Opinion
CIV-21-155-D
10-15-2021
WILLIAM CHESTNUT, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SHONT. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner, 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). Respondent has filed a Motion to Dismiss and brief in support, arguing, in part, that dismissal is appropriate because Mr. Chestnut: (1) has not exhausted his state court remedies and (2) has ongoing state court proceedings relevant to the habeas claim. (ECF Nos. 10 & 11). The Court should agree and DISMISS the Petition.
Alternatively, Respondent argued that the Petition should be dismissed as time-barred. But the Court need not address Respondent's alternative argument in light of the recommended dismissal. See Largent v. Nunn, No. CIV-20-683-J, 2020 WL 6734673, at *3 (W.D. Okla. Oct. 20, 2020) (“Because the Court should dismiss the petition for failure to exhaust, the undersigned does not reach Respondent's statute-of-limitations argument.”); Largent v. Nunn, 2020 WL 6731112, at *1 (W.D. Okla. Nov. 16, 2020) (Order adopting recommendation).
I. PROCEDURAL BACKGROUND
On February 10, 2016, Petitioner plead guilty one count of lewd molestation of a child under 16. (ECF No. 11-2). Petitioner did not seek to withdraw the plea, and thus failed to perfect a direct appeal. (ECF No. 1:2); see York v. Galetka, 314 F.3d 522, 526 (10th Cir. 2003). On February 22, 2021, Mr. Chestnut filed a habeas petition in this Court, asserting a lack of jurisdiction in the trial court based on the United States Supreme Court's ruling in McGirt v. Oklahoma, 140 S.Ct. 2454 (2020). (ECF Nos. 1:5; 9). On June 10, 2019, Petitioner filed a “Motion to Vacate Judgment and Sentence” which the Kingfisher County District Court denied after construing it as an Application for Post-Conviction Relief. (ECF Nos. 11-3, 11-4). On January 23, 2020, Mr. Chestnut filed a Second Application for Post-Conviction Relief in the Kingfisher County District Court, asserting the jurisdictional issue he raises in his habeas Petition. (ECF No. 11-5). Without waiting for a response from the district court, Petitioner proceeded to file four additional post-conviction applications in the Kingfisher County District Court. See ECF Nos. 11-6:12-13. To date, the Kingfisher County District Court has not ruled on any of the applications. See state court docket sheet, State of Oklahoma v. Chestnut, No. CF-2014-103 (Kingfisher Co.).
In response to the Court's Order to the Respondent to file a response, Mr. Chestnut filed ECF No. 9, which the Court construes as a brief in support of his habeas Petition.
In his first Application for Post-Conviction Relief, Mr. Chestnut did not raise the jurisdictional issue he asserts in the habeas Petition. See ECF No. 11-3.
On April 29, 2021, Respondent filed a Motion to Dismiss the habeas Petition. See ECF Nos. 10 & 11. On July 30, 2021, Petitioner filed a response to the Motion to Dismiss. (ECF No. 18).
II. DISMISSAL OF THE PETITION
The Court should dismiss the habeas Petition based on: (1) Mr. Chestnut's failure to exhaust his state court remedies and (2) the existence of ongoing state court proceedings which require the Court's abstention.
A. Exhaustion
A federal court cannot grant a state prisoner's habeas petition unless the petition satisfies the procedural prerequisites of 28 U.S.C. § 2254(b), including that the petitioner has exhausted his or her state-court remedies by presenting “the substance” of the claims to that state's highest court. Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); 28 U.S.C. § 2254(b)(1)(A).
In this regard, § 2254(b)(1) states, “An application for a writ of habeas corpus … shall not be granted unless it appears that[ ] … the applicant has exhausted the remedies available in the courts of the State….” 28 U.S.C. § 2254(b)(1). Section 2254(c) elaborates that “[a]n 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.” Id. § 2254(c) (emphasis added).Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
To properly exhaust, a petitioner “must ‘fairly present' his claim in each appropriate state court. . ., thereby alerting that court to the federal nature of the claim” and giving the State the first “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). “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) (citations omitted).
As stated, Petitioner seeks habeas relief based on an alleged lack of jurisdiction in the trial court. See supra. On January 23, 2020, in the Kingfisher County District Court, Mr. Chestnut filed an Application for Post-Conviction relief asserting this jurisdictional issue. See ECF No. 11-5. To fully exhaust the claim in state court, the claim must have been presented to the state's highest court, the OCAA. See supra. But to date, the Kingfisher County District Court has not ruled on the application, a prerequisite to an appeal in the Oklahoma Court of Criminal Appeals (OCCA). See supra. If Mr. Chestnut believes that the state court has impermissibly delayed ruling on his application, he may seek relief in the form of filing for a Writ of Mandamus in the Oklahoma Court of Criminal Appeals. See Rule 10.1 et seq, Rules of the Oklahoma Court of Criminal Appeals.
