Opinion
CIV-23-107-D
08-21-2023
MICHAEL DONAVIN RODRIGUEZ, Petitioner, v. RANDY HARDING, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Michael Donavin Rodriguez (“Petitioner”) seeks a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States Chief 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). (Docs. 4, 10). Respondent filed a Motion to Dismiss (Doc. 15) and brief in support (Doc. 16), arguing the Petition is time-barred, the claims are unexhausted, and some claims are jurisdictionally barred. (Doc. 16).For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DISMISSED with prejudice.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Procedural History
Plaintiff brings this habeas action in relation to three separate criminal cases: Oklahoma County District Court Case Nos. CF-2013-895, CF-2013-4844, and CF-2018-2135. (See Doc. 1). Plaintiff does not clearly specify which of his grounds for relief relate to each case. (See id.)
A. Oklahoma County District Court Case No. CF-2013-895
The State charged Petitioner in Oklahoma County District Court, Case No. CF-2013-895, with two counts of domestic abuse (assault and battery) and one count of domestic assault and battery with a dangerous weapon. See Oklahoma County District Court, Case No. CF-2013-895. On April 10, 2015, Petitioner pled guilty to domestic abuse after a former conviction of a felony and domestic assault and battery with a dangerous weapon, and he was sentenced to nine years of imprisonment on both counts with all but the first two years suspended, to be served concurrently. (Id.; Doc. 16, at Exs. 3, 5). Petitioner did not file a direct appeal. (See id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2013-895&cmid=2962667 (Docket Sheet) (last visited August 21, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. 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”) (citation omitted).
On May 9, 2018, the State filed an application to revoke Petitioner's suspended sentence for failing to pay restitution and court fees. (Doc. 16, at Ex. 7, at 1). The State amended the application to add allegations that Petitioner had been charged with another crime (Case No. CF-2018-2135). (Id. at Ex. 7, at 2). On December 19, 2018, Judge Timothy Henderson found Petitioner guilty of violating the terms of his suspended sentence, and Plaintiff's suspended sentence was revoked in full. (Id. at Ex. 8). Plaintiff returned to prison to finish out the seven years remaining in his sentences, serving them concurrently. (Id.)
On July 9, 2020, Petitioner filed a motion to withdraw his plea of guilty in the Oklahoma County District Court. (Id. at Ex. 10). Judge Henderson denied the motion as untimely. (Id. at Ex. 11).
B. Oklahoma County District Court Case No. CF-2013-4844
The State charged Petitioner in Oklahoma County District Court, Case No. CF-2013-4844, with one count of stalking. See Oklahoma County District Court, Case No. CF-2013-4844.On April 10, 2015, Petitioner pled guilty to stalking, and the judge sentenced Petitioner to nine years of imprisonment with all but the first two years suspended, to be served concurrently with his sentences in CF-2013-895. (Doc. 16, at Ex. 4). Petitioner did not file a direct appeal. See Oklahoma County District Court, Case No. CF-2013-4844.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2013-4844&cmid=3023263 (Docket Sheet) (last visited August 21, 2023).
C. Oklahoma County District Court Case No. CF-2018-2135
The State charged Petitioner in Oklahoma County District Court, Case No. CF-2018-2135, with driving while under the influence (count one), driving while privilege suspended (count two), unlawful transportation of an open container (count three), and operating a motor vehicle on which taxes are due to the state (count four). See Oklahoma District Court, Case No. CF-2018-2135. On January 23, 2019, Petitioner appeared in front of Judge Henderson and pled nolo contendere to all charges, and he was sentenced to 10 years for driving under the influence (count one), one year each on counts two and four, and six months on count three, all to be served concurrently with each other and with his sentence in CF-2013-895. (Doc. 16, at Ex. 13). Petitioner did not file a direct appeal. See Oklahoma County District Court, Case No. CF-2018-2135.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2018-2135&cmid=3656681 (Docket Sheet) (last visited August 21, 2023).
On July 9, 2020, Plaintiff filed a motion to withdraw his plea of guilty. (Id. at Ex. 16). On July 10, 2020, Judge Henderson denied the motion as untimely. (Id. at Ex. 17).
D. State Post-Conviction Efforts
On April 27, 2021, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court. (Doc. 16, at Ex. 18). The Application references Case Nos. CF-2013-895 and CF-2018-2135. (Id. at 1). Petitioner's Application contained three grounds for relief:
• (Ground I): “[t]he District Court of Oklahoma County lacked jurisdiction of subject matter and authority to impose a judgment and sentence resulting in the unlawful state custody of Petitioner;”
• (Ground II): “[p]lea contract invalid, rendered void and nullity due to mental illness and total psychiatric disability;” and
• (Ground III): “[t]he judgement and sentence in Oklahoma County District Court case numbered, CF-18-2135 fails to impose a valid judgment, decree or order of the court on Petitioner.”(Id. at Ex. 18, at 8, 11, 16). The Oklahoma County District Court denied Petitioner's Application on December 27, 2021. (Id. at Ex. 20). Petitioner filed a notice of appeal in Oklahoma County District Court on January 12, 2022. (Id. at Ex. 21). Petitioner also filed a “Motion Requesting Rehearing of Post-Conviction Appeal by the District Court of Oklahoma County” on January 13, 2022. (Id. at Ex. 22). On January 18, 20, and 24, 2022, Petitioner filed motions with the Oklahoma Court of Criminal Appeals (“OCCA”) referencing an appeal of the denial of his post-conviction relief that was never filed in the OCCA. See OCCA Case No. MA-2022-71. The OCCA thus interpreted Petitioner's motions as a request for the extraordinary relief of mandamus, and on March 15, 2022, declined jurisdiction and dismissed the case for failure to provide proper notice to the adverse party. (Doc. 16, at Ex. 24).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=MA-2022-71 (Docket Sheet) (last visited August 21, 2023).
II. The Instant Petition
On January 24, 2023, Petitioner filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1, at 15). Petitioner raises five grounds for relief, alleging:
Petitioner appears to make two separate arguments under Ground I, a claim of actual innocence and a challenge to the court's jurisdiction. For the purposes of clarity, the court will address these separately as Grounds I-A and I-B.
• (Ground I-A): “I am not guilty of charges .... I was declared incompetent without being present in the courtroom . . . and coerced to plead guilty in Oklahoma County Jail” (Doc. 1, at 6);
• (Ground I-B): “[n]o probable cause hearing [and] loss of jurisdiction” (id.);
• (Ground II): ineffective assistance of trial counsel due to Petitioner not being present at the competency hearing, failing to hold a “post-competency hearing,”
and not “investigat[ing] [his] claim of victimization [and] innocence” (id. at 78);
• (Ground III): “denial of constitutional right to be present at competency hearing [and] post competency hearing too” (id. at 9); and
• (Ground IV): “[j]udicial bias 14th Amendment U.S. Constitution” due to Judge Timothy Henderson's alleged relationships with ADA Kelly Collins and Rachael Thompson Smith (id. at 10).
It is often unclear what grounds Petitioner asserts in relation to each of his three criminal cases. For relief, Petitioner asks that the court “vacate all of CF-2013-895, CF-2013-4844, and CF-2018-2135 convictions with prejudice. Agree with my ‘collateral consequences.' Retrial with me being on own recognizance. [R]einstate my bond!!” (Id. at 15). Respondent argues that Petitioner's grounds for habeas relief are untimely, were not exhausted in state court, and should be denied as procedurally barred. (Doc. 16, at 17-33).
III. Petitioner Is Not Entitled To Habeas Relief.
A. Petitioner Is Not In Custody Under Case No. CF-2013-895, and This Court Has No Jurisdiction Over The Petition As It Relates to That Conviction.
The court may only consider a petition for habeas corpus made “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). This statutory language has been interpreted by the Supreme Court as “requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). “[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody' for the purposes of a habeas attack upon it.” Id. at 493. This is true even if the expired conviction is later used to enhance punishment for a subsequent conviction under which the petitioner is confined. Id. at 492-93 (noting that where a subsequent conviction is enhanced with the expired conviction, “it is pursuant to the second conviction that the petitioner is ‘in custody'”).
