Opinion
CIV-21-910-SLP
01-31-2022
JOSEPH ANTONE DIXON, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, filed a Petition for habeas corpus relief under 28 U.S.C. § 2254. (Doc. I). United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). (Docs. 3, 7). For the following reasons, the undersigned recommends that the Court DISMISS this action without prejudice for failure to exhaust state court remedies.
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated.
I. Background
In July 2014, Petitioner was sentenced to 28 years of imprisonment after pleading guilty to four counts of Distribution of Controlled Dangerous Substance Including Possession With Intent to Distribute. State of Oklahoma v. Joseph Antone Dixon, Grady Cnty. Dist. Ct, Case No. CF-2013-437; (Doc. 1, at 2). Petitioner did not file a direct appeal of his convictions. (Doc. 1, at 3-4).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=gradyνmber=CF-2013-00437&cmid=307200 (Docket Sheet) (last visited Jan. 31, 2022). 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").
On June 16, 2021, Petitioner filed a petition for post-conviction relief in Grady County District Court. (Doc. 1, at 4); Dixon, CF-2013-437 (see footnote 2). Petitioner's post-conviction relief petition raised two propositions:
Issue - One
[The] court lacked jurisdiction to try and sentence petitioner pursuant to McGirt v. Oklahoma, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020). Petitioners crime took place on Indian reservation under federal jurisdiction and petitioner is in fact an Indian. For purposes of the federal Major Crimes Act, 18 U.S.C. § 1153. Which grants exclusive jurisdiction to the federal government over crimes, including(2021 U.S. Dist. LEXIS 3} murder, committed by an Indian in Indian Country. Petitioner was accused and convicted Illegally.
Issue - Two
The state never revealed exculpatory information. The District attorney in this case committed fraud upon the court by not revealing exculpatory information material to Petitioners guilt or punishment. Subject matter jurisdiction in this instant is unquestionably exculpatory.Dixon, CF-2013-437 (see footnote 2).
On September 13, 2021, the Grady County District Court denied Petitioner's request for post-conviction relief. Id.; (Doc. 1, at 4, 7, 8-9). Petitioner did not appeal the denial to the Oklahoma Court of Criminal Appeals ("OCCA"). Dixon, CF-2013-437 (see footnote 2); (Doc. 1, at 7, 9).
Petitioner filed the instant habeas Petition on September 10, 2021. (Doc. 1, at 16). Grounds One and Two of the Petition raise the same two propositions as Petitioner's state post-conviction application, challenging the trial court's jurisdiction over Petitioner because the "alleged crimes [ ] took place on Tribal land." (Doc. 1, at 6, 8). Ground Three asserts that "[t]he OCCA decision on 8-12-2021 in Matloff v. Wallace goes against [Petitioner's] Constitutional right to due process." (Id. at 9). Petitioner concedes that he did not exhaust his state remedies on this ground, explaining that his "post-conviction was filed before the OCCA's decision on August 12, 2021, . . . leaving [him] unable to argue this fact to any court." (Id. at 10).
II. The Petition Should Be Dismissed for Failure to Exhaust State Remedies.
A. Exhaustion is a Preliminary Consideration.
Exhaustion is a "threshold question that must be addressed in every habeas case." Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). A federal court cannot grant a state prisoner's habeas petition unless the petition satisfies the procedural prerequisites of 28 U.S.C. § 2254(b), including that the petitioner has exhausted his state court remedies by presenting "the substance" of the claims to the state's highest court. Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Bear v. Boone, 173 F.3d 782, 784-85 (10th Cir. 1999) ("In order to fully exhaust state court remedies, a state's highest court must have had the opportunity to review the claim raised in the federal habeas petition.").
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).
To properly exhaust, a petitioner "must fairly present his claim in each appropriate state court . . ., thereby alerting that court to the federal nature of the claim" and giving the State the first "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). "The state prisoner bears the burden of proving that he exhausted state court remedies or that exhaustion would have been futile." Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (citations omitted).
B. Petitioner Has Failed to Exhaust his State Court Remedies.
Petitioner relies on the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2454 (2020), in support of his habeas challenge to the state's jurisdiction over his criminal conviction. (See Doc. 1). Indeed, Grounds One and Two of the habeas Petition assert the same jurisdictional challenge presented in his filings seeking state postconviction relief. (Id. at 4, 6, 8); Dixon, CF-2013-437 (see footnote 2). To have fully exhausted these claims in state court, Petitioner must have presented them to the state's highest court, the OCCA. See Bear, 173 F.3d at 784 ("The Court of Criminal Appeals is the court of last resort for criminal appeals in Oklahoma.") (citing Okla. Stat. tit. 20, § 40). Petitioner did not directly appeal his convictions to the OCCA. (Doc. 1, at 3-4); Dixon, CF-2013-437 (see footnote 2). Petitioner did not appeal the Grady County District Court's denial of his request for post-conviction relief to the OCCA. Id. Ground Three of the Petition has not been presented in state court at all. (Doc. 1, at 9-10). Thus, Petitioner's claims have not been exhausted.
To the extent the court liberally construes Petitioner's § 2254 Petition to urge that his jurisdictional challenge is somehow exempt from the exhaustion requirement (Doc. 1, at 9-11), the Court should reject that argument. 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, 2020 WL 6734673, at *2 (W.D. Okla. Oct. 20, 2020) (collecting cases), adopted, 2020 WL 6731112 (W.D. Okla. Nov. 16, 2020); Bradshaw v. Crow, 2021 WL 4786885, at *2 (W.D. Okla. Sept. 29, 2021), adopted, 2021 WL 4785509 (W.D. Okla. Oct. 13, 2021). And because "Oklahoma imposes no time limits for filing applications for postconviction relief in the district courts," the state courts remain open to Petitioner, and a return there would not be futile. Burger v. Scott, 317 F.3d 1133, 1135 (10th Cir. 2003) (citing Moore v. Gibson, 27 P.3d 483, 487 (Okla. Crim. App. 2001)); see Okla. Stat. tit. 22, § 1080(b). Petitioner must exhaust his state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.
III. Recommendation and Notice of Right to Object
For the foregoing reasons, it is recommended that the Court DISMISS this Petition (Doc. 1) without prejudice to the refiling on the grounds that Petitioner has failed to exhaust his state court remedies.
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by February 22, 2022, 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.