Opinion
CIV-21-66-R
08-18-2021
MICHAEL FARLEY, Petitioner, v. STATE OF OKLAHOMA, [1]Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus. See Doc. 1. United States District Judge David L. Russell has referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4. Respondent has filed a motion to dismiss for failure to exhaust available remedies and Petitioner has opposed the motion. Docs. 17, 18, 23. The undersigned recommends granting Respondent's motion to dismiss the petition.
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless otherwise indicated.
I. Procedural history.
In a petition filed January 29, 2021, Petitioner seeks federal habeas corpus relief from the judgments and sentences imposed against him in Stephens County District Court, Case Nos. CF-2017-171 and CF-2018-125. See Doc. 1, at 1.
Petitioner mistakenly references his second case as “CF-00-125.” See Doc. 1, at 1. But Petitioner has no such case number. See Doc. 18, Ex. 1.
Petitioner was convicted in Case No. CF-2017-171 of the felony offense of Larceny in the Nighttime. See Doc. 18, Ex. 3. He pleaded guilty on April 12, 2018 and was sentenced to an eight-year-term of imprisonment which the state district court suspended pursuant to the rules and conditions of Petitioner's probation. Id. Petitioner never moved to withdraw his plea and has not otherwise appealed his conviction and sentence to the state's highest court. See Doc. 1, at 7; Doc. 18, Ex. 2.
The state moved to revoke Petitioner's suspended sentence in May of 2018, after Petitioner violated the terms of his probation by committing the crime of Possession of a Firearm After Felony Conviction. See Doc. 18, Ex. 4. On August 16, 2018, Petitioner, represented by counsel, stipulated to the probation violation and pleaded guilty to the new felony firearm crime charged in Stephens County Case No. CF-2018-125. See Id. Exs. 6, 9. The state district court revoked in full Petitioner's eight-year sentence in Case No. CF-2017-171 and sentenced him to fifteen years' imprisonment in Case No. CF-2018-125. Id. Exs. 6, 7, 9. The state district court ordered the sentences to run concurrently and suspended them in full pursuant to the rules and conditions of probation. Id. Petitioner did not directly appeal the revocation of his suspended sentence in Case No. CF-2017-171, nor move to withdraw his plea or otherwise appeal his conviction and sentence in Case No. CF-2018-125. See Id. Exs. 2, 8. In his petition, Petitioner states in response to the exhaustion inquiry that “[p]lea deals have no state appeal.” Doc. 1, at 5.
On August 8, 2020, the state moved to revoke Petitioner's suspended sentence in Case No. CF-2017-171 for probation violations. Id. Exs. 10, 11. On September 17, 2020, Petitioner, represented by counsel, stipulated to the probation violations and, on March 2, 2021, the state district court revoked his eight-year sentence in full. Id. Exs. 13, 21, 22. Petitioner did not directly appeal the revocation of his suspended sentence to the state's highest court. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db'stephens&numbe r=cf-2017-171 (last visited Aug. 10, 2021).
II. Petitioner's claims.
Petitioner asserts three grounds for relief in his petition which he claims entitle him to have his conviction in CF-2017-171 and his combined sentence “str[uck] down” and a “retrial” “in a different district” in Case No. CF-2018-125. Doc. 1, at 14. In Ground One, Petitioner alleges “ineffective counsel” because his “indigent lawyer” told Petitioner that he “would sign for 10 years balance suspended after drug program.” Id. at 5. Petitioner claims the “deal changed” at the hearing to “15 years” and he only agreed to it after his counsel acted “unlawful/unethical” by “encourag[ing] [him] to take it.” Id. Petitioner complains in Ground Two that “Larceny at Night (under 500$) is now a misdemeanor” and neither his counsel nor the judge will “research” the issue. Id. at 6. And, in Ground Three, Petitioner asserts “non-existent state oversight/negligent corruption.” Id. at 8. Petitioner explains that the “DOC constantly adjusts sentences from Stephens County” but the “Oklahoma authorities” refuse to correct the situation. Id.
In response to the exhaustion query listed under Ground One, Petitioner explains that he has not exhausted his state remedies because “plea deals have no state appeal.” Id. at 5. For Ground Two's exhaustion query, Petitioner states that “larceny at night became a misdemeanor while [he] was in prison.” Id. at 7. Finally, for Ground Three, Petitioner writes that “by and large Oklahomans are not informed of this [exhaustion] option. In prison I was confronted with violence and gangs and my life was pushed further into the red.” Id. at 8. When asked if he has presented all grounds for relief to the highest state court, Petitioner states that “the justice apparatus in Stephens County rejects inquiries. We are constantly referred ‘to our lawyers' for info. The lawyers never come/respond and push us to sign. The system = vote of no confidence.” Id. at 11.
After filing his petition, Petitioner submitted papers asserting additional claims. See Docs. 7, 8, 11. In his first supplemental paper, Petitioner, who was then incarcerated in the Stephens County Jail, claimed he was being punished without due process after his phone privileges were suspended and his requests to staff and grievances were not answered. Doc. 7. He seeks $1.00 in damages from each detention officer, $91,000 from Stephens County, and written essays from the detention officers. Id. at 5. In his second supplemental paper, Petitioner complains he was treated unfairly when jail officials transferred him within the jail because he was “fighting for [his] rights.” Doc. 8, at 1-2. He seeks $1,000 and a letter from “D.O. Barry” and $3,000 from Stephens County. Id. at 2. And in his third supplemental paper, Petitioner complains about the fairness of his revocation hearing held on March 2, 2021. Doc. 11. He argues his sentence was “excessive” and constituted cruel and unusual punishment. Id. at 3. He seeks $15,000 in damages and an investigation into “every Judge, D.A., and office holder in Stephens County.” Id.
It is not clear whether Petitioner intended to file these papers in this matter since he references his civil rights case filed under Case No. CIV-21-65-SLP and designates himself as the “Plaintiff.” Id. Nevertheless, because Petitioner also cited this case in his papers, the Court addresses them.
III. Respondent's motion to dismiss.
Respondent moves to dismiss the petition because Petitioner has failed to exhaust his state court remedies. Docs. 17, 18. Respondent asserts that under both 28 U.S.C. § 2241 and § 2254, Petitioner is required to exhaust his available state remedies before filing a habeas corpus petition in this Court. Doc. 18, at 15-18. Respondent points out that Petitioner has not raised, or attempted to raise, any of the claims within his Petition to the OCCA-the State's highest [] court.” Id. at 20. Respondent asserts Petitioner has available avenues for appeal and Petitioner has not demonstrated those avenues are futile. Id. at 20-24.
Respondent also argues Petitioner's supplemental papers should not be considered by the Court because Petitioner did not properly file them under Fed.R.Civ.P. 15(d). Id. at 24-26. Alternatively, Respondent argues the claims Petitioner raises in his first two supplemental papers do not sound in habeas corpus and that all of his supplemental claims are unexhausted and should be dismissed. Id. at 26-27.
Petitioner responds that by the time “we inmates of Stephens County receive our Judgement & Sencenting” “[i]t is around 7 to 8 days after our court date” and “Stephens County miss words/changes J&S paperwork all the time.” Doc. 23, at 1. He states that “[b]y the time your paperwork gets to where it needs to go your past the 10 days for a appeal.” Id. at 2. He also asserts he is “ignorant of law proceedings” and neither the county nor the lawyers help the inmates. Id.
Having carefully reviewed the pleadings, the undersigned agrees with Respondent that Petitioner failed to exhaust his available state remedies before filing his petition in this Court. The undersigned therefore recommends granting Respondent's motion to dismiss the petition and the supplemental papers without prejudice.
IV. Analysis.
A. Petitioner has not exhausted his available state court remedies for his hybrid claims raised in Grounds One through Three and his third supplemental paper.
Although Petitioner brought this action under § 2254, it is not fully apparent from his pleadings whether he purports to challenge the second revocation of his suspended sentence in Case No. CF-2017-171 or the validity of his convictions and sentences in both cases. See Docs. 1, 11. Nevertheless, a “habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254.” Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000); see also Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (“The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief, although we recognize that the statute itself does not expressly contain such a requirement.”); Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”). “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 state prisoner's challenge to the revocation of a suspended sentence is properly brought under § 2241 based on [Tenth Circuit] precedent.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1041 (10th Cir. 2017). “By contrast, a state prisoner's federal habeas challenge to the validity of an underlying conviction or sentence must typically be brought under § 2254.” Id. at 1042.
More specifically, AEDPA prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies. 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).
The only exception to the exhaustion requirement is a showing of futility because there is either an absence of an available state corrective process or circumstances exist that render such process ineffective to protect the rights of the prisoner. See 28 U.S.C. § 2254(b)(1)(B); see also Selsor, 644 F.3d at 1026 (“If a state prisoner has not properly exhausted state remedies, the federal courts ordinarily will not entertain an application for a writ of habeas corpus unless exhaustion would have been futile because either ‘there is an absence of available State corrective process' or ‘circumstances exist that render such process ineffective to protect the rights of the applicant.'” (quoting 28 U.S.C. § 2254(b)(1)(B)(i), (ii))); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (“In order to satisfy the exhaustion requirement, a federal habeas corpus petitioner must show that a state appellate court has had the opportunity to rule on the same claim presented in federal court . . ., or that at the time he filed his federal petition, he had no available state avenue of redress.”).
Petitioner “bears the burden of proving that he exhausted state court remedies . . . or that exhaustion would have been futile.” Selsor, 644 F.3d at 1026 (internal citations omitted). Petitioner states in his petition he has not exhausted his state court remedies on the issues he raises because “plea deals have no state appeal” and he is ignorant of the law and receives no help in the county jail. See Doc. 1, at 5, 8, 11. But ignorance of the law is not a reason to excuse the exhaustion requirement. See e.g., Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding that “ignorance of the law, even for an incarcerated pro se petitioner, ” cannot be used to overcome § 2254's procedural requirements (internal quotation marks and citation omitted)); Herd v. Tapia, 356 Fed.Appx. 140, 143 (10th Cir. 2009) (“[I]t is well-settled that ignorance of the law cannot excuse the failure to exhaust.”); Gunderson v. Abbott, 172 Fed.Appx. 806, 809 (10th Cir. 2006) (“[I]gnorance of the [exhaustion requirement] . . . neither removes fault from the petitioner nor sets him apart from any other case.”). And Petitioner has available state remedies which he has not pursued-but he must before he seeks relief in this Court. Selsor, 644 F.3d at 1026.
Oklahoma has a procedure for directly appealing “any conviction on a plea of guilty, ” which is not foreclosed to Petitioner. See Okla. Stat. tit. 22, § 1051(a) (providing “[a]n appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him, ” and “all appeals taken from any conviction on a plea of guilty shall be taken by petition for writ of certiorari to the Court of Criminal Appeals”). Oklahoma also has a procedure for directly appealing the revocation of a suspended sentence, which is not foreclosed to Petitioner. See Okla. Stat. tit. 22, § 991b(F) (“Any order of the court revoking the suspended sentence, in whole or in part, shall be subject to review on appeal, as in other appeals of criminal cases.”). While the time has passed for Petitioner to timely move to withdraw his pleas or commence a revocation appeal, he may still move in the state district court for an appeal out-of-time. See, e.g., Dixon v. State, 228 P.3d 531, 532 (Okla. Crim. App. 2010) (holding that “prior to filing any petition with [the appellate court] seeking leave to commence an out-of-time appeal, a defendant must first file a verified post-conviction application in the trial court for such an appeal” and, to “be entitled to the trial court's recommendation that he be granted an out-of-time appeal, ” the defendant “must establish before the trial court that he always desired to exercise that right of appeal but that he was denied the opportunity to do so through no fault of his own” (citing Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App.)).
See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. (requiring a defendant to file “an application to withdraw the plea within ten (10) days from the date of the pronouncement of the Judgment and Sentence, setting forth in detail the grounds for the withdrawal of the plea and requesting an evidentiary hearing in the trial court”); see also Id. Rule 1.2(D)(4) (stating that the review of an order revoking a suspended sentence is governed by the same procedure as perfection of a regular misdemeanor or felony appeal, that the scope of review is limited to the validity of the revocation order, and that the “appropriate appeal time commences upon imposition of the order revoking suspended sentence”); id. Rule 2.1(B) (“An appeal is commenced by the trial counsel's filing with the trial court a written notice of intent to appeal and a designation of record as prescribed in Rule 1.14(C) within ten (10) days from the date the Judgment and Sentence is imposed in open court.”).
In his reply to the motion to dismiss, Petitioner complains that he may not have timely received his paperwork to initiate an appeal and this was through no fault of his own. Doc. 23, at 1-2. While such a claim might entitle him to an out-of-time appeal, it must first be presented to the state court, not this Court, for resolution. Selsor, 644 F.3d at 1026; Miranda, 967 F.2d at 398.
Petitioner has admittedly failed to seek relief in state court concerning the validity of his convictions or the revocation of his sentence. Yet, he has not demonstrated he lacks the opportunity to obtain the appropriate redress in state court. Under such circumstances, this Court cannot address Petitioner's habeas corpus claims because he has not exhausted his available state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.
B. The Court should dismiss, not stay, the unexhausted petition.
Respondent also argues this Court should dismiss, rather than stay, the petition. Doc. 18, at 28-31. “Faced with a petition containing unexhausted claims, ” this Court has generally only two options: (1) “dismiss the entire petition without prejudice in order to permit exhaustion of state remedies;” or (2) “deny the entire petition on the merits.” Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) (citing Rose v. Lundy, 455 U.S. 509, 510 (1982), and 28 U.S.C. § 2254(b)(2)). But, in Rhines v. Weber, the Supreme Court examined a “mixed petition, ” i.e., a petition containing both exhausted and unexhausted claims, and determined that in limited circumstances a court can issue a stay and abeyance to allow a petitioner to exhaust his claims in state court. 544 U.S. 269, 277-79 (2005). While the petition here is not a “mixed petition” because it contains only unexhausted claims, the Court can still consider a Rhines stay. See Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014) (concluding that “the district court had discretion to consider a Rhines stay even though petitioner filed an unmixed petition”).
A stay and abeyance is “available only in limited circumstances, ” where a petitioner shows “good cause for his failure to exhaust, the unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277, 278; see also Doe, 762 F.3d at 1181 (explaining that “the Rhines three- part test strictly limits the availability of a stay where a petitioner has not yet exhausted his state remedies”). Petitioner here has neither sought a stay nor attempted to demonstrate good cause for the entry of a stay. He has no pending state postconviction proceedings and has indicated he has no intention of exhausting his state court remedies. Thus, the Court is not presented with the limited circumstances in which a stay might be appropriate. Cf. Doe, 762 F.3d at 1181 (“Where a petitioner files a protective federal habeas petition during the pendency of state court proceedings because of the short time period remaining on the federal statute of limitations and can meet the Rhines three-part test, the total exhaustion rule's protection against ‘needless piecemeal litigation' and ‘proceedings whose only purpose is to vex, harass, or delay' is not compromised.” (citation omitted)). The undersigned therefore recommends dismissing the entire petition and Petitioner's third supplemental paper without prejudice. See, e.g., United States v. Hickman, 191 Fed.Appx. 756, 757 (10th Cir. 2006) (“[G]iven that the claims are entirely unexhausted, the § 2254 petition should be dismissed without prejudice.”).
C. Petitioner's claims in his first and second supplemental papers do not lie in habeas corpus and should be dismissed.
In his first and second supplemental papers, Petitioner complains about his conditions of confinement in the Stephens County Jail. Docs. 7, 8. If Petitioner seeks to assert an Eighth or Fourteenth Amendment violation based on his conditions of confinement, he must bring his claim not in a habeas corpus case, but in a civil rights action under 42 U.S.C. § 1983. See McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action . . . attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions.” (quotations omitted)). So, the claims Petitioner raised in these supplemental papers should be dismissed without prejudice.
V. Recommendation and notice of right to object.
The undersigned recommends granting Respondent's motion to dismiss the petition and supplemental papers without prejudice. The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 8, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED.