Opinion
CIV-21-194-D
05-26-2021
TOMMY JOE PITTS, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFILED GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus by a person in state custody under 28 U.S.C. § 2254. (Doc. 1). United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5). Respondent has filed a Motion to Dismiss and brief in support, arguing that dismissal is appropriate because Petitioner has not exhausted his state court remedies. (Docs. 11, 12).Petitioner has filed a document entitled Motion for Summary Judgment with Accompanying Brief that the court liberally construes as a response to the Motion to Dismiss. (Doc. 13). For the reasons set forth below, the undersigned recommends that the Court grant Respondent's Motion and dismiss Petitioner's action for failure to exhaust state court remedies.
Alternatively, Respondent argued that the Petition should be dismissed as time-barred. The court need not address Respondent's alternative argument in light of the recommended dismissal. See Largent v. Nunn, 2020 WL 6734673, at *3 (W.D. Okla. Oct. 20, 2020) (“Because the Court should dismiss the petition for failure to exhaust, the undersigned does not reach Respondent's statute-of-limitations argument.”).
I. Background
On October 18, 2011, Petitioner was convicted and sentenced after pleading guilty to one count of rape by instrumentation, for which he was sentenced to 15 years of imprisonment; two counts of forcible oral sodomy, for which he was sentenced to five years of imprisonment and a 15-year suspended sentence; and four counts of lewd molestation, for which he was sentenced to 20 years of imprisonment per count. (Doc. 12, Ex. 1, at 1-2).
Petitioner did not file a direct appeal. (Doc. 1, at 2). In January 2020, Petitioner filed petitions for post-conviction relief in Major County District Court. (Doc. 12, Ex. 6, at 12). Petitioner's post-conviction relief petitions “challenge[d] the authority of the State of Oklahoma court's jurisdiction, to prosecute anyone of Indian blood, of a crime occurring” on Indian land. (Id. at Ex. 3, at 1). On July 9, 2020, the Major County District Court denied Petitioner's request for post-conviction relief. (Id. at Ex. 6, at 13). Petitioner did not appeal this denial to the Oklahoma Court of Criminal Appeals (“OCCA”). (Id.; Doc. 1, at 5).
Petitioner filed the instant habeas petition on March 2, 2021. (Doc. 1). The § 2254 Petition challenges the trial court's jurisdiction over Petitioner, as he was “arrested and prosecuted and sentenced in Indian Country, and [he is] an American Indian by blood.” (Id. at 5).
II. The Petition Should Be Dismissed for Failure to Exhaust State Remedies.
The Court should dismiss Petitioner's § 2254 petition for failure to exhaust state court remedies.
A. Exhaustion is a Preliminary Consideration.
Exhaustion is a “threshold question that must be addressed in every habeas case.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). A federal court cannot grant a state prisoner's habeas petition unless the petition satisfies the procedural prerequisites of 28 U.S.C. § 2254(b), including that the petitioner has exhausted his state-court remedies by presenting “the substance” of the claims to the state's highest court. Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Bear v. Boone, 173 F.3d 782, 784-85 (10th Cir. 1999) (“In order to fully exhaust state court remedies, a state's highest court must have had the opportunity to review the claim raised in the federal habeas petition.”).
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).
To properly exhaust, a petitioner “must fairly present his claim in each appropriate state court . . ., thereby alerting that court to the federal nature of the claim” and giving the State the first “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). “The state prisoner bears the burden of proving that he exhausted state court 3 remedies or that exhaustion would have been futile.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (citations omitted).
B. Petitioner Has Failed to Exhaust his State Court Remedies.
Petitioner appears to rely on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2454 (2020), in support of his habeas challenge to the State's jurisdiction. Although he does not cite the case in his Petition, he does argue its applicability in his response to the Motion to Dismiss. (Doc. 13, at 11, 14). Petitioner did not directly appeal his convictions, and he did not seek post-conviction relief in state court until January 16, 2020. (Doc. 12, Ex. 6, at 12). Petitioner's filings seeking post-conviction relief assert the same jurisdictional challenge presented in this habeas petition. (Id. at Ex. 3). To have fully exhausted this claim in state court, Petitioner must have presented it to the state's highest court, the OCCA. See Bear, 173 F.3d at 784 (“The Court of Criminal Appeals is the court of last resort for criminal appeals in Oklahoma.”) (citing Okla. Stat. tit. 20, § 40). However, Petitioner did not appeal the Major County District Court's denial of his request for postconviction relief. Thus, Petitioner's jurisdictional challenge to his convictions has not been presented to the OCCA.
To the extent the court liberally construes Petitioner's § 2254 petition and response to urge that his jurisdictional challenge is somehow exempt from the exhaustion requirement (Doc. 13, at 9-11), the Court should reject that argument. See, e.g., Morgan v. Bureau of Indian Affairs, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (noting that § 2254's exhaustion requirement “does not contain an exception” for a jurisdictional Murphy claim); Draper v. Oklahoma, 2019 WL 2453671, at *1 (W.D. Okla. June 12, 2019) (“Upon de novo consideration of the issue raised by Petitioner's Objection, the Court rejects his position that a § 2254 petition raising a jurisdictional issue is exempt from the exhaustion requirement.”).
Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted, 138 S.Ct. 2026 (2018), and aff'd sub nom. Sharp v. Murphy, 140 S.Ct. 2412 (2020) (per curiam). Murphy presented the same jurisdictional issue as McGirt and was affirmed “for the reasons stated in McGirt.” Murphy, 140 S.Ct. at 2412.
Petitioner's reliance on Deerleader v. Crow, 2020 WL 7345653 (N.D. Okla. Dec. 14, 2020), (see Doc. 1, at 5) is also misplaced, as Deerleader does not support the proposition that Petitioner's failure to exhaust should be excused. Rather, the petitioner in Deerleader had presented his jurisdictional challenge under Murphy to the OCCA. Deerleader, 2020 WL 7345653, at *3. The court held that the petitioner was not required to “re-exhaust” his claim before the OCCA in light of the Supreme Court's decision in McGirt. Id. at *3-4. In contrast, Petitioner's jurisdictional challenge has never been presented to the OCCA, and he has thus failed to satisfy 28 U.S.C. § 2254(b).
Oklahoma's post-conviction procedures provide a path for Petitioner to raise a jurisdictional challenge. See Okla. Stat. tit. 22, § 1080(b). Petitioner must exhaust his state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.
III. Recommendation and Notice of Right to Object
For the foregoing reasons, it is recommended that the Court grant Respondent's Motion to Dismiss (Doc. 11) on the grounds that Petitioner has failed to exhaust his state court remedies.
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by Wednesday, June 16, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. 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 and terminates the referral unless and until the matter is re-referred.
ENTERED.