Opinion
CIV-24-82-R
04-09-2024
FRANK M. REYNOLDS, Petitioner, v. CARRIE BRIDGES, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, 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 David L. Russell has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the Court abstain from adjudicating the Petition under the Younger abstention doctrine and DISMISS the Petition without prejudice.
I. PROCEDURAL BACKGROUND
On August 29, 2019, in Oklahoma County District Court Case No. CF-2018-1845, a jury convicted Petitioner of first-degree murder. (ECF No. 1:1). Mr. Reynolds filed a direct appeal in the Oklahoma Court of Criminal Appeals (OCCA) and raised six issues:
1. Whether the compelled disclosure of his home surveillance system password violated his Fifth Amendment right against self-incrimination;
2. Whether the district court erred by denying his motion to dismiss based on Oklahoma's Stand Your Ground law;
3. Whether the district court abused its discretion in denying his request for a jury instruction on the Stand Your Ground defense;
4. Whether he was denied the right to present a defense by the denial of a jury instruction on the Stand Your Ground defense;
5. Insufficient evidence for the conviction; and
6. Cumulative error.See Opinion, Reynolds v. State of Oklahoma, Case No. F-2019-696, 2022 OK CR 14 (Okla. Ct. Crim. App. Aug. 4, 2022). The OCCA affirmed the conviction on August 4, 2022. (ECF No. 1:2).
On July 25, 2023, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court, which that court denied on October 24, 2023, (ECF No. 1:3-4). Mr. Reynolds filed an appeal in the OCCA, raising six points of error:
1. Ineffective assistance of appellate counsel for failing to argue, on direct appeal, that trial counsel had been ineffective for failing to raise the issue of self-defense and introduce mitigating evidence at the sentencing phase;
2. Ineffective assistance of appellate counsel for failing to argue, on direct appeal, that trial counsel had been ineffective for failing to properly investigate the case in the form of subpoenaing certain witnesses and obtaining video surveillance;
3. Ineffective assistance of appellate counsel for failing to argue, on direct appeal, that the prosecutor had committed misconduct by failing to disclose exculpatory evidence to the defense;
4. Ineffective assistance of appellate counsel for failing to argue, on direct appeal, that the trial court abused its discretion by failing to sequester a State witness;
5. The trial court abused its discretion by failing to instruct the jury on a lesser included offense; and
6. Ineffective assistance of appellate counsel for failing to argue, on direct appeal, that the trial court had abused its discretion when it allowed Petitioner's wife to testify against him.See Brief in Support of Petition in Error, Reynolds v. State of Oklahoma, Case No. PC-2023-1043 (Okla. Ct. Crim. App. Dec. 27, 2023). This appeal is currently pending in the OCCA. See ECF No. 1:17; State Court Docket Sheet, Reynolds v. State of Oklahoma, Case No. PC-2023-1043 (Okla. Ct. Crim. App.).
On January 24, 2024, Mr. Reynolds filed the instant habeas Petition, raising twelve Grounds. Grounds One through Six correlate with the Propositions Mr. Reynolds raised in his direct appeal and Grounds Seven through Twelve correlate with the Propositions Mr. Reynolds raised in his Application for Post Conviction Relief. Compare ECF No. 1 with Opinion, Reynolds v. State of Oklahoma, Case No. F-2019-696, 2022 OK CR 14 (Okla. Ct. Crim. App. Aug. 4, 2022) and Brief in Support of Petition in Error, Reynolds v. State of Oklahoma, Case No. PC-2023-1043 (Okla. Ct. Crim. App. Dec. 27, 2023).
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 she has an opportunity to present her 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 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 30 F.3d 142, 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. ABSTENTION
The Court should abstain from addressing the habeas Petition pursuant to Younger v. Harris, 401 U.S. 37 (1971).
In Younger, the United States 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; see Middlesex County Ethics Comm. 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 Commerce, 240 F.3d 871, 875 (10th Cir. 2001) (quotation omitted). And, “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 46-55 (citation omitted); Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). The Court should find that all three elements are present in the instant case, rendering abstention appropriate.
