Opinion
Case No. CIV-21-164-J
03-22-2021
SHANE JOSIAH KIRK, Plaintiff, v. STATE OF OKLAHOMA and JASON HICKS, et al., Respondents.
REPORT AND RECOMMENDATION
State prisoner Shane Josiah Kirk seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Bernard M. Jones has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The Court should DISMISS the petition without prejudice.
Mr. Kirk is a pretrial detainee currently in the custody of the Stephens County Detention Center who filed a habeas petition pursuant to 28 U.S.C. § 2254. (ECF No. 1). But because of his status as a pretrial detainee, the Court should characterize the Petition as one filed under 28 U.S.C. § 2241. See Yellowbear v. Wyoming Atty. Gen., 525 F.3d 921, 925 (10th Cir. 2008) ("Although Mr. Yellowbear's first pro se habeas petition was filed under § 2254, we recognized on appeal that it was more properly characterized as a § 2241 petition because it was filed pretrial and not while he was in custody pursuant to judgment of a state court.").
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. BACKGROUND
In November 2017, Plaintiff believed that he had been poisoned by the Viridian Coffee shop in Duncan, Oklahoma. (ECF No. 1:5). Mr. Kirk reported the suspicion of poisoning to the police departments in Lawton/Ft. Sill and Duncan, Oklahoma; Trinidad, Colorado; Colorado Springs, Colorado; the Sheriff's Office in Canyon County, Colorado; the Fort Carson Provost Marshall; the Fort Carson Army Hospital; the Duncan Regional Hospital; the Sonic Burger Corporation; and a local pastor. (ECF No. 1:5, 6-7). Petitioner states that his wife notified the Veteran's Affairs Veteran Crisis Line and his mother had the Duncan Police Department test the coffee. (ECF No. 1:7). On November 29, 2017, Plaintiff checked his son into the Duncan Regional Hospital and reported to hospital employees that he believed his wife was poisoning him and his son. (ECF No. 1:5). On December 1, 2017, Mr. Kirk was arrested and charged with two counts of first-degree murder for the deaths of Jessica Kirk (Petitioner's former wife) and Dennis Duncan. See Amended Information, State of Oklahoma v. Kirk, Case No. CF-2017-369 (Dec. 1, 2017). Petitioner is set to go to trial in Stephens County during the jury term commencing September 20, 2021. Order Continuing Hearing, State of Oklahoma v. Kirk, Case No. CF-2017-369 (Stephens County District Court Dec. 7, 2020).
III. PETITIONER'S GROUNDS FOR HABEAS RELIEF
Grounds One and Two are based on Petitioner's belief that a single police department (Ground One) and nine different entities (Ground Two) failed to follow up with him regarding his suspicion of being poisoned, which ultimately required him to take certain actions.
In Ground One, Petitioner alleges that the Duncan, Oklahoma Police Department failed to follow up with him after he reported his suspicion of poisoning and "the DA knows these facts [and is] still trying to execute [him]." (ECF No. 1:5). In Ground Two, Petitioner alleges a "Systems Failure," stating that none of the entities to whom he reported his suspicions of poisoning followed up with him. (ECF No. 1:6-7). According to Petitioner, he "plac[ed] [his] life and death fears of being poisoned into the hands of 9 . . . entities" whom he alleges were "constitutionally responsible to act in his interests [but] did not do so." (ECF No. 1:10). As a result of the entities' alleged negligence and dereliction of duty in failing to act, Mr. Kirk alleges that "the rights and privileges [he] willingly surrendered to them became wholly and rightfully [his] again" and "because of their failure [he] ha[s] become immune to prosecution for the actions [he] took after he was forced to investigate the fear [of being poisoned] on his own." (ECF No. 1:10-11).
Petitioner never outright states that he killed anyone, but instead alludes to "actions" he had to take due to fear of being poisoned, which he characterizes as an "emergency" situation. (ECF No. 1:11). According to Petitioner, "[p]eople under fear of death make mistakes." (ECF No. 1:11).
