Opinion
CIV-23-932-G
04-23-2024
ARDAVAN AHMADPOUR, Petitioner, v. DAVID BUSS, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner Ardavan Ahmadpour, 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 Charles B. Goodwin 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. After review, the undersigned recommends that the court DISMISS the Petition on screening for failure to exhaust state court remedies.
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 Alen 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 December 4, 2020, in Oklahoma County District Court Case Nos. CF-2019-4444 and CF-2020-720, Petitioner entered guilty pleas on charges involving drug trafficking and possession of a firearm, after a former conviction of a felony. See ECF No. 1:1-2. Petitioner did not seek to withdraw the pleas or otherwise appeal the convictions. See State Court Docket Sheets, State of Oklahoma v. Ahmadpour, Case Nos. CF-2019-4444 & CF-2020-720 (Okla. Co. Dist. Ct.). On December 1, 2021, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court, and that court denied relief. See ECF No. 2-1. Mr. Ahmadpour did not appeal the denial. See https://www.oscn.net (last visited April 9, 2024). On October 16, 2023, Mr. Ahmadpour filed a habeas Petition and brief in support in this Court, alleging a lack of jurisdiction in the trial court. See ECF Nos. 1 & 2.
On page two of the Petition, Mr. Ahmadpour states that he appealed the convictions and that the appeals were decided on September 22, 2023. See ECF No. 1:2. But Petitioner is referring to an Application for Post-Conviction Relief he filed in the Oklahoma County District Court in both cases, not a direct appeal. See supra.
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).
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.” OSulivan 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. "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.” 28 U.S.C. § 2254(c) (emphasis added); see also Elis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
"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).
As stated, Mr. Ahmadpour has not exhausted his state court remedies because he has not filed an appeal of his post-conviction application which the Oklahoma County District Court denied on September 22, 2023. See supra. As a justification for the omission, Petitioner cites 28 U.S.C. § 1331 and states that the Petition presents a “jurisdictional issue.” (ECF No. 1:5). Mr. Ahmadpour argues that “Newly Discovered Evidence” shows that “state courts lack[] the jurisdiction to Prosecute on Tribal lands” and he “can not commit A State crime on federal lands, the state can never have Jurisdiction on any federal lands.” (ECF No. 1:6). Finally, Petitioner asserts “actual innocence of the charged offenses, and petitioner has reasonably and diligently pursued his federal claim challenging the state court Judgments and that extraordinary circumstances prevented [him] from filing a timely federal [] petition.” (ECF No. 1:9-10). By these statements, Petitioner suggests 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 instance. Mr. Ahmadpour 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 22 O.S. § 1080(b) (authorizing jurisdictional challenge to conviction or sentence). And because “Oklahoma imposes no time limits for filing applications for postconviction relief in the district courts,” the state courts remain open to Petitioner to exercise this option. See Burger v. Scott, 317 F.3d 1133, 1135 (10th Cir. 2003) (citing Moore v. Gibson, 27 P.3d 483, 487 (Okla. Crim. App. 2001)).
Petitioner's jurisdictional argument implicates McGirtv. Oklahoma, 140 S.Ct. 2452 (2020), which held that the Congress had not disestablished the Muscogee (Creek) Reservation and the “state of Oklahoma ‘lack[ed] jurisdiction to prosecute' Indian defendants for crimes occurring” there. United States v. Warrington, 78 F.4th 1158, 1163 (10th Cir. 2023) (quoting McGirt, 140 S.Ct. at 2474); see also McGirt, 140 S.Ct. at 2468 (“But whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”); Ford v. Dowling, No. 22-6138, 2023 WL 2641476, at *1 (10th Cir. Mar. 27, 2023) (describing McGirt holding and explaining that “those lands remain Indian country for purposes of exclusive federal jurisdiction under the Federal Major Crimes Act, 18 U.S.C. § 1153(a)”). For purposes of post-conviction review, however, the Oklahoma Court of Criminal Appeals has determined that McGirt does not apply retroactively. State 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.”). Even so, “Petitioner must still exhaust this claim by providing state courts the opportunity to rule on it.” Bradshaw v. Crow, No. CIV-21-818-R, 2021 WL 4786885, at *2 n.4 (W.D. Okla. Sept. 29, 2021) (citing Miranda, 967 F.2d at 398), adopted, 2021 WL 4785509 (W.D. Okla. Oct. 13, 2021); 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, 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.”).
Petitioner has failed to exhaust his habeas claims in the Oklahoma Court of Criminal Appeals and he has failed to demonstrate that he lacks the opportunity to obtain the appropriate redress in state court. Indeed, Petitioner has suggested no reason why the state appellate review process is unavailable to him or ineffective to protect his rights.
Under such circumstances, the Court should dismiss the Petition. See Ellis, 872 F.3d at 1076.
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 May 10, 2024. 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.