00518-JD, 2025 WL 2630738, at *1 (W.D. Okla. Sept. 12, 2025) (quoting United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996)). “A specific objection ‘enables the
district judge to focus attention on those issues—factual and legal—that are at the heart of
the parties’ dispute.’” Id. (quoting 2121 E. 30th St., 73 F.3d at 1059). “A judge of the court
shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). A
petitioner waives further review of a Report and Recommendation where he fails to
specifically object to it. 2121 E. 30th St., 73 F.3d at 1060. Because Petitioner proceeds pro
se, the Court will construe his objections liberally but cannot serve as his advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted).
DISCUSSION
Judge Erwin recommends dismissal of the Petition for lack of jurisdiction pursuant
to 28 U.S.C. § 2244(b)(3)(A), which provides: “Before a second or successive application
[for habeas corpus] 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.” This
is 	Petitioner’s 	third 	habeas 	petition 	challenging 	the 	same 	underlying 	state 	court
convictions. His first petition was denied on the merits, the second dismissed as untimely.
See Daniels v. Dowling, Case No. 19-374-R (W.D. Okla. Apr. 25, 2019); Daniels v.
Harding, Case No. 24-270-R (W.D. Okla. Mar. 13, 2024). Judge Erwin recommends that
because Petitioner has not sought proper authorization from the Tenth Circuit, his Petition
should be denied because it is second or successive.
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 2 of 8

3
Petitioner objects, arguing his Petition is not second or successive because (1) it is
the first challenge to a new judgment and (2) his claims were not ripe at the time of his
prior habeas petitions. See Magwood v. Patterson, 561 U.S. 320, 331 (2010) (a prisoner’s
later resentencing “led to a new judgment, and his first application challenging that new
judgment cannot be ‘second or successive’ such that § 2244(b) would apply”); Brewer v.
Drummond, 751 F. Supp. 3d. 1246 (N.D. Okla. 2024) (habeas petition was not successive
where facts underlying the claims did not exist before the conclusion of the prior habeas
petition).
Petitioner argues that the denial of his application for resentencing pursuant to the
Oklahoma Survivors Act constitutes a new judgment and thus his Petition challenging that
denial cannot be second or successive. The Oklahoma Survivors Act establishes sentence
mitigations for qualifying prisoners that are survivors of domestic violence and other abuse.
O KLA . STAT . tit. 22, § 1090.1 et seq.
Many states, like Oklahoma, provide post-conviction remedies even though
they’re not constitutionally required. See Pennsylvania v. Finley, 481 U.S.
551, 556-57 (1987) (concluding that states have no constitutional obligation
to provide post-conviction relief). Given the availability of these remedies, a
defendant might seek habeas relief based on a state court’s errors in the post-
conviction proceedings. But habeas relief is unavailable when the error
involves only the post-conviction procedures rather than the imposition of
the conviction or sentence. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th
Cir. 1998) (“[B]ecause the constitutional error [the petitioner] raises focuses
only on the State’s post-conviction remedy and not the judgment which
provides the basis for his incarceration, it states no cognizable federal habeas
claim.”).
Graham v. White, 101 F.4th 1199, 1205 (10th Cir. 2024).
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 3 of 8

4
In Parker v. Tensley, No. CIV-25-767-D, 2025 WL 3443227 (W.D. Okla. Dec. 1,
2025), the petitioner sought a Writ of Habeas Corpus, arguing that the Oklahoma district
court wrongfully denied his application for resentencing pursuant to the OSA. The
Magistrate Judge found and District Judge agreed that petitioner was attacking a state post-
conviction procedure, which was an improper basis for a § 2254 petition. Id. at *2.
Here, Petitioner is also challenging Oklahoma’s post-conviction procedure under
the OSA, which is not a cognizable basis for a § 2254 petition. The OSA’s denial of his
application for resentencing is therefore not a new judgment and does not make his Petition
non-successive.
Petitioner next argues “he does not need a new judgment to show that the Petition
is not a second or successive habeas petition.” Brewer, 751 F. Supp. 3d at 1256. Courts
have found that claims unripe at the time of a prisoner’s first habeas petition are not
considered second or successive if, after becoming ripe, they are later asserted in another
habeas petition. See id. at 1256-59; Panetti v. Quarterman, 551 U.S. 930 (2007); In re
Weathersby, 717 F.3d 1108 (10th Cir. 2013). Petitioner argues his Petition is not second or
successive because his current claims could not have ripened until 2024-2025, when (1)
the Oklahoma Survivors Act was enacted and (2) neuroscience research from Virginia
Tech was published showing that offenders with histories of childhood sexual assault lack
decision-making capacity.
The Court has already determined that allegations based on the denial of Petitioner’s
OSA application are not cognizable as habeas claims. It will therefore focus its analysis on
this point upon Petitioner’s arguments regarding the Virginia Tech research.
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 4 of 8

5
Petitioner argues that the newly published Virginia Tech research supplies a newly
discovered factual predicate for his ineffective assistance of trial counsel claim (Ground
One), saving it from dismissal as second or successive. To state a claim for ineffective
assistance of counsel, Petitioner must show both that his “counsel’s performance was
deficient” and that “the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). The Virginia Tech research Petitioner references
was published in 2024-2025, and Petitioner’s trial and appeals took place long before that
publication. Petitioner’s counsel cannot have been deficient for not presenting evidence of
a study that did not exist at the time. Petitioner has failed to allege a new factual predicate
for his ineffective assistance of counsel claim and his Petition is therefore second or
successive with respect to that claim as well.
Petitioner also appears to argue that the Virginia Tech research forms a new factual
predicate for his other claims. The Court can hardly characterize the Virginia Tech
publications as a newly discovered factual predicate. The argument that Petitioner’s
childhood sexual abuse affected his decision-making capacity such that his sentence should
be mitigated has long been available to Petitioner. Petitioner himself cites other studies,
published long before the Virginia Tech research, that indicate childhood sexual abuse
affects brain development. Had he exercised due diligence, Petitioner could have asserted
these arguments long ago. The Petition is therefore second or successive with respect to
his remaining claims.
Because Petitioner has failed to show any of his claims are not second or successive,
the Court lacks jurisdiction over his Petition. 28 U.S.C. § 2244(b)(3)(A).
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 5 of 8

6
Petitioner argues that if the Court lacks jurisdiction over his Petition, it should
transfer the Petition to the Tenth Circuit rather than dismissing it. See 28 U.S.C. § 1631
(“Whenever a civil action is filed in a court . . . and that court finds that there is a want of
jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal
to any other such court . . . in which the action or appeal could have been brought at the
time it was filed.”).
Factors considered in deciding whether a transfer is in the interest of justice
include 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.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (citation omitted).
“Where there is no risk that a meritorious successive claim will be lost absent a
§ 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the
interest of justice to transfer the matter to [the Tenth Circuit] for authorization.” Id. at 1252.
Petitioner’s claims regarding the denial of his OSA application are not cognizable
under habeas and are therefore meritless. Dismissal of these claims (Grounds Two, Three,
and Four of the Petition) is therefore warranted.
If Petitioner’s remaining claims lack merit, the Court may conclude it is not in the
interest of justice to transfer the Petition to the Tenth Circuit.
A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless—
(A) 	the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable, or
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 6 of 8

7
(B)
(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2244(b)(2).
Petitioner does not argue that his claims rely on a new rule of Constitutional law.
Instead, he posits that the recent Virginia Tech research publications form a new factual
predicate for his claims. This Court has already found that such research does not qualify
as a factual predicate that could not have been discovered previously through due diligence.
All of Petitioner’s claims are therefore subject to dismissal pursuant to § 2244(b). Because
there is no risk that a meritorious successive claim will be lost through dismissal, this Court
finds it is not in the interest of justice to transfer the matter to the Tenth Circuit.
Accordingly, the Report and Recommendation is ADOPTED in its entirety. This
matter is DISMISSED WITHOUT PREJUDICE.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Proceedings, the Court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant for habeas relief. A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 7 of 8

8
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “When the district court denies a
habeas 	petition 	on 	procedural 	grounds 	without 	reaching 	the 	prisoner's 	underlying
constitutional claim, a COA should issue when the prisoner shows, at least, 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 v. McDaniel, 529 U.S. 473, 484 (2000).
Upon consideration, the Court finds this standard is not met in this case and a COA is
therefore denied.
IT IS SO ORDERED this 31st day of December, 2025.
Case 5:25-cv-01085-R Document 9 Filed 12/31/25 Page 8 of 8