Opinion
CIV-21-348-C
06-21-2021
MAIONG XIONG, Petitioner, v. OKLAHOMA COUNTY, et al., Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2241, seeking habeas relief from a state court conviction. (ECF No. 1). Based on the allegations in the Petition, the Court should construe the action as one arising under 28 U.S.C. § 2254. See infra. United States District Judge Robin J. Cauthron 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.
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. PROCEDURAL BACKGROUND
On December 20, 2017, in Oklahoma County Court No. CF-2016-4165, Petitioner entered a guilty plea on two counts and was sentenced to: (1) 10 years on Count One and (2) 10 years suspended on Count Two. Docket Sheet, State of Oklahoma v. Xiong, No. CF-2016-4165 (Okla. Co. Dist. Ct). Petitioner did not seek to withdraw the plea. Id. On November 21, 2019, Petitioner filed a “Motion for Early Termination of Probation or Otherwise to Modify Sentence.” Docket Sheet, State of Oklahoma v. Xiong, No. CF-2016-4165 (Okla. Co. Dist. Ct. Nov. 21, 2019). On January 8, 2020, the District Court denied the motion. See id., Order Denying Motion for Judicial Review and Modification (Okla. Co. Dist. Ct. Nov. 21, 2019). A public records search of the Oklahoma Court of Criminal Appeals (OCCA) database indicates that Petitioner did not appeal this ruling. On January 4, 2021, Petitioner filed a “Motion to Modify Sentence for Cause.” Docket Sheet, State of Oklahoma v. Xiong, No. CF-2016-4165 (Okla. Co. Dist. Ct. Jan. 4, 2021). This action is currently pending in the Oklahoma County District Court. See id.
II. THE PETITION
Ms. Xiong is currently on probation for the crimes of conviction in Oklahoma County No. CF-2016-4165. (ECF No. 1-1:1). In the Petition, Ms. Xiong alleges that in 2016, Oklahoma State Questions 780 and 781 “substantially changed the sentences for Drug Offenses” and in 2019, the law was made retroactive. (ECF No. 1-1:2-3). According to Ms. Xiong, it is unclear if the new law became effective before or after her conviction, but regardless, she believes that her Due Process rights were violated because at the time of her plea, she was not informed that the law had changed or was about to change. (ECF No. 1-1:2-3). Petitioner also alleges that she was “pulled over, detained, arrested, tried, convicted and sentenced based, in part, upon [her] race [and] was treated more harshly than others similarly situated due to race” and “[t]he Courts and the State continue to punish the Petitioner more harshly than others similarly situated due to her race[.]” (ECF Nos. 1:7; 1-1-:3). Based on the change in law and racial discrimination, Ms. Xiong believes that the 10-year period of supervised probation she received was “too harsh” and, as a result, she requests that the Court “modify the Probation from a Ten (10) year term to a five (5) year term, then terminate the probation as successfully completed[.]” (ECF No. 1-1:3-4).
Based on the nature of the allegations, the Court should construe the Petition as an attack on the validity of Ms. Xiong's sentence, which is properly brought as a § 2254 habeas action. See Bias v. Martin, 779 Fed.Appx. 549, 551 (10th Cir. 2019) (“§ 2254 habeas . . . proceedings . . . are used to collaterally attack the validity of a conviction or sentence”) (internal quotation omitted), cert. denied, 140 S.Ct. 616, (2019).
In her supporting brief, Petitioner argues that the alleged Due Process violations occurred in connection with what she believes was an excessive sentence based on the timing of the change in law which occurred close to her conviction date. See ECF No. 1-1. However, in the form petition, she repeatedly alleges a violation of Due Process in the form of a denial of court access to present a “meaningful challenge” to the excessive sentence in state court. (ECF No. 1:6-7). To the extent Ms. Xiong is challenging the state district court's denial of her “Motion for Early Termination of Probation or Otherwise to Modify Sentence, ” see supra, or the state district court's failure to rule on her pending “Motion to Modify Sentence for Cause, ” the Court should conclude that such challenges are not cognizable in a habeas petition. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (“[B]ecause the constitutional error [petitioner] raises focuses only on the State's post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim.”).
III. 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. “[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 she has an opportunity to present her 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); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 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).
IV. DISMISSAL OF THE HABEAS PETITION
The Court should dismiss the habeas Petition, exercising abstention under Younger v. Harris, 401 U.S. 37 (1971).
