Opinion
CIV-22-436-D
06-09-2022
MICHAEL R. DUNN, Petitioner, v. SCOTT CROW, Director, et. al., Respondents.
REPORT AND RECOMMENDATION
GARRY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, filed this action for a writ of habeas corpus under 28 U.S.C. § 2241. 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.
Rule 4 is applied in the discretion of the undersigned to this 28 U.S.C. § 2241 habeas Petition. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
I. Background
Petitioner is currently incarcerated in the North Fork Correctional Center (“NFCC”) located in Sayre, Oklahoma. Doc. No. 1 at 1. Although Petitioner does not present the details of his underlying convictions in his Petition, the undersigned takes judicial notice of the fact that on April 2, 1996, Petitioner was convicted of three counts of Robbery with a Firearm After Former Conviction of a Felony (“AFCF”), Possession of a Firearm AFCF, and Unauthorized Use of a Vehicle AFCF. See Oklahoma State Courts Network, District Court of Oklahoma County, Case Nos. CF-1996-319, CF-1996-323, CF-1996-380, CF-1996-387, CF-1996-445.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF1996-319&cmid=58143, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1996-323&cmid=58147, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1996380&cmid=58204,https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1996-387&cmid=58211, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1996-445&cmid=58269.
By this action, Petitioner challenges neither his convictions nor his sentences. Instead, Petitioner asserts that he should be earning credits at Level II instead of Level III, and he may also intend to assert that he is not currently earning any credits and/or that his earned credits are not being applied to his sentence. Doc. No. 1 at 78. Petitioner further contends that he is not being afforded the parole opportunities to which he is entitled. Id. at 7. Finally, he argues that as he has served 27 years of his 45 year sentences, he has fulfilled the intent of the state court's intent in sentencing him and should, therefore, be released. Id. at 9.
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 Report and Recommendation, and he has an opportunity to present his position by filing an objection to the 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. 93-2229, 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
“A threshold question that must be addressed in every habeas case is that of exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see Woodford v. Ngo, 548 U.S. 81, 92 (2006); Rose v. Lundy, 455 U.S. 509 (1982); see also Chambers v. Kansas, 264 Fed.Appx. 750, 751 (10th Cir. 2008) (“Absent exceptional circumstances, a federal court will not entertain habeas claims until the petitioner has exhausted available state court remedies.” (citing Picard v. Connor, 404 U.S. 270, 275 (1971)).
Although 28 U.S.C. § 2241 does not contain an explicit exhaustion requirement, exhaustion of available state remedies is required for petitions brought under § 2241. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); see Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir. 2005) (noting habeas petitioner seeking relief under 28 U.S.C. § 2241 is required to first exhaust available state remedies, absent showing of futility); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (“A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254.”). The exhaustion requirement is satisfied when the petitioner “us[es] all steps that the [applicable entity] holds out ” Woodford, 548 U.S. at 90. “A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza, 596 F.3d at 1203.
To the extent Petitioner contends he is entitled to release, Oklahoma affords state prisoners the ability to bring a writ of habeas corpus to seek release from unconstitutional confinement. Okla. Stat. tit. 12, § 1331; State v. Powell, 237 P.3d 779, 780 (Okla. 2010); see also Chambers, 264 Fed.Appx. at 750-52 (denying a certificate of appealability for a state prisoner's federal habeas action wherein the petitioner argued that Oklahoma Department of Corrections had not applied credits to his sentence to which he was entitled, because he had not first filed a habeas action in state court).
Additionally, Oklahoma law provides that an application for a writ of mandamus is the appropriate remedy for the alleged violation of an inmate's right to sentence credits by the Department of Corrections.See Baird v. Ward, No. 97-5229, 1998 WL 440471, at *2 (10th Cir. July 17, 1998) (“Oklahoma's writ of mandamus remedy is available to correct violations of a prisoner's minimum due process rights.”); see also Johnson v. Dep't of Corrs., 916 P.2d 264, 265 (Okla. Crim. App. 1996) (noting a “writ of mandamus is appropriate against prison officials when a prisoner's minimum due process rights [with regard to sentence credits] have been violated”); cf., Tomlin v. State of Okla., 814 P.2d 154, 155 (Okla. Crim. App. 1991) (finding a mandamus action appropriate for an inmate's claim that he was being denied emergency time credits under the former Oklahoma Prison Overcrowding Emergency Powers Act). Mandamus relief is available if a petitioner can show (1) a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. Canady v. Reynolds, 880 P.2d 391, 396 (Okla. Crim. App. 1994) (citing OCCA Rule 10.6).
Oklahoma law authorizes state courts to issue writs of mandamus as follows:
The writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term, or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion.Okla. Stat. tit. 12, § 1451.
In his Petition, Petitioner references only attempting to raise the issues raised in his Petition through NFCC's grievance procedures. Doc. No. 1 at 2-3. More significantly, a review of the applicable docket in Petitioner's criminal proceedings reveals that he has not filed requests for writs of habeas corpus or mandamus regarding the issues raised herein. Moreover, a search of Petitioner's name in the dockets for Oklahoma County and the Oklahoma Court of Criminal Appeals shows he has not filed any individual habeas, mandamus, or similar actions with either of those courts.
As Petitioner has not provided the state courts an opportunity to address his claims, this Court may not consider the same. O'Sullivan, 526 U.S. at 842. Accordingly, Petitioner's action should be dismissed without prejudice based on his failure to exhaust state court remedies.
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed without prejudice based on Petitioner's failure to exhaust state court remedies. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by June 29th, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, 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 Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.