Petitioner fully discharged his sentence for Case No. CF-2013-895 on September 28, 2021. (Doc. 16, at Ex. 26). It is clear that Petitioner was not in custody pursuant to that conviction at the time he filed the instant Petition on January 24, 2023. (Doc. 1, at 15). Thus, Petitioner is not in custody for this conviction, and this Court does not have jurisdiction over any grounds for habeas relief as they relate to Case No. CF-2013-895.
In addition, Petitioner makes no argument regarding the enhancement of his later convictions by Case No. CF-2013-895. (See Lackawanna Cnty. Dist. Att'y v. Coss, 532 U.S. 394, 401 (2001) (holding that a § 2254 petition that “could be read as asserting a challenge to the [later sentence], as enhanced by the allegedly invalid prior [already discharged] conviction, satisfied the in custody requirement for federal habeas jurisdiction”) (cleaned up).
Petitioner fully discharged his sentence for Case No. CF-2018-2135 on January 26, 2023 (Doc. 16, at Ex. 25); accordingly, he was in custody pursuant to that judgment when he filed his Petition on January 24, 2023. Petitioner is currently on probation in CF-2013-4844 (id.) and thus is in custody pursuant to that judgment. See Maleng, 490 U.S. at 491 (“Our interpretation of the ‘in custody' language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus.”); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir. 1992) (“Probationary status is sufficiently ‘in custody' pursuant to section 2254 to permit habeas relief.”) (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)). Thus, this Court may consider his Petition as it relates to those two convictions.
B. Grounds I-A, I-B, II, and III are Untimely, and Thus Should Be Dismissed.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year limitations period for federal habeas claims by petitioners in state custody. 28 U.S.C. § 2244(d)(1). The 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.Id. AEDPA 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).
1. Grounds I-A, I-B, II, and III are Untimely Under § 2244(d)(1)(A).
Unless a petitioner alleges facts implicating §§ 2244(d)(1)(B), (C), or (D), “[t]he limitations period generally runs from the date on which the state judgment became final[,] . . . but is tolled during the time state post-conviction review is pending.” Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000) (citing §§ 2244(d)(1)(A), 2244(d)(2)). Because Petitioner did not file any direct appeals, his convictions became final the next business day following the ten days after the trial court entered final judgment. OCCA Rules 1.5, 2.1(B). See also Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing.”). The one-year statute of limitations began to run the next day. Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011).
In Case No. CF-2013-4844, Petitioner pled guilty on April 10, 2015, and Petitioner did not file a direct appeal. (Doc. 16, at Ex. 4); Oklahoma County District Court, Case No. CF-2013-4844. Thus, Petitioner's conviction became final on April 20, 2015, and the one-year statute of limitations began the next day. Petitioner had until April 21, 2016, to file his habeas petition, absent any tolling event. See Harris, 642 F.3d at 906 n.6 (noting the limitations period began the day after the judgment became final and ended one year later on the same day).
In Case No. CF-2018-2135, Petitioner pled nolo contendere on January 23, 2019, and Petitioner did not file a direct appeal. (Doc. 16, at Ex. 13); Oklahoma County District Court, Case No. CF-2018-2135. Thus, Petitioner's conviction became final on February 3, 2019, and the one-year statute of limitations began the next day. Accordingly, Petitioner had until February 4, 2020, to file his habeas petition, absent any tolling event.
Because Petitioner did not attempt to file any form of state post-conviction relief until July 9, 2020, (motion to withdraw plea) and April 27, 2021, (application for postconviction relief) - after the limitations periods for both convictions had already expired -those efforts did not result in tolling under § 2244(d)(2). See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[Petitioner's] state application [for postconviction relief] could not toll the federal limitation period, because he did not file it until after the one-year period had expired.”). Thus, Petitioner's habeas action, filed January 24, 2023, is untimely under § 2244(d)(1)(A).
2. The Statute of Limitations Is Not Extended by § 2244(d)(1)(B).
Section 2244(d)(1)(B) allows for the statute of limitations to be calculated from “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.” It “typically applies when the state thwarts a prisoner's access to the courts, for example, by denying an inmate access to his legal materials or a law library.” Aragon v. Williams, 819 Fed.Appx. 610, 613 (10th Cir. 2020), cert. denied, 141 S.Ct. 1106 (2021). Further, a “state-created impediment must have actually prevented the inmate from filing his application.” Id.