In Grounds One and Two, Mr. Kirk alleges that he was wrongfully charged with two counts of first-degree murder for which he could receive the death penalty because the Stephens County District Attorney knew about the Duncan Police Department's failure to follow up with Petitioner about the alleged poisoning. (ECF No. 1:5, 11).
In Ground Three, Petitioner alleges that his defense lawyers have rendered ineffective assistance by: (1) "deny[ing] [him] access to discovery evidence;" (2) failing to investigate various defense theories; and (3) improperly relying on a mental diagnosis to "rush headlong" into an insanity defense instead of "pushing for lesser charges and recognition of the facts." (ECF No. 1:8-9).
In Ground Four, Mr. Kirk alleges "Judicial Bias" because the district judge assigned to his case denied Petitioner's motion to dismiss his attorneys and the judge "knows the Facts and has not urged lower charges or striking the Death Penalty." (ECF No. 1:10).
As habeas relief, Petitioner requests: (1) the dismissal of the first-degree murder charges; (2) the death penalty to be struck down; (3) the removal of the district judge and district attorney from the case; and (4) a transfer to federal court. (ECF No. 1:17). IV. DISMISSAL FOR LACK OF JURISDICTION— YOUNGER ABSTENTION
As stated, Mr. Kirk is currently detained in the Stephens County Detention Center awaiting trial on two counts of first-degree murder. See supra. Based on the nature of his habeas grounds for relief, the Court should abstain from entertaining the habeas Petition under Younger v. Harris, 401 U.S. 37 (1971).
Under the Younger abstention doctrine, federal courts are to abstain from exercising jurisdiction to interfere with state proceedings when the following three requirements are met:
(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019).
"Younger abstention is jurisdictional." D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). "[A]court may raise the issue of abstention sua sponte." D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1231 (10th Cir. 2013) (citations omitted); see also Sanchez v. Wells Fargo Bank, N.A., 307 F. App'x 155, 157 (10th Cir. 2009) (recognizing that both Supreme Court and Tenth Circuit precedent "have acknowledged the authority of a federal court to address application of the Younger doctrine sua sponte").
The Court should conclude that all three requirements are satisfied here. First, it is undisputed that there exists an ongoing state criminal proceeding.
With regard to the second factor, "unless state law clearly bars the interposition of the federal statutory and constitutional claims," a plaintiff typically has "an adequate opportunity to raise federal claims in state court." Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1215 (10th Cir. 2003) (brackets and internal quotation marks omitted).
Under Oklahoma law, a remedy for unlawful detention is made available through the writ of habeas corpus in the state courts. See Okla. Stat. tit. 12, §1344 (1991) ("The writ [of habeas corpus] may be had for the purpose of letting a prisoner to bail in . . . criminal actions."). See also Okla. Stat. tit. 12, §1331 (1991) ("Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal."). Younger requires only the availability of an adequate state-court forum, not a favorable result in the state forum. See Moore v. Sims, 442 U.S. 415, 430 (1979) (adequate forum existed when state law posed no procedural barriers to raising constitutional claims). Furthermore, an adverse decision in state court does not preclude later plenary review on direct appeal. See Kimmel v. Wallace, 370 P.2d 844, 846 (Okla. Crim. App. 1962) (denying emergency relief because "a plain, clear and adequate remedy at law, by [direct] appeal to [the OCCA]" was available to the petitioner to later obtain review of his due-process claim). And the fact that state-writ relief may be limited does not change the Younger analysis. See Davis v. Lansing, 851 F.2d 72, 73, 76 (2d Cir. 1988) (despite denial of petitions for writs of mandamus and prohibition in state court, Younger required abstention because defendant's claims could be raised on direct appeal in state court).
The Court notes that on December 7, 2020, Petitioner filed a "Motion for Recusal: District Attorney and Staff" in his state court criminal case which expounds upon and includes the allegations set forth in Grounds One and Two. See Motion for Recusal: District Attorney and Staff, State of Oklahoma v. Kirk, Case No. CF-2017-369 (Stephens Co. Dist. Ct. Dec. 7, 2020). The motion is still pending. --------
Finally, the third Younger requirement is met. "For the purposes of Younger, state criminal proceedings are viewed as 'a traditional area of state concern.' " Winn, 945 F.3d at 1258; see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (injunction against state criminal-enforcement activities "seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger"); Fisher v. Whetsel, 142 F. App'x 337, 339 (10th Cir. 2005) ("Oklahoma's important interest in enforcing its criminal laws through proceedings in its state courts remains axiomatic.").
