Opinion
CIV-20-1202-JD
09-08-2021
RICHARD MITCHELL, Petitioner, v. JANET DOWLING, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 6, 12). Respondent moved to dismiss the Petition (Docs. 18, 19), arguing that Petitioner failed to exhaust his state court remedies. Petitioner did not respond. For the reasons below, the undersigned recommends granting Respondent's Motion to Dismiss (Doc. 18) and dismissing the Petition pursuant to Younger v. Harris, 401 U.S. 37 (1971). Further, the undersigned recommends denying Petitioner's Motion for Stay and Abeyance (Doc. 3) and Motion to Amend (Doc. 4).
The court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. Factual and Procedural Background
Petitioner is a state inmate incarcerated at the R.B. ‘Dick' Conner Correctional Center in Hominy, Oklahoma. (Doc. 1, at 1). A jury in Oklahoma County District Court found Petitioner guilty of robbery with a firearm after two or more felony convictions (Count One); conspiracy to commit robbery with a firearm after former conviction of a felony (Count Two); and unauthorized use of a vehicle (Count Three). (Id. at 1); see also Oklahoma County District Court, Case No. CF-2014-317. On July 17, 2015, the state district court sentenced Petitioner to imprisonment for life on Count One, ten years for Count Two, and three years for Count Three, to be served consecutively. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmber=CF-2014-317 (Docket Sheet) (last visited September 7, 2021). 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).
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (“OCCA”). (Doc. 1, at 2); see also OCCA, Case. No. F-2015-676. In his sole proposition of error, Petitioner contended that his convictions for both Count One and Count Two violated the state statutory prohibition against double punishment and Constitutional prohibition against double jeopardy. (Id.) The OCCA affirmed Petitioner's conviction on August 24, 2016. (Id.) Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became final 90 days later, on November 22, 2016. See Jenkins v. Crow, 820 Fed.Appx. 773, 774-75 (10th Cir. 2020).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmber=F-2015-676 (Docket Sheet) (last visited September 7, 2021).
Before his conviction became final, on October 7, 2016, Plaintiff filed an Application for Post-Conviction Relief before the Oklahoma County District Court. See Oklahoma County District Court, Case No. CF-2014-317 (see footnote 2, supra). On November 6, 2017, Petitioner moved the state district court to amend his Application, seeking to “cure defects” with his “initial first post conviction pleadings.” (Doc. 4, at 1); see also Oklahoma County District Court, Case No. CF-2014-317 (see footnote 2, supra). On September 19, 2018, Petitioner requested that the state district court strike his Application. See Oklahoma County District Court, Case No. CF-2014-317 (see footnote 2, supra). The state district court granted his request on January 9, 2020. (Doc. 4, at 1); see Oklahoma County District Court, Case No. CF-2014-317 (see footnote 2, supra).
Petitioner mistakenly notes the date as October 7, 2017, in his Petition and attendant filings. (Doc. 1, at 2; Doc. 3, at 1; Doc. 4, at 1). The undersigned takes judicial notice of the actual filing date from the publicly-filed records in the Oklahoma County District Court.
On November 30, 2020, Plaintiff again filed an Application for Post-Conviction Relief before the Oklahoma County District Court. (Doc. 1, at 3); see also Oklahoma County District Court, Case No. CF-2014-317 (see footnote 2, supra). In this Application, Petitioner raised five grounds: ineffective assistance of trial and appellate counsel (Ground One); arrest and seizure of evidence in violation of the Fourth Amendment (Ground Two); arrest, seizure, search, custodial detention, and interrogation in violation of Okla. Const. art. 2, § 30 and Okla. Stat. tit. 22 § 11 (Ground Three); denial of Fifth and Fourteenth Amendment due process due to his counsels' failure to involve him in his defense strategy (Ground Four); and denial of due process and equal protection of the law because he was denied a fair trial (Ground Five). (Doc. 1, at 3). This Application is currently pending before the Oklahoma County District Court. (Id.) (“These issues are my recent filing in the state court.”); see also Oklahoma County District Court, Case No. CF-2014-317 (see footnote 2, supra).
On November 24, 2020, Petitioner filed the instant Petition. (See Doc. 1, at 14). In his Petition, he raises four grounds inclusive of Grounds One through Five raised in his pending state Application for Post-Conviction Relief. (Id. at 4, 8, 9, 10). At the same time, Petitioner submitted a Motion for Stay and Abeyance, asking the court to stay his Petition “to preserve the opportunity for his habeas pleadings to be Amended after the State Court's have been afforded the opportunity for implementation of ‘the corrective process' upon review of the claims[.]” (Doc. 3, at 2). Petitioner additionally submitted a Motion to Amend, asking “for leave to Amend his habeas pleadings, after fairly presenting them to the state courts.” (Doc. 4, at 2).
