Opinion
CIV-22-8-J
04-29-2022
JIMMIE D. WILKINS, Petitioner, v. SCOTT NUNN, 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). United States District Judge Bernard M. Jones referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). (Docs. 7, 13). As set forth fully below, the undersigned recommends the Court dismiss the Petition pursuant to Younger v. Harris, 401 U.S. 37 (1971). The undersigned additionally recommends Petitioner's “Motion To Vacate The Judgment And Sentence; Or In The Alternative Petition For Writ Of Habeas Corpus Pursuant to 28 U.S.C. §§ 2241-2255” (Doc. 16) be denied as improperly filed and stricken.
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).
Petitioner has additionally filed two “motions” that do not request relief but appear to (in part) present arguments in support of his Petition. (Docs. 15, 17). The undersigned thus liberally construes these collective filings as a brief in support of the Petition.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions and summarily dismiss a petition “[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. 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).
“[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). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 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).
II. Factual and Procedural Background
Petitioner is a state inmate currently incarcerated at the James Crabtree Correctional Center in Helena, Oklahoma. (Doc. 1, at 1); see also Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (OK DOC# 865582). On November 10, 2020, a jury in Pottawatomie County convicted Petitioner of two counts of lewd or indecent acts to a child under 16, a felony under Okla. Stat. tit. 21 § 1123. Pottawatomie County District Court, Case No. CF-2019-303. The state district court sentenced Petitioner to 20 years of imprisonment on each count, to be served consecutively. (Id.) On January 26, 2021, Petitioner directly appealed his conviction and sentence, and this appeal is currently pending before the Oklahoma Court of Criminal Appeals (OCCA). OCCA, Case. No. F-2021-48.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&number=CF -2019-00303 (Docket Sheet) (last visited April 29, 2022). 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).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2021-48 (Docket Sheet) (last visited April 29, 2022).
On January 3, 2022, Petitioner filed the instant action, asserting two grounds for relief. (Doc. 1, at 5-15). In Ground One, Petitioner alleges “Oklahoma lacked jurisdiction” over him because he has “some Indian blood, ” his alleged crimes fell under the “Major Crimes Act, ” and they occurred in “Indian Country.” (Id. at 5). Petitioner admits he has not exhausted this claim in state court but asserts there is an “absence of” an “available corrective process” because Oklahoma lacked jurisdiction over his crimes. (Id.) Petitioner complains in Ground Two that his counsel was ineffective for failing to raise the jurisdictional issue which denied him his constitutional rights. (Id. at 7). Petitioner admits he has not exhausted this claim and again asserts that Oklahoma lacks a “corrective process” because “Oklahoma lacked jurisdiction.” (Id.) And, in Ground Three, Petitioner asserts the state has violated his right to a speedy trial in federal court. (Id. at 8). When asked if he has presented all grounds for relief to the highest state court, Petitioner states that he has. (Id. at 9).
III. The Court Should Dismiss the 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”).
Abstention is appropriate in this matter. First, Petitioner's direct appeal is currently pending before the OCCA. OCCA, Case. No. F-2021-48 (see footnote 5). 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.”).
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 direct appeal, currently pending before the OCCA. As a result, 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; 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 direct appeal is pending in state court, and Petitioner has not met the heavy burden to show otherwise. See Green v. Whetsel, 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).
IV. Petitioner's Other Pending Motion
Petitioner has also filed a “Motion To Vacate The Judgment And Sentence; Or In
The Alternative Petition For Writ Of Habeas Corpus Pursuant to 28 U.S.C. §§ 2241-2255.” (Doc. 16). This filing appears to have been drafted by someone other than Petitioner, is only partially executed, contains numerous factual inaccuracies, and appears to argue that his trial counsel in a “Howard County” criminal case and these habeas proceedings has been ineffective due to their failure to assert a defense based on Petitioner's post-traumatic stress disorder. (Id. at 1-8). Petitioner may not file a new and unrelated habeas petition in this matter. Petitioner's “Motion” should therefore be denied as improperly filed and stricken.
For example, Petitioner refers to a non-existent “Judgment and Sentence entered on 3/15/2022 [date] by the United States District Court for the Western District of Oklahoma, Division, the Honorable Amanda Maxfield Green presiding, in the case of United States of America v. Jimmie D. Wilkins.” (Doc. 16, at 2-3). And Petitioner claims to seek relief from a conviction that occurred on November 26, 2020, “in the State District Court of Howard County, ” with “the Honorable Unknown presiding.” (Id. at 3-4). The undersigned takes judicial notice that there is no Howard County in the state of Oklahoma. See Fed.R.Evid. 201(b); see also United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (“Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial ....”).
V. Recommendation and Notice of Right to Object.
For these reasons, it is recommended that the Petition (Doc. 1) be dismissed without prejudice to the re-filing. In addition, Petitioner's Motion (Doc. 16) should be denied and stricken.
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by May 20, 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.