Opinion
CIV-21-375-R
07-19-2021
BILLY JOE WINROW, Petitioner, v. JANET DOWLING, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Billy Joe Winrow, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2241. (ECF No. 1). United States District Judge David L. Russell has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Court summarily DISMISS the Petition.
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. DISMISSAL OF THE HABEAS PETITION
On July 17, 1998, Petitioner was found guilty of robbery with a firearm, in Pottawatomie County Case No. CF-1998-403. On April 21, 2021, Mr. Winrow filed the current petition for habeas relief under 28 U.S.C. § 2241, challenging the validity of the 1998 Pottawatomie County conviction, alleging a lack of jurisdiction in the trial court pursuant to the Supreme Court's ruling in McGirt v. Oklahoma, U.S., 140 S.Ct. 2452 (2020). In an Order dated June 17, 2021, the Court informed Petitioner that it was considering recharacterization of his Petition as one arising under 28 U.S.C. § 2254 because it challenged the legality of the conviction, rather than the execution of his sentence. See ECF No. 12. On July 6, 2021, Mr. Winrow clarified that he did object to the recharacterization of his Petition under Section 2254, and chose to proceed under Section 2241. See ECF No. 13.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&number=CF-1997-403; see also 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”).
Mr. Winrow's objection may have had to do with the fact that he has previously filed two petitions for habeas relief in this Court under 28 U.S.C. § 2254, see Case Nos. CIV-01-663-C (Apr. 29, 2001) & CIV-06-527-R (May 15, 2006) and this Court would be without jurisdiction to entertain a third petition, absent authorization from the Tenth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A).
“Petitions under § 2241 are used to attack the execution of a sentence, in contrast to § 2254 habeas . . . proceedings, which are used to collaterally attack the validity of a conviction and sentence.” Mclntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (citations omitted)). It is “the nature of a prisoner's confinement, not the fact of his confinement” that is the gravamen of a Section 2241 petition or challenge. Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (emphasis in original).
Here, Mr. Winrow alleges no facts to show that he is challenging the execution of his sentence or the nature of his confinement. He does not, for instance, seek to challenge “certain matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters . . . affecting the fact or duration” of his custody. Hale v. Fox, 829 F.3d 1162, 1165 n.2 (10th Cir. 2016) (internal quotation omitted). Instead, Petitioner's grounds for relief “attempt[] a frontal assault on his conviction.” Prost, 636 F.3d at 581. Mr. Winrow challenges the state court's jurisdiction, which “is an attack on his conviction and sentence” and “must therefore be brought under § 2254.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924 (10th Cir. 2008) (recognizing that § 2241 is not the proper vehicle to challenge state court jurisdiction over the petitioner for a crime allegedly committed in Indian country); Jones v. Pedigrew, Case No. CIV-21-290-G (July 6, 2021) (order adopting Report and Recommendation, dismissing habeas petition brought under Section 2241 based on a lack of jurisdiction in the trial court, for failure to state a claim upon which relief can be granted).
III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court DISMISS the Petition (ECF No. 1). The Court's adoption of this report and recommendation will moot Petitioner's pending Motions (ECF Nos. 7 and 13).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 5, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IV. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.