II. Analysis
A. The Court Should Abstain from Addressing the Habeas Petition Pursuant to the Younger Abstention Doctrine.
Under the Younger abstention doctrine, federal courts are to abstain from exercising jurisdiction to interfere with state proceedings when three requirements are met:
(1) There is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019) (citing Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006)). Additionally, “Younger governs whenever the requested relief would interfere with the state court's ability to conduct proceedings, regardless of whether the relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002) (citations omitted). Exceptions exist for “bad faith or harassment, ” prosecution under a statute that is “flagrantly and patently” unconstitutional, or other “extraordinary circumstances” involving irreparable injury. Younger v. Harris, 401 U.S. 37, 50-54 (1971) (quotations omitted); Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1165 (10th Cir. 1999). However, Petitioner has a “heavy burden” of establishing an exception to the Younger abstention doctrine. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (citation omitted).
Although Respondent did not raise the issue in her Motion to Dismiss, “Younger abstention is jurisdictional.” D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). “[A] court may raise the issue of abstention sua sponte.” D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1231 (10th Cir. 2013) (citations omitted); see also Sanchez v. Wells Fargo Bank, N.A., 307 Fed.Appx. 155, 157 (10th Cir. 2009) (recognizing that both Supreme Court and Tenth Circuit precedent “have acknowledged the authority of a federal court to address application of the Younger doctrine sua sponte”).
Abstention is appropriate in this matter. First, Petitioner has a post-conviction application currently pending in Oklahoma County District Court that presents the same grounds as those asserted in the instant habeas Petition. (Doc. 1, at 3; see also Docs. 3, 4). Thus, Petitioner's criminal case is “ongoing” under Younger. See Carbajal v. Hotsenpiller, 524 Fed.Appx. 425, 428 (10th Cir. 2013) (holding that the plaintiff's pending application for post-conviction relief satisfied Younger's first condition that state criminal proceedings be “ongoing”).
Second, Petitioner does not make any allegations regarding the inadequacy of the state forum. Indeed, Petitioner asks this Court to stay ruling on his Petition until “after the State Court's have been afforded the opportunity for implementation of ‘the corrective process' upon review of the claims, ” and to allow for amendment of his claims “after fairly presenting them to the state court.” (Doc 3, at 2; Doc. 4, at 2).
The third Younger requirement is met since “[f]or the purposes of Younger, state criminal proceedings are viewed as ‘a traditional area of state concern.'” Winn, 945 F.3d at 1258; see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (holding that injunction against state criminal enforcement activities “seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger”); Green v. Whetsel, 166 Fed.Appx. 375, 376 (10th Cir. 2006) (“Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings in the state's courts.”) (internal quotations omitted).
Finally, Petitioner does not allege any bad faith, harassment, or other extraordinary circumstances. In sum, Younger requires the Court to abstain while Petitioner's Application for Post-Conviction Relief is pending in state court, and Petitioner has not met the heavy burden to show otherwise. See Carbajal, 524 Fed.Appx. at 428-29 (affirming the district court's dismissal under Younger where the plaintiff's claims were the subject of a still-pending application for post-conviction relief in state court).
B. The Court Should Dismiss, Rather than Stay, the Petition.
A habeas petition's claims generally must be exhausted in state court before a federal court may review them. 28 U.S.C. § 2254(b)(1)(A). Here, none of Petitioner's claims have been exhausted. The court can dismiss the Petition or, as requested by Petitioner, issue a stay of the federal case while the claims proceed in state court.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court examined a “mixed petition, ” a petition containing both exhausted and unexhausted claims, and determined that when a petitioner can satisfy three specific considerations, a federal court need not dismiss the petition, but instead can issue a stay and abeyance of the federal proceedings to allow a petitioner to exhaust his claims in state court. Id. at 277-79. In the past, courts routinely dismissed “unmixed” petitions - those that contained no exhausted claims - like the instant Petition, finding them inappropriate for stay and abeyance under Rhines.
Seee.g., Jerniganv.Jaramillo, 436 Fed.Appx. 852, 855-56 (10th Cir. 2011) (citing with approval Hertz & Liebman, Federal Habeas Corpus Practice and Procedure § 23.1 at 1184 (6th ed. 2011) (“[F]ederal district courts not only must dismiss entirely unexhausted habeas corpus petitions and individual unexhausted claims but also, generally, must dismiss ‘mixed' habeas corpus petitions . . . .”)); Montgomery v. Garfield Cty. Jail, 2014 WL 174597, at *2 (W.D. Okla. Jan. 13, 2014) (“As the instant Petition is not a ‘mixed petition,' the stay-and-abeyance procedure established in Rhines . . . is not appropriate.”).
However, the Tenth Circuit has further analyzed Rhines and held that
[w]hether they have mixed or unmixed petitions, petitioners with little chance of exhausting their claims in state court and returning to federal court before the limitations period runs should not be foreclosed from the very mechanism designed to protect against such risk if they can satisfy the Rhines standards. In such cases, a categorical bar on stays for unmixed petitions would unreasonably impair the prisoner's right to relief, and could effectively end any chance at federal habeas review. Accordingly, we conclude that the district court had discretion to consider a Rhines stay even though petitioner filed an unmixed petition.Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014) (internal citations and quotation marks omitted).
As was the case in Doe, Petitioner has filed the “quintessential ‘protective petition, '” a federal habeas petition that raises the exact same claims as his simultaneously-filed state post-conviction application. Id. at 1181. Thus, we consider the amount of time remaining on Petitioner's federal statute of limitations as well as the Rhines three-part test: (1) whether there was good cause for Petitioner's failure to exhaust his claims first in state court; (2) whether Petitioner's unexhausted claims are potentially meritorious; and (3) whether Petitioner engaged in intentionally dilatory litigation tactics. Id. (citing Rhines, 544 U.S. 277-78).
The federal statute of limitations applicable to habeas claims filed by state prisoners is set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244(d)(1). The one-year 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).
Petitioner filed his first Application for Post-Conviction Relief before the Oklahoma County District Court on October 7, 2016, before his conviction became final on November 22, 2016. This Application appears to have been “properly filed” and was “pending” until the state district court granted Petitioner's request to strike the Application on January 9, 2020. Thus, this period of time was tolled for purposes of the statute of limitations. Petitioner's limitations period began on January 10, 2020, and ran until November 30, 2020, when he filed his second Application for Post-Conviction Relief in the Oklahoma County District Court, causing the tolling to resume. Smith v. Ray, 2006 WL 266585, at *3 (N.D. Okla. Feb. 1, 2006) (observing that Oklahoma law does not apply the mailbox rule to state post-conviction filings and that such applications are not “filed” until they are received by the clerk of the state district court). The limitations period ran for 326 days, meaning that Petitioner now has 39 days after the disposition of the state proceedings to file a timely habeas petition in federal court. This is significantly more time than the Petitioner in Doe, who had only two days remaining on his AEDPA statute of limitations. Doe, 762 F.3d at 1180. It appears to the undersigned that this would be a sufficient amount of time for Petitioner to re-file his federal habeas petition, especially considering he has already prepared it. (See Doc. 1).
“An application is ‘filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (internal citations and footnote omitted).
In Barnett v. Lemaster, 167 F.3d 1321 (10th Cir.1999), the Tenth Circuit specifically addressed the federal-law definition of “pending” as it relates to application of the tolling provisions of § 2244(d)(2) and held that the term “encompass[es] 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.” Id. at 1323 (emphasis added).
Turning to the Rhines factors, Petitioner implicitly argues that he had good cause for his failure to exhaust his claims first in state court prior to simultaneously filing his second state post-conviction application and the instant habeas Petition. He asserts that he requested dismissal of his first state post-conviction application because it was “inadequately/inartfully presented” and he need to “cure defects and have the opportunity to present legally pertinent/viable issues which had not been presented.” (Doc. 1, at 4). He then asserts that following the January 9, 2020, dismissal, he was first limited to law library access to two hours weekly, and then beginning April 7, 2020, he was denied law library access due to coronavirus precautions in his prison. (Id.) However, Petitioner does not address the time elapsed from November 6, 2017 (the date he moved the state district court to amend his first application for post-conviction relief to “cure defects”), and September 19, 2018 (the date he requested the state district court to dismiss his application), and January 9, 2020 (the date the state district court dismissed the application). He does not explain why he could not have researched and prepared a cured state application in the two years and two months between the date he first identified the defects and the date the state court dismissed his application, such that he could have filed his second, improved state application immediately or shortly after the dismissal. He also does not articulate why it would be impossible for him to file his federal habeas petition within the 39 days remaining in his federal statute of limitations. Thus, the undersigned recommends that the court find Petitioner has not established good cause for his failure to exhaust.
Petitioner's unexhausted claims are potentially meritorious, and it does not appear that Petitioner engaged in intentionally dilatory litigation tactics; however, based on the time remaining in Petitioner's federal statute of limitations and his failure to establish good cause for lack of exhaustion, the undersigned recommends the court find that a Doe/Rhines stay and abeyance is not appropriate in this matter. Thus, the Petition should be dismissed, and Petitioner's Motion for Stay and Abeyance (Doc. 3) and Motion to Amend (Doc. 4) should be denied.
III. Recommendation and Notice of Right to Object.
For these reasons, it is recommended that Respondent's Motion to Dismiss (Doc. 18) 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 for Stay and Abeyance (Doc. 3) and Motion to Amend (Doc. 4) should be DENIED. Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by September 29, 2021, 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.