Opinion
CIV-21-36-G
08-24-2021
AARON THOMAS BROCK, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner represented by counsel, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 2). Also at issue is Petitioner's Motion to Expand the Record. (ECF No. 21). United States District Judge Charles B. Goodwin has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The Respondent has filed a Motion to Dismiss and Brief in Support. (ECF Nos. 22 & 23). The Court should: (1) deny the Motion to Dismiss, (2) apply anticipatory procedural default to the unexhausted claims, (3) deny the exhausted portion of the Petition, and (4) deny the Motion to Expand the Record.
I. PROCEDURAL BACKGROUND/RELEVANT LAW
On August 19, 2011, following entry of a guilty plea to one count of robbery in violation of 18 U.S.C. § 2113, Mr. Brock was sentenced to a term of 36 months incarceration in the custody of the United States Bureau of Prisons (BOP) and 2 years of supervised release. See ECF No. 27, United States v. Brock, Case No. CR-11-32-1-HE (W.D. Okla. signed Aug. 23, 2011). On May 16, 2014, the Court revoked Petitioner's term of supervised release and ordered him to BOP custody for six months, with an additional term of two years supervised release. See ECF No. 41, United States v. Brock, Case No. CR-11-32-1-HE (W.D. Okla. May 16, 2014). On January 16, 2015, the Court again revoked the term of supervised release and sentenced Petitioner to BOP custody for 9 months, followed by 12 months of supervised release. See ECF No. 64, United States v. Brock, Case No. CR-11-32-1-HE (W.D. Okla. Jan. 16, 2015). On October 16, 2015, the United States filed a petition to once again revoke Mr. Brock's term of supervised release. See ECF No. 66, United States v. Brock, Case No. CR-11-32-1-HE (W.D. Okla. Oct. 16, 2015).
On December 11, 2015, in Oklahoma County District Court Case No. CF-2015-8935, Mr. Brock was charged with Robbery with a Dangerous Weapon, Conspiracy to Commit a Felony, and Embezzlement by Bailee. (ECF No. 2:14). On March 18, 2016, Petitioner's term of supervised release in Case No. CR-11-32-1-HE was revoked and Mr. Brock was sentenced to 24 months in BOP custody. See ECF No. 81, United States v. Brock, Case No. CR-11-32-1-HE (W.D. Okla. Mar. 18, 2016). On August 3, 2016 and October 3, 2016, the BOP sent notification to the Oklahoma County District Attorney's office regarding the necessary procedure for that office to lodge a detainer against Petitioner if it chose to do so, and stated that Petitioner was set to be released from federal custody on November 6, 2017. (ECF Nos. 2-3 & 2-4). On April 17, 2017, the Oklahoma County Sheriff's Office faxed a warrant to BOP officials in Indiana where Petitioner was in federal custody regarding Oklahoma County Case No. CF-2015-8935, with a handwritten note stating: “Please use this fax and copy of our warrant to place a hold on [Mr. Brock]. We will extradite on his release date.” (ECF No. 2- 5). On April 18, 2017, Petitioner informed BOP officials that he would like to invoke his rights under the Interstate Agreement on Detainers Act (IADA) regarding the charges pending in Oklahoma County. (ECF No. 2-6:3).
The State of Oklahoma and the United States are parties to the Interstate Agreement on Detainers Act (IADA). See Okla. Stat. tit. 22 § 1347;18 U.S.C. App. 2, § 2. Article III(a) of the IADA of both the state and federal statutes is relevant to the instant action and provides:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of the State parole agency relating to the prisoner.18 U.S.C.A. App. 2, § 2, Art. III(a); Okla. Stat. tit. 22 § 1347, Art. III(a).
Under the IADA, an inmate, such as Petitioner, has the burden to “deliver[] to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint.” 18 U.S.C.A. § App. 2 § 2 Art. III(a); Okla. Stat. Tit. 22 § 1347, Art. III(a). Once this burden is met-“delivery” of the inmate's request to the appropriate prosecuting authorities-the trial court is required to bring the inmate to trial within 180 days. 18 U.S.C.A. § App. 2 § 2 Art. III(a); Okla. Stat. Tit. 22 § 1347, Art. III(a).
To meet his burden under the IADA, Petitioner alleges that he completed various documents to send to the Oklahoma authorities requesting that “final disposition” be made of the robbery charges in Oklahoma County. See ECF No. 2-6. Petitioner has submitted two “green cards” showing that something sent by Petitioner was received by the office of the Oklahoma County District Attorney and the Oklahoma County Court Clerk on May 30 & 31, 2017, respectively. (ECF No. 2-7).
On June 22, 2017, Petitioner filed a pro se “Motion to Move Courts for Speedy Disposition Under (IADA).” (ECF No. 2-8). On July 25, 2017, Oklahoma County Judge Timothy Henderson ordered the Petitioner to be brought for trial on Case No. CF-2015-8935 on November 27, 2017. (ECF No. 2-9). Petitioner was released from BOP custody on December 1, 2017 and arrived in the Oklahoma County Jail on December 2, 2017. See ECF Nos. 2:20; 2-11; 2-12.
On December 5, 2017, Petitioner appeared before the Oklahoma County District Court for arraignment in Case No. CF-2015-8935 and bail was set at $80,000.00. (ECF Nos. 2:20; 2-13). On January 26 & 30, 2018, Mr. Brock filed a Motion to Dismiss and Amended Motion to Dismiss, arguing that the state court lacked jurisdiction over the matter because the prosecuting authorities had failed to comply with the 180-day deadline under the IADA. (ECF No. 2:20). According to Mr. Brock, the IADA had required Petitioner to be brought to trial by November 27, 2017-180 days from the “delivery date” of the documents to the Oklahoma Court Clerk's Office and the office of the Oklahoma County District Attorney, invoking Petitioner's request for disposition of the case under the IADA. Following three hearings, and a major factual dispute, on March 13, 2018, the Oklahoma County District Court denied the Motion to Dismiss, finding that the 180-day timeline had never been triggered, based on the absence of: (1) a detainer having been properly lodged by the State of Oklahoma and (2) notification from Petitioner regarding his invocation of the IADA. See ECF No. 2-17:18-20.
The Court does not have a copy of the motion to dismiss, but it is noted in the Petition on the docket sheet in Case No. CF-2015-8935 and the substance of the motion is discussed thoroughly in an order from the Oklahoma Court of Criminal Appeals (OCCA) in a related case requesting a Petition for Mandamus. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmber=CF-2015-8935&cmid=3345340;https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνm ber=MA-2018-352&cmid=123733.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmber=CF-2015- 8935&cmid=3345340;https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνm ber=MA-2018-352&cmid=123733.
On April 24, 2018, a jury found Mr. Brock guilty of the robbery and conspiracy charges and he was sentenced to consecutive terms of 30 and 5 years, respectively. (ECF No. 23-1:1-2). On appeal to the Oklahoma Court of Criminal Appeals (OCCA), Mr. Brock presented two propositions of error: (1) the State of Oklahoma violated Article III of the Oklahoma IADA and (2) insufficient evidence to support the robbery conviction. (ECF Nos. 23:7; 23 1). The OCCA denied relief and affirmed the conviction on December 12, 2019. (ECF Nos. 2-1 & 23-1).
On December 8, 2020, Mr. Brock, through his attorney, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and supplement in the Eastern District of Oklahoma. (ECF Nos. 2 & 9). U.S. District Judge Ronald White transferred the case to this Court and the matter was subsequently referred to the undersigned. (ECF Nos. 11 & 15). In the Petition, Mr. Brock raises two Grounds for relief:
1. By failing to try him within 180 days of his request for disposition on the Oklahoma County charges, the State of Oklahoma violated the IADA, Petitioner's Sixth Amendment right to a speedy trial, and Due Process; and
2. The State Court's failure to credit Mr. Brock for time served in the Oklahoma County jail and while in federal custody following the April 17, 2017 faxed notice to federal authorities to “hold” Petitioner, violated the Fourteenth Amendment's Equal Protection Clause.(ECF No. 2:30-40).
