Opinion
Case No. CIV-20-800-D
12-22-2020
ERNEST DRAPER, Petitioner, v. LUKE PETTIGREW, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Docs. 1, 8. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Respondent moved to dismiss, arguing the petition is time-barred and Petitioner did not exhaust state court remedies. Docs. 13-14. Petitioner did not respond. For the reasons below, the undersigned recommends granting Respondent's Motion to Dismiss.
Petitioner did not sign the Petition on filing. Doc. 1, at 16. The undersigned ordered Petitioner to cure this and other deficiencies. Doc. 5. Petitioner submitted an executed signature page of the Petition, Doc. 8, which the undersigned incorporates into the originally filed Petition.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Procedural history.
A. State court
On November 16, 2012, Petitioner pleaded guilty to four counts of lewd acts with a child in Oklahoma County, Case No. CF-2012-5514. Doc. 14, Att. 3, at 4-15. The trial court sentenced Petitioner to twenty-five years' imprisonment on each count, to be served concurrently with each other. Id. at 11-15. Petitioner did not file a direct appeal.
Petitioner contends he appealed his Oklahoma County conviction in Cleveland County District Court, where he alleged ineffective assistance of counsel and jurisdiction. Doc. 1, at 3. Although Petitioner does not remember the case number, a review of state court records reveals he filed two actions in Cleveland County. One action, Cleveland County Case No. CV-2019-954, was filed on April 22, 2019, and dismissed without prejudice at the request of Petitioner on July 8, 2019. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CV-2019-954&cmid=2320323 (last visited Dec. 15, 2020). On May 29, 2019, Petitioner filed a Petition for Writ of Habeas Corpus, Cleveland County Case No. WH-2019-3, which is still pending. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=WH-2019-3&cmid=2323365 (last visited Dec. 15, 2020). In his most-recent filing in that action, Petitioner asserted "states have no criminal jurisdiction in Indian Country." Mot. to Amend His Pleadings, WH-2019-3 (Cleveland Cty. June 7, 2019). Presumably because the court had not issued a ruling, Petitioner filed a Writ of Mandamus with the Oklahoma Court of Criminal Appeals "to force the lower court to decide the fate of [his] habeas corpus." Draper v. Oklahoma, MA-2019-897 (Okla. Crim. Dec. 9, 2019). The OCCA declined jurisdiction because Petitioner did not serve notice on the adverse party. Doc. 14, Att. 5, at 3.
Respondent also notes that Petitioner filed an Application for Post-Conviction Relief in Oklahoma County on December 5, 2019. Doc. 14, Att. 2. There, Petitioner challenged the conditions of his confinement—allegations unrelated to those made in this habeas action. See id. The state court denied that application on January 10, 2020 because Petitioner did not "properly commence post-conviction proceedings" and did not state a cognizable post-conviction claim. Doc. 14, Att. 4, at 2. Court records do not reflect Petitioner filed an appeal.
After Respondent filed his motion, Petitioner filed a Second Application for Post-Conviction Relief, or in the Alternative, Application for Appeal out of Time on October 30, 2020. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2012-5514&cmid=2910853 (last visited Dec. 15, 2020). This application was dismissed on November 6, 2020. See id. Petitioner has not appealed.
B. Federal court.
Petitioner previously filed a § 2254 habeas action in this Court, in which he alleged Oklahoma lacked jurisdiction to prosecute and house him as a prisoner because the crimes occurred in Indian Country, his counsel was ineffective for failing to argue that the state lacked jurisdiction, and that the state prisons were overcrowded. Draper v. Oklahoma, No. CIV-19-376-D, 2019 WL 2453689, at *2-4 (W.D. Okla. May 23, 2019), adopted, 2019 WL 2453671 (June 12, 2019). This Court dismissed Petitioner's jurisdictional claims without prejudice for failure to exhaust state remedies and found Petitioner could not properly raise the overcrowding claim in a habeas action. Id. at 4-9. The Tenth Circuit dismissed Petitioner's appeal for lack of prosecution. Draper v. Oklahoma, No. 19-6091, Order (10th Cir. July 31, 2019).
Petitioner was a named petitioner in two other § 2254 actions filed on behalf of multiple petitioners. In the first case, Petitioner was removed from the action after this Court directed another petitioner to re-file an amended petition because class-action relief is unavailable under § 2254. Morgan v. Oklahoma, No. CIV-19-171-F, Doc. 4 (W.D. Okla. Feb. 26, 2019); id. at Doc. 5 (W.D. Okla. Mar. 6, 2019). In the second filing, Petitioner was dismissed because the petition lacked sufficient information on his conviction. Morgan v. Oklahoma, No. CIV-19-929-R, Doc. 14, at 6, n.3 (W.D. Okla. Dec. 20, 2019) (dismissing claims of all-but-one named petitioner because "neither the Petition nor the Motion to Amend includes any information regarding the underlying convictions of these individuals beyond vague assertions that their crimes occurred on Indian land."), adopted, Doc. 16 (W.D. Okla. Jan. 24, 2020).
Shortly after filing this action, Petitioner sought authorization from the Tenth Circuit to file a second-or-successive habeas petition. In re Draper, No. 20-6122, Doc. 1 (10th Cir. Aug. 18, 2020). The Tenth Circuit denied authorization. Id. at Doc. 2 (10th Cir. Sept. 9, 2020). But because Petitioner's first § 2254 action was dismissed for failure to exhaust state remedies, he was not required to obtain authorization prior to filing this action. See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) ("A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition."); see also Burton v. Stewart, 549 U.S. 147, 155, (2007) ("[W]hen a 'first' petition is dismissed because it contains unexhausted claims, a prisoner returning later with a fully exhausted petition would not confront the 'second or successive' bar."). Because this is not a second-or-successive petition, 28 U.S.C. § 2244(b)'s jurisdictional bar does not apply.