First, Petitioner has a post-conviction appeal currently pending in the OCCA that presents six of the twelve grounds raised by Mr. Reynolds in his habeas petition. See supra. Second, Petitioner does not make any allegations regarding the inadequacy of the state forum. See ECF No. 1:12 (Petitioner's acknowledgement of the pending appeal without arguing that the OCCA does not offer a valid forum to adjudicate the appeal). The third Younger requirement is met since "[f]or the purposes of Younger, state criminal proceedings are viewed as 'a traditional area of state concern.' ” Winn v. Coo, 945 F.3d 1253, 1258 (10th Cir. 2019); see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (holding that injunction against state criminal enforcement activities “seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger”); Green v. Whetse, 166 Fed.Appx. 375, 376 (10th Cir. 2006) ("Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings in the state's courts.”) (internal quotations omitted).
Finally, Petitioner does not allege any bad faith, harassment, or other extraordinary circumstances. In sum, the Court should conclude that Younger requires it to abstain from adjudicating the habeas Petition while Mr. Reynolds' appeal out of time is pending in state court, and dismiss the same, without prejudice.
IV. DISMISSAL RATHER THAN STAY
Mr. Reynolds has suggested that the Court stay, rather than dismiss his Petition, while his post-conviction appeal is pending in state court. See ECF No. 1:17. The Court should decline this request.
A habeas petition's claims generally must be exhausted in state court before a federal court may review them. 28 U.S.C. § 2254(b)(1)(A). "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 claim has been exhausted when it has been 'fairly presented' to the state court.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quoting Picard v. Connor, 404 U.S. 270, 275, (1971)); see generally Grant v. Royal, 886 F.3d 874, 890-92 (10th Cir. 2018) (analyzing what amounts to "fair presentation”). "[T]he crucial inquiry is whether the 'substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (quoting Picard, 404 U.S. at 278).
Here, as discussed, Mr. Reynolds has not exhausted Grounds Seven through Twelve, as they are currently being adjudicated by the OCCA. See supra. But because Grounds One through Six have been exhausted via Mr. Reynolds' direct appeal, the habeas Petition is considered "mixed.” See Pliler v. Ford542 U.S. 225, 225 (U.S. 2004) (noting that "mixed” federal habeas petitions [are] those containing both unexhausted and exhausted claims.”).
In Rhines v. Webe, 544 U.S. 269 (2005), the Supreme Court examined a "mixed petition,” a petition containing both exhausted and unexhausted claims, and determined that when a petitioner can satisfy three specific considerations, a federal court need not dismiss the petition, but instead can issue a stay and abeyance of the federal proceedings to allow a petitioner to exhaust his claims in state court. Id. at 277-79. In Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014), the Tenth Circuit Court of Appeals analyzed a "protective” habeas petition, one which: (1) raised the exact same claims as a simultaneously-filed application for post-conviction relief and (2) was filed just before the statute of limitations was set to expire. In doing so, the issue was whether a Rhines stay would apply to an "unmixed” petition, to which the Court answered affirmatively. In doing so, the Court stated:
While the Court in Rhines explicitly discussed stays in the mixed-petition context, its rationale is potentially applicable to a petition with wholly unexhausted claims that is protectively filed during the pendency of state postconviction proceedings. Petitioners with unmixed petitions may run a similar risk of forever losing their opportunity for federal review, depending on the circumstances. Their chances of both returning to state court to exhaust their claims and then refiling their federal petition before the limitations period runs may be slim, especially where the unmixed petition is dismissed near the end of the one-year statute of limitations period. In such cases, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. Doe v. Jones, 762 F.3d at 1178 (internal citations and quotation marks omitted).
