Opinion
CIV-21-651-F
08-30-2021
FRANCISCO SERRANO, Petitioner, v. LUKE PETTIGREW, [1] Respondents.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed an action in this Court, styling it as a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 6). United States District Judge Stephen P. Friot referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B). (Doc. 3). Petitioner asserts that as a Mexican national and part Indian, the Oklahoma state courts lack jurisdiction to detain him. (Doc. 6, at 2-3). Having conducted a preliminary review of the Amended Complaint pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B), the undersigned recommends that the Court construe this matter as a habeas petition under 28 U.S.C. § 2254 and abstain from exercising jurisdiction pursuant to Younger v. Harris, 401 U.S. 37 (1971).
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Factual and Procedural Background
Petitioner is a state inmate currently incarcerated at the Joseph Harp Correctional Center in Lexington, Oklahoma. (Doc. 6, at 1); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 263870). On March 16, 1998, Petitioner entered a plea of guilty in Oklahoma County District Court to one count of murder in the first degree, a felony under Okla. Stat. tit. 21 § 701.7. See Oklahoma County District Court, Case No. CF-1996-4332. The state district court sentenced Petitioner to imprisonment for life. (Id.) Petitioner did not directly appeal his conviction. (Id.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1996-4332 (Docket Sheet) (last visited August 30, 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).
On March 29, 2021, Petitioner filed an Application for Post-Conviction Relief before the Oklahoma County District Court, which was styled as “Petition for Post- Conviction Relief & Order Transferring Case to Federal Court” and which was accompanied by several other motions and filings. (Id.) Petitioner describes the issues raised in this Application, as: “no state court has jurisdiction” over his claims, because “Petitioner is part Indian, acts took place on Indian land, in Indian territory, on Indian reservation, inside a U.S. military prisoner of war open-air compound (state lacking jurisdiction) . . . .” (Doc 6, at 2-3). Petitioner's Application and attendant filings and motions are still pending before the state district court. See Oklahoma County District Court, Case No. CF-1996-4332.
On June 21, 2021, Petitioner filed the instant action. (Doc. 1, at 4; Doc. 6). Petitioner raises three grounds that echo the issues in his state post-conviction application: that “Okla. state courts lack jurisdiction in this case” (Ground One); that “Respondent has no valid court order to detain Petitioner in his custody and impedes access to courts for this Petitioner” (Ground Two); and “State of Okla. refuses access to its courts, refuses to comply with Art. (II) Sec. (3) of Okla. Const., U.S. Supreme Court McGirt/Murphy rulings, or 1897 Act of Congress, refuses due process and suspended habeas corpus” (Ground Three). (Doc. 6, at 7-8). As relief, Petitioner asks the court to “transfer my detention and custody to federal court, conduct a hearing, deport me and/or detention - or - issue an injunctive order compelling state to unsuspend habeas corpus, and conduct hearings - or - comply with McGirt/Murphy, 1897 Congress Act, and Art. (3) Sec. (1) of Okla. statehood charter constitution.” (Id. at 8).
II. Analysis
A. The Petition Should be Liberally Construed as a Habeas Petition Under § 2254.
Petitioner has now twice filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Docs. 1, 6). However, Petitioner is a state prisoner challenging the jurisdiction of his state conviction and seeking release from state custody. (Doc. 6, at 1, 7-8). “The Antiterrorism and Effective Death Penalty Act establishes that an action is properly brought under § 2254 as a challenge to the validity of the petitioner's conviction and sentence, whereas an action pursuant to § 2241 is an attack on the execution of the petitioner's sentence.'” Clark v. Bruce, 159 Fed.Appx. 853, 856 (10th Cir. 2005) (citation omitted). Petitioner plainly seeks to attack the validity of his state court conviction and confinement and does not make any allegations regarding the execution of his sentence. As there would be no prejudicial effect in doing so, the Court should recharacterize the petition as a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. See, e.g., Clark, 159 Fed.Appx. at 857 (finding it harmless error to convert § 2241 petition to § 2254 without first notifying petitioner because petition was time barred).
B. The Court Should Dismiss 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 the following 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).
“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”).
The Court should conclude that abstention is appropriate in this matter. First, Petitioner has a post-conviction application and related motions and filings currently pending in Oklahoma County District Court which present similar allegations to those asserted in the instant habeas Petition. (Doc. 6, at 2-8). Thus, the Court should conclude that 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, although Petitioner challenges the jurisdiction of the state over his case, Petitioner can and did pursue state court relief in the form of his post-conviction application, which is currently pending before the Oklahoma County District Court. As a result, the Court should conclude that the second element of the Younger doctrine is met.
As to the third Younger requirement, “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) (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.”) (quotations omitted); Fisher v. Whetsel, 142 Fed.Appx. 337, 339 (10th Cir. 2005) (“Oklahoma's important interest in enforcing its criminal laws through proceedings in its state courts remains axiomatic.”).
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 plaintiffs claims were the subject of a still-pending application for post-conviction relief in state court).
III. Recommendation and Notice of Right to Object.
For these reasons, it is recommended that the Petition (Doc. 6) be dismissed without prejudice to the re-filing. Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by September 20, 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.