II. Petitioner's claims and Respondent's motions.
Petitioner reasserts his jurisdictional and ineffective-assistance-of-counsel claims and adds a double jeopardy claim here. In Ground One, Petitioner contends the State of Oklahoma lacked jurisdiction to try him because he is a member of the Choctaw Nation and his crimes occurred within Indian Country. Doc. 1, at 6-7. In Ground Two, Petitioner asserts his counsel was ineffective because they did not argue the jurisdictional issue Petitioner raised in Ground One or the Fifth Amendment issue raised in Ground Three. Doc. 1, at 9. In Ground Three, Petitioner asserts he cannot be prosecuted or sentenced twice for substantially the same offense because it violates the Fifth Amendment's prohibition on double jeopardy. Doc. 1, at 10. Petitioner seeks credit for all time served and immediate release from prison, expungement of all arrest records, and immunity from further prosecution. Doc. 1, at 16.
In his motion to dismiss, Respondent argues Petitioner did not exhaust state remedies and the petition is untimely. Doc. 14. Petitioner did not respond within the time allowed by the local court rules. LCvR 7.1(g) ("Each party opposing a motion shall file a response within 21 days after the date the motion was filed. Any motion that is not opposed within 21 days may, in the discretion of the court, be deemed confessed.").
III. Analysis.
A. Exhaustion requirement.
"A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition." Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006); see also 28 U.S.C. § 2254(b)(1)(A). "Exhaustion requires that the claim be 'fairly presented' to the state court, which 'means that the petitioner has raised the 'substance' of the federal claim in state court.'" Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland, 459 F.3d at 1011); see also Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) ("The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack."). This means "a federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
More specifically, AEDPA prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies. In this regard, § 2254(b)(1) states, "An application for a writ of habeas corpus . . . shall not be granted unless it appears that[ ] . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1). Section 2254(c) elaborates that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State[ ] . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Id. § 2254(c) (emphasis added).Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
B. Petitioner did not exhaust his state court remedies.
The post-conviction actions Petitioner filed in Cleveland County and the OCCA do not satisfy the exhaustion requirement. Doc. 1, at 3. The first action was dismissed at Petitioner's request before the court had the opportunity to review the merits. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CV-2019-954&cmid=2320323 (last visited Dec. 15, 2020). The second action is still pending. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=WH-2019-3&cmid=2323365 (last visited Dec. 15, 2020). While Petitioner filed a related case at the OCCA, he did not seek a merits-based review of his constitutional claims. Instead, he sought a writ of mandamus to order the Cleveland County District Court to make a ruling in his case. Draper v. Oklahoma, MA-2019-897 (Okla. Crim. Dec. 9, 2019). Thus, Petitioner did not exhaust his state remedies because he did not provide the OCCA "with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson, 459 U.S. at 6 (quotation omitted).
Respondent argues "Petitioner's attempt to challenge his Oklahoma County conviction in Cleveland County was improper" because "collateral challenges to the judgment and sentence are required to be brought in the county that was the situs of the judgment and sentence in a post-conviction application." Doc. 14, at 12, n.5. This Court does not address this contention because even if Petitioner filed his post-conviction action in the proper county, he did not fairly present his claims to the OCCA.
Liberally construing the Petition, Petitioner contends he did not have to exhaust his state remedies because Oklahoma lacks jurisdiction. Doc. 1, at 13 (citing McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)). But, as Petitioner is aware, the Section 2254 exhaustion requirement contains no exception for jurisdictional claims. See Draper v. Oklahoma, No. CIV-19-376-D, 2019 WL 2453671, at *1 (W.D. Okla. June 12, 2019) (rejecting Petitioner's "position that a § 2254 petition raising a jurisdictional issue is exempt from the exhaustion requirement"); see also Blanket v. Watkins, 44 F. App'x 350, 351 (10th Cir. 2002) ("[The petitioner's] proffered reason for not exhausting—that the State . . . lacks jurisdiction over these claims—lacks merit."); Morgan v. Bureau of Indian Affs., No. CIV-18-290-G, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (noting 2254's exhaustion requirement "does not contain an exception" for a jurisdictional Murphy claim); Billings v. Bureau of Indian Affs., No. CIV-18-397-F, 2018 WL 2189772, at *2 (W.D. Okla. Apr. 26, 2018) ("[T]he Court should reject Petitioner's argument that he does not need to exhaust his state-jurisdiction question in state court, and should dismiss the Petition without prejudice based on nonexhaustion."), adopted, 2018 WL 2187056 (W.D. Okla. May 11, 2018). The Supreme Court's recent decision in McGirt does not alter this analysis. See Moncada v. Pettigrew, No. CIV-20-779-C, 2020 WL 6588728, at *2 (W.D. Okla. Oct. 22, 2020) (recommending dismissal where Petitioner's habeas claim relied on McGirt because he did "not provide[] the state courts an opportunity to address his claims"), adopted, 2020 WL 6587054 (W.D. Okla. Nov. 10, 2020).
And, Oklahoma's post-conviction procedures provide a path for Petitioner to raise a jurisdictional challenge. See Okla. Stat. tit. 22, § 1080(b). Thus, Petitioner must exhaust his state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.
Because this Court should dismiss the petition for failure to exhaust, the undersigned does not reach Respondent's statute-of-limitations argument.
IV. Recommended ruling and notice of right to object.
For the reasons discussed above, the undersigned recommends granting Respondent's Motion to Dismiss, Doc. 13, and dismissing the Petition without prejudice for failure to exhaust state remedies.
The undersigned advises the parties of their right to object to this report and recommendation by January 12, 2021, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 22nd day of December, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE