Opinion
CIV-21-592-PRW
01-21-2022
ANTONIO DEWAYNE HOOKS, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Antonio Dewayne Hooks (Petitioner), a state prisoner appearing pro se, seeks habeas relief under 28 U.S.C. § 2254. Doc. 1. United States District Judge Patrick R. Wyrick has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Because Petitioner's claims challenge the revocation of a prior suspended sentence, rather than the validity of Petitioner's underlying conviction, the Court will construe the petition under 28 U.S.C. § 2241 rather than § 2254. See Leatherwood v. Albaugh, 861 F.3d 1034, 1041 (10th Cir. 2017) (“A state prisoner's challenge to the revocation of a suspended sentence is properly brought under § 2241.”). For the following reasons, the undersigned recommends the petition be dismissed as an abuse of the writ. See 28 U.S.C. § 2244(a).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Petitioner's sentence revocation and subsequent habeas challenges.
Petitioner pleaded guilty to attempted robbery with a dangerous weapon in the District Court of Oklahoma County, Oklahoma. Petitioner was sentenced to twenty years' imprisonment, with all but the first seven years suspended. Doc. 18, Ex. 1, at 4. On January 27, 2017, the state applied to revoke Petitioner's suspended sentence, alleging the commission of new crimes. Id. After a hearing, the district court revoked Petitioner's suspended sentence in full. Id. at 4-5.
State v. Hooks, No. CF-2010-7267, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2010-7267&cmid=2672560 (last visited Jan. 12, 2022). The undersigned takes judicial notice of the docket report in Petitioner's state-court proceeding. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (“exercising discretion ‘to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand'”) (quoting United States v. Ahidley, 486 F.3d 1204, 1192 n.5 (10th Cir. 2007)).
Petitioner first challenged the state court's revocation in a habeas petition filed on January 3, 2018. Hooks v. Crow, No. CIV-19-8-STE, 2019 WL 3254798 (W.D. Okla. July, 19, 2019), certificate of appealability denied, No. 19-6125, 804 F. App'x. 966 (March 6, 2020) (Hooks I); see also Doc. 18, Ex. 4 (petition). In the petition and supporting documents, Petitioner raised five constitutional and state-law claims relating to his sentence and its revocation, including a due process claim under Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), and a claim for ineffective assistance of counsel. See Doc. 18, Ex. 5, at 2, 4. Because this petition was “mixed, ” consisting of both exhausted and unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 510 (1982), the Court gave Petitioner the option to either delete any unexhausted claims and proceed only on the exhausted Gagnon claim, or dismiss the entire petition without prejudice to allow for the exhaustion of his state-court remedies. Doc. 18, Ex. 5. Petitioner opted to proceed only with the exhausted Gagnon claim, id., Ex. 6, which the Court dismissed on the merits, construing the petition under § 2241. Hooks I, 2019 WL 3254798, at *3, 6.
Petitioner now brings a second habeas petition challenging the state district court's revocation of his suspended sentence. See Doc. 1. He brings several due process claims under the Sixth and Fourteenth Amendments: first, for ineffective assistance of counsel during his revocation hearing; second, for a violation of OKLA. STAT. tit. 22, § 470, which provides that a defendant must be arraigned within thirty days after being detained on a preliminary information for the commission of a felony; and third, for a violation of OKLA. STAT. tit. 22, § 991b(A), which provides that a suspended sentence may not be revoked without an evidentiary hearing held within twenty days of the entry of a plea of not-guilty to the proposed grounds for revocation. Doc. 1, at 5, 7-8.
As Respondent notes, OKLA. STAT. tit. 22, § 470 is inapplicable to the revocation of a suspended sentence. Doc. 18.
II. Petitioner's filing amounts to an abuse of the writ.
“Under the abuse of the writ doctrine, if a second or subsequent petition raises a claim that could have been raised in an earlier petition, the petitioner must establish that the omission was not the result of inexcusable neglect in order to proceed on the new claim.” Stanko v. Davis, 617 F.3d 1262, 1270 (10th Cir. 2010); George v. Perrill, 62 F.3d 333, 334 (10th Cir. 1995) (“The Supreme Court has said that the abuse-of-the-writ doctrine . . . applies to section 2241 petitions.”). “To excuse his failure to raise the claim earlier, [the petitioner] must show cause for failing to raise it and prejudice therefrom, ” or, in the absence of cause, “the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey v. Zant, 499 U.S. 467, 494-95 (1991); see also Stanko, 617 F.3d at 1271.
