Opinion
CIV-21-918-JD
12-07-2021
ARTHUR GARRETT, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Arthur Garrett, 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). United States District Judge Jodi W. Dishman 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 on screening for failure to exhaust state court remedies.
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
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. Grounds for dismissal under Rule 4 include a habeas petitioner's failure to exhaust his state court remedies as required by 28 U.S.C. § 2254(b)(1). See Allen v. Zavara, 568 F.3d 1197, 1202 (10th Cir. 2009). The Court may dismiss a petition for failure to exhaust available state court remedies if non-exhaustion is “clear from the face of the petition.” Id.
II. PROCEDURAL BACKGROUND
On July 28, 2020, in Texas County District Court Case No. CF-2020-85, Petitioner plead guilty to a charge of aggravated trafficking in illegal drugs within 2, 000 feet of a school. (ECF No. 1:1). Petitioner did not appeal the conviction, but instead filed an Application for Post-Conviction Relief in the Texas County District Court on June 11, 2021. (ECF No. 1:3). In the post-conviction application, Mr. Garrett raised two grounds for relief: (1) the Texas County District Court lacked jurisdiction over the trial because the crime occurred on “Indian Land” and (2) the Texas County District Attorney withheld exculpatory evidence related to the alleged lack of jurisdiction. (ECF No. 1:3). On September 8, 2021, the Texas County District Court denied the Application for PostConviction Relief. See ECF No. 1:3; Order Denying Petition for Post-Conviction Relief Pursuant to 22 O.S. § 1080 & Response to Motion to Expunge Record, Case No. CF-2020-85 (Tx. Co. Dist. Ct. Sept. 8, 2021). A review of the OCCA database does not show that Petitioner appealed the district court's ruling and indeed, Mr. Garrett concedes the same in the habeas Petition. See Oklahoma Supreme Court Network; ECF No. 1:6, 8.
On September 16, 2021, Mr. Garrett filed a habeas Petition in this Court, alleging three grounds for relief:
1. the Texas County District Court lacked jurisdiction over the trial because the crime occurred on “Indian Land;”
2. the Texas County District Attorney withheld exculpatory evidence related to the alleged lack of jurisdiction;
3. the OCCA's decision in State ex rel. Matloff v. Wallace violates his right to Due Process.(ECF No. 1:5, 7, 8).
III. DISMISSAL OF THE HABEAS PETITION
“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). "Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) ("A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254.”). The exhaustion requirement is satisfied when the petitioner "us[es] all steps that the [applicable entity] holds out. . . .” Woodford, 548 U.S. at 90. "A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). Futility of exhaustion may be found 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.” 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii). 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).
In the Petition, Mr. Garrett admits that he has not exhausted any of his grounds for habeas relief. See ECF No. 1:6, 8, 9. As stated, the Texas County District Court denied habeas Grounds One and Two when ruling on Petitioner's Application for Post-Conviction Relief. See supra. Thus, the next step for Mr. Garrett to take to fully exhaust Grounds One and Two in state court is to appeal the Texas County District Court's denial to the OCCA. See Anderson v. Province, 2011 WL 7117261, at *2 (W.D. Okla. Dec. 28, 2011) ("After the State district court denied his application for state post-conviction relief, the correct procedure was for Petitioner to present his ineffective assistance of counsel claim to the Oklahoma Court of Criminal Appeals by appealing the State district court's denial of his application.”). And the first step in exhausting Ground Three, which has never been raised in state court, is for Mr. Garrett to file an Application for Post-Conviction Relief.
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”). While the time has passed for Petitioner to timely move to withdraw his plea, he may still move in the Texas County 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.)). Petitioner has not pursued a postconviction appeal to raise Ground Three in his habeas Petition and therefore has not exhausted his available state court remedies. See ECF No. 1:9; 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
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”).
A search of the OCCA's database indicates that Petitioner has neither appealed the post-conviction denial (Grounds One and Two) nor filed for an appeal out of time (Ground Three). Indeed, Mr. Garrett concedes these points in the Petition. See supra. Petitioner attempts to justify the failure to exhaust Grounds One and Two by essentially arguing that it would be futile to do so. (ECF No. 1:6, 8). According to Petitioner, because Grounds One and Two are based on the application of McGirt v. Oklahoma, 140 S.Ct. 2454 (2020), which the OCCA deemed non-retroactive in State ex rel. Matloff v. Wallace, P.3d., 2021 WL 3578089 (Okla. Crim. App. Aug. 12, 2021), it would be futile to appeal the Texas County District Court's post-conviction denial of these claims. (ECF No. 1:6, 8). This Court has rejected this very argument. See Neil v. Crow, No. CIV-21-698-D, 2021 WL 4143948, at *1, n. 2 (W.D. Okla. Aug. 18, 2021) (rejecting habeas petitioner's futility argument, noting that petitioner must still fully exhaust his McGirt claim in state court even in light of State ex rel. Matloff v. Wallace which unequivocally stated that McGirt shall not apply retroactively), adopted, Neil v. Crow, No. CIV-21-698-D, 2021 WL 4134830 (W.D. Okla. Sept. 10, 2021).
Regarding Ground Three, Petitioner simply states that he did not exhaust this claim via a direct appeal or in his Application for Post-Conviction Relief because the claim did not arise until after: (1) his time had expired to file a direct appeal and (2) he had filed his post-conviction application. (ECF No. 1:9-10). But as discussed, Mr. Garrett may still move in the state district court for an appeal out-of-time in an effort to exhaust Ground Three. See supra.
As Petitioner has not provided the state courts an opportunity to address his habeas claims, this Court may not consider the same. O'Sullivan, 526 U.S. at 842.
Accordingly, the Court should dismiss Petitioner's action, without prejudice, based on his failure to exhaust state court remedies. See Nei v. Crow, No. CIV-21-698-D, 2021 WL 4134830 (W.D. Okla. Sept. 10, 2021) (adopting magistrate judge's recommendation to dismiss McGirt-related habeas claims on screening based on petitioner's failure to first exhaust the claims in state court).
The decision to sua sponte raise Petitioner's failure to exhaust does not violate Due Process because Petitioner may file an objection to this Report and Recommendation. See Allen v. Zavara, 568 F.3d at 1203 (noting the district court gave petitioner “an opportunity to respond to a problem obvious from the face of his pleadings, ” and in doing so, “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. McDonough, 547 U.S. 198, 210 (2006)).
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For these reasons, the undersigned recommends summary dismissal of the habeas Petition.
Petitioner is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by December 27, 2021. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.