United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
prisoner Mario Akothe seeks a writ of habeas corpus under 28
U.S.C. § 2241. (ECF No. 1). United States District Judge
Timothy D. Degiusti has referred this matter to the
undersigned magistrate judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The Court
should summarily DISMISS the petition
Court is required to review habeas petitions promptly and to
“summarily dismiss [a] petition without ordering a
responsive pleading, ” Mayle v. Felix, 545
U.S. 644, 656 (2005), “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” See
R. 4, R. Governing § 2254 Cases in U.S. Dist.
FACTUAL BACKGROUND AND PETITIONER'S CLAIMS
informs the Court that he is confined at the Joseph Harp
Correctional Center, but he fails to identify anything else
about his sentence(s). That is, the Court does not know when
or where Petitioner was sentenced, or for what and for how
long. See ECF No. 1:1.
Petition, Mr. Akothe raises two grounds for
relief. In Ground One, he alleges that the state
of Oklahoma is illegally incarcerating him because
Petitioner's “tribe” has signed a treaty with
the United States President. (ECF No. 1:7). Although the
Court presumes that Petitioner is Native American, he does
not specify his tribal affiliation. (ECF No. 1:7). In Ground
Two, Petitioner claims that Oklahoma state courts: (1) refuse
to enforce U.S. Supreme Court opinions and (2) have suspended
“habeas corpus, due process, equal protection of laws,
access to courts, and terms of statehood charter.” (ECF
“the nature of a prisoner's confinement,
not the fact of his confinement” that is the
gravamen of a Section 2241 petition or challenge. Prost
v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)
(emphasis in original). Here, Mr. Akothe alleges no facts to
show that he is challenging the execution of his
sentence or the nature of his confinement. He does not, for
instance, seek to challenge “certain matters that occur
at prison, such as deprivation of good-time credits and other
prison disciplinary matters . . . affecting the fact or
duration” of his custody. Hale v. Fox, 829
F.3d 1162, 1165 n.2 (10th Cir. 2016) (internal quotation
omitted). Instead, Petitioner's Ground One
“attempts a frontal assault on his conviction.”
Prost, 636 F.3d at 581. For example, he apparently
believes that his conviction is invalid due to a treaty
signed by the President with his tribe. See ECF No.
1:7. While an attack on Petitioner's conviction may be
proper in a Section 2254 action, McIntosh v. U.S. Parole
Comm'n, 115 F.3d 809, 811 (10th Cir. 1997), it fails
to establish a basis for habeas relief arising under Section
2241 because it does not attack the execution of his
sentence. Therefore, the Court should dismiss Ground One,
without prejudice. To the extent Petitioner desires to
challenge the validity of his conviction, then he must file
an action pursuant to Section 2254 utilizing the proper form.
The Court, however, will not construe Ground One as arising
under Section 2254.
Ground Two, Petitioner asserts that Oklahoma state courts:
(1) refuse to enforce U.S. Supreme Court opinions and (2)
have suspended “habeas corpus, due process, equal
protection of laws, access to courts, and terms of statehood
charter.” (ECF No. 1:7). But this challenge is not
cognizable on habeas review, as it involves a direct
challenge to Oklahoma state procedural rules and laws.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[F]ederal habeas corpus relief does not lie for
errors of state law, ” and “it is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions.”) (internal
quotation marks omitted); Montez v. McKinna, 208
F.3d 862, 865 (10th Cir. 2000) (“[Petitioner's]
claims of state law violations are not cognizable in a
federal habeas action.”) (citing 28 U.S.C. §§
2241(c)(3), 2254(a)); Stryker v. Bear, No.
CIV-17-695-W, 2017 WL 4533968, at *3 (W.D. Okla. Sept. 5,
2017) (unpublished report and recommendation) (finding that
petitioner's claim that Oklahoma denied him “access
to court, suspended habeas corpus, . . . and denied him equal
protection and due process” did “not demonstrate
any violation of federal law”), adopted, 2017
WL 4533138 (W.D. Okla. Oct. 10, 2017) (unpublished district
court order). Therefore, the Court should dismiss Ground Two,
without prejudice. See Rael v. Williams,
223 F.3d 1153, 1154-55 (10th Cir. 2000).
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
upon the foregoing analysis, it is recommended that the
petition be summarily dismissed, without prejudice.
parties are advised of their right to file an objection to
this Report and Recommendation with the Clerk of this Court
by February 26, 2018, in accordance with 28
U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are
further advised that failure to make timely objection to this
Report and Recommendation waives the right to appellate
review of both factual and legal issues contained herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir.