Opinion
CIV-21-139-JD
11-02-2021
FRANKLIN SAVOY COMBS, Petitioner, v. RICK WHITTEN, [1] Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Respondent moved to dismiss (Docs. 9, 10), arguing that the Petition is time- barred. Petitioner has responded. Having conducted a preliminary review of the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the undersigned recommends dismissing the Petition pursuant to Younger v. Harris, 401 U.S. 37 (1971). Accordingly, the undersigned recommends denying Respondent's Motion to Dismiss (Doc. 9) as moot and denying Petitioner's other pending motions (Docs. 14, 15, 17, 18).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Petitioner has filed two documents entitled “Motion for Summary Judgment” (Doc. 11) and “Motion for Objection to Return” (Doc. 13). Neither seek relief outside of that requested in the Petition. Both offer arguments in support of the Petition and against its dismissal. The court therefore liberally construes these filings as a combined response to Respondent's Motion to Dismiss (Doc. 9).
I. Factual and Procedural Background
Petitioner is a state inmate incarcerated at the North Fork Correctional Center in Sayre, Oklahoma. (Doc. 1, at 1). A jury in Hughes County District Court found Petitioner guilty of Murder in the First Degree (Count One), Unlawful Possession of a Controlled Dangerous Substance (Count Two), and Unlawful Possession of Controlled Dangerous Substance with Intent to Distribute (Count Three). (Doc. 1, at 1); see also Hughes County District Court, Case No. CF-2013-112. Petitioner was sentenced to life imprisonment with the possibility of parole on Count One, two years of imprisonment on Count Two, and two years of imprisonment on Count Three, to be served concurrently. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=hughes&number=CF-2013-00112 (Docket Sheet) (last visited Nov. 1, 2021). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. 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).
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (“OCCA”). (Doc. 1, at 2); see also OCCA Case No. F-2015-556. In his appeal, Petitioner raised six propositions of error: insufficient evidence, that the trial court abused its discretion by failing to give jury instructions on lesser charges, prosecutorial misconduct, ineffective assistance of counsel, improper admission of evidence, and accumulation of error. (Id.) The OCCA affirmed Petitioner's conviction on March 16, 2017. OCCA Case No. F-2015-556. Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days later, on June 14, 2017. See Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F -2015-556 (Docket Sheet) (last visited Nov. 1, 2021).
On April 2, 2018, Petitioner filed an Application for Post-Conviction Relief in Hughes County, claiming violations of his Sixth and Fourteenth Amendment rights and ineffective assistance of trial counsel. (Doc. 10, at Ex. 4); see also Hughes County District Court, Case No. CF-2013-112 (see footnote 4, supra). The state district court denied Petitioner's Application on May 15, 2018. (Doc. 10, at Ex. 5); see also Hughes County District Court, Case No. CF-2013-112 (see footnote 4, supra). Petitioner filed a timely notice of intent to appeal, but he did not perfect his appeal to the OCCA. Hughes County District Court, Case No. CF-2013-112 (see footnote 4, supra).
On January 6, 2020, Plaintiff filed a second Application for Post-Conviction Relief, arguing that the district court did not have jurisdiction over his crime because he is a member of the Muscogee (Creek) Nation and the crime occurred in Indian Country. (Doc. 1, at 3; Doc. 10, at Ex. 6); see also Hughes County District Court, Case No. CF-2013-112 (see footnote 4, supra). Petitioner has since filed several amendments to that Application and/or additional Applications with the Hughes County District Court. See Hughes County District Court, Case No. CF-2013-112 (see footnote 4, supra). All are still pending. (Id.)
On February 18, 2021, Petitioner filed the instant Petition. (Doc. 1, at 10). In his Petition, he raises the same jurisdictional question as that raised in his second, still pending Application before the Hughes County District Court. (Id. at 5). He asserts he is an enrolled member of the Muscogee (Creek) Tribe and the crime occurred in Indian Country - specifically the Muscogee (Creek) Reservation. (Id. at 5). Based on these facts, he asserts Oklahoma did not have jurisdiction to prosecute him, relying on the decision and reasoning in Deerleader v. Crow, No. 20-CV-172-JED-CDL, 2020 WL 7345653 (N.D. Okla. 2020). (Id.)
II. Analysis
A. The Court Should Abstain from Addressing the Habeas Petition Pursuant to the Younger Abstention Doctrine.
Under the Younger abstention doctrine, federal courts are to abstain from exercising jurisdiction to interfere with state proceedings when 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) (citing Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006)). 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. 37, 50-54 (1971) (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) (citation omitted).
Although Respondent did not raise the issue in his Motion to Dismiss, “Younger abstention is jurisdictional.” D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). “[A] court may raise the issue of abstention sua sponte.” D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1231 (10th Cir. 2013) (citations omitted); see also Sanchez v. Wells Fargo Bank, N.A., 307 Fed.Appx. 155, 157 (10th Cir. 2009) (recognizing that both Supreme Court and Tenth Circuit precedent “have acknowledged the authority of a federal court to address application of the Younger doctrine sua sponte”).
Abstention is appropriate in this matter. First, Petitioner has post-conviction application(s) and related amendments and motions currently pending in Hughes County District Court that present the same allegations as those asserted in the instant habeas Petition. (Doc. 1, at 5); see also Hughes County District Court, Case No. CF-2013-112 (see footnote 4, supra). Thus, Petitioner's criminal case is “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, Petitioner does not make any allegations regarding the inadequacy of the state forum. Indeed, although Petitioner challenges the jurisdiction of the state over his case, Petitioner can and did pursue state court relief in the form of his post-conviction application, which is currently pending before the Hughes County District Court. As a result, the second element of the Younger doctrine is met.
Although Petitioner does not challenge the adequacy of the state forum, he appears to believe it unnecessary to first exhaust his jurisdictional challenge in state court before seeking federal habeas relief. (Doc. 1, at 5-6). Petitioner is mistaken. See, e.g., Pitts v. Crow, 2021 WL 2715966, at *1 (W.D. Okla. July 1, 2021) (“[T]he Court first rejects any contention that a § 2254 petition raising a jurisdictional claim is exempt from the exhaustion requirement.”); Morgan v. Bureau of Indian Affairs, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (noting that § 2254's exhaustion requirement “does not contain an exception” for a jurisdictional Murphy claim); Draper v. Oklahoma, 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.”). Similarly, Petitioner's reliance on Deerleader v. Crow, 2020 WL 7345653 (N.D. Okla. Dec. 14, 2020), (see Doc. 1, at 5) is misplaced, as the petitioner in that case had presented his jurisdictional challenge under Murphy to the OCCA, and the court held the petitioner was not required to “reexhaust” his claim before the OCCA following the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2454 (2020). Id. at *3-4.
As to the third Younger requirement, “state criminal proceedings are viewed as ‘a traditional area of state concern.'” Winn, 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 Petitioner's application for post-conviction relief is 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 stillpending application for post-conviction relief in state court).
B. Petitioner's Other Motions (Docs. 14, 15, 17, and 18) Should Be Denied.
In his “Motion for Clarification of This Court's Order” (Doc. 14), Petitioner asks for clarification on (but does not object to) the undersigned's Order for Response (Doc. 6) to Respondent. (Doc. 14, at 2). Essentially, Petitioner argues that he is entitled to judgment in his favor on the basis of the facts pled in his Petition; therefore, the undersigned should not have ordered a response from Respondent and should clarify its rationale in doing so. (Id. at 2-8). For the reasons discussed above, the undersigned disagrees with Petitioner's assessment that he is entitled to judgment in his favor on the face of the Petition. Petitioner's Motion (Doc. 14) should be denied.
Additionally, Petitioner has filed three motions (Docs. 15, 17, and 18) seeking release on bail pending a ruling on his Petition due to exposure to COVID-19 while imprisoned. Respondent has objected. (Doc. 16). These Motions (Docs. 15, 17, and 18) should be denied as moot. See Neil v. Crow, 2021 WL 4134830, at *1 (W.D. Okla. Sept. 10, 2021) (“The Court finds that the motion [for release on bail] is moot because the Petition is no longer pending.”).
One of Petitioner's motions (Doc. 18) additionally contains over 20 pages of arguments in support of the claims in the Petition; those arguments have not been considered here. See generally LCvR 7.1(c) (“Each motion filed shall be a separate document, except where otherwise allowed by law, these rules, or court order”).
III. Recommendation and Notice of Right to Object
For the foregoing reasons, it is recommended that the Court dismiss the Petition pursuant to Younger v. Harris, 401 U.S. 37 (1971). Further, the undersigned recommends that the Court deny Respondent's Motion to Dismiss (Doc. 9) as moot and deny Petitioner's other pending motions (Docs. 14, 15, 17, and 18).
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by November 23, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.