Opinion
CIV-23-737-D
11-30-2023
URTIS BERNARD SEALS, Plaintiff, v. CHRIS RANKINS, Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Curtis Bernard Seals (“Petitioner”), a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1).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). (Doc. 5).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
Before the Court is Respondent Chris Rankins' Pre-Answer Motion to Dismiss Petition for Writ of Habeas Corpus for Failure to Exhaust Necessary State Remedies (“Motion to Dismiss”) (Doc. 13) and Petitioner's Motion to Vacate (Doc. 15). As set forth fully below, the undersigned recommends that the court GRANT Respondent's Motion to Dismiss and DISMISS the Petition. Further, undersigned recommends that the court DENY Petitioner's Motion to Vacate (Doc. 15).
I. Factual and Procedural Background
Plaintiff is a state inmate currently confined at the Oklahoma State Reformatory in Granite, Oklahoma. (Doc. 1, at 1); see also OK DOC# 508080, Oklahoma Department of Corrections OK Offender.On October 26, 2021, Petitioner was convicted following a guilty plea of one count of Escaping from Department of Corrections. See Cleveland County District Court, Case No. CF-2018-1370.He was sentenced to two years of imprisonment, to run consecutively to his sentence in Oklahoma County District Court Case No. CF-2016-1220. Id.
https://okoffender.doc.ok.gov/ (last visited Nov. 30, 2023).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF-2018-1370&cmid=2307539 (Docket Sheet) (last visited Nov. 30, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Plaintiff'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).
Petitioner filed a Post-Conviction Relief Application Pursuant to 22 O.S. § 1080 et. seq. (“Post-Conviction Relief Application”) on December 27, 2021, challenging the state trial court's jurisdiction to hear his criminal case and claiming ineffective assistance of trial counsel. (Doc. 14, at Ex. 4). Petitioner filed a Motion to Dismiss, Quash, and Set Aside the Information (“Motion to Quash”) on February 21, 2023, arguing that his sentence should be vacated because the State did not timely respond to his Post-Conviction Relief Application despite Cleveland County District Judge Jeff Virgin ordering a response. (Id. at Ex. 7). The state trial court denied Petitioner's Motion to Quash on March 31, 2023. (Id. at Ex. 8). On April 11, 2023, the state trial court also denied Petitioner's PostConviction Relief Application, holding that Petitioner's claims were waived because he did not raise them on direct appeal and that the claims also failed on the merits. (Id. at Ex. 9).
Petitioner filed a Petition in Error with the Oklahoma Court of Criminal Appeals (“OCCA”) on June 23, 2023. See OCCA, Case No. PC-2023-526. Despite summarizing his Post-Conviction Relief Application in his Brief in Support of Petition in Error, (Doc. 14, at Ex. 11), Petitioner attached to the Petition in Error only the state trial court's Order on Motion to Dismiss, Quash, and Set Aside the Information. (Id. at Ex. 10). On July 7, 2023, the OCCA declined to exercise jurisdiction and dismissed the appeal because it was untimely. (Id. at Ex. 12). In its Order Declining Jurisdiction, the OCCA advised Petitioner that he could apply to appeal out of time. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2023-526&cmid=135569 (Docket Sheet) (last visited Nov. 30, 2023).
On August 16, 2023, Plaintiff timely filed the instant Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 1) and a Brief in Support (Doc. 2; see id. at 6). In the Brief in Support, Petitioner makes four claims. First, Petitioner challenges the state trial court's jurisdiction over his criminal case because “the Treaty of Dancing Rabbit Creek 7 stat. 333, Article 4 clearly denies the State of Oklahoma criminal jurisdiction.” (Doc. 2, at 2). Second, Petitioner claims that the trial court did not have jurisdiction because “[P]etitioner is an Indian whose crime(s) is alleged to have occurred in Indian Country.” (Id.) Third, Petitioner claims that the prosecution and the state trial court were untimely in addressing his Post-Conviction Relief Application, in contravention of an OCCA order directing the trial court to address the application within thirty days. (Id. at 3-4). Lastly, Petitioner alleges ineffective assistance of trial counsel because trial counsel failed to raise the issue of lack of jurisdiction based on Petitioner's “Native American status since [P]etitioner is a Mississippi Choctaw with a treaty with the United States of America which deprives the State of Oklahoma of Criminal Jurisdiction whether on Indian territory or not.” (Id. at 5).
Respondent filed the Motion to Dismiss (Doc. 13) and a Brief in Support (Doc. 14) on November 1, 2023, arguing that the Petition should be dismissed because Petitioner has not exhausted his state remedies, and that he should not be granted a stay because he has ample time to exhaust his state remedies. (Doc. 14, at 9-10). Petitioner filed a Motion to Vacate on November 13, 2023, arguing that his sentence should be vacated because he did not believe Respondent timely responded to his Petition. (Doc. 15).
II. Analysis
A. Petitioner's Third Claim Is Outside the Scope of Habeas.
Petitioner's third claim - that the prosecution and the state trial court were untimely in addressing his Post-Conviction Relief Application - challenges the State of Oklahoma's post-conviction procedures, not the judgment resulting in Petitioner's confinement. Such a claim falls outside the scope of habeas and is not subject to review by this court. “A federally issued writ of habeas corpus . . . reaches only convictions obtained in violation of some provision of the United States Constitution.” Smith v. Phillips, 455 U.S. 209, 221 (1982). Thus, a federal court reviewing a habeas petition holds “no supervisory authority over state judicial proceedings,” id., including state postconviction proceedings. Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (holding that a challenge to Oklahoma's post-conviction procedures is not a cognizable claim in a federal habeas proceeding). Even if a claim challenging a state's post-conviction procedures is constitutional in nature, it is not cognizable in habeas since it fails to attack the constitutionality of “the judgment which provides the basis for [Petitioner's] incarceration.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998); see also Jackson v. Ray, 292 Fed.Appx. 737, 740 (10th Cir. 2008) (“Habeas relief under § 2254 is granted only for errors in the state judgment forming the basis for incarceration. If that judgment was proper, there is no ground for habeas relief based on flaws in state postconviction proceedings.”). Thus, Petitioner's second claim should be dismissed for its failure to sound in habeas.
B. Petitioner Has Failed to Exhaust His Other Claims in State Court.
. . . AEDPA prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies. In this regard, § 2254(b)(1) states, “An application for a writ of habeas corpus . . . shall not be granted unless it appears that[ ] . . . the applicant has exhausted the remedies available in the courts of the State....” 28 U.S.C. § 2254(b)(1). 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.” Id. § 2254(c) (emphasis added).Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017); see also Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”). “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) (citation omitted). “The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Petitioner included the Petition's first, second, and fourth claims in his PostConviction Relief Application filed with the state trial court, (Doc. 14, at Ex. 4), but two errors leave these claims unexhausted. First, when appealing to the OCCA, Petitioner did not attach to his Petition in Error the Order Denying Application for Post Conviction Relief, but instead attached the Order on Motion to Dismiss, Quash, and Set Aside the Information. (Doc. 14, at Ex. 10). Under OCCA Rule 5.2, an appellant must attach to the petition in error and brief in support a certified copy of the order being appealed. Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals. If Petitioner intended to appeal the denial of his Post-Conviction Relief Application, he failed to properly do so by attaching the wrong order.
Second, Petitioner failed to comply with the filing deadlines proscribed by the OCCA, causing the OCCA to decline jurisdiction over his appeal. OCCA, Case No. PC-2023-526, supra note 4. As the OCCA advised in its Order Declining Jurisdiction, Petitioner may request to file an appeal out of time per OCCA Rule 2.1(E)(1). (Doc. 14, at Ex. 12). Such an available avenue for relief leaves Petitioner's claims unexhausted in state court. See Martinez v. Allbaugh, No. CIV-16-405-C, 2017 WL 4020439, at *4 (W.D. Okla. Aug. 29, 2017) (“Because Petitioner ‘has the right under the law of the State to raise' his unappealed claims through a request to seek an out-of-time postconviction appeal, Petitioner ‘shall not be deemed to have exhausted the remedies available in the courts of the State.'” (quoting 28 U.S.C. § 2254(c))), report and recommendation adopted, 2017 WL 4019444 (W.D. Okla. Sept. 12, 2017); Eagle v. Bridges, 2023 WL 3649834, at *3 (E.D. Okla. May 25, 2023) (“Until [Plaintiff] has filed an application for post-conviction relief requesting an appeal out of time, whether it be granted or denied in the state courts, he has failed to fully exhaust every available state avenue of redress.”) (quotation marks omitted).
Because of the above defects, Petitioner has not yet “properly presented [his claims] to the highest state court,” thereby failing to exhaust his claims. Dever, 36 F.3d at 1534. He may address the above defects by requesting to file an appeal out of time and complying with the OCCA's rules, including attaching the correct documents. Petitioner has not requested a stay, and he has sufficient time to exhaust his claims in state court and to return to this court while complying with the one-year limitations period proscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).Thus, the Petition should be dismissed rather than stayed under Rhines v. Weber, 544 U.S. 269 (2005).
Petitioner's judgment and sentence was imposed in open court on October 26, 2021, (Doc. 14, at Ex. 3), and he did not file a direct appeal. Therefore, his conviction became final 10 days later on November 5, 2021. OCCA Rule 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.”). Petitioner filed his Application for Post-Conviction Relief 52 days later, on December 27, 2021. (Doc. 14, at Ex. 4). The limitation period was tolled during the pendency of Petitioner's Post-Conviction Relief Application, which was denied on April 11, 2023. 28 U.S.C. § 2244(d)(2). Petitioner's attempted appeal of the denial did not toll the limitations period because it was not properly filed. See Ellis v. Parker, No. CIV-10-498-W, 2011 WL 1301407, at *3 (W.D. Okla. Feb. 28, 2011) (holding an appeal was not properly filed since the OCCA dismissed it for lack of jurisdiction), report and recommendation adopted, 2011 WL 1219285 (W.D. Okla. Mar. 21, 2011). Thus, the limitations period began running 60 days later, on June 10, 2023. 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.”). Between June 10, 2023, and the date of this Report and Recommendation, 173 days have elapsed. Thus, Petitioner has utilized 225 days of his 365-day limitations period. As of this date, Petitioner has 140 days remaining to exhaust his claims in state court and file another habeas petition. See 28 U.S.C. § 2244(d)(1). Petitioner should note that the filing of his habeas petition in this court did not toll the limitations period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). However, the 140 days will be tolled during the pendency of a “properly filed application for State post-conviction or other collateral review.” 28 U.S.C. § 2244(d)(2) (emphasis added).
C. Petitioner's Motion to Vacate Should Be Denied.
In his Motion to Vacate filed on November 13, 2023, Petitioner alleges that Respondent failed to respond to the Petition and requests the court to “vacate and reman[d] by to district court ordering them to release the petitioner from custody and vacate forthwith.” (Doc. 15, at 2). However, Respondent was ordered to respond to the Petition within thirty days of October 2, 2023, (Doc. 11), and thus timely filed the Motion to Dismiss on November 1, 2023. (Doc. 13). Therefore, the Motion to Vacate should be denied.
III. Recommendation and Notice of Right to Object.
For these reasons, it is recommended that Respondent's Motion to Dismiss (Doc. 13) be GRANTED and the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1) be DISMISSED without prejudice to the re-filing. It is further recommended that Petitioner's Motion to Vacate (Doc. 15) should be DENIED. Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by December 21, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.