Opinion
CIV-21-698-D
08-18-2021
MICHAEL DAVID NEIL, Petitioner, v. SCOTT CROW, DIRECTOR OF THE OKLAHOMA DEPARTMENT OF CORRECTIONS, Respondent.
REPORT & RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, filed a petition for writ of habeas corpus challenging his conviction under 28 U.S.C. § 2254. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Petitioner alleges the state court lacked jurisdiction to prosecute and incarcerate him, as he is “Indian possessing some Indian Blood” and the “crime of which [he was] charged occurred in Indian Country.” Doc. 1, at 3; see also McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned recommends the Court dismiss the petition for lack of exhaustion.
I. Screening.
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court must review habeas petitions and to summarily dismiss a petition “[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. The Court may dismiss a petition based on a failure to exhaust state court remedies if nonexhaustion is “clear from the face of the petition.” Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009).
II. Petitioner's failure to exhaust his available remedies.
A state prisoner must exhaust all available state-court remedies before seeking a federal writ of habeas corpus unless exhaustion would be futile- that is, unless no state-court remedy exists or such a remedy would be ineffective to protect the prisoner's rights, under the circumstances. See 28 U.S.C. § 2254(b)(1); see also Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011).
Petitioner states that he raised his jurisdictional claim in a motion for post-conviction relief before the Comanche County Court, which denied his motion. Doc. 1, at 3. However, he avers that he did not appeal this ruling. Id. at 5.
“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, 644 F.3d at 1026 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
Petitioner claims that “parties cannot consent to court in any court lacking jurisdiction.” Doc. 1, at 5. By this, the undersigned understands Petitioner to suggest that his habeas petition is exempt from Section 2254's exhaustion requirement based on the nature of his claim for relief-that the state court lacked jurisdiction to prosecute and incarcerate him in the first place. Petitioner is incorrect. The Section 2254 exhaustion requirement contains no exception for jurisdictional claims. See Blanket v. Watkins, 44 Fed.Appx. 350, 351 (10th Cir. 2002) (“[The petitioner's] proffered reason for not exhausting-that the State ... lacks jurisdiction over these claims-lacks merit.”); see also Largent v. Nunn, 2020 WL 6734673, at *2 (W.D. Okla. Oct. 20, 2020) (collecting cases), adopted, 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020). And because “Oklahoma imposes no time limits for filing applications for post-conviction relief in the district courts, ” the state courts remain open to Petitioner, and a return there would not be futile. Burger v. Scott, 317 F.3d 1133, 1135 (10th Cir. 2003) (citing Moore v. Gibson, 27 P.3d 483, 487 (Okla. Crim. App.2001)).
The Oklahoma Court of Criminal Appeals has held that, for purposes of postconviction review, McGirt does not apply retroactively to convictions that were final at the time the decision was handed down. State v. Wallace, No. PR-2021-366, 2021 OK CR 21 ¶ 15 (Okla. Crim App. August 12, 2021) (“[W]e now hold that McGirt and our postMcGirt decisions recognizing these reservations shall not apply retroactively to void a conviction that was final when McGirt was decided.”). Petitioner must still exhaust this claim by providing state courts the opportunity to rule on it. 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 ....”); see also Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017) (“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.'”) (alteration in original).
The undersigned therefore recommends dismissal of the petition without prejudice for non-exhaustion of state-court remedies.
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 Allen, 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 objecting 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. McDonough, 547 U.S. 198, 210 (2006))).
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned finds Petitioner's failure to exhaust his remedies before filing his § 2254 action is clear from the face of the petition, and recommends the Court dismiss the petition without prejudice. The undersigned advises Petitioner that he may refile his habeas petition in this Court after exhausting his state-court remedies. See Selsor, 644 F.3d at 1026.
The undersigned further advises Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before September 8, 2021. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b) (2). The undersigned also advises Petitioner that his failure to timely object to this Report and Recommendation waives the 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 terminates the referral in this matter.