United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on the Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus filed by
Petitioner James Thor Kirk on October 19, 2017. (Doc. 1)
(“Petition”). Kirk's filing may be construed
as alleging claims under both 28 U.S.C. § 2254 and 42
U.S.C. § 1983. To the extent the Petition is construed
as asserting habeas corpus claims under § 2254, it is a
second or successive § 2254 petition filed without
authorization and must be dismissed. To the extent the Court
construes the Petition as alleging § 1983 civil rights
claims, this is the sixth time Kirk has brought the same
claims, and they are barred by the doctrine of claim
preclusion. The Court will dismiss Kirk's Petition.
AND PROCEDURAL BACKGROUND
Kirk is an inmate in the custody of the New Mexico
Corrections Department. (Doc. 1 at 1). He alleges that in
October, 2010, he was involved in a high-speed chase that
ended in a car crash. (Doc. 1 at 1-2). Kirk claims (1) that
the New Mexico State Police violated standards of operation
in relation to the chase, a pit maneuver, and the crash; (2)
that the University of New Mexico Hospital violated medical
emergency protocol and violated Kirk's right to adequate
medical care by failing to provide appropriate attention and
treatment following the crash; and (3) that Valencia County
violated his rights to a speedy trial and legal
representation from 10-27-2010 to 03-04-2014. (Doc. 1 at
Kirk has prosecuted five prior actions in this court arising
out of the same factual allegations, CV 12-01157; CV 14-0891;
CV 14-01027; CV 15-00736; and CV 16-00270. Kirk v.
University of New Mexico Hospital, No. CV 12-01157
JP/WPL was filed November 8, 2012 (CV 12-01157 JAP/WPL, Doc.
1). It is an action under 42 U.S.C. § 1983 seeking
monetary damages for physical injury and pain and suffering
arising out of injuries Plaintiff allegedly sustained during
the high speed chase with law enforcement officers on October
26, 2010. (CV 12-01157 JAP/WPL, Doc. 1). All identified
Defendants in no. CV 12-01157 were dismissed from the case.
(CV 12-01157 JAP/WPL, Doc. 38, 162, 211, 216). That ruling
was affirmed by the United States Court of Appeals for the
Tenth Circuit on August 17, 2016. See Kirk v.
Flores, No. CV 15-02219 (10th Cir. August 17,
v. Valencia County Detention Center, No. CV 14-00891
JCH/SCY was removed to this Court on October 3, 2014. (CV
14-00891 JCH/SCY, Doc. 1). It is a civil rights and New
Mexico Tort Claims Act case arising out of the same October
26, 2010 incident and involved some of the same defendants as
those in this case. (CV 14-00891 JCH/SCY, Doc. 1-1). No. CV
14-00891 was dismissed by Memorandum Opinion and Order on
October 17, 2014, based on the doctrine of claim splitting.
(CV 14-00891 JCH/SCY, Doc. 9).
Kirk v. New Mexico State Police, No. CV 14-01027
MV/KK was removed from state court on November 12, 2014. (No.
CV 14-01027 MV/KK, Doc. 2). Noting that, although not
identical, the claims involve the same parties and claimed
injury as the two prior cases, the Court dismissed CV
14-01027 MV/KK on the grounds of claim splitting. (No. CV
14-01027 MV/KK, Doc. 15).
v. Flores, No. CV 15-00736 JCH/LF was removed from state
court on August 21, 2015. (CV 15-736 JCH/LF, Doc. 1). The
complaint alleges civil rights and tort claims for damages
against individual defendants arising out of the October 26,
2010 high speed chase. (CV 15-00736 JCH/LF, Doc. 1-2).
Finding an identity of parties and claims, the Court
dismissed Kirk v. Flores on grounds of claim
splitting, claim preclusion, and the bar of the statute of
limitations. (CV 15-00736 JCH/LF, Doc. 8 and 9).
in Kirk v. Flores, et al., No. CV 16-00270 JB/SCY,
Kirk claimed (1) that defendant failed to administer first
aid to Kirk at the scene of the accident following the chase
and violated Kirk's Constitutional right to adequate
medical care; (2) that a nurse practitioner at the Valencia
County Detention Center, where Kirk was taken after being
released from the hospital, violated Kirk's right to
adequate medical care by failing to provide appropriate
attention and treatment to a head injury, open wounds, and
several broken bones; and (3) that John Does 1-3 violated
Kirk's Constitutional right to be free from unreasonable
searches. (CV 16-00270 JB/SCY, Doc. 1 at 5-7). The Court
determined that the Complaint failed to state a claim for
relief due to the bar of the doctrine of claim preclusion and
the applicable statute of limitations. The Court dismissed
Kirk's Complaint with prejudice. (CV 16-000270 JB/SCY,
Doc. 7, 8).
HABEAS CORPUS CLAIMS MUST BE DISMISSED AS SECOND OR
SUCCESSIVE UNDER § 2254
Petition expressly states that it is brought “under 28
U.S.C. § 2254 for Writ of Habeas Corpus.” (Doc. 1
at 1). Kirk is in New Mexico state custody and challenges his
conviction in New Mexico state No. D-1314-CR-2010-00338.
(Doc. 1 at 1-2). The Court construes his allegations as an
application for a writ of habeas corpus under 28 U.S.C.
previous § 2254 proceeding, James Thor Kirk v. Gregg
Marcantel, No. CV 15-00614 MV/KBM, Petitioner attacked
the same state court criminal conviction,
D-1314-CR-2010-00338, that is the subject of this proceeding,
raising issues of Sixth Amendment right to a speedy trial,
Fourth Amendment unreasonable search and seizure, Fourteenth
Amendment due process, and cruel and unusual
punishment/inadequate medical care. See CV 15-00614
Doc. 1, 3; See, also, Duhart v. Carlson, 469 F.2d
471, 47310th Cir. 1972) (noting that the court may
take judicial notice of its own records.) The Court denied a
writ of habeas corpus, concluding that all of Kirk's
claims lacked merit. (CV 15-00614 Doc. 22 at 3-9; Doc. 25).
The Court dismissed the petition with prejudice. (CV 15-00614
Doc. 25, 26).
now brings a new, second or successive, § 2254 petition.
(Doc. 1). He alleges:
“James Thor Kirk respectfully challenge the final Order
and Judgment pursuant to 28 U.S.C. § 2254 and 10 R.C.L.
1012. Bryan v. Chicago, R.I.&P.R. Co. (1884) 63 Iowa,
464, 19N.W. 295. Preponderance of evidence; Grounds being:
1. Necessity of instruction, rights of legal representation
claim; sentenced in case D-1314-CR-2010-00338 without legal
representation, after being detained in county jail Valencia
County from 10-27-2010-03-04-2014, in violation of ...