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Bishop v. State

United States District Court, W.D. Oklahoma

February 27, 2018

ADRIAN DESJUAN BISHOP, Petitioner,
v.
STAT[E] OF OKLAHOMA, Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, brings this action seeking habeas relief under 28 U.S.C. § 2241. See Pet. [Doc. No. 1]. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). In accordance with Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, the Petition has been promptly examined, and for the reasons set forth below, it is recommended that the Petition be summarily dismissed.

         I. The Petition and Petitioner's Claims

         Petitioner filled out a § 2241 form claiming he is serving a sentence for a conviction in [CF]-2011-1279 from Cleveland County District Court. See Pet. at 1. He then marks that he is challenging a detainer, the validity of his conviction or sentence, disciplinary proceedings, pre-trial detention, and “other.” Id. at 2.

         Thereafter, Petitioner raises four grounds for relief. In Ground One, Petitioner says: “CIV-14-1002-R and CIV-14-763-C Pointing out Steel Rail Roaded.” Id. at 6.[1] In Ground Two, Petitioner says “Bail” and explains “10, 000.00 into no bail I never ran had probation in Oklahoma ties worked lived here been since 2001.” Id. at 7. In Ground Three, Petitioner writes “Transcripts are needed were im able over turn my case's.” Id. For support, he writes: “CIV-14-1002-R also CIV-14-763-C I beable prove my claims added authorization pull my records proven mental problem since 7 years old mental hospitals been still mental healthy today.” Id. Finally, in Ground Four, Petitioner says “Conflict of interest counsel” and explains “in transcripts letter show motion discovery's.” Id. at 8.

         For relief, Petitioner seeks: “Pulled court over turn case let me free the prison's theft more prove 80, 000.00 without greadyness 25, 000.00 pay all my bill's leave me some start my life from scratch Feb. 26, 2020 to long when I did not do the case.” Id.

         The Court judicially notices that in CIV-14-763-C, Petitioner initiated a 42 U.S.C. § 1983 suit against various officials. See CIV-14-763-C, Doc. No. 1. The district court dismissed the case on screening and without prejudice in September 2014. See id., Doc. Nos. 13, 19. In CIV-14-1002-R, Petitioner initiated a habeas petition under 28 U.S.C. § 2254 challenging his conviction in Cleveland County District Court, Case Nos. CF-2011-1279, CF-2011-1883, and CF-2012-0024. See CIV-14-1002-R, Doc. Nos. 1, 11. This Court dismissed the habeas petition as untimely in July 2015. See id., Doc. Nos. 11, 14, 15.

         II. Analysis

         A. Governing Standard

         Rule 4 requires this Court to review habeas petitions promptly and to summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief. . . .” Rule 4 of the Rules Governing Section 2254 Cases; see also Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition [filed under a statute other than Section 2254].”).

         B. Grounds for Dismissal

         1.The Court Cannot Grant Petitioner's Requested Relief

         With liberal construction, Petitioner seeks release from confinement, monetary damages, and, perhaps, the reopening of CIV-14-1002-R and CIV-14-763-C. But this Court cannot grant any of that relief in a Section 2241 petition.

         It is “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). Petitioner does not indicate that he is challenging the execution of his sentence or the nature of his confinement; instead, he specifically marks that he is challenging the validity of the conviction and/or sentence itself. While such attacks are proper in a Section 2254 action, McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997), they fail to establish a basis for habeas relief arising under Section 2241. And, the Court must decline to convert Petitioner's petition to one arising under Section 2254, because it has already ruled that Petitioner's prior habeas petition was untimely. See supra at 2. Conversion would create an ...


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