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noting that an attack on the trial court's jurisdiction “is an attack on [petitioner's] conviction and sentence and must therefore be brought under § 2254.”
Summary of this case from Jackson v. BowenOpinion
CIV-21-290-G
04-19-2021
HOMER JONES, Petitioner, v. FNU PEDIGREW, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Homer Jones, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Charles B. Goodwin has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Court summarily DISMISS the Petition.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading, ” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
The district court may apply any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
II. PROCEDURAL BACKGROUND
On February 20, 1985, Petitioner entered a blind guilty plea on four counts in Oklahoma County District Court No. CF-1984-1993. Petitioner did not file a motion to withdraw the plea. Between October 14, 2016 and August 3, 2020, Petitioner filed a series of post-conviction applications in the Oklahoma County District Court and the Oklahoma Court of Criminal Appeals, repeatedly alleging, in part, a lack of jurisdiction in the trial court. See Docket Sheet, State of Oklahoma v. Jones, No. CF-1984-1993 (Okla. Co. Dist. Ct.); Docket Sheet, Jones v. State of Oklahoma, Nos. PC-2017-181, PC-2017-1155, PC-2018-635, PC-2018-770, PC-2019-83, and PC-2019-384 (Okla. Ct. Crim. App.).
See Order Denying Second Application for Post-Conviction Relief, Jones v. State of Oklahoma, No. CRF-1984-1993 (Okla. Co. Dist. Ct. Nov. 3, 2017); 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”) (citation omitted).
See Order Denying Second Application for Post-Conviction Relief, Jones v. State of Oklahoma, No. CRF-1984-1993 (Okla. Co. Dist. Ct. Nov. 3, 2017).
In addition to his frequent state court filings, Mr. Jones is no stranger to this court. On January 10, 2018, Mr. Jones filed a petition for habeas relief under 28 U.S.C. § 2241, alleging four grounds for relief: two grounds which challenged his validity of his conviction by alleging a lack of jurisdiction in the trial court and two state law claims. See ECF No. 1, Jones v. Bear, No. CIV-18-31-HE (W.D. Okla. Jan. 10, 2018). As to those claims, Magistrate Judge Suzanne Mitchell recommended: (1) dismissal of Grounds One and Two, for failing to state a cognizable claim under 28 U.S.C. § 2241 and (2) dismissal of the state law claims as not cognizable in a federal habeas action. See ECF No. 8, Jones v. Bear, No. CIV-18-31-HE (W.D. Okla. Mar. 13, 2018). On April 11, 2018, District Judge Joe Heaton adopted the recommendation in full and dismissed the petition without prejudice. See ECF No. 10, Jones v. Bear, No. CIV-18-31-HE (W.D. Okla. Apr. 11, 2018).
On June 28, 2018, Petitioner filed a habeas petition in this Court under 28 U.S.C. § 2254, challenging, in part, the jurisdiction of the trial court. See ECF No. 1, Jones v. Bear, No. CIV-18-633-G (W.D. Okla. June 28, 2018). This petition is still pending.
On February 13, 2019, Mr. Jones filed a habeas petition in this Court under 28 U.S.C. § 2254, challenging, in part, the jurisdiction of the trial court. See ECF No. 1, Jones v. Bear, No. CIV-19-141-G (W.D. Okla. Feb. 13, 2019). The undersigned recommended dismissal of the petition as untimely and District Judge Charles Goodwin adopted the recommendation. See ECF Nos. 9 & 11, Jones v. Bear, No. CIV-19-141-G (W.D. Okla. Feb. 13, 2019).
III. DISMISSAL OF THE PETITION
On April 1, 2021, Mr. Jones filed the instant case under 28 U.S.C. § 2241, alleging four grounds for relief. (ECF No. 1).
