Opinion
CIV-22-75-SLP
02-17-2022
ROBERT E. SMITH, Petitioner, v. SCOTT NUNN, Director, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus. See Doc. 1. United States District Judge Scott L. Palk has referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Petitioner alleges “Oklahoma lacked jurisdiction” to prosecute and incarcerate him, as he has “some Indian Blood” and his crime occurred in “Indian Country.” Doc. 1, at 5; see also McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned recommends the Court dismiss the petition for failure to exhaust state court remedies.
I. Screening.
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court must review habeas petitions and summarily dismiss a petition “[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. The Court may dismiss a petition based on a failure to exhaust state court remedies if nonexhaustion is “clear from the face of the petition.” Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009).
“[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). This Report and Recommendation provides Petitioner with notice, and he can later present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 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).
II. Procedural history.
In a petition filed January 12, 2022, Petitioner seeks federal habeas corpus relief from his convictions and sentences in Grady County District Court, Case No. CF-2016-143. See Doc. 1, at 1.
A jury convicted Petitioner in that case of two counts of child sexual abuse and the trial court sentenced him to consecutive life sentences. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=grady&number=c f-2016-143 (last visited Feb. 14, 2022). The Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's convictions and sentences on direct appeal. Petitioner did not assert a jurisdictional challenge to his convictions or sentences in his direct appeal, and he has not sought post-conviction relief in Case No. CF-2016-143. Id.
The undersigned takes judicial notice of the docket report in Petitioner's state criminal proceeding and the public databases bearing directly on this case. 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” (citation omitted)).
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=f-2018-39 (last visited Feb. 14, 2022).
See Smith v. Oklahoma, No. F-2018-39 (Okla. Crim. App. Aug. 15, 2019).
Petitioner states he has sought post-conviction relief on the ground of ineffective assistance of counsel, but he does not know the date of filing or the case number. Doc. 1, at 3. Petitioner's state court docket sheet in Case No. CF-2016-143 does not reflect any post-conviction filing.
III. Petitioner's claims.
Petitioner asserts three grounds for relief in his petition which he claims entitle him to a “writ of habeas corpus.” Doc. 1, at 15. In Ground One, Petitioner alleges “Oklahoma lacked jurisdiction” over him because he has “some Indian blood, ” his alleged crimes fell under the “Major Crimes A[ct], ” and they occurred in “Indian Country.” Id. at 5. Petitioner admits he has not exhausted this claim in state court but asserts there is an “absence of” an “available corrective process” because Oklahoma lacked jurisdiction over his crimes. Id. at 5-6. Petitioner complains in Ground Two that his counsel was ineffective for failing to raise the jurisdictional issue which denied him his constitutional rights. Id. at 6-7. Petitioner admits he has not exhausted this claim and again asserts that Oklahoma lacks a “corrective process” because “parties cannot consent to court in any court lacking jurisdiction.” Id. And, in Ground Three, Petitioner asserts the state has violated his right to a speedy trial in federal court by failing to adhere “to the 28 U.S.C. § 2243 [and] functional equivalent.” Id. at 8. Petitioner does not assert he has exhausted this claim. When asked if he has presented all grounds for relief to the highest state court, Petitioner states that he has. Id. at 9.
He also states that “The petitioner shall not be required to exhaust State remedies.” Doc. 1, at 5.
IV. Petitioner has not exhausted his available state court remedies.
A state prisoner must exhaust all available state-court remedies before seeking a federal writ of habeas corpus unless exhaustion would be futile- that is, unless no state-court remedy exists or such a remedy would be ineffective to protect the prisoner's rights, under the circumstances. See 28 U.S.C. § 2254(b)(1); see also Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011). “To exhaust a claim, a state prisoner must pursue it through ‘one complete round of the State's established appellate review process,' giving the state courts a ‘full and fair opportunity' to correct alleged constitutional errors.” Selsor, 644 F.3d at 1026 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
More specifically, AEDPA prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies. 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).
The only exception to the exhaustion requirement is a showing of futility because there is either no available state corrective process or circumstances render such process ineffective to protect the rights of the prisoner. See 28 U.S.C. § 2254(b)(1)(B); see also Selsor, 644 F.3d at 1026 (“If a state prisoner has not properly exhausted state remedies, the federal courts ordinarily will not entertain an application for a writ of habeas corpus unless exhaustion would have been futile because either ‘there is an absence of available State corrective process' or ‘circumstances exist that render such process ineffective to protect the rights of the applicant.'” (quoting 28 U.S.C. § 2254(b)(1)(B)(i), (ii))); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (“In order to satisfy the exhaustion requirement, a federal habeas corpus petitioner must show that a state appellate court has had the opportunity to rule on the same claim presented in federal court . . ., or that at the time he filed his federal petition, he had no available state avenue of redress.”). Petitioner “bears the burden of proving that he exhausted state court remedies . . . or that exhaustion would have been futile.” Selsor, 644 F.3d at 1026 (internal citations omitted).
Petitioner explains his lack of exhaustion by claiming that he cannot “consent to court” in any court which lacks jurisdiction. Doc. 1, at 6. By this, the undersigned understands Petitioner to suggest that his habeas petition is exempt from § 2254's exhaustion requirement based on the nature of his claim for relief-that the state court lacked jurisdiction to prosecute and incarcerate him in the first place. Petitioner is incorrect. The § 2254 exhaustion requirement contains no exception for jurisdictional claims. See Blanket v. Watkins, 44 Fed.Appx. 350, 351 (10th Cir. 2002) (“[The petitioner's] proffered reason for not exhausting-that the State . . . lacks jurisdiction over these claims-lacks merit.”); see also Largent v. Nunn, No. CIV-20-683-J, 2020 WL 6734673, at *2 (W.D. Okla. Oct. 20, 2020) (collecting cases), adopted, 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020). Petitioner may seek post-conviction relief for his jurisdictional claim in state court. See Okla. Stat. tit. 22, § 1080(b) (authorizing a convicted person to raise a jurisdictional challenge to his or her conviction or sentence). And because “Oklahoma imposes no time limits for filing applications for post-conviction relief in the district courts, ” the state courts remain open to Petitioner, and a return there would not be futile. Burger v. Scott, 317 F.3d 1133, 1135 (10th Cir. 2003) (citing Moore v. Gibson, 27 P.3d 483, 487 (Okla. Crim. App. 2001)).
The Oklahoma Court of Criminal Appeals has held that, for purposes of postconviction review, McGirt does not apply retroactively to convictions that were final when the decision was handed down. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021) (“[W]e now hold that McGirt and our postMcGirt decisions recognizing these reservations shall not apply retroactively to void a conviction that was final when McGirt was decided.”). Petitioner must still exhaust this claim by providing state courts the opportunity to rule on it. Miranda, 967 F.2d at 398 (“In order to satisfy the exhaustion requirement, a federal habeas corpus petitioner must show that a state appellate court has had the opportunity to rule on the same claim presented in federal court ....”); see also 28 U.S.C. § 2254(c) (“An 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.” (emphasis added)).
Petitioner admits he failed to seek relief in state court for the claims he raises in his petition. Yet, he has not demonstrated he lacks the opportunity to obtain the appropriate redress in state court. Under such circumstances, this Court cannot address Petitioner's habeas corpus claims because he has not exhausted his available state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.
V. Recommendation and notice of right to object.
The undersigned recommends the Court dismiss Petitioner's petition without prejudice for failure to exhaust state court remedies. The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 10, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.