When Younger's three requirements are met, abstention is mandatory unless one of three exceptions applies: the prosecution was "(1) commenced in bad faith or to harass, (2) based on a flagrantly and patently unconstitutional statute, or (3) related to any other such extraordinary circumstance creating a threat of 'irreparable injury' both great and immediate." Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir. 1995).
As to the first factor, Petitioner alleges that the district attorney has "elevated" the charges against him "because he knows the Duncan PD messed up [in failing to follow up with Petitioner regarding his suspicions of being poisoned]." (ECF No. 1:11). In examining whether a prosecution is commenced in bad faith or to harass, courts consider three factors: (1) whether it was frivolous or undertaken with no reasonably objective hope of success; (2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights; and (3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). The Tenth Circuit has held that "it is the plaintiff's 'heavy burden' to overcome the bar of Younger abstention by setting forth more than mere allegations of bad faith or harassment." Id. Here, the Court should conclude that Petitioner has not met his heavy burden under Phelps, but instead has alleged only "mere allegations" that the prosecution had acted in bad faith in pursuing the charges against Petitioner. The first Younger exception does not apply.
The second exception warrants no discussion, as Mr. Kirk has not alleged that his prosecution was based on an unconstitutional statute. See ECF No. 1.
Third, the Court should conclude that no "irreparable injury" exists because "the injury [complained of] could ultimately be corrected through the pending state proceeding or on appeal." Winn, 945 F.3d at 1259.
All three of the Younger factors are met and none of the exceptions apply. Under these circumstances, Younger abstention is "non-discretionary" and "[this] court is required to abstain." Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006) (citation omitted). V. ALTERNATIVE GROUND FOR DISMISSAL—FAILURE TO EXHAUST
Alternatively, the Court should dismiss the habeas Petition based on Mr. Kirk's failure to exhaust his state court remedies.
Although 28 U.S.C. § 2241 does not contain an explicit exhaustion requirement, exhaustion of available administrative and state court remedies is required before petitions brought under 28 U.S.C. § 2241 will be entertained by a federal court. See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005); 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."). To have exhausted state remedies, the applicant "must have first fairly presented the substance of his federal habeas claim to state courts," Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002), which includes presentation of the federal claim to the state's highest available court, see Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999). "Sua sponte consideration of exhaustion of state remedies . . . is explicitly permitted" where, as here, the failure to exhaust appears on the face of the petition. United States v. Mitchell, 518 F.3d 740, 746 n.8 (10th Cir. 2008). See also United States v. Mitchell, 518 F.3d 740, 746 (10th Cir. 2008) ("[A]ffirmative defenses unique to the habeas context such as exhaustion of state remedies . . . may be raised by a court sua sponte").
Under Oklahoma law, a remedy for unlawful detention is made available through the writ of habeas corpus in the state courts. See supra. Title 28 U.S.C. § 2254(b)(2)(B) provides that exhaustion is not required where "(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." See also Duckworth v. Serrano, 454 U.S. 1, 3 (1981) ("An exception [to the exhaustion requirement] is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.").
In the instant case, Mr. Kirk has admitted that he has not exhausted any of the grounds presented in the habeas Petition owing to the fact that he is "being illegally confined with denial of lawyer and law library." See ECF No. 1:5, 7, 8, 13. But this reason is insufficient to excuse a failure to exhaust. See Jacobs v. Cushinberry, 44 F. App'x 889, 891, 2002 WL 1753195, at *1 (10th Cir. 2002) (denial of access to a law library insufficient reason to relieve habeas petitioner of duty to exhaust available state remedies with respect to § 2241 petition).
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For these reasons, the undersigned recommends the habeas Petition be DISMISSED. Petitioner is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by April 8, 2021. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.
ENTERED on March 22, 2021.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE