Opinion
CIV-21-676-PRW
08-18-2021
KEVIN PEARCE, Petitioner, v. LUKE PETTIGREW, 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. United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Petitioner's initial petition, Doc. 1, lacked a signature. The Court ordered him to cure this deficiency, Doc. 5, and Petitioner submitted an amended petition, Doc. 6.
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 he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Doc. 6, at 6. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned recommends the Court dismiss the amended 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). “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)). And “[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.” 28 U.S.C. § 2254(c) (emphasis added); see also Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
Petitioner avers that he has not given the state courts an opportunity to rule on his claims. See Doc. 6, at 2-3, 5-6. Although Petitioner states that he “appealed” his guilty plea with the Stephens County District Court on the ground of “matter of law no jurisdiction, ” he does not profess to have raised the ineffective assistance of counsel claim now raised in his habeas petition. See id. Instead, Petitioner states that “[t]his is a federal case out of the reach and scope of the State of Oklahoma.” Id. at 6. And throughout, Petitioner merely writes “N/A” or “None” in the spaces designated for his previous appeals or other remedies. See Doc. 6. As well, Petitioner has suggested no reason why the state appellate review process is unavailable to him or ineffective to protect his rights. The undersigned therefore finds Petitioner's claims unexhausted.
Still, the Court must determine whether a return to state court would be futile. James v. Gibson, 211 F.3d 543, 550 (10th Cir. 2000) (“Exhaustion is not required if an attempt to exhaust would be futile.” (citation omitted)). It appears Petitioner may be out of time to challenge his conviction, obtained pursuant to a guilty plea. See Doc. 6, at 1-2. But although Oklahoma law allows ten days in which to withdraw a guilty plea, see Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Oklahoma law also provides for an appeal out-of-time if Petitioner can show that the delay was not his fault, see Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals.
Because Petitioner has not explained why he bypassed the state courts, the undersigned cannot say with any certainty whether the state court would grant his application for an appeal out-of-time. In any case, Petitioner's return to state court would not be futile. See Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012) (“Generally when a defendant is denied the right to appeal because of ineffective assistance of counsel, ‘the appropriate remedy is to grant his petition for a writ of habeas corpus unless the . . . state courts provide him with an out of time appeal within a reasonable time.'”) (quoting Baker v. Kaiser, 929 F.2d 1495, 1500 (10th Cir.1991)); see also Ciempa v. Dinwiddie, 340 Fed.Appx. 516, 520 (10th Cir. 2009) (upholding dismissal without prejudice of an Oklahoma prisoner's habeas petition, based on non-exhaustion, because petitioner had “one apparently remaining avenue of state judicial relief: an out-of-time appeal with the [state appellate court]”); Anderson v. Province, 2011 WL 7117261, at *2 (W.D. Okla. Dec. 28, 2011) (finding no futility in a return to state court given petitioner's opportunity to file an appeal out-of-time in the Oklahoma state court), adopted, 2012 WL 279483, at *1 (W.D. Okla. Jan. 31, 2012).
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 amended petition, and recommends the Court dismiss the amended 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.