On March 27, 2021, Petitioner filed a “Second Supplement to Petition for Writ of Habeas Corpus [Doc. 2] ‘The Worst Kept Secret in the Oklahoma County Courthouse.' ” (ECF No. 20). In this pleading, Mr. Brock alleged that the assistant district attorney and the state trial judge in his Oklahoma County case were engaged in an improper secret romantic relationship during the course of Petitioner's state court case. See ECF No. 20. These allegations do not present an additional ground for habeas relief, but instead are presented in support of Grounds One and Two as set forth the Petition. See ECF Nos. 31:2 and 32.3.
On March 29, 2021, Respondent filed a Motion to Dismiss and Brief in Support, alleging that Petitioner has failed to exhaust Ground Two and a “portion” of Ground One, rendering the Petition “mixed” and subject to dismissal. (ECF Nos. 22 & 23).
II. EXHAUSTION/ANTICIPATORY PROCEDURAL BAR
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). “A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006). A federal court cannot grant habeas relief unless the petitioner has exhausted his state-court remedies by presenting substantially the same federal claim or claims to the state's highest court. See 28 U.S.C. § 2254(b)(1)(A); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(b), (c)).
“To exhaust a claim, a state prisoner must pursue it through ‘one complete round of the State's established appellate review process,' giving the state courts a ‘full and fair opportunity' to correct alleged constitutional errors.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “A claim has been exhausted when it has been ‘fairly presented' to the state court.” Bland, 459 F.3d at 1011 (quoting Picard v. Connor, 404 U.S. 270, 275, (1971)); see generally Grant v. Royal, 886 F.3d 874, 890-92 (10th Cir. 2018) (analyzing what amounts to “fair presentation”). “[T]he crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (quoting Picard, 404 U.S. at 278).
A habeas petition is considered “mixed” if it includes both exhausted and unexhausted claims. In Rose v. Lundy, the Supreme Court held “that a district court must dismiss such ‘mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims.” 455 U.S. at 510. But “[t]he rule in Rose is not absolute.” Harris v. Champion, 48 F.3d 1127, 1131 n.3 (10th Cir. 1995). “If a federal court that is faced with a mixed petition determines that the petitioner's unexhausted claims would now be procedurally barred in state court, ‘there is a procedural default for purposes of federal habeas.' ” Id. (quoting Coleman, 501 U.S. at 735 n.1). “Therefore, instead of dismissing the entire petition, the court can deem the unexhausted claims procedurally barred and address the properly exhausted claims.” Id. That is, in appropriate circumstances the court can apply an “anticipatory procedural bar” to functionally transform unexhausted claims into exhausted ones, thus obviating the need to dismiss a mixed petition. Fontenot v. Crow, 4 F.4th 982, 1019 (10th Cir. 2021); Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.”). (internal quotation marks omitted).
III. DENIAL OF THE MOTION TO DISMISS
Mr. Brock's Petition is considered “mixed” in that it includes both exhausted and unexhausted claims. See supra. As a result, Respondent argues that the Petition should be dismissed. See ECF No. 23. The Court should: (1) apply anticipatory procedural default to the unexhausted claims and (2) deny the Motion to Dismiss.
A. Ground One
In Ground One of the habeas Petition, Mr. Brock alleges: (1) the State of Oklahoma violated Article III of the federal IADA by failing to bring him to trial within 180 days of his request for final disposition on the Oklahoma County charges and (2) the State's failure to comply with the IADA violated his Sixth Amendment right to a speedy trial and Due Process. (ECF No. 2:30-25). In Ground One of the direct appeal, Petitioner argued that the State of Oklahoma violated Article III of the Oklahoma IADA by failing to bring him to trial within 180 days of his request for final disposition on the Oklahoma County charges. (ECF Nos. 23-2:9-20). Respondent argues that the Sixth Amendment and Due Process allegations in Ground One have not been exhausted, rendering the Petition “mixed” and subject to dismissal. (ECF No. 23:15-21). Mr. Brock argues otherwise, arguing that “the IADA has a ‘speedy trial' provision, and the Oklahoma County District Attorney's Office violated it [by failing to bring Petitioner to trial within 180 days.]” (ECF No. 29:4). According to Petitioner, “[t]he Respondent's attempt to parse [Ground One] apart does not survive analysis.” (ECF No. 29:4). The Court should disagree with Mr. Brock and conclude that his Sixth Amendment and Due Process claims are unexhausted.