In a supporting brief, Petitioner states: “The Petitioner contends, that he fairly presented the Jurisdictional claim to the O.C.C.A., in the Post-Conviction appeal, and therefore exhausted available state remedies, as required by 28 U.S.C. § 2254[.]” (ECF No. 9:9). But Mr. Chestnut has provided no proof in support of his assertion and in fact, a review of the Kingfisher County District Court docket sheet in Petitioner's case and the database of cases filed in the OCCA show otherwise.
In the Petition, Mr. Chestnut provides the following statement regarding his failure to exhaust state court remedies:
The State cannot further hear my case according to the Honorable Judge John Dowdell, U.S. Northern District Courts, decision of 20-CV-0172-JED-CDL, Farron Robert Deerlander v. Scott Crow, Okla. director of Dept. of Corrections. (2021).(ECF No. 1:5). The Court should conclude that Petitioner is not excused from the exhaustion requirement based on Deerlander. In Deerlander, the petitioner had exhausted his jurisdictional claim prior to the McGirt ruling, where he had raised the issue in a post-conviction application. See ECF No. 15:6-7, Deerlander v. Crow, No. 20-CV-0172 (N.D. Okla. Dec. 14, 2020). The “exhaustion issue” in the case concerned whether the petitioner was required to “re-exhaust” his claim in state court, post-McGirt, because McGirt had expressly overruled the case on which the petitioner had initially based his jurisdictional claim. See Id. The Northern District of Oklahoma answered this question negatively, finding that the issue had been exhausted in the petitioner's application for post-conviction relief, despite the fact that McGirt was decided subsequent to a ruling on the post-conviction application. See ECF No. 15:7-11, Deerlander v. Crow, No. 20-CV-0172 (N.D. Okla. Dec. 14, 2020).
Here, Mr. Chestnut has not explained how Deerlander would support his claim that “the state cannot further hear [his] case.” (ECF No. 1:5). And indeed, the facts of Deerlander are dissimilar to the instant case-Mr. Chestnut, unlike the petitioner in Deerlander, has yet to complete one full round of exhausting his claim in state court. Thus, the Court should reject Petitioner's reliance on Deerlander to excuse exhaustion.
To the extent the Court liberally construes either the Petition (ECF No. 1) or Mr. Chestnut's brief in support (ECF No. 9) or response to the Motion to Dismiss (ECF No. 18) to argue that his jurisdictional argument under McGirt is somehow exempt from the exhaustion requirement, the Court should reject the same. See Largent v. Nunn, No. CIV-20-683-J, 2020 WL 6734673, at *2 (W.D. Okla. Oct. 20, 2020) (“the Section 2254 exhaustion requirement contains no exception for jurisdictional claims.”), adopted 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020); Morgan v. Bureau of Indian Affairs, No. CIV-18-290-G, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (noting 2254's exhaustion requirement “does not contain an exception” for a jurisdictional Murphy claim); see also 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.”); Draper v. Oklahoma, No. CIV-19-376-D, 2019 WL 2453671, at *1 (W.D. Okla. June 12, 2019) (“Upon de novo consideration of the issue raised by Petitioner's Objection, the Court rejects his position that a § 2254 petition raising a jurisdictional issue is exempt from the exhaustion requirement.”); Billings v. Bureau of Indian Affairs, No. CIV-18-397-F, 2018 WL 2189772, at *2 (W.D. Okla. Apr. 26, 2018) (“[T]he Court should reject Petitioner's argument that he does not need to exhaust his state-jurisdiction question in state court, and should dismiss the Petition without prejudice based on nonexhaustion.”), adopted, 2018 WL 2187056 (W.D. Okla. May 11, 2018).
In sum, Oklahoma's post-conviction procedures provide a path for Petitioner to raise a jurisdictional challenge. See Okla. Stat. tit. 22, § 1080(b). Petitioner has taken the initial steps in exhausting his claim in state court, but he has not yet completed that path. Because Petitioner must fully exhaust his state court remedies before filing a habeas petition, the Court should grant Respondent's Motion to Dismiss and dismiss the Petition based on Petitioner's failure to exhaust.
B. Abstention
In an alternative argument for dismissal, Respondent also states: “The ongoing state proceeding on Petitioner's jurisdictional claim further warrant dismissal of his habeas petition pursuant to the Younger abstention doctrine.” (ECF No. 11:9). Respondent is correct and the Court should additionally 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).
For the following reasons, the Court should conclude that abstention under Younger is appropriate.
First, Mr. Chestnut has five post-conviction applications currently pending in Kingfisher County District Court, one of which presents the same allegations as those asserted in the habeas Petition. 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, to the extent Petitioner relies on Deerlander to allege that he has no state court forum, the Court should reject any such argument for the reasons explained. See supra. (ECF No. 1:5).
Finally, the Court should conclude that the third Younger requirement is met through the ultimate resolution of Petitioner's pending post-conviction applications in state court. “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 Mr. Chestnut's applications for post-conviction relief are pending in state court, and Petitioner 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).
III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court GRANT Respondent's Motion to Dismiss (ECF No. 10).
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 7, 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).
IV. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.