United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
for failure to exhaust administrative and state judicial
remedies. Petitioner, a former state prisoner, challenged the
execution of his sentence in Atoka County District Court Case
No. CF-2013-11, claiming he had satisfied his two-year
sentence and paid his $265.50 fine. He further alleged he was
being held in violation of the United States Constitution and
requested release from custody.
petition was filed pursuant to 28 U.S.C. § 2254. Because
the petition raised issues concerning the execution of
Petitioner's sentence, rather than the validity of his
conviction and sentence, the Court construes the petition as
arising under 28 U.S.C. § 2241. See Haugh v.
Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (“A
petition under 28 U.S.C. § 2241 attacks the execution of
a sentence rather than its validity . . . .”).
alleges Petitioner failed to exhaust the available
administrative and state court remedies for his claim.
“A threshold question that must be addressed in every
habeas case is that of exhaustion.” Harris v.
Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). Before
bringing a habeas claim alleging he has discharged his
sentence, a petitioner first must exhaust both administrative
remedies as provided by the Oklahoma Department of
Corrections and state judicial remedies. Dulworth v.
Evans, 442 F.3d 1265, 1268-69 (10th Cir. 2006) (citing
Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir.
2005); Moore v. Olson, 368 F.3d 757, 758 (7th Cir.
2004); Clonce v. Presley, 640 F.2d 271, 273-74 (10th
alleges that inmates are provided a method for seeking formal
administrative decisions or answers to issues or complaints.
The process begins with the submission of a Request to Staff
(“RTS”). If the issue is not resolved informally
through a RTS, the inmate may submit an Offender Grievance
Form within 15 days and attach the RTS. The final step of the
grievance process is an appeal to the Administrative Review
Authority. (Dkt. 5-2).
to Respondent, Petitioner did not attempt to utilize the
administrative remedy process before filing this action.
Petitioner alleges in his response to the motion that
“[t]he DOC Offense Grievance Process causes inordinate
delays with futile remedies which adds to the irreparable
injuries and may be outside their scope to determine
constitutional questions which ultimately may have to be
decided by the federal court or the Supreme Court of the
United States” (Dkt. 6 at 1).
of administrative remedies is not required when it would be
futile. Wilson v. Jones, 430 F.3d 1113, 1118 (10th
Cir. 2005). The futility exception, however, is quite narrow.
Bun v. Wiley, 351 Fed. App'x 267, 268, 2009 WL
3437831, at *2 (10th Cir. Oct. 27, 2009) (unpublished). Here,
the Court finds Petitioner's unsupported and conclusory
assertion of futility does not warrant an exception to the
respect to Petitioner's state judicial remedies, the
record shows he filed in his Atoka County criminal case a
pleading that was identical to this habeas petition. On
February 28, 2017, the Atoka County District Court issued a
Court Minute denying relief. (Dkt. 1 at 21). Respondent
asserts there is no indication that Petitioner appealed that
decision to the Oklahoma Court of Criminal Appeals.
careful review, the Court finds Petitioner has failed to
exhaust the administrative and state court remedies for his
habeas claims. Therefore, Respondent's motion to dismiss
Court further concludes Petitioner 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). See also 28 U.S.C. § 2253(c).
Therefore, a certificate of appealability cannot be issued.
Respondent's motion to dismiss Petitioner's petition
for a writ of habeas corpus (Dkt. 5) is GRANTED, and this
action is, in all respects DISMISSED WITHOUT PREJUDICE.
Furthermore, Petitioner is DENIED a certificate of
IS SO ORDERED.