Opinion
CIV-22-7-SLP
01-12-2022
BRIAN G. WILLIAMS, Petitioner, v. SCOTT NUNN, Respondent.
REPORT AND RECOMMENDATION
SHONT. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Brian Williams, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United States District Judge Scott L. Palk has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned has examined the Petition and taken judicial notice of various state court records. After review, the undersigned recommends that the court DISMISS the Petition on screening for failure to exhaust state court remedies.
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”).
I. SCREENING REQUIREMENT
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly 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. Grounds for dismissal under Rule 4 include a habeas petitioner's failure to exhaust his state court remedies as required by 28 U.S.C. § 2254(b)(1). See Allen v. Zavara, 568 F.3d 1197, 1202 (10th Cir. 2009). The Court may dismiss a petition for failure to exhaust available state court remedies if non-exhaustion is “clear from the face of the petition.” Id.
II. PROCEDURAL BACKGROUND
On January 6, 2011, in Stephens County District Court Case No. CF-2010-160, Petitioner plead guilty to a charge of sexual abuse of a child under 12 years old. See State Court Docket Sheet, State of Oklahoma v. Williams, Case No. CF-2010-160 (Stephens Co. Dist. Ct. Jan. 6, 2011). Petitioner did not seek to withdraw the plea or otherwise appeal the conviction. See ECF No. 1:2. On December 14, 2016, Petitioner filed an Application for Post-Conviction Relief in the Stephens County District Court. See id. The District Court denied the Application on May 16, 2017, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed the District Court on May 12, 2017. See Order Affirming Denial of Application for Post-Conviction Relief, Williams v. State of Oklahoma, Case No. PC-2017334 (Okla. Ct. Crim. App. May 12, 2017).
On December 20, 2021, Mr. Garrett filed a habeas Petition in the Eastern District of Oklahoma, alleging two grounds for relief:
1. the Stephens County District Court lacked jurisdiction over the trial and
2. ineffective assistance of trial counsel.(ECF No. 1:5, 7). On January 4, 2022, the case was transferred to this Court and subsequently referred to the undersigned. See ECF Nos. 5 & 6.
III. DISMISSAL OF THE HABEAS PETITION
“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, 548 U.S. at 90. "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). Futility of exhaustion may be found 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.” 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii). The state prisoner bears the burden of proving that he exhausted state court remedies or that exhaustion would have been futile. Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011).
In the Petition, Mr. Williams admits that he has not exhausted any of his grounds for habeas relief. See ECF No. 1:6, 7. Petitioner argues that he is not required to exhaust his claims because the trial court lacked jurisdiction over his criminal case in the first instance. See ECF No. 1:5, 7, 12. The Court should reject this argument. See Largent v. Nunn, Case No. CIV-20-683-J, 2020 WL 6734673, at *2 (W.D. Okla. Oct. 20, 2020) (“the Section 2254 exhaustion requirement contains no exception for jurisdictional claims.”), adopted 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020); Morgan v. Bureau of Indian Affairs, No. CIV-18-290-G, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (noting 2254's exhaustion requirement “does not contain an exception” for a jurisdictional Murphy claim); see also 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.”); Draper v. Oklahoma, No. CIV-19-376-D, 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.”); Billings v. Bureau of Indian Affairs, No. CIV-18-397-F, 2018 WL 2189772, at *2 (W.D. Okla. Apr. 26, 2018) (“[T]he Court should reject Petitioner's argument that he does not need to exhaust his state-jurisdiction question in state court, and should dismiss the Petition without prejudice based on nonexhaustion.”), adopted, 2018 WL 2187056 (W.D. Okla. May 11, 2018).
In Ground Two, Petitioner also states that the ineffective assistance of counsel claim could not have been raised in state court, and that the habeas petition is his first opportunity to do so. (ECF No. 1:7). The Court should conclude that Mr. Williams is incorrect. See generally, Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009) (discussing exhaustion requirement for Petitioner's ineffective assistance of counsel claim in state court).
Oklahoma has a procedure for directly appealing “any conviction on a plea of guilty, ” which is not foreclosed to Petitioner. See Okla. Stat. tit. 22, § 1051(a) (providing “[a]n appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him, ” and “all appeals taken from any conviction on a plea of guilty shall be taken by petition for writ of certiorari to the Court of Criminal Appeals”). While the time has passed for Petitioner to timely move to withdraw his plea, he may still move in the Stephens County District Court for an appeal out-of-time. See, e.g., Dixon v. State, 228 P.3d 531, 532 (Okla. Ct. Crim. App. 2010) (holding that "prior to filing any petition with [the appellate court] seeking leave to commence an out-of-time appeal, a defendant must first file a verified post-conviction application in the trial court for such an appeal” and, to "be entitled to the trial court's recommendation that he be granted an out-of-time appeal, ” the defendant "must establish before the trial court that he always desired to exercise that right of appeal but that he was denied the opportunity to do so through no fault of his own” (citing Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App.)). Petitioner has not pursued a postconviction appeal for an appeal out-of-time and therefore has not exhausted his available state court remedies. See ECF No. 1:9; 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. (requiring a defendant to file "an application to withdraw the plea within ten (10) days from the date of the pronouncement of the Judgment and Sentence, setting forth in detail the grounds for the withdrawal of the plea and requesting an evidentiary hearing in the trial court”).
As Petitioner has not provided the state courts an opportunity to address his habeas claims, this Court may not consider the same. O'Sullivan, 526 U.S. at 842. Accordingly, the Court should dismiss the Petition, without prejudice, based on Mr. Williams' failure to exhaust state court remedies.
The decision to sua sponte raise Petitioner's failure to exhaust does not violate Due Process because Petitioner may file an objection to this Report and Recommendation. See Alen v Zavara, 568 F.3d at 1203 (noting the district court gave petitioner “an opportunity to respond to a problem obvious from the face of his pleadings, ” and in doing so, “abided the Supreme Court's instruction that ‘before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions' ” (quoting Day v. McDonough, 547 U.S. 198, 210 (2006)).
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For these reasons, the undersigned recommends summary dismissal of the habeas Petition.
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 January 31, 2022. 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).
V. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.