Petitioner contends he “kept getting the ‘stonewalled' treatment' and [is] still being imprisoned to the end of my sentence. I have numerous ‘collateral consequences' to overcome the ‘mootness doctrine' and will put them in my opening statement.” (Doc. 1, at 6; see id. at 7, 8, additional claims of being “stonewalled”). However, after a reading of the Petition, it remains wholly unclear what Petitioner is alleging caused him to be “stonewalled” or how it affected his ability to file a petition. He also claims that he has had to deal with a “hostile law librarian,” “law librarians that have been trouble,” and that he has “attempted to do [his] best with the bare minim[um] of help.” (Id. at 3, 9). However, he also states that he was able to “research[] Westlaw App for this habeas corpus 2254.” (Id. at 12). Even taking all these allegations together, Petitioner does not allege the State actively thwarted his ability to file a timely habeas action in this matter. Thus, the undersigned finds, even liberally construing Petitioner's “stonewalled” argument to invoke § 2244(d)(1)(B), that section does not apply to extend the start date of AEDPA's statute of limitations.
3. Section 2244(d)(1)(D) Does Not Apply Because Petitioner Knew or Should Have Known the Factual Predicate of His Claims in Grounds I-A, I-B, II, and III.
The statute of limitations can begin to run on “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)(D). Under § 2244(d)(1)(D), “the limitations period begins to run when the petitioner knows of the facts giving rise to the habeas claim; it is not required that he or she understand the legal significance of those facts.” Klein v. Franklin, 437 Fed.Appx. 681, 684 (10th Cir. 2011) (citing Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000)). With the exception of Ground IV addressed below, Petitioner knew or should have known the factual predicate of his claims at the time his convictions became final and the one-year statute of limitations began to run. Because Petitioner does not identify any other newly discovered evidence serving as the factual predicate of his claims in Grounds I-A, I-B, II, and III, § 2244(d)(1)(D) does not apply.
4. Petitioner Is Not Entitled to Equitable Tolling or The Actual Innocence Exception.
Petitioner does not specifically allege and the undersigned does not find that Petitioner should receive additional time to file his habeas action due to equitable tolling. A habeas petitioner “is entitled to equitable tolling if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). As discussed above, Petitioner asserts that he was “stonewalled” (Doc. 1, at 8) and encountered a “hostile law librarian” (id. at 3), but he neither explains what this means nor how it constituted an extraordinary circumstance, nor does he present any argument that suggests he has been pursuing his rights diligently. For instance, Petitioner provides no information as to why he was unable to file a post-conviction application until April 27, 2021, more than six years after his original convictions in CF-2013-895 and CF-2013-4844, and over two years after his conviction in CF-2018-2135.
Petitioner also argues repeatedly that he is actually innocent of the crimes for which he was convicted (Doc. 1, at 6 (Ground One), 7, 8, 9, 12, 14),which he asserts “removes the bars to Habeas 2254” (id. at 7). Indeed, a “credible showing of actual innocence” may bypass the limitations period bar. Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). To present a credible claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner states, “‘Innocence of charges.' I was and am the victim of numerous crimes that lasted (7) seven months to the point of ‘duress.' I will prove this in an evidentiary hearing and with people subpoenaed to testify or use the 5th Amendment due to guilt.” (Doc. 1, at 14). Petitioner notates the statement is in regard to his CF-2013-895 conviction, which as discussed above, the court does not have jurisdiction to consider.
Petitioner alleges “Attorneys Public Defenders Office did not investigate my claim of victimization [and] innocence.” (Doc. 1, at 8). It is not clear as to which case Petitioner is referring in that statement. Petitioner also states,
I was not driving the car for CF-2018-2135 and officer Whacker blatantly lied [and] perjured himself during cross-examination on 12-19-18. He had a body camera [with] footage of the confrontation [and] arrest!! The exculpatory evidence and complete protectional misconduct of both cases in violation of Brady v. Maryland are overwhelming. The audacity of the Oklahoma County District Attorneys Office is a mockery of justice. This court will quickly agree [with a] hearing to show cause.(Id. at 14). Petitioner fails to allege any new reliable evidence that was unavailable at the time of his guilty pleas. Thus, Petitioner cannot establish the actual innocence exception. Accordingly, Grounds I-A, I-B, II, and III are time-barred under AEDPA.
