Opinion
CIV-21-320-R
05-11-2021
DEMETRIUS S. NERO, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, filed an action for a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed.
I. Background
On April 6, 2020, Petitioner was found guilty, following a bench trial, of Robbery with an Imitation Firearm. Doc. No. 1 (“Petition”) at 1; see also Oklahoma State Courts Network, Oklahoma County District Court, Case No. CF-2015-7085. The following day the state court sentenced Petitioner to “30 years S/S with the first (20) years to do in [the Department of Corrections].” Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF- 2015-7085
On April 16, 2020, Petitioner filed an appeal with the Oklahoma Court of Criminal Appeals (“OCCA”) in which he asserts that his sentence was unconstitutionally excessive. Petition at 2; see also Oklahoma State Courts Network, Oklahoma Court of Criminal Appeals, Case No. F-2020-285. Petitioner's appeal remains pending. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F- 2020-285
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[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. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits ....” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
III. Dismissal Based on Younger
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that federal courts should not intervene in state criminal prosecutions begun before institution of a federal suit when the state court proceedings are (1) ongoing, (2) offer an adequate forum for a defendant's federal claims, and (3) implicate important state interests. Id. at 43-44; Middlesex Cty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). “[T]he district court must abstain once the conditions are met, absent extraordinary circumstances.” Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Com., 240 F.3d 871, 875 (10th Cir. 2001) (quotations omitted).
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, 401 U.S. at 50-54 (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).
Based on the foregoing, the undersigned recommends the Court abstain in this case. Petitioner alleges, and the OCCA's docket confirms, that his direct appeal from his conviction remains pending. Thus, Petitioner's criminal case is ongoing. See Mounkes v. Conklin, 922 F.Supp. 1501, 1511 (D. Kan. 1996) (“For purposes of [Younger's] first requirement, a state prosecution is considered to be pending if as of the filing of the federal complaint not all state appellate remedies have been exhausted.”); see also Green v. Whetsel, No. CIV-05-1420-L, 2006 WL 931934, at *1, 3-4 (W.D. Okla. April 7, 2006) (dismissing the petitioner's habeas action under Younger because the direct appeal from his conviction remained pending).
Petitioner acknowledges that his appeal is pending and does not allege the state court forum is inadequate. Further, “Oklahoma has an important interest in enforcing its criminal laws through criminal proceedings in the state's courts.” Green v. Whetsel, 166 Fed.Appx. 375, 376 (10th Cir. 2006) (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 appeal is pending in state court, and Petitioner has not met the heavy burden to show otherwise. See Justice v. Brownback, No. 16-3215-DDC-TJJ, 2018 WL 3377095, at *3 (D. Kan. July 11, 2018) (dismissing pursuant to Younger where the petitioner's direct appeal from his convictions was pending before the state appellate court); Wilkinson v. Utah, No. 2:07-CV-189 TC, 2007 WL 4143207, at *2 (D. Utah Nov. 19, 2007) (same).
IV. Failure to Exhaust
Alternatively, Petitioner's action should be dismissed for failure to exhaust his state court remedies. “A threshold question that must be addressed in every habeas case is that of exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “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. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994); see also Ontiveros v. Pacheco, 760 Fed.Appx. 601, 603 (10th Cir. 2019) (same) (quoting Dever, 36 F.3d at 1534).
Petitioner indicates that on October 20, 2020, he filed a “Motion for Postconviction DNA Testing” with the state district court. Petition at 3. With regard to the issues raised therein, Petitioner states:
Petitioner is innocent of Robbery with a[n] Imitation Firearm. Because there was not one during commission of crime nor was one found by law enforcement during inventory of the vehicle at time of arrest[.] However the next morning a[n] imitation firearm was found in the middle console however the state's witness asserted he is knowing in firearm's and I robbed him of/with a semi-automatic firearm which is true I did[.] So how did a[n] imitation firearm get there. I requested by motion postconviction DNA testing. To reflect no DNA of my person is on the imitation firearm.Id. He notes the state district court denied his motion on January 15, 2021. Id. Though not a model of clarity, the grounds he raises herein appear primarily related to those raised in said motion. He also appears to raise ineffective assistance of appellate counsel based on counsel's failure to raise the issues on direct appeal. Id. at 5. Petitioner's claims in this regard have not been presented to the highest state court and therefore, cannot yet be presented to this Court in a habeas proceeding.
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed without prejudice pursuant to the Younger abstention doctrine or alternatively, based on Petitioner's failure to exhaust state court remedies. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 31st, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.