Under the Younger abstention doctrine, federal courts are to abstain from exercising jurisdiction to interfere with state proceedings when the following three requirements are met:
(1) there is an ongoing state criminal, civil, or administrative proceeding,
(2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019). Additionally, “Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (citations omitted). Exceptions exist for “bad faith or harassment, ” prosecution under a statute that is “flagrantly and patently” unconstitutional, or other “extraordinary circumstances” involving irreparable injury. Younger v. Harris, 401 U.S. at 50-54 (quotations omitted); Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). However, Petitioner has a “heavy burden” of establishing an exception to the Younger abstention doctrine. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (quotations omitted).
“Younger abstention is jurisdictional.” D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). “[A]court may raise the issue of abstention sua sponte.” D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1231 (10th Cir. 2013) (citations omitted); see also Sanchez v. Wells Fargo Bank, N.A., 307 Fed.Appx. 155, 157 (10th Cir. 2009) (recognizing that both Supreme Court and Tenth Circuit precedent “have acknowledged the authority of a federal court to address application of the Younger doctrine sua sponte ”).
For the following reasons, the Court should conclude that abstention is appropriate.
First, in an attempt to get her sentence modified, Petitioner states that she has “sent Three (3) letters to the Office of the Prosecutor and did file no less than Two (2) motions to the court to correct the errors made that denies her due process.” (ECF No. 1-1:2). The reference to “Two (2) motions” is consistent with the motions as listed on the state court docket sheet in her criminal case. See supra. The first motion was denied and has not been appealed to the OCCA, but the second motion, filed in January 2021, is still pending. See supra. Thus, the Court should conclude that Petitioner's criminal case is considered “ongoing” under Younger. See Carbajal v. Hotsenpiller, 524 Fed.Appx. 425, 428 (10th Cir. 2013) (holding that the plaintiff's pending application for post-conviction relief satisfied Younger's first condition that state criminal proceedings be “ongoing”).
Second, regarding the adequacy of the forum, Petitioner alleges: (1) “the Court refused to entertain modification of sentence” and (2) the Court refuses to grant [her] access to the courts to make a meaningful challenge.” (ECF No. 1:7). Neither allegation has merit. The Tenth Circuit has held that “unless state law clearly bars the interposition of the federal statutory and constitutional claims, ” a plaintiff typically has “an adequate opportunity to raise federal claims in state court.” Winn v. Cook, 945 F.3d at 1258 (citation omitted). Here, the state district court entertained, yet denied, Plaintiff's first motion for sentence modification; and, as stated, Petitioner is currently awaiting a ruling on her second motion for sentence modification. See supra. Simply because Ms. Xiong did not succeed in getting her sentence modified does not render the state court forum inadequate. See Winn v. Cook, 945 F.3d at 1258 (“Younger requires only the availability of an adequate state-court forum, not a favorable result in the state forum.”). Furthermore, Ms. Xiong has not raised her habeas challenge in an application for post-conviction review, an avenue of relief which is still available to her. See 22 O.S. § 1080 et seq. As a result, the Court should conclude that the second element of Younger is met.
Finally, the Court should conclude that the third Younger requirement is met. “For the purposes of Younger, state criminal proceedings are viewed as ‘a traditional area of state concern.' ” Winn v. Cook, 945 F.3d at 1258; see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (injunction against state criminal-enforcement activities “seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger”); Green v. Whetsel, 166 Fed.Appx. 375, 376 (10th Cir. 2006) (“Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings in the state's courts.”) (quotations omitted); Fisher v. Whetsel, 142 Fed.Appx. 337, 339 (10th Cir. 2005) (“Oklahoma's important interest in enforcing its criminal laws through proceedings in its state courts remains axiomatic.”).
Finally, Petitioner does not allege any bad faith, harassment, or other extraordinary circumstances. In sum, Younger requires the Court to abstain while Petitioner's motion for sentence modification is pending in state court, and Ms. Xiong has not met the heavy burden to show otherwise. See Carbajal, 524 Fed.Appx. at 428-29 (affirming the district court's dismissal under Younger where the plaintiff's claims were the subject of a still-pending application for post-conviction relief in state court).
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For these reasons, the undersigned recommends the habeas Petition be dismissed on screening.
Petitioner is hereby advised of her 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 May 17, 2021. 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).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.