As was the case in Doe, Mr. Reynolds has filed a "protective” habeas petition, which raises the exact claims currently pending in the OCCA following Petitioner's postconviction appeal. See supra. Mr. Reynolds has apparently done so because he believes he may run out of time to file his habeas petition otherwise. See ECF No. 1:17 ("I am filing this Petition to protect my habeas Petition Proceeding because I have a Pending in the Court of Criminals Appeals”). Thus, the Court should consider the amount of time remaining on Petitioner's federal statute of limitations as well as the Rhines three-part test: (1) whether there was good cause for Petitioner's failure to exhaust his claims first in state court; (2) whether Petitioner's unexhausted claims are potentially meritorious; and (3) whether Petitioner engaged in intentionally dilatory litigation tactics. Id. (citing Rhines, 544 U.S. 277-78).
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Id. Because Petitioner did not seek review in the United States Supreme Court, his conviction became final on November 3, 2022-90 days following the OCCA's August 4, 2022 affirmance of Mr. Reynolds' conviction. See Locke v. Saffe, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, without tolling, Petitioner's statute of limitations to file a habeas petition would have expired on November 3, 2023. However, the AEDPA also includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. at § 2244(d)(2).
See ECF No. 1:3.
As discussed, Mr. Reynolds filed an Application for Post Conviction Relief in the Oklahoma County District Court on July 25, 2023. See supra. This Application was “properly filed” and is currently “pending” in the OCCA. When Petitioner filed the postconviction application, the limitations period had already run for 295 days. Thus, when the OCCA adjudicates the Application for Post-Conviction Relief, Mr. Reynolds will have 70 days to file a habeas petition. This is significantly more time than the Petitioner in Doe, who had only two days remaining on his AEDPA statute of limitations. Do, 762 F.3d at 1180. As a result, the Court should conclude that this would be a sufficient amount of time for Petitioner to re-file his federal habeas petition, especially considering he has already prepared it. See ECF No. 1.
“An application is ‘filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennet, 531 U.S. 4, 8 (2000) (internal citations and footnote omitted).
In Barnett v. Lemaste, 167 F.3d 1321 (10th Cir. 1999), the Tenth Circuit specifically addressed the federal-law definition of “pending” as it relates to application of the tolling provisions of § 2244(d)(2) and held that the term “encompass[es] all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.” Id. at 1323 (emphasis added).
Turning to the Rhines factors, Petitioner would have good cause for his failure to exhaust the claims involving ineffective assistance of appellate counsel as a postconviction application is the first time Mr. Reynolds would have had the opportunity to assert such claims. See Routt v. Pettit, No. 21-CV-0014-CVE-JFJ, 2024 WL 150440, at *10 (N.D. Okla. Jan. 12, 2024) ('“Claims of ineffective assistance of appellate counsel may be raised for the first time on post-conviction as it is usually a petitioner's first opportunity to allege and argue the issue.”). Mr. Reynolds does not, however, argue any good cause for failing to exhaust the claim alleging that the trial court abused its discretion by failing to instruct the jury on a lesser included offense. See ECF No. 1.
Regarding the second and third factors, at this time, the undersigned can only speculate that Petitioner's unexhausted claims are potentially meritorious, and it does not appear that Petitioner engaged in intentionally dilatory litigation tactics. However, based on the time remaining in Petitioner's federal statute of limitations and his failure to establish good cause for lack of exhaustion at least on one Ground, the Court should: (1) find that a Doe Rhines stay and abeyance is not appropriate in this matter and (2) dismiss the Petition. See Mitchel v. Dowling, No. CIV-20-1202-JD, 2021 WL 4899475, at *5 (W.D. Okla. Sept. 21, 2021) (dismissing, rather than staying habeas petition which was “protectively” filed, but for which petitioner had 39 days remaining in the limitations period following adjudication of his pending application for post-conviction relief in state court), adopted, 2021 WL 4901557 (W.D. Okla. Oct. 20, 2021).
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court abstain from adjudicating the Petition (ECF No. 1) under the Younger abstention doctrine, and dismiss the same, without prejudice. Adoption of this recommendation will render Petitioner's Motion for Leave for Protective Writ of Habeas Corpus, Motion for Leave for Transcripts and Motion to Appoint Counsel (ECF Nos. 3, 7 and 14) moot.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 26, 2024, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.