Opinion
CIV-23-430-R
07-14-2023
MICHAEL CISNEROS, Petitioner, v. THE STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 6). United States District Judge David L. Russell 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.
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. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading,” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct. Under Rule 4, the Court may dismiss a petition based on a failure to exhaust state court remedies if non-exhaustion is “clear from the face of the petition.” Allen v. Zavara, 568 F.3d 1197, 1202 (10th Cir. 2009).
As non-exhaustion is plain from the face of the Petition, the undersigned concludes it is proper to raise the exhaustion issue sua sponte. See Ale, 568 F.3d at 1202 (upholding district court's sua sponte dismissal of petition for habeas relief for failure to exhaust state court remedies where petitioner's failure to exhaust “was clear from the face of his petition”). And the Court's decision to raise sua sponte Petitioner's failure to exhaust does not present a due process problem because Petitioner may present his position by filing an objection to this Report and Recommendation. See id. at 1203 (noting that in allowing petitioner “an opportunity to respond to a problem obvious from the face of his pleadings,” the district court “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 McDonoug,, 547 U.S. 198, 210 (2006)).
II. PROCEDURAL BACKGROUND
On September 3, 2020, in Oklahoma County District Court Case No. CF-2019-628, Mr. Cisneros was convicted by a jury of two counts of domestic abuse. See ECF No. 6:1; State Court Docket Sheet, State of Oklahoma v. Cisneros, Case No. CF-2019-628 (Okla. Co. Dist. Ct. Sept. 3, 2020). Petitioner attempted to appeal the conviction by filing a Notice of Intent to Appeal with the Oklahoma Court of Criminal Appeals (OCCA) on November 20, 2020. See State Court Docket Sheet, Cisneros v. State of Oklahoma, Case No. F-2020-881 (Okla. Ct. Crim. App. Nov. 20, 2020). Ultimately, however, on February 27, 2023, the OCCA dismissed the appeal due to Petitioner's failure to file his appeal brief, despite having been given multiple opportunities to do so. See Order Dismissing Appeal, Cisneros v. State of Oklahoma, Case No. F-2020-881 (Okla. Ct. Crim. App. Feb. 27. 2023). A review of the State Court Docket Sheet shows that Petitioner has not filed any other pleadings in state court in an attempt to appeal the conviction.
On June 8, 2023, Mr. Cisneros filed a 107-page habeas Petition with a 102-page supporting document. (ECF No. 6). The first page of the Petition utilizes the court's approved form for seeking a writ of habeas corpus under 28 U.S.C. § 2254, and throughout the 107-page pleading Petitioner intersperses various pages of the form, but in no particular order. See ECF No. 6. Additionally, interspersed throughout the pleading, again, in no particular order, Petitioner has included: a letter from Nicole Burns, assistant public defender, “notes” from various witnesses and experts, portions of a trial transcript, excerpts from a motion hearing in state court, a portion of a type-written brief from Ms. Burns, and the first page of a motion to exclude a witness' testimony. See ECF No. 6.
III. EXHAUSTION
“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). This doctrine began as a judicially created prudential principle based on federal-state comity before its 1948 codification in the habeas statutes. Rose v. Lundy, 455 U.S. 509, 515-16, (1982); see 28 U.S.C. § 2254(b)(1). "Although the exhaustion rule is not jurisdictional, it creates a 'strong presumption in favor of requiring the prisoner to pursue his available state remedies.' ” Bear v. Boone, 173 F.3d 782, 784 (10th Cir. 1999) (quoting Granberry v. Greer, 481 U.S. 129, 131 (1987)). "The exhaustion requirement is designed to avoid the unseemly result of a federal court upsetting a state court conviction without first according the state courts an opportunity to correct a constitutional violation.” Davila v. Davis, __ U.S.__, 137 S.Ct. 2058, 2064 (2017) (internal quotation marks omitted) (quoting Rose, 455 U.S. at 518).
"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).
IV. DISMISSAL OF THE PETITION
The Court should dismiss the Petition in its entirety, as the claims presented therein are unexhausted. As stated, Mr. Cisneros attempted to appeal his conviction, but the OCCA ultimately dismissed the appeal due to Petitioner's failure to file an appeal b rief. See supra. Beyond this failed appeal, the undersigned has reviewed Petitioner's state court docket sheet and performed a thorough review on OSCN.net and concludes that Mr. Cisneros has neither attempted to seek an appeal out of time or file an application for post-conviction relief.
As stated, 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.” See supra, Selsor. In Grant v. Royal, 886 F.3d 874, 890-91 (10th Cir. 2018), the Tenth Circuit Court of Appeals examined the intricacies of what, exactly, is required to have “fairly presented” a claim in state court for purposes of exhaustion. The court stated:
[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. But, a "[f]air presentation” requires more than presenting "all the facts necessary to support the federal claim” to the state court.
Nor is citing the relevant legal principles, absent the relevant facts, sufficient to fairly present a claim. Furthermore, a petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court. 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. Indeed, mere similarity of claims is insufficient to exhaust. And the assertion of a general claim before the state court is insufficient to exhaust a more specific claim asserted for habeas relief.
Indeed, in order to be fairly presented, the state-court claim must be the "substantial equivalent” of its federal habeas counterpart. There is no such substantial equivalency where the claim raised in habeas proceedings is in a significantly different and stronger posture than it was when the state courts considered it. To satisfy exhaustion, then, the habeas petition's focus-as well as the alleged error that it identifies-cannot depart
significantly from what the petitioner had presented to the state court. Nor is it acceptable for the habeas petitioner to “shift” the basis for [his or her] argument away from what was previously raised in state court.Grant v. Royal, 886 F.3d 874, 890-91 (10th Cir. 2018) (internal citations omitted).
Here, the undersigned is unable to discern Mr. Cisneros' precise grounds for habeas relief based on his rambling, and at times incoherent, 209-page filing. What is clear, however, is that none of the grounds for relief in the habeas Petition have been fairly presented to the OCCA for adjudication. Because Petitioner must exhaust his state court remedies before proceeding in habeas corpus, and because Mr. Cisneros could still file for an appeal out of time or seek post-conviction relief in state court, the Court should dismiss the habeas Petition for failure to exhaust his state court remedies.
See Okla. Ct. Crim. App. R. 2.1(E); 22 O.S. § 1086.
V. RECOMMENDATION
The Court should DISMISS the petition on filing, without prejudice, based on Petitioner's failure to exhaust his state court remedies.
VI. NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by July 31, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are 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.