See 18 U.S.C.A. App. 2, § 2, Art. III(a).
See Okla. Stat. tit. 22 § 1347, Art. III(a).
On direct appeal, Mr. Brock argued that the State violated Article III of the Oklahoma IADA by failing to try him within 180 days of his request for disposition of his case. As noted by the OCCA, four requirements exist for Article III to be triggered: (1) the defendant has to be serving a term of imprisonment in a party state; (2) charges are pending against the defendant in another party state; (3) a detainer has been lodged against the defendant; and (4) the defendant has caused written notice and request for final disposition to be delivered to the appropriate prosecuting authority and court. (ECF No. 23-1:3-4). The issues on direct appeal involved the third and fourth elements-Petitioner argued that a proper detainer had been lodged against him and that he had forwarded the proper documentation to the Oklahoma County District Attorney's Office and the Oklahoma County Court Clerk's Office to trigger the IADA's 180-day time limit. (ECF Nos. 23-2:9-20, 23-1:3-4). As a result, Mr. Brock argued the State violated the IADA by failing to try him within 180 days, or before November 27, 2017. (ECF No. 23-2:11). The OCCA agreed with Petitioner as to the third element-that a proper detainer had been lodged against Mr. Brock-but it disagreed regarding the fourth element, finding that Petitioner had failed to meet his burden to show he had caused written notice and request for final disposition to be delivered to the appropriate prosecuting authority and court. (ECF No. 23-1:6-9). Because Petitioner had not sustained his burden on the fourth element, the Court concluded that the 180-day time limit of the IADA had not been triggered and the State had not, therefore, violated the IADA. (ECF No. 23-1:6-9).
Although Petitioner's direct appeal alleged a failure to try him within 180 days, Mr. Brock did not invoke his Sixth Amendment right to a speedy trial or a violation of Due Process. See ECF No. 23-2. Unlike the issues adjudicated on direct appeal, which concerned whether the IADA had even been triggered, in evaluating whether a defendant's Sixth Amendment right to a speedy trial has been violated, the court considers: (1) the length of the delay, (2) its reasons, (3) whether the defendant asserted the right to a speedy trial, and (4) whether the defendant suffered prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972). Petitioner argued none of the Barker factors on direct appeal, but instead, entirely focused on whether he had met his burden to prove the third and fourth elements under Article III, which would have, in turn, triggered the IADA's time limit.
See supra.
In determining whether an issue has been exhausted, “the crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” See supra, Prendergast v. Clements. “A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution.' ” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)); accord Picard, 404 U.S. at 278. But, a “ ‘[f]air presentation' requires more than presenting ‘all the facts necessary to support the federal claim' to the state court.” Bland, 459 F.3d at 1011 (emphasis added) (quoting Anderson, 459 U.S. at 6). Nor is citing the relevant legal principles, absent the relevant facts, sufficient to fairly present a claim. See Picard, 404 U.S. at 277 (finding no fair presentation where state court had no “opportunity to apply controlling legal principles to the facts bearing upon [the federal] claim”); Anderson, 459 U.S. at 6 (“[A] federal habeas petitioner [must] provide the state courts with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.”); Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015) (noting that the substance of the claim “includes not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief”).
Furthermore, a “petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court.” Bland, 459 F.3d at 1011. That is, there is no fair presentation if the claim before the state court was only “somewhat similar” to the claim pressed in the habeas petition. Duncan v. Henry, 513 U.S. 364, 366 (1995); see also Bland, 459 F.3d at 1012 (finding failure to exhaust “[b]ecause presentation of a ‘somewhat similar' claim is insufficient to ‘fairly present' a federal claim”). Indeed, “mere similarity of claims is insufficient to exhaust.” Id. And the assertion of a general claim before the state court is insufficient to exhaust a more specific claim asserted for habeas relief. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.”); see also Thomas v. Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000) (holding petitioner's “generalized” state-court ineffective-assistance claim was insufficient to exhaust his later, more specific federal habeas claim).
Based on the foregoing, the Court should conclude that the Sixth Amendment and Due Process claims have not been “fairly presented” to the OCCA and are not, therefore, exhausted. The Court should also conclude that Petitioner, has, however, exhausted the portion of Ground One which alleges that the State violated the IADA by failing to try him within 180 days of the District Attorney's office receiving notice that he had requested disposition of his Oklahoma County case. (ECF No. 2:30-35).
The presence of unexhausted claims renders the Petition “mixed.” As stated, if a federal court that is faced with a mixed petition determines that the petitioner's unexhausted claims would now be procedurally barred in state court, “there is a procedural default for purposes of federal habeas.” See supra, Coleman, 501 U.S. at 735 n.1. Therefore, instead of dismissing the entire petition, the court can deem the unexhausted claims procedurally barred under the theory of anticipatory procedural bar. See supra, Fontenot v. Crow. Here, the Court should apply an anticipatory procedural bar to the Sixth Amendment and Due Process claims asserted in Ground One, because to exhaust these claims, Mr. Brock would have to return to state court and file a post-conviction application. See 22 O.S. § 1086. However, if Petitioner did so, the OCCA would likely find that the claims were procedurally barred under a theory of waiver because they had not been previously raised. See 22 O.S. § 1086 (“Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application[.]”).
The Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground” barring habeas review. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (finding Oklahoma's doctrine of waiver to be independent and adequate). Under similar circumstances, the Tenth Circuit Court of Appeals has applied an anticipatory procedural bar to prevent habeas review. See Grant, 886 F.3d at 893 (“if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal.”).
As a result, Mr. Brock can only overcome the anticipatory procedural bar if he is able to demonstrate “cause and prejudice” for the default, or that a fundamental miscarriage of justice has occurred. See Coleman v. Thompson, 501 U.S. at 750. Here, Mr. Brock offers no “cause and prejudice” to excuse the default on Ground One nor does he make any argument that a fundamental miscarriage of justice had occurred. See ECF Nos. 2 & 29. As a result, the Court should find that the Sixth Amendment and Due Process claims as set forth in Ground One are procedurally barred from consideration on habeas review. See Grant, 886 F.3d at 902 (“Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim.”).
Mr. Brock argues that a fundamental miscarriage of justice exists to excuse the default on Ground Two, which will be discussed separately. See infra.
B. Ground Two
In Ground Two, Mr. Brock alleges that the State's failure to credit him for time served in the Oklahoma County jail and while in federal custody following the detainer lodged by Oklahoma County officials, violated the Fourteenth Amendment's Equal Protection Clause. (ECF No. 2:35-38).
Without a doubt, Petitioner did not raise this claim on direct appeal or in an application for post-conviction relief. See ECF No. 23-1, see supra. Therefore, the Court should conclude that this claim is unexhausted, and indeed, Mr. Brock seems to concede the point. See ECF No. 29:2. Like the unexhausted portions of Ground One, Ground Two would likely be deemed waived by the OCCA if Petitioner were to return to state court and raise the issue in a post-conviction application. See supra. The issue then becomes whether Mr. Brock has sufficiently alleged “cause and prejudice” or a “fundamental miscarriage of justice” to excuse the procedural default. See supra. Mr. Brock has not alleged “cause and prejudice, ” but he has alleged that a fundamental miscarriage of justice will occur absent consideration of Ground Two. (ECF No. 29:2-3).
In his concession, Mr. Brock states: “The Petitioner concedes that Ground Two and the Supplemental claim of the due process violation due to the state district judge and an Assistant D.A. engaging in an illicit affair during the court of Mr. Brock's case would be considered “mixed” and is generally not considered for the first time on federal habeas review.” (ECF No. 29:2). Based on the reference to the “Supplemental claim, ” the Court had previously ordered Petitioner to clarify whether he was intending to amend the habeas Petition to add a claim relating to the alleged affair or whether Mr. Brock intended only to present supplemental allegations in support of Grounds One and Two. See ECF No. 30. Although Petitioner replied by filing a “Notice of Supplemental Claim, ” the body of the pleading stated that Petitioner was not intending to add an additional claim. See ECF No. 31. As a result, the Court should not consider the allegations related to the alleged affair as a separate claim and should not, therefore, consider whether said allegations have been exhausted.
Additionally, Mr. Brock devotes nearly a page of his response brief to discussing the federal court's discretion under Rhines v. Weber, 544 U.S. 269 (2005) to “stay” a mixed habeas petition to allow the petitioner to return to state court and exhaust the unexhausted claims. (ECF No. 29:3-4). Even so, Petitioner explicitly states that he is not requesting a stay, obviating any further related discussion. (ECF No. 29:3).
To demonstrate a fundamental miscarriage of justice, a petitioner must make a “‘credible' showing of actual innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). That is, he must “support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 1232 (citation omitted). “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (citation omitted).
As his basis for asserting a fundamental miscarriage of justice will occur absent consideration of Ground Two, Petitioner states:
Here, for . . . “Ground Two”, . . . the shocking fact that explains the rulings in the case, the sentence, the lack of credit for time served and the obvious lack of due process is well established by an Oklahoma County District Judge sleeping with the Assistant District Attorney at the time of the case. There can be no greater miscarriage of justice.(ECF No. 29:2-3). Although Petitioner alleges that the knowledge of the alleged sexual impropriety only became known recently, Ground Two alleges a violation of Equal Protection based on Mr. Brock's argument that he should receive credit for time served. See ECF No. 2:30-39. The factual basis for this claim was known to Petitioner at the time he filed his direct appeal and Mr. Brock has presented no “new reliable evidence” to establish a “credible showing of actual innocence” to open the gateway and excuse the procedural default. As a result, the Court should conclude that Ground Two is procedurally barred from consideration on habeas review.
See ECF No. 20.
C. Summary
In sum, the Court should find that only one portion of Ground One has been exhausted-the claim that the State of Oklahoma violated the IADA when it failed to bring Petitioner to trial within 180 days after he invoked the right for disposition of the Oklahoma County charges. The remaining claims-Ground Two and the Sixth Amendment and Due Process claims asserted in Ground One, have not been exhausted. Technically, the presence of exhausted and unexhausted claims renders the Petition “mixed, ” but the Court may apply anticipatory procedural default to the unexhausted claims to “functionally transform unexhausted claims into exhausted ones, thus obviating the need to dismiss a mixed petition.” Fontenot v. Crow, 4 F.4th at 1019. The Court should choose this route, finding the unexhausted claims procedurally barred and denying the Motion to Dismiss.
IV. DENIAL OF THE REMAINING CLAIM
If the Court adopts the foregoing recommendations, what remains is Petitioner's sole exhausted claim-that the State of Oklahoma violated the IADA by failing to bring Petitioner to trial within 180 days of his request for final disposition of the Oklahoma County charges. The Court should deny this claim.
The Tenth Circuit Court of Appeals has held that “rights created by the [IADA] are statutory, not fundamental, constitutional, or jurisdictional in nature”-and, thus, an “IAD[A] violation might be ‘grounds for collateral attack on a . . . conviction and sentence'” only “if ‘special circumstances' exist[ ] in a particular case.” Knox v. Wyo. Dep't of Corrs., 34 F.3d 964, 967 (10th Cir. 1994) (quoting Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir. 1981)); see Raifsnider v. Colorado, 299 Fed.Appx. 825, 827 (10th Cir. 2008) (“This circuit has held that an IADA violation does not ‘rise to a constitutional deprivation' without, at the very least, a showing that ‘actual prejudice' resulted from the violation.” (quoting Dobson v. Hershberger, 124 F.3d 216, 1997 WL 543370, at *2 (10th Cir. 1997)).
“Special circumstances” or “actual prejudice, ” in turn, require “a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure.” Raifsnider, 299 Fed.Appx. at 827 (alteration in original) (quoting Knox, 34 F.3d at 968); see also Reed, 512 U.S. at 354 (recalling “the established rule with respect to nonconstitutional claims” in habeas proceedings: “[N]onconstitutional claims . . . can be raised on collateral review only if the alleged error constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” (alteration and ellipsis in original). Unless the defendant is deprived of “some constitutionally protected right, ” “special circumstances” do not exist which would allow a violation of the IADA to proceed in a habeas corpus proceeding. See Dobson v. Hershberger, Westlaw op. at *2.
Here, Petitioner has alleged the following prejudice resulting from the alleged IADA violation:
1. He was not allowed to participate in the BOP's residential drug abuse program;
2. He was not allowed to serve as a GED tutor while in BOP custody;
3. He missed a family court hearing regarding his own child in Oklahoma County on December 12, 2018;
4. He lost an “opportunity to negotiate a favorable plea agreement because co-defendant Tonya Thompson won “the race to the courthouse doors” by being sentenced on May 12, 2016;
5. He lost an opportunity for “concurrent state sentence with federal sentence from the revocation of Supervised Release;”
6. He was “compelled to go to trial for the sole purpose to preserve the legal issues of the IADA when the Oklahoma County District Attorney's Office grossly failed to follow both state and federal law as well as the Constitutional due process rights of Petitioner.”(ECF No. 2:28-29).
Even presuming that an IADA violation occurred, Mr. Brock has not alleged “any prejudicial error that qualifies as a fundamental defect which inherently results in a complete miscarriage of justice, ” “an omission inconsistent with the rudimentary demands of fair procedure, ” or the deprivation of “a constitutionally protected right”-and, thus, “has no claim that would support [habeas] relief.” Stallings v. Franco, 576 Fed.Appx. 820, 822-23 (10th Cir. 2014) (quoting Knox, 34 F.3d at 968). Accordingly, the Court should deny the exhausted portion of Ground One alleging that the State of Oklahoma violated the IADA. See Fulgham v. Crow, 838 Fed.Appx. 355, 360 (10th Cir. 2020) (affirming district court's denial of habeas petition alleging IADA violation due to lack of allegations which rose to the level of “a fundamental defect result[ing] in a complete miscarriage of justice.”).
The OCCA found that the IADA had never been triggered because Petitioner had failed to meet his burden to show that he had “caused written notice and request for final disposition to be delivered to the appropriate prosecuting authority and court.” (ECF No. 23-1: 3-9). Petitioner has filed a motion to expand the record in an attempt obtain information relevant to the factual issues concerning whether the IADA had been triggered. See ECF No. 21. For the reasons discussed below, the Court should deny that Motion. See infra. However, the undersigned makes no findings as to whether an IADA violation had occurred.
V. PETITIONER'S MOTION TO EXPAND THE RECORD
Petitioner has filed a “Motion to Expand the Record Under Rule 7 of the Rules Governing Section 2254 cases and Section 2255 Proceedings.” (ECF No. 21). In the Motion, Mr. Brock seeks to obtain information which he deems relevant to the alleged IADA claim- i.e.-whether the IADA had been triggered in the first instance. See ECF No. 21. But because the IADA claim is not cognizable in this habeas proceeding, expansion of the record would serve no purpose. The Court should deny the Motion.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, the Court should: (1) DENY the Motion to Dismiss (ECF No. 22); (2) DENY the Petition (ECF No. 2); and (3) DENY the Motion to Expand the Record (ECF No. 21).
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 10, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is 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).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.