Summary
concluding that the proper application of Oklahoma House Bill 1269 was an issue of state law
Summary of this case from Brown v. FarrisOpinion
No. CIV-20-432-J
05-15-2020
GLEN D. ARNETT, JR., Petitioner, v. DWAYNE JANIS, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed this action for a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed.
I. Background
On November 24, 2008, Petitioner entered guilty pleas to ten separate charges and the state court entered sentences for each conviction. Doc. No. 1 ("Petition") at 1; Oklahoma State Courts Network, District Court of Oklahoma County, Case No. CF-2005-6661 & Case No. CF-2006-6592. According to Petitioner, he has discharged each sentence except for the sentence of 5 years imprisonment for his conviction for Knowingly Receiving/Possessing/Concealing Stolen Property. Petition at 7. He explains that he began serving the 5 year sentence for this conviction on December 6, 2018. Id.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2005-6661 and https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF- 2006-6592, respectively.
At the time of Petitioner's conviction, Okla. Stat. tit. 21, § 1713(A) provided that a person who knowingly conceals stolen property "of any value whatsoever" shall be guilty of a felony. It further provided such offense was punishable by up to five years in prison. Id. In 2016, following passage of State Question 780, Okla. Stat. tit. 21, § 1713(A) was amended to provide that knowingly concealing stolen property only qualifies as a felony if the subject property is valued over $1,000.00. Additionally, it provides that if the subject property has a value of less than $1,000.00, the person is guilty of a misdemeanor that is punishable by imprisonment in the county jail for up to one year. Id.
Petitioner mistakenly asserts that Okla. Stat. tit. 21, § 1713(A) currently provides that if the subject property has a value of less than $1,000.00, the crime is punishable by imprisonment in the county jail for up to six months. Petition at 2, 7. --------
By this action, Petitioner contends that the Oklahoma legislature's passage of House Bill 1269, effective November 1, 2019, made the 2016 amendments to Okla. Stat. tit. 21, § 1713(A) retroactive. Petition at 7. Based on this argument, Petitioner contends he is entitled to a discharge of his sentence and release from imprisonment. Id. at 14.
II. 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 he has an opportunity to present his 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 F. App'x 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 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).
III. Analysis
There is no question that the statute under which Petitioner was convicted, Okla. Stat. tit. 21, § 1713, was amended several years after Petitioner's conviction. The basis for Petitioner's action herein is his contention that House Bill 1269, passed in 2019, made those amendments retroactive. Generally, "whether . . . a new rule of state law may be applied retroactively is a pure state law question." Burleson v. Saffle, 292 F.3d 1253, 1255 (10th Cir. 2002) (quotations omitted). Oklahoma law provides that "new rules or intervening changes in the law should only be applied prospectively from their effective date, especially on collateral review, unless they are specifically declared to have retroactive effect." Id. (quotations omitted). Here, a review of House Bill 1269 reveals that it does not operate in the manner Petitioner contends.
With the passage of State Question 780 in 2016, several statutes were amended to provide that certain non-violent crimes previously classified as felonies were reclassified as misdemeanors. Petitioner is correct that House Bill 1269 made some of those amendments constructively retroactive but not in the manner Petitioner contends.
Rather than merely making the 2016 classification and sentencing changes directly retroactive, House Bill 1269 allows the classification changes to positively effect, inter alia, certain requests for expungement, suspended and deferred sentences, and commutation of sentences. Act of Nov. 1, 2019, 2019 Okla. Sess. Laws Ch. 459 (relating to the expungement of criminal records and commutations, revocation of suspended sentences, deferred sentences, and pardons). For example, pursuant to House Bill 1269, an individual previously convicted of a non-violent felony offense under Okla. Stat. tit. 57, § 571 that was subsequently reclassified as a misdemeanor may, under certain circumstances, request expungement of his criminal record with regard to the subject crime. Act of Nov. 1, 2019, 2019 Okla. Sess. Laws Ch. 459, sec. 1 (codified at Okla. Stat. tit. 22, § 18(A)(15)). Similarly, House Bill 1269 also provides that "a person who is being considered for an acceleration of a deferred judgment for an offense where the penalty has subsequently been lowered to a misdemeanor shall only be subject to a judgment and sentence that would have been applicable had he or she committed the offense after July 1, 2017." Act of Nov. 1, 2019, 2019 Okla. Sess. Laws Ch. 459, sec. 4 (codified at Okla. Stat. tit. 22, § 991c(K)).
There is nothing in either State Question 780 or House Bill 1269 indicating that the 2016 amendments are directly retroactive. Thus, persons, such as Petitioner, convicted under Okla. Stat. tit. 21, § 1713 or any other statute that was amended to reclassify certain crimes as misdemeanors are not automatically entitled to be resentenced under the current applicable sentences for their respective crimes. Accordingly, Petitioner has failed to set forth a viable claim for habeas relief and his Petition should be dismissed.
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by June 4th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 15th day of May, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE