Opinion
CIV-20-519-SLP
08-26-2020
SHIRON DAVIS, Petitioner, v. STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se and in forma pauperis, filed an 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 without prejudice.
I. Background
On September 28, 2018, Petitioner was convicted, following a jury trial, of Domestic Assault and Battery Resulting in Great Bodily Harm, After Former Conviction of Two or More Felonies (Count Two), Child Neglect, After Former Conviction of Two or More Felonies (Count Four), Domestic Assault and Battery in the Presence of a Minor Child, After Former Conviction of Two or More Felonies (Count Six), and Violation of a Victim Protective Order (Count Seven). Doc. No. 13 ("Pet.") at 1; Doc. No. 13-1 at 1, 3; see also Oklahoma State Court's Network, Tulsa County District Court, Case No. CF-2016-3321. The state court sentenced Petitioner to four years imprisonment for Count Two, twenty-two years imprisonment for Count Four, and one year for each of Counts Six and Seven, with the sentences to run consecutively. Doc. No. 13-1 at 1, 3. Count Six was merged with Count Two. Id. at 3.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF- 2016-3321
On October 11, 2018, Petitioner filed an appeal with the Oklahoma Court of Criminal Appeals ("OCCA"). Pet. at 2; see also Oklahoma State Court's Network, Oklahoma Court of Criminal Appeals, Case No. F-2018-1045. The OCCA affirmed his convictions on March 5, 2020. Pet. at 2.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F- 2018-1045
On March 27, 2020, Petitioner filed an application for post-conviction relief in the Tulsa County District Court. Pet. at 2; see also Oklahoma State Court's Network, Tulsa County District Court, Case No. CF-2016-3321. The state district court denied the same on April 20, 2020. Oklahoma State Court's Network, Tulsa County District Court, Case No. CF-2016-3321. Petitioner appealed this decision to the OCCA, which affirmed the same on August 7, 2020. Pet. at 2; see also Oklahoma State Court's Network, Oklahoma Court of Criminal Appeals, Case No. PC-2020-371.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF- 2016-3321
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF- 2016-3321
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC- 2020-371 --------
In the meantime, Petitioner filed a petition for writ of certiorari with the United States Supreme Court. Pet. at 2; Davis v. Oklahoma, Case No. F-2018-1045 (Okla. Crim. App. 2020), petition for cert. filed (U.S. June 2, 2020) (No. 19-8697). The petition for certiorari remains pending.
In the present action, Petitioner raises three grounds for relief. First, he claims there was insufficient evidence to support his conviction for child neglect. Pet. at 5. Second, Petitioner asserts that certain of his convictions violate the prohibition against double jeopardy as they arise from the same act. Id. at 6-7. Third, he contends there was insufficient evidence to support his conviction for domestic assault and battery resulting in great bodily harm. Id. at 9.
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
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; Middlesex Cty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). "[T]he district court must abstain once the conditions are met, absent extraordinary circumstances." Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Com., 240 F.3d 871, 875 (10th Cir. 2001) (quotations omitted).
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, 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).
Based on the foregoing, the undersigned recommends the Court abstain in this case. Petitioner acknowledges, and the United States Supreme Court docket affirms, that his petition for writ of certiorari remains pending. Pet. at 2-3; Davis v. Oklahoma, Case No. F-2018-1045 (Okla. Crim. App. 2020), petition for cert. filed (U.S. June 2, 2020) (No. 19-8697). Thus, Petitioner's criminal case is ongoing. See McGill v. Marshall, No. CV 09-5572-VBF (RC), 2009 WL 2406361, at *1-2 (C.D. Cal. Aug. 4, 2009) (dismissing habeas action based on the Younger doctrine where the petitioner had appealed the state appellate court's denial of his criminal appeal by filing a petition for writ of certiorari that was pending before the United States Supreme Court); see, cf., Carbajal v. Hotsenpiller, 524 F. App'x 425, 428 (10th Cir. 2013) (holding the plaintiff's pending application for post-conviction relief satisfied Younger's first condition that state criminal proceedings be "ongoing").
While Petitioner acknowledges that his petition for writ of certiorari is pending, he does not allege the United States Supreme Court forum is inadequate. See, cf., Littlejohn v. South Carolina, No. 6:07-3560-RBH, 2007 WL 4376067, at *3 (D.S.C. Dec. 10, 2007) ("Congress and the federal courts have consistently recognized that federal courts should permit state courts to try state cases, and that, where constitutional issues arise, state court judges are fully competent to handle them subject to Supreme Court review." (quotations omitted)) Further, "Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings . . . ." Green v. Whetsel, 166 F. App'x 375, 376 (10th Cir. 2006) (quotations omitted). Finally, Petitioner does not allege any bad faith, harassment, or other extraordinary circumstances.
In sum, Younger requires the Court to abstain while Petitioner's petition for writ of certiorari is pending before the United States Supreme Court, and Petitioner has not met the heavy burden to show otherwise. See McGill, supra.; see, cf., Carbajal, 524 F. App'x 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).
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed without prejudice pursuant to the Younger abstention doctrine. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 14th , 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, 950 F.2d 656 (10th Cir. 1991); 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.
Dated this 26th day of August, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE