Opinion
CIV-24-55-HE
03-29-2024
GEORGE SEBASTIAN, Petitioner, v. JOE BIDEN, et al., Respondents.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner proceeding pro se, has filed a writ of habeas corpus seeking dismissal of his underlying state-court criminal conviction under 28 U.S.C. § 2254. See Doc. 1; see also State v. Sebastian, No. CF-1993-81, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=comanche&numb er=CF-1993-81&cmid=2543 (last visited March 1, 2024).United States District Judge Joe Heaton referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 7. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned recommends the Court dismiss the petition for lack of exhaustion.
Although Petitioner does not specify whether he is proceeding under § 2254 or § 2241, he challenges the validity of his underlying state-court conviction. Infra § I.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Petitioner names as Respondents President Joe Biden, the United States, and the Federal Bureau of Prisons. Doc. 1, at 1. But Petitioner's custodian is David Rogers, the Warden of the Joseph Harp Correctional Center where Petitioner is housed. Doc. 1; see https://oklahoma.gov/doc/facilities/joseph-harp-correctional-center.html (last visited March 1, 2024). The Court therefore substitutes Warden David Rogers as Respondent in this matter. See Rule 2(a), Rules Governing 2254 Cases in the United States District Courts.
I. Petitioner's claims.
Petitioner seeks “release from involuntary placement at Joseph Harp Correctional Ctr.” Doc. 1, at 3. He first challenges his underlying state-court criminal conviction on the ground that he “was working for [the Department of Defense] therefore, the State of Oklahoma acted outside their p[u]rview,” so “his case needs to be vacated immediately.” Id. at 2 (citing Solorio v. United States, 483 U.S. 435 (1987), as explaining that “civil courts are ‘ill equipped' to establish policies regarding matters of military concern.”); see also id. Ex. 1 (certificate of release or discharge from active duty). Second, he asserts the State of Oklahoma lacked jurisdiction to convict him under the “Dancing Rabbit Creek Treaty Choctaw Indians and United States.” Id. at 1; see also McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).
II. Screening.
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court must review habeas petitions and 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).
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 Allen, 568 F.3d 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. Petitioner's failure to exhaust his state-court 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 does not explain whether he has exhausted his state-court remedies, nor has he attached any materials suggesting he did so. The Court's own review of the state court's filing system suggests Petitioner has not exhausted his state-court remedies. In 1996 Petitioner applied for and received permission from the Oklahoma Court of Criminal Appeals (OCCA) to file an appeal out of time, which Petitioner never filed. Sebastian v. State, No. PC-1996-268, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&numbe r=PC-1996-268&cmid=33390 (last visited March 1, 2024); see also OKLA. STAT. tit. 22 § 18 app. rule 2.1(E)(1). Then, in 2021, Petitioner applied for a writ of habeas corpus from the OCCA, which denied jurisdiction because Petitioner failed to attach a district court order denying relief. Sebastian v. State, No. HC-2021-1400, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&numbe r=HC-2021-1400&cmid=131904 (last visited March 1, 2024).
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.”). 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 because he may still file a post-conviction application requesting an appeal out of time. See 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 OCCA”); 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 failure to exhaust his state-court remedies.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of Petitioner's habeas petition for failure to exhaust his state-court remedies.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before April 19, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See 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 in this matter.