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Draper v. United States

United States District Court, W.D. Oklahoma

February 15, 2018

ERNEST DRAPER, Petitioner/Plaintiff,
UNITED STATES, Respondent/Defendant.



         Petitioner, a state prisoner appearing pro se, has filed this action seeking relief either under 28 U.S.C. § 2241. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.[1] For the following reasons, it is recommended the Petition be dismissed.

         Petitioner is confined in Joseph Harp Correctional Center (JHCC) located in Lexington, Oklahoma. In his Petition, Petitioner complains JHCC is overcrowded. Amended Petition (Doc. #10) at 7. Petitioner also asserts that because he does not have a discharge date, he is not earning good time credits. Id.

         Pursuant to Rule 4, the Court is obligated to review habeas petitions in a prompt manner and dismiss a petition “[i]f it plainly appears from the face of the petition and any exhibits attached to it that the petitioner is not entitled to relief . . . .” Moreover, a federal court must sua sponte examine each case to determine whether the court has jurisdiction over the matter. See Fed.R.Civ.P. 12(h)(e); Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (“The objection that a federal court lacks subject-matter jurisdiction may be raised by . . . a court on its own initiative, at any stage in the litigation . . . .”).

         As an initial matter, Petitioner's first ground for relief related to alleged overcrowding of JHCC is not a proper subject for a § 2241 action. To the extent Petitioner seeks to assert a claim for an Eighth Amendment violation based on his conditions of confinement, he must bring such a claim in a civil rights action under 42 U.S.C. § 1983. See Akers v. Davis, 400 F. App'x 332, 335 (10th Cir. 2010) (“It is clear . . . that a § 2241 habeas proceeding is not a permissible means for [the petitioner] to challenge defendant's handling of his mail.”); McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action . . . attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions.” (quotations omitted)).

         Additionally, although Petitioner's second ground for relief related to good time credits may be properly raised in a § 2241 proceeding, it should be dismissed based on his failure to exhaust administrative remedies. “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See Woodford v. Ngo, 548 U.S. 81, 92 (2006); Rose v. Lundy, 455 U.S. 509 (1982). Although 28 U.S.C. § 2241 does not contain an explicit exhaustion requirement, exhaustion of available remedies is required for petitions brought under § 2241. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). See also Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005) (noting habeas petitioner seeking relief under 28 U.S.C. § 2241 is required to first exhaust available state remedies, absent showing of futility); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (“A habeas petitioner is generally required to exhaust state remedies whether his action is brought under §2241 or §2254.”). “The exhaustion of state remedies includes both administrative and state court remedies.” Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002)

         In this Circuit, a petitioner may satisfy the exhaustion requirement by showing either (1) “that a state appellate court has had the opportunity to rule on the same claim presented in federal court, ” or (2) “that at the time he filed his federal petition, he had no available state avenue of redress.” Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992); (see also Bear v. Boone, 173 F.3d 782, 785 (10th Cir. 1999) (“In order to fully exhaust state court remedies, a state's highest court must have had the opportunity to review the claim raised in the federal habeas petition.”). Petitioner ultimately bears the burden of showing he has exhausted available state remedies. Cooper v. McKinna, No. 99-1437, 2000 WL 123753, at *1 (10th Cir. Feb. 2, 2000). Oklahoma law provides that an application for a writ of mandamus is the appropriate remedy for the alleged violation of an inmate's right to sentence credits by the Department of Corrections.[2] See Baird v. Ward, No. 97-5229, 1998 WL 440471, at *2 (10th Cir. July 17, 1998) (“Oklahoma's writ of mandamus remedy is available to correct violations of a prisoner's minimum due process rights.”); see also Johnson v. Dep't of Corrs., 916 P.2d 264, 265 (Okla. Crim. App. 1996) (noting a “writ of mandamus is appropriate against prison officials when a prisoner's minimum due process rights [with regard to sentence credits] have been violated”); Tomlin v. State of Okla., 814 P.2d 154, 155 (Okla. Crim. App. 1991) (finding a mandamus action appropriate for an inmate's claim that he was being denied CAP credits under the former OPOEPA). Mandamus relief is available if a petitioner can show (1) a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. Canady v. Reynolds, 880 P.2d 391, 396 (Okla. Crim. App. 1994) (citing OCCA Rule 10.6).[3]

         Petitioner specifically and repeatedly indicates he has not presented his claim to any state court or otherwise attempted to seek an administrative remedy. Doc. #10 at 2, 3, 6, 7, 8. He does not allege that no state remedy is available to address his claims, and this Court cannot rule out the possibility that the Oklahoma courts would entertain Petitioner's claims. Thus, it is recommended this Petition be dismissed without prejudice to allow Petitioner to exhaust his state remedies. See Martin v. State, No. 98-6211, 1998 WL 552607, at *2 (10th Cir. Aug. 28, 1998) (dismissing the petitioner's equal protection and ex post facto claim regarding Oklahoma emergency sentence reduction program for failure to exhaust).


         Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be dismissed without prejudice. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 7th, 2018, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

         This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.



[1] Rule 4 is applied in the discretion of the undersigned to this 28 U.S.C. ยง 2241 habeas Petition. Rule 1(b), Rules Governing Section 2254 Cases in ...

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