C. Ground IV Is Timely Filed But Unexhausted in State Court.
In Ground IV, Petitioner alleges “Judicial Bias 14th Amendment U.S. Constitution.” (Doc. 1 at 10). In support, Petitioner states, “A.D.A. Kelly Collins began this case CF-2018-2135 DUI, DUS, Open Container and was present with Rachel Thompson Smith for numerous court dates. Judge Timothy Henderson [and] both Kelly Collins [and] Rachel Thompson Smith violated the plea agreement I waivered preliminary hearing to.” (Id.) He asserts that he did not raise this issue previously because “I did not know of the Henderson/Collins/McConnell issue at this time.” (Id. at 11). Petitioner refers to the existence of an undisclosed sexual relationship between Oklahoma County Judge Henderson and prosecutor Kelly Collins between April 2016 and August 2018, which has been conceded by the Attorney General's Office as warranting habeas relief in certain cases. See e.g., Smith v. Bridges, No. CIV-22-48-HE, 2022 WL 17980057, at *3 (W.D. Okla. Oct. 21, 2022), report and recommendation adopted, 2022 WL 17976797 (W.D. Okla. Dec. 28, 2022), appeal dismissed, No. 23-6002, 2023 WL 2980318 (10th Cir. Apr. 18, 2023). The allegations of the relationship were made publicly known on March 26, 2021, due to an administrative order filed in Oklahoma County District Court suspending Judge Henderson and a local news article published the same day. See id. See also Nolan Clay, Oklahoma County Judge Resigns After Allegations of Sexual Misconduct, The Oklahoman, March 26, 2021.
https://www.oklahoman.com/story/news/2021/03/26/oklahoma-county-judge-resigns-amidst-sexual-misconduct-probe/7011933002/ (last visited Aug. 21, 2023).
As discussed above, the statute of limitations can begin to run on “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)(D). Even assuming that Petitioner knew or should have known of this claim on March 26, 2021, his Petition was timely as to Ground IV. The one-year statute of limitations began running on March 27, 2021, and Petitioner filed an application for post-conviction relief in state district court 31 days later, on April 27, 2021, (Doc. 16, at Ex. 18), beginning the tolling period. The district court denied the application on December 27, 2021, and Petitioner had 60 days to file a petition in error with the OCCA in order to appeal the denial. See OCCA Rule 5.2(C)(2); Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (“[R]egardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.”). Thus, the tolling period ended on February 25, 2022.At that time, Petitioner had 334 days remaining in the one-year limitations period, thus ending on January 25, 2023. Petitioner filed this habeas action one day earlier. (Doc. 1, at 15).
See Brooks v. Newton-Embry, 2010 WL 1994799, at *4 (N.D. Okla. May 14, 2010) (finding under § 2244(d)(1)(D) that the petitioner could have discovered the factual predicate of her claim when an article related to her claim was published in a newspaper, not when she was later informed of those facts by her trial counsel).
Petitioner filed a Notice of Post-Conviction Appeal on January 12, 2022, and a “Motion Requesting Rehearing of Post-Conviction Appeal by the District Court of Oklahoma County” on January 13, 2022 (id. at Ex. 22), both in Oklahoma County District Court. (Doc. 16, at Exs. 21, 22). He filed motions with the OCCA on January 18, 20, and 24, 2022. (See OCCA Case No. MA-2022-71 (see footnote 5)). The OCCA interpreted Petitioner's motions as a request for mandamus relief, not as an appeal from the denial of his application for post-conviction relief, and on March 15, 2022, declined jurisdiction and dismissed the case for failure to provide proper notice to the adverse party. (Doc. 16, at Ex. 24). Thus, none of these filings served to toll the statute of limitations. See e.g., Klein v. Franklin, No. CIV-10-603-F, 2011 WL 1467782, at *5 (W.D. Okla. Feb. 8, 2011), report and recommendation adopted, 2011 WL 1467780 (W.D. Okla. Apr. 18, 2011) (“Petitioner is not entitled to statutory tolling for his untimely and improper attempt to appeal from this denial through an application for a writ of mandamus filed in the Oklahoma Court of Criminal Appeals .... Although tolling should encompass 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, the order of the Oklahoma Court of Criminal Appeals specifically states that Petitioner did not properly invoke its jurisdiction ....”).
However, a review of the record shows that Plaintiff did not raise his Ground IV claim in state court prior to filing his Petition. “A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006); see also 28 U.S.C. § 2254(b)(1)(A). “Exhaustion requires that the claim be ‘fairly presented' to the state court, which ‘means that the petitioner has raised the ‘substance' of the federal claim in state court.'” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland, 459 F.3d at 1011). This means “a federal habeas petitioner [must] provide the state courts with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982). “[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). “A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution.'” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)). But a “‘[f]air presentation' requires more than presenting ‘all the facts necessary to support the federal claim' to the state court.” Bland, 459 F.3d at 1011 (quoting Anderson, 459 U.S. at 6).
Petitioner's claim has not been raised, much less adequately exhausted, before the state courts. This court cannot allow Petitioner “simply to ignore state procedure on the way to federal court” because it would “defeat the evident goal of the exhaustion rule.” Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022).
D. Claims That Are Unexhausted and That Would Be Barred When Presented to an Oklahoma Court Are Subject To an Anticipatory Procedural Bar In This Court.
If a claim is unexhausted, a federal court generally dismisses it without prejudice “so that the petitioner can pursue available state-court remedies.” Grant v. Royal, 886 F.3d 874, 892 (10th Cir. 2018) (internal quotation marks omitted). But, “dismissal without prejudice for failure to exhaust state remedies is not appropriate if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds.” Id. (internal quotation marks omitted). “To be independent, the procedural ground must be based solely on state law. To be adequate, the procedural ground must be strictly or regularly followed and applied evenhandedly to all similar claims.” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (internal citation and quotation marks omitted).
If these requirements are met, the federal court applies an “‘[a]nticipatory procedural bar' [which] occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1140 n.7 (10th Cir. 2007). See also Williams, 782 F.3d at 1212 (explaining that anticipatory procedural default is “where a petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be procedurally defaulted on remand”).
It would be futile to allow Petitioner to now return to state court to exhaust Ground IV. “Oklahoma requires a post-conviction relief applicant to raise all grounds for relief which he actually knows or should have known through the exercise of due diligence in his original application for relief.” Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015); see Okla. Stat. tit. 22, § 1086.If a petitioner “has previously filed an application for post-conviction relief, [he] will be required to show ‘sufficient reason' for failing to raise this claim in [his] prior application.” Brooks v. Newton-Embry, 2010 WL 1994799, at *3 (N.D. Okla. May 14, 2010). See also Johnson v. State, 823 P.2d 370, 372-73 (Okla. Crim. App. 1991) (“[W]e will not review new claims brought in successive petitions or applications that could have or should have been brought at some previous point in time without proof of adequate grounds to excuse the delay.”). “In Oklahoma, it is settled law that an intervening change in the law constitutes a sufficient reason why an issue could not have been raised on direct appeal or in a prior application for post-conviction relief.” Walker v. Ward, 934 F.Supp. 1286, 1293 (N.D. Okla. 1996), aff'dsub nom. Walker v. Att'y Gen. for State of Oklahoma, 167 F.3d 1339 (10th Cir. 1999). The statute also “allow[s] the petitioner to seek post-conviction relief when the bypass is occasioned solely by a procedural error of counsel.” Hale v. State, 807 P.2d 264, 268-69 (Okla. Crim. App. 1991). These rules “[are] rooted solely in Oklahoma state law and [are] regularly and evenhandedly applied by the state courts, making [them] both independent and adequate.” Fontenot, 4 F.4th at 1024 (internal quotation marks and citations omitted).
Oklahoma Statute Title 22, Section 1086 states, in pertinent part:
All grounds for relief available to an applicant under the Post-Conviction Procedure Act, including claims challenging the jurisdiction of the trial court, must be raised in his or her original, supplemental or amended application. Any ground finally adjudicated or not so raised . . . may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.
