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Dease v. Bear

United States District Court, W.D. Oklahoma

April 26, 2018

WILLIAM HENRY DEASE, Petitioner,
v.
WARDEN BEAR, Respondent.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         State prisoner William Dease seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Robin J. Cauthron 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 without prejudice.

         I. SCREENING REQUIREMENT

         The 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. Ct.[1]

         II. PETITIONER'S ALLEGATIONS

         Petitioner 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.

         In the Petition, Mr. Dease states that he is challenging “the validity of his conviction or sentence as imposed.” (ECF No. 1:2). As explanation, Petitioner states:

The legal system of Oklahoma and those elected officials who speak for the people of Oklahoma, coerced and induced Petitioner to take a felony agreement knowing said charge was deemed a misdemeanor.

(ECF No. 1:2). Mr. Dease also makes general references alleging: “Denial of Due Process Procedure; Malicious Persecution [sic] while acting under color of law; Intentional abdication of lawful responsibility; flagrant misconduct in office and substantial prejudice.” (ECF No. 1:2).

         III. DISMISSAL

         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). Here, Mr. Dease 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 sole ground for relief “attempts a frontal assault on his conviction.” Prost, 636 F.3d at 581. For example, Mr. Dease apparently believes that his conviction is invalid because it was unlawfully “turned [from a misdemeanor] into a felony.” (ECF No. 1:8). 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 the petition, 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.[2]

         IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

         Based upon the foregoing analysis, it is recommended that the petition be summarily dismissed, without prejudice.

         The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by May 14, 2018, in accordance with 28 U.S.C. ยง 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 ...


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