Opinion
CIV-23-961-JD
02-14-2024
REGINALD WILSON, Plaintiff, v. DAVID BUSS, Warden et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Reginald Wilson, a state prisoner proceeding pro se and in forma paupers, seeks dismissal of his 2015 Oklahoma County District Court convictions under 28 U.S.C. § 2254, arguing that the State lacked jurisdiction to prosecute him. Doc. 1; see also State v. Wilson, CF-2014-6815, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2014-6815&cmid=3182719 (last visited Feb. 7, 2024) (conviction for two counts of robbery with a firearm, one count of conspiracy to commit a felony, and one count of unlawful possession of a firearm). Chief Judge Timothy D. DeGiusti transferred the referral of this matter to the undersigned. See 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.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Screening.
Under Rule 4, the Court must review habeas petitions and summarily dismiss a petition “[i]f it plainly appears from the petition, any attached exhibits, and the record of prior proceedings that [the petitioner] is not entitled to relief ....” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. The Court may dismiss a petition based on a failure to exhaust state court remedies if non-exhaustion 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).
The only exception to the exhaustion requirement is a showing of futility because there is either no available state corrective process or circumstances render such process ineffective to protect the rights of the prisoner. See 28 U.S.C. § 2254(b)(1)(B); see also Selsor, 644 F.3d at 1026 (“If a state prisoner has not properly exhausted state remedies, the federal courts ordinarily will not entertain an application for a writ of habeas corpus unless exhaustion would have been futile because either ‘there is an absence of available State corrective process' or ‘circumstances exist that render such process ineffective to protect the rights of the applicant.'” (quoting 28 U.S.C. § 2254(b)(1)(B)(i), (ii))); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (“In order to satisfy the exhaustion requirement, a federal habeas corpus petitioner must show that a state appellate court has had the opportunity to rule on the same claim presented in federal court . . ., or that at the time he filed his federal petition, he had no available state avenue of redress.”). Petitioner “bears the burden of proving that he exhausted state court remedies or that exhaustion would have been futile.” Selsor, 644 F.3d at 1026 (internal citations omitted).
Petitioner establishes that he has not given the state courts an opportunity to rule on his claims. See Doc. 1, at 2-5 (showing he filed only a direct appeal to the Oklahoma Court of Criminal Appeals, Wilson v. State, No. F-2015-711, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appel late&number=F-2015-711&cmid=117330 (last visited Feb. 7, 2024)); id. at 5-7 (explaining he did not raise this issue in his direct appeal). He offers as justification that this case presents a federal question under 28 U.S.C, § 1331. Id. at 5. He argues that “newly discovered evidence” shows that “state courts lack[] the jurisdiction to prosecute on tribal lands.” Id. He continues:
Petitioner, could never commit any state crimes while on federally restricted lands, and when he is only subjected to the federal laws of Arkansas and the Indian Civil Rights Act and the Oklahoma Indian Welfare Acts of 1936 - laws of Arkansas have been in place and in full force since 1890, and the ICRA of 1968. There is not any state laws on any federal lands in Oklahoma - not a PL-280 state and Oklahoma knew all of these federal Constitutional material facts was in place, but they clearly interfered illegally.Id. at 6.
He asserts “actual innocence of the charged offense.” Id. at 7. He maintains his petition is timely, given he “diligently pursued his federal claim . . . and that extraordinary circumstances prevented [him] from filing a timely federal [] petition.” Id. at 7-8. By this, the undersigned understands Petitioner to suggest that his habeas petition is exempt from § 2254's exhaustion requirement based on the nature of his claim for relief-that the state court lacked jurisdiction to prosecute and incarcerate him in the first place. Petitioner is incorrect.
The § 2254 exhaustion requirement contains no exception for jurisdictional claims. See Blanket v. Watkins, 44 Fed.Appx. 350, 351 (10th Cir. 2002) (“[The petitioner's] proffered reason for not exhausting-that the State . . . lacks jurisdiction over these claims-lacks merit.”); see also Largent v. Nunn, No. CIV-20-683-J, 2020 WL 6734673, at *2 (W.D. Okla. Oct. 20, 2020) (collecting cases), adopted, 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020).
Petitioner may seek post-conviction relief for his jurisdictional claim in state court. See OKLA. STAT. tit. 22, § 1080(b) (authorizing jurisdictional challenge to conviction or sentence). And because “Oklahoma imposes no time limits for filing applications for post-conviction relief in the district courts,” the state courts remain open to Petitioner, and a return there would not be futile. See Burger v. Scott, 317 F.3d 1133, 1135 (10th Cir. 2003) (citing Moore v. Gibson, 27 P.3d 483, 487 (Okla. Crim. App. 2001)).
Petitioner's jurisdictional argument implicates McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), which held that the Congress had not disestablished the Muscogee (Creek) Reservation and the “state of Oklahoma ‘lack[ed] jurisdiction to prosecute' Indian defendants for crimes occurring” there. United States v. Warrington, 78 F.4th 1158, 1163 (10th Cir. 2023) (quoting McGirt, 140 S.Ct. at 2474); see also McGirt, 140 S.Ct. at 2468 (“But whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”); Ford v. Dowling, No. 22-6138, 2023 WL 2641476, at *1 (10th Cir. Mar. 27, 2023) (describing McGirt holding and explaining that “those lands remain Indian country for purposes of exclusive federal jurisdiction under the Federal Major Crimes Act, 18 U.S.C. § 1153(a)”). For purposes of postconviction review, though, the Oklahoma Court of Criminal Appeals has determined that McGirt does not apply retroactively. State v. Wallace, 497 P.3d 686, 689 (Okla. Crim App. 2021) (“[W]e now hold that McGirt and our postMcGirt decisions recognizing these reservations shall not apply retroactively to void a conviction that was final when McGirt was decided.”). Even so, “Petitioner must still exhaust this claim by providing state courts the opportunity to rule on it.” Bradshaw v. Crow, No. CIV-21-818-R, 2021 WL 4786885, at *2 n.4 (W.D. Okla. Sept. 29, 2021) (citing Miranda, 967 F.2d at 398), adopted, 2021 WL 4785509 (W.D. Okla. Oct. 13, 2021); see also 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”).
Petitioner admits he failed to seek relief in state court for the claims he raises in his petition. Yet, he has not demonstrated he lacks the opportunity to obtain the appropriate redress in state court. Indeed, Petitioner has suggested no reason why the state appellate review process is unavailable to him or ineffective to protect his rights. Under such circumstances, this Court cannot address Petitioner's habeas corpus claim because he has not exhausted his available state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss the 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 March 6, 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.