Section 2244(b) requires that before this Court may consider a second or successive § 2254 habeas petition, Petitioner “shall move in the [Tenth Circuit] for an order authorizing the district court to consider the application.” See 28 U.S.C. § 2244(b)(3)(A). But Tenth Circuit authorization is not needed for second or successive § 2241 habeas petitions. Stanko, 617 F.3d at 1269 n.5 (“Habeas petitions brought under § 2241 are not mentioned anywhere in § 2244(b). Accordingly, the requirement for prior circuit authorization contained in § 2244(b)(3) does not apply to habeas petitions brought under § 2241.”).
All of his claims challenge his revocation hearing, which occurred nearly a year before he filed his habeas petition. Supra, § I (revocation hearing held Jan. 27, 2017; first habeas petition filed Jan. 3, 2018). To demonstrate cause for his failure to bring those claims in his first petition, Petitioner must show “something external that is, “something that cannot fairly be attributed to him, ” impeded his efforts. See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (explaining “cause and prejudice test” in procedural default context). That test applies “[t]he same standards that govern procedural default determinations.” Stanko, 617 F.3d at 1271. Among other potential impediments, this may be “a showing that the factual or legal basis for a claim was not reasonably available to counsel, ” or that “‘some interference by officials[]' made compliance impracticable.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (citing Reed v. Ross, 468 U.S. 1, 16 (1984), and quoting Brown v. Allen, 344 U.S. 443, 486 (1953)).
Petitioner can show no such external impediments at work here. Indeed, Petitioner challenged the revocation proceedings on due process and state-law grounds in Hooks I, just as he tries to do in the instant petition. And although the Court ultimately did not address Petitioner's unexhausted claims in Hooks I, this was because Petitioner opted to proceed on his single exhausted Gagnon claim rather than return to state court to exhaust his remedies on the remaining claims. Because Petitioner cannot show cause, the Court need not address whether he was prejudiced. Steele v. Young, 11 F.3d 1518, 1522 n.7 (10th Cir. 1993).
Without cause, Petitioner must show that the Court's failure to entertain the claims in the instant petition would result in a fundamental miscarriage of justice, see McCleskey, 499 U.S. at 494-95, a “very narrow exception . . . to a finding of abuse of the writ” that applies in cases of actual innocence. Andrews v. Deland, 943 F.2d 1162, 1186 (10th Cir. 1991). The Court's independent review revealed that Petitioner's claims do not implicate this exception. Cf. Cummings v. Sirmons, 506 F.3d 1211, 1223 (10th Cir. 2007) (explaining that “actual innocence” calls for presentation of evidence of innocence “so strong that a court cannot have confidence in the outcome of the” proceeding “unless the court is also satisfied that the trial was free of nonharmless constitutional error”) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
Although it may be error to dismiss Petitioner's claims as an abuse of the writ without first providing him notice and an opportunity to object, see Stanko, 617 F.3d at 1271, in this instance the Court finds dismissal “does not present a due process problem because Petitioner may present his position by objecting to this Report and Recommendation.” Neil v. Crow, No. CIV-21-698-D, 2021 WL 4143948, at *2 n.3 (W.D. Okla. Aug. 18, 2021), adopted, 2021 WL 4134830 (W.D. Okla. Sept. 10, 2021).
The undersigned therefore recommends dismissal of Petitioner's § 2241 habeas petition as an abuse of the writ.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of the petition with prejudice as an abuse of the writ. See Ahmed v. Warden-FCI Englewood, 36 Fed.Appx. 943, 944 (10th Cir. 2002) (affirming dismissal with prejudice on ground that “presentation of [the] issue represents an abuse of the writ”).
The undersigned advises Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before February 11, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.