A. Petitioner's Grounds for Relief
In Ground One, Petitioner alleges he is being “held in custody/detention under an invalid Judgment and Sentence Order by respondents because the state court that issued the sentencing Order had no jurisdiction to do so, rendering detention order by respondents illegal & w/out jurisdiction to do so.” (ECF No. 1:7). As factual support, Mr. Jones claims that the Oklahoma Constitution “ceded ‘exclusive jurisdiction' To the U.S.” and the only proper jurisdiction for his criminal case was in the United States Supreme Court. (ECF No. 1:7).
In Ground Two, Petitioner claims that the state court lacked subject matter jurisdiction over his case because “State Authority [REQUIRES] a Grand Jury Indictment & or waive that right” and “by The Act of U.S. Congress June 7, 1897, no Oklahoma State Court has had Jurisdiction to try [ANY PERSON] for [ANY CRIME] thereby barring Jurisdiction from State Courts[.]” (ECF No. 1:7).
In Ground Three, Mr. Jones alleges he “suffered Prosecutor intentional misconduct and due-process of law by failing the 10-day appeal process, Prosecutor chose to proceed on an information WITHOUT advising Petitioner He had a FEDERAL constitutional right to be prosecuted ONLY on a Grand Jury Indictment OR getting a waiver.” (ECF No. 1:7-8). As factual support, Petitioner states that “Jurisdiction CAN NOT be assumed, presumed, inferred, or implied, BUT must be proven beyond doubt BEFORE a court can accept a plea, or proceed to trial, and it was NOT done in this case. EVEN OKLA. Constitution, Art 2 § 17 & 2 § 18 MANDATES a Conviction is VOID when a Defendant/Petitioner is DEPRIVED of a Grand Jury Indictment. The Records Shows NO Grand Jury Indictment or Waiver, Requiring Vacation & Dismissal At This Time.” (ECF No. 1:8).
In Ground Four, Mr. Jones alleges the State of Oklahoma “lacked subject matter jurisdiction & in personam [sic] or/and Laches, equitable estoppel-ALL deprived 100% in-effective assistance of counsel's intentional-poor & direct and A Breach of Fiduciary Uniform Act Responsibility & Violations to Client's trust.” (ECF No. 1:8). In support, Mr. Jones alleges he was deprived of his 5th, 14th, and 6th Amendment rights as well as his rights under the ABA Code of Judicial Conduct Canon 3C(3)(b) and that jurisdiction was not proper in the state court under the Oklahoma Constitution. (ECF No. 1:8).
As relief, Petitioner requests: (1) release or (2) “a Legal-Fair Hearing in Federal Court.” (ECF No. 1:8).
B. Dismissal for Failure to State a Cognizable Claim under 28 U.S.C. § 2241
“Petitions under § 2241 are used to attack the execution of a sentence, in contrast to § 2254 habeas . . . proceedings, which are used to collaterally attack the validity of a conviction and sentence.” Mclntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (citations omitted)). It is “the nature of a prisoner's confinement, not the fact of his confinement” that is the gravamen of a Section 2241 petition or challenge. Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (emphasis in original).
Here, Mr. Jones alleges no facts to show that he is challenging the execution of his sentence or the nature of his confinement. He does not, for instance, seek to challenge “certain matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters . . . affecting the fact or duration” of his custody. Hale v. Fox, 829 F.3d 1162, 1165 n.2 (10th Cir. 2016) (internal quotation omitted). Instead, Petitioner's grounds for relief “attempt[] a frontal assault on his conviction.” Prost, 636 F.3d at 581. Indeed, all four grounds, in some manner, challenge the state court's jurisdiction, which “is an attack on his conviction and sentence” and “must therefore be brought under § 2254.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008) (recognizing that § 2241 is not the proper vehicle to challenge state court jurisdiction over the petitioner for a crime allegedly committed in Indian country).
To the extent Mr. Jones relies on violations of State law to support his jurisdictional allegations, the Court should conclude that “claims of state law violations are not cognizable in a federal habeas action.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court DISMISS the Petition (ECF No. 1).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by May 6, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.