Opinion
CIV-22-084-PRW
01-28-2022
KERRY QUATTLEBAUM, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
GARY 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. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The undersigned has undertaken a 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.
I. Background
On September 9, 1983, Petitioner was convicted of Murder in the First Degree. Doc. No. 1 at 1; see also Oklahoma State Courts Network, State v. Quattlebaum, Grady County District Court, Case No. CF-1983-42 ; Quattlebaum v. State, Oklahoma Court of Criminal Appeals, Case No. PC-1998-382. Petitioner did not file a direct appeal. Doc. No. 1 at 2.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=grady&number=CF-1983- 42
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=PC-1998-382&cmid=36860
Petitioner filed an application for post-conviction relief in the state court on March 11, 1998, and the court denied the same. See Oklahoma State Courts Network, State v. Quattlebaum, Grady County District Court, Case No. CF-1983-42.Petitioner appealed that ruling to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed the lower court ruling. See Oklahoma State Courts Network, Quattlebaum v. State, Oklahoma Court of Criminal Appeals, Case No. PC-1998-382.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=gradyνmber=CF-1983-42
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=PC-1998-382&cmid=36860
On September 6, 2000, Petitioner filed another application for post-conviction relief, which the state court again denied. See Oklahoma State Courts Network, State v. Quattlebaum, Grady County District Court, Case No. CF-1983-42. Petitioner again appealed the state court's denial and the OCCA affirmed the same. See Oklahoma State Courts Network, Quattlebaum v. State, Oklahoma Court of Criminal Appeals, Case No. PC-2001-423.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=gradyνmber=CF-1983-42
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=PC-2001-423&cmid=78753
Petitioner filed the instant action on December 20, 2021. Doc. No. 1. Relying on Sharp v. Murphy, __ U.S. __, 140 S.Ct. 2412 (2020); Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), and Deerleader v. Crow, No. 20-CV-0172-JED-CDL, 2021 WL 150014 (N.D. Okla. Jan. 15, 2021), he contends the state court lacked jurisdiction over his criminal trial. Doc. No. 1 at 5. Specifically, Petitioner asserts that because he is Indian and the underlying crimes were committed on Indian land, the resulting criminal proceedings lie within the exclusive jurisdiction of the federal government. Id. Petitioner also asserts an ineffective assistance of counsel claim based on counsel's failure to raise the previous issue during his criminal proceedings. Id. at 7.
The Court notes that while Petitioner did not directly reference McGirt v. State of Oklahoma, __ U.S. __, 140 S.Ct. 2452 (2020) in his Petition, the United States Supreme Court issued Sharp on the same date as McGirt. The Sharp decision is limited to the following, “The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed for the reasons stated in McGirt v. Oklahoma, ___ U.S. __, 140 S.Ct. 2452, --- L.Ed.2d ---- (2020).” Sharp, 140 S.Ct. 2412.
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to 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); 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 also 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 v. Ngo, 548 U.S. 81, 90 (2006). “A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).
Petitioner has not exhausted available state court remedies concerning his habeas claims. Doc. No. 1 at 6, 7. Petitioner may seek post-conviction relief based on the claims he raises herein. See Okla. Stat. tit. 22, § 1080(b) (authorizing an individual previously convicted of and sentenced for a crime to raise a jurisdiction challenge to the same). Additionally, Oklahoma also 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 Crank v. Jenks, 224 Fed.Appx. 838, 839 (10th Cir. 2007) (denying a certificate of appealability for a state prisoner's federal habeas action, wherein he argued for retroactive application of state law affecting his parole, because he had not first filed a habeas action in state court).
A review of the applicable docket in Petitioner's state court action reveals that he has not filed a writ of habeas corpus or any similar request since the decisions upon which he relies were issued. See Oklahoma State Courts Network, State v. Long, Oklahoma County District Court, Case No. CF-1989-5932, supra. Moreover, a search of Petitioner's name in the dockets for Grady County and the OCCA shows he has not filed any separate actions regarding his current claims with either of those courts.
As Petitioner has not provided the state courts an opportunity to address his claims, this Court may not consider them. O'Sullivan, 526 U.S. at 842; see also, cf., Graham v. Pettigrew, No. CIV-20-828-G, 2022 WL 126545, at *2 (W.D. Okla. Jan. 12, 2022) (referencing necessity of state prisoner to first exhaust McGirt related claims in state court prior to seeking habeas relief). Accordingly, Petitioner's action should be dismissed without prejudice based on his failure to exhaust state court remedies.
The Court notes that had Petitioner exhausted his grounds for relief, it is likely the Petition would be denied as untimely. Jones v. Pettigrew, No. CIV-18-633-G, 2021 WL 3854755, at *3 (W.D. Okla. Aug. 27, 2021) (citing Littlejohn v. Crow, No. 18-CV-477-CVE-JFJ, 2021 WL 3074171, at *5 (N.D. Okla. July 20, 2021)); Sanders v. Pettigrew, No. CIV-20-350-RAW-KEW, 2021 WL 3291792, at *5 (E.D. Okla. Aug. 2, 2021).
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 February 17th, 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.