Opinion
CIV-23-659-SLP
09-13-2023
JAMELE R. BRUNER, Petitioner, v. THE STATE OF OKLAHOMA, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, filed an action for a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed without prejudice.
I. Background
On February 4, 2021, Petitioner entered a plea of guilty to Using Technology to Instigate Sexual Communication with a Minor and the state district court sentenced him to seven years imprisonment, all suspended. Doc. No. 1 (“Petition”) at 1; see also Oklahoma State Courts Network, State v. Bruner, Oklahoma County District Court, Case Nos. CF-2019-3005.Petitioner did not move to withdraw his plea or file a direct appeal. Id. On March 15, 2022, the State filed a motion to revoke suspended sentence. Oklahoma State Courts Network, State v. Bruner, Oklahoma County District Court, Case Nos. CF-2019-3005, supra. On March 23, 2022, Petitioner filed an application for post-conviction relief seeking to file an appeal out of time. Petition at 2; Oklahoma State Courts Network, State v. Bruner, Oklahoma County District Court, Case Nos. CF-2019-3005, supra. On April 14, 2022, the state court dismissed the same. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?ct=Oklahoma&number=CF -2019-3005.
On August 16, 2022, Petitioner entered a plea of guilty to the motion to revoke suspended sentence. Oklahoma State Courts Network, State v. Bruner, Oklahoma County District Court, Case Nos. CF-2019-3005, supra. The state court revoked three years of Petitioner's suspended sentence with credit for time served. Id. On August 17, 2022 and August 20, 2022, Petitioner filed a second application for post-conviction relief. Id. The state court dismissed the same on November 15, 2022. Id. On January 19, 2023, Petitioner filed a third application for post-conviction relief, which the state court dismissed on May 16, 2023. Id.
On June 5, 2023, Petitioner filed a fourth application for post-conviction relief, and the state court dismissed it on July 11, 2023. Id. Petitioner appealed said dismissal to the Oklahoma Court of Criminal Appeals (“OCCA”). Oklahoma State Courts Network, Bruner v. State, Oklahoma Court of Criminal Appeals, Case No. PC-2023-627.The appeal remains pending. Id. Petitioner filed the current action on July 27, 2023, raising four grounds for relief claiming actual innocence based on allegedly newly discovered evidence. Petition at 4-5.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC 2023-627&cmid=135828 3
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Supplemental Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Supplemental Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 932229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
III. Analysis
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; Middlesex Cty. Ethics Comm 'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). “[T]he district court must abstain once the conditions are met, absent extraordinary circumstances.” Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Com., 240 F.3d 871, 875 (10th Cir. 2001) (quotations omitted).
Additionally, “Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (citations omitted). Exceptions exist for “bad faith or harassment,” prosecution under a statute that is “flagrantly and patently” unconstitutional, or other “extraordinary circumstances” involving irreparable injury. Younger, 401 U.S. at 50-54 (quotations omitted); Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). However, Petitioner has a “heavy burden” of establishing an exception to the Younger abstention doctrine. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (quotations omitted).
Based on the foregoing, the undersigned recommends the Court abstain in this case. Petitioner alleges, and the OCCA's docket confirms, that his appeal from the state court's dismissal of his fourth application for post-conviction relief is still pending. Petition at 5; Oklahoma State Courts Network, Bruner v. State, Oklahoma Court of Criminal Appeals, Case Nos. PC-2023-627, supra. Thus, Petitioner's criminal case is ongoing. See Carbajal v. Hotsenpiller, 524 Fed.Appx. 425, 428 (10th Cir. 2013) (holding that the plaintiff's pending application for postconviction relief satisfied Younger's first condition that state criminal proceedings be “ongoing”).
While Petitioner acknowledges that his appeal from the dismissal of his application for post-conviction relief is pending, see Petition at 5, he does not allege the state court forum is inadequate. See Carbajal, 524 Fed.Appx. at 428 (finding that the plaintiff “has not demonstrated that the state courts provide an inadequate forum; to the extent the trial court has failed to rule on his motion, [the plaintiff] should have sought mandamus relief from the state courts rather than requesting federal court intervention”). Further, “Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings in the state's courts.” Green v. Whetsel, 166 Fed.Appx. 375, 376 (10th Cir. 2006) (quotations omitted). Finally, Petitioner does not allege any bad faith, harassment, or other extraordinary circumstances.
In sum, Younger requires the Court abstain while Petitioner's appeal is pending in state court, and Petitioner has not met the heavy burden to show otherwise. See Carbajal, 524 Fed.Appx. at 428-29 (affirming the district court's dismissal under Younger where the plaintiff's claims were the subject of a stillpending application for post-conviction relief in state court).
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed without prejudice pursuant to the Younger abstention doctrine. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by October 3, 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 13th day of September, 2023.