United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
matter is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
(Doc. 10). Petitioner, a pro se litigant, filed this
habeas corpus petition to challenge his conviction and
sentence for Perjury in Nowata County District Court Case No.
F-2012-34 (Doc. 4). Respondent alleges the petition should be
dismissed pursuant to 28 U.S.C. § 2244(d)(1), because
Petitioner is not in custody for his conviction.
record shows that Petitioner was convicted following a jury
trial in Case No. CF-2012-34. Kloehr v. State, No.
F-2014-146, slip op. at 1 (Okla. Crim. App. July 1, 2015)
(Doc. 11-1). He was not sentenced to incarceration for his
conviction, but was assessed a $5, 000 fine as punishment.
Id. The Oklahoma Court of Criminal Appeals affirmed
the conviction and sentence. Id.
argues in his response to the motion to dismiss that his
prosecution arose from his political activities which exposed
misconduct by local government officials (Doc. 24 at 3-4). He
claims he was denied his right to a fair trial by an
impartial judge and jury, and his trial and appellate counsel
were ineffective (Doc. 24 at 8-13). He also asserts he is
factually innocent (Doc. 24 at 22). These arguments, however,
do not address the issue of his custody status when the
petition was filed.
further alleges his felony conviction has restrained him from
running for elected office or voting for himself for 15 years
(Doc. 24 at 20-21). Because he is a “political animal
and activist, ” he maintains this consequence of his
conviction is a cruel and unusual punishment, and the
restriction on his liberty makes the issue of being
physically “in custody” moot (Doc. 24 at 21, 28).
The Supreme Court, however, has held that when a sentence has
fully expired, the collateral consequences of that
conviction, such as “inability to vote, engage in
certain business practices, hold public office, or serve as a
juror, ” are not sufficient to render a petitioner
“in custody” for purposes of establishing habeas
corpus jurisdiction. Maleng v. Cook, 490 U.S. 488,
also complains that the Oklahoma Court of Criminal Appeals
issued a Summary Opinion affirming his Judgment and Sentence,
rather than a full Opinion (Doc. 24 at 23-24). He claims the
Summary Opinion denied him a full and fair hearing of his
appeal. Id. at 24. The United States Supreme Court
has recognized that “courts of appeal should have wide
latitude in their decisions of whether or how to write
opinions.” Taylor v. McKeithen, 407 U.S. 191,
194 n.4 (1972) (per curiam). Further, the Tenth Circuit Court
of Appeals has expressly upheld the use of summary opinions
in unpublished cases. King v. Champion, 55 F.3d 522,
526 (10th Cir. 1995). This Court finds Petitioner's
argument is meritless and irrelevant to the issue of whether
he was in custody when he filed this petition.
first showing a § 2254 petitioner must make is that he
is ‘in custody pursuant to the judgment of a State
court.'” Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394, 401 (1991) (citing 28 U.S.C. §
2254(a)). The Supreme Court has “interpreted the
statutory language as requiring that the habeas petitioner be
‘in custody' under the conviction or sentence under
attack at the time his petition is filed.”
Maleng, 490 U.S. at 490-91 (emphasis added) (citing
Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
Regarding Petitioner's fine, “payment of
restitution or a fine, absent more, is not the sort of
‘significant restraint on liberty' contemplated in
the ‘custody' requirement of the federal habeas
statutes.” Erlandson v. Northglenn Municipal
Court, 528 F.3d 785, 788 (10th Cir. 2008) (quoting
Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir.
2003)). Therefore, the Court finds Petitioner has failed to
show he was “in custody” pursuant to 28 U.S.C.
§ 2244(d)(1) when he filed this petition.
Respondent's motion to dismiss (Doc. 10) is
Court further finds Petitioner has failed to make a
“substantial showing of the denial of a constitutional
right, ” as required by 28 U.S.C. § 2253(c)(2). He
also has not shown “at least, that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether [this]
court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). A certificate of
appealability cannot be issued.
IT IS HEREBY ORDERED that
Respondent's motion to dismiss habeas corpus petition as
Petitioner is not in custody on his conviction (Doc. 10) is
Petitioner's petition for a writ of habeas corpus (Doc.
1) is dismissed without prejudice for lack
of subject matter jurisdiction.
separate Judgment in favor of Respondent shall be ...