Petitioner states that he “only found out about the judicial bias and the sex scandal by the ‘Judge Timothy R. Henderson Act,' which is a law statute being made to incriminate such behavior.” (Doc. 1, at 12). Petitioner does not state the date he learned of this information, but this proposed bill was reported in the Oklahoma news on January 24, 2022. See Dillon Richards, Oklahoma County sexual misconduct scandal leads to new bill proposal, KOCO News 5, Jan. 24, 2022.However, as discussed above, the allegations regarding Judge Henderson's relationships with female district attorneys were made publicly known March 26, 2021. This is the date on which Petitioner could have known through the exercise of due diligence that he had a claim for relief. Brooks, 2010 WL 1994799, at *4 (finding under § 2244(d)(1)(D) that the petitioner could have discovered the factual predicate of her claim when an article related to her claim was published in a newspaper, not when she was later informed of those facts by her trial counsel).
https://www.koco2com/articfc/oklahoma-countv-sc\ual-misconduct-scandal-bill/38874513 (last visited Aug. 21, 2023).
Petitioner did not present the Ground IV claim in his Application for PostConviction Relief filed one month later on April 27, 2021, nor in any other state court filings thereafter, even after the reporting of the proposed Henderson Act. He did not file a supplemental or amended application for post-conviction relief, nor did he file a second application and attempt to provide “sufficient reason” for failing to raise the issue in his original application. See 22 Okla. Stat. § 1086. Indeed, Petitioner cannot establish that there was an “intervening change in the law” or “a procedural error of counsel” that caused his failure to raise the claim in his first Application, and the undersigned finds that if Petitioner returned to the state courts with this claim, it would be procedurally barred. See, e.g., Cummings v. Sirmons, 506 F.3d 1211, 1222-23 (10th Cir. 2007) (“readily” concluding that ineffective assistance of trial counsel claim, raised for the first time in habeas petition and thus unexhausted, was procedurally barred: “[a]lthough the claim is technically unexhausted, it is beyond dispute that, were Cummings to attempt to now present the claim to the Oklahoma state courts in a second application for post-conviction relief, it would be deemed procedurally barred”) (citing Okla. Stat. tit. 22, §§ 1086, 1089(D)(2)). Thus, this court should apply an anticipatory bar to dismiss Ground IV without prejudice.
E. Petitioner Cannot Overcome The Procedural Bar Of His Claim.
A federal court may consider claims defaulted in state court on adequate and independent state procedural grounds only if “the prisoner can [1] demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or [2] demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
1. Petitioner's Assertion Of Cause Cannot Overcome The Procedural Bar of Ground IV.
“Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (internal quotation marks omitted). As discussed above, although Petitioner states he only found out about the allegations relating to Judge Henderson through the Judge Timothy R. Henderson Act, Petitioner does not explain why he could not have discovered the information before or why he did not attempt to file an amended, supplemental, or second post-conviction application containing Ground IV. Petitioner thus fails to show cause.
2. Petitioner Does Not Demonstrate A Fundamental Miscarriage Of Justice Sufficient To Overcome The Procedural Bar Of His Claim.
The fundamental miscarriage of justice exception to procedural default is “a markedly narrow one, implicated only in extraordinary cases where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (internal quotation marks and alteration omitted). The Supreme Court instructs that “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (quoting Schlup, 513 U.S. at 316).
Petitioner has asserted his actual innocence to excuse the procedural default of his claims. (Doc. 1, at 6, 8). But as discussed above, see Section III.B.4, Petitioner has failed to present any new evidence that he is actually innocent. Petitioner thus fails to overcome the procedural bar of his claim. See Rushing v. Havernek, 2022 WL 17333067, at *2 (10th Cir. Nov. 30, 2022) (“[A]lthough [the petitioner] invokes the miscarriage-of-justice exception, he identifies nothing suggesting, as the exception requires, ‘that he is actually innocent of the crime of conviction.'”) (quoting Pacheco v. El Habti, 48 F.4th 1179, 1186 (10th Cir. 2022).
F. Conclusion.
Each of the grounds raised in the Petition are subject to a jurisdictional bar or a procedural bar. Petitioner has not established the facts necessary to overcome these bars. The Court should therefore dismiss the Petition with prejudice.
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Petition for habeas relief (Doc. 1) be DISMISSED with prejudice.
The court advises the parties of their right to object to this Report and Recommendation by September 11, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both the factual and legal issues. 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.