United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
February 27, 2017, Petitioner, a pro se litigant residing in
Pine Grove, Colorado, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) and paid
the filing fee (Dkt. 2). He is challenging his conviction in
Tulsa County District Court Case No. CF-2012-4901 for
Domestic Abuse by Strangulation (Count 1), Interfering with
an Emergency Telephone Call (Count 3), and Threatening an Act
of Violence (Count 4). Respondent filed a response in
opposition to the petition, along with the state court record
(Dkts. 8, 9).
reviewing the response to the petition, the Court directed
Respondent to file a supplement to the response to address
whether Petitioner satisfied the “in custody”
requirement of 28 U.S.C. § 2241(c)(3) and 28 U.S.C.
§ 2254(a) (Dkt. 17). Respondent's supplement
concedes that Petitioner was not “in custody”
when the habeas petition was filed (Dkt. 22 at 1). Therefore,
Respondent requests that the petition and Petitioner's
pending motions be dismissed. Id.
alleges that on November 4, 2015, Petitioner was convicted
and sentenced to one year's imprisonment for Count 1,
with credit for time served pending trial, and a $500.00 fine
for each of Counts 3 and 4 (Dkt. 8-10 at 39). Respondent
asserts that because Petitioner was granted credit for time
served pending trial, his sentence expired at the conclusion
of the jury trial on November 4, 2015 (Dkt. 22 at 2).
Petitioner's docket sheet for Case No. CF-2012-4901
indicates that on November 6, 2015, he paid the $500.00 fines
ordered in Counts 3 and 4 (Dkt. 8-10 at 43).
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal
custody.” See Preiser v. Rodriguez, 411 U.S.
475, 484 (1973); see also Rhodes v. Hannigan, 12
F.3d 989, 991 (10th Cir. 1993) (“A petition for habeas
corpus attacks the fact or duration of a prisoner's
confinement and seeks the remedy of immediate release or a
shortened period of confinement.”). Because Petitioner
cannot satisfy the “in custody” requirement, the
Court lacks jurisdiction to consider his habeas corpus
claims, and the petition must be dismissed without
addition, the Court deems moot
Petitioner's pending (1) motion to add count of denying
speedy trial (Dkt. 18); (2) discovery request to JK,
motion to add count of denying speedy trial, necessary reason
for court order to be mailed transcripts, and motion for
court to take judicial notice of attorney evil (Dkt. 20); and
(3) motion for Court to take judicial notice of
[Petitioner's] developmental disorder (Dkt. 26).
11(a), Rules Governing Section 2254 Cases in the United
States District Courts, instructs that “[t]he
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Pursuant to 28 U.S.C. § 2253(c)(2),
the Court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” A petitioner
can satisfy that standard by demonstrating that the issues
raised are debatable among jurists, that a court could
resolve the issues differently, or that the questions deserve
further proceedings. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In addition, when the Court's
ruling is based on procedural grounds, Petitioner must
demonstrate 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 the district court was
correct in its procedural ruling.” Slack, 529
U.S. at 484.
case, the Court concludes that a certificate of appealability
should not issue. Nothing suggests that the Court's
procedural ruling resulting in the dismissal of this action
based on lack of subject matter jurisdiction is debatable or
incorrect. There is no authority in the record suggesting
that the Tenth Circuit Court of Appeals would resolve the
issues in this case differently. Therefore, a certificate of
appealability is denied.
IT IS HEREBY ORDERED that:
Petitioner's petition for a writ of habeas corpus (Dkt.
1) is dismissed without prejudice for lack
of subject matter jurisdiction.
Petitioner's pending motions (Dkts. 18, 20, and 26) are
Petitioner is denied a certificate ...