United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
Cleve Billings, filed a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 [Doc. No. 1] and a Motion to File [a] 2254
for Jurisdictional Issue [Doc. No. 2], which the Court
construes as both a motion for appointment of counsel and a
brief in support of the habeas petition. Petitioner does not
articulate what state court conviction he is challenging, but
alleges that he was sentenced to life imprisonment on
February 17, 1999. See Pet. at 1. United States
District Judge Stephen P. Friot has referred the matter for
proposed findings and recommendations 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 Court has promptly examined the habeas
petition and recommends that it be summarily dismissed for
nonexhaustion of state court remedies.
gives the Court very little information about his underlying
conviction, see Pet., passim, but does
allege that it occurred “on [an] Indian
Reservation.” [Doc. No. 2, at 2] (“Pet.'s
Br.”). Relying on Murphy v. Royal, 875 F.3d
896 (10th Cir. 2017), Petitioner argues that the State of
Oklahoma therefore lacked jurisdiction over the criminal
action. See Pet. at 5; Pet.'s Br.,
passim. Notably, Petitioner twice states that he has
not presented his claim “to the highest state court
having jurisdiction.” Pet. at 6, 11.
courts must review habeas petitions and 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, Rules Governing Section 2254
Cases in the United States District Courts.
prisoner must exhaust all available state court remedies
before seeking a federal writ of habeas corpus unless it
appears there is an absence of an available state corrective
process or circumstances exist that render such process
ineffective to protect the rights of the prisoner.
See 28 U.S.C. § 2254(b)(1); see also Doe v.
Jones, 762 F.3d 1174, 1177 (10th Cir. 2014) (noting
“before a federal district court may review a habeas
petition, all of its claims must be exhausted in state
Petitioner acknowledges that he has not exhausted his state
court remedies, arguing that he does not have to do so
because “this is a federal government issue not a state
issue.” Pet. at 6. Petitioner seemingly relies on
Murphy, but his interpretation is misplaced. That
is, the court in Murphy did not excuse exhaustion,
even though the question involved the state court's
jurisdiction. In fact, quite to the contrary, the court held
that it must give deference to the state court's decision
on the matter. See Murphy, 875 F.3d at 903
(“First, we assume that a federal habeas court must
give deference to a state court's determination that it
had jurisdiction.”). As such, the Court should reject
Petitioner's argument that he does not need to exhaust
his state-jurisdiction question in state court, and should
dismiss the Petition without prejudice based on
nonexhaustion. See Blanket v. Watkins, 44 Fed.Appx.
350, 351 (10th Cir. 2002) (holding the petitioner must return
to state court to exhaust his claims before proceeding in a
§ 2254 action, and noting “[the petitioner's]
proffered reason for not exhausting - that the State of
Colorado lacks jurisdiction over these claims - lacks
merit”); see also, Grumbley v. Oklahoma, No.
CIV-12-858-D, 2012 WL 3667980, at *1, n. 1 (W.D. Okla. Aug.
9, 2012) (unpublished report and recommendation)
(“Petitioner has also failed to demonstrate that he
exhausted state court remedies as required by 28 U.S.C.
§ 2254(b)(1) concerning his claim that the district
court lacked jurisdiction to convict him . . . .”),
adopted, 2012 WL 3611681 (W.D. Okla. Aug. 22, 2012)
(unpublished district court order).
clear from the face of the Petition that Petitioner did not
exhaust his state court remedies before filing his §
2254 action. So, the Court should summarily dismiss the
Petition [Doc. No. 1] without prejudice. Adoption of this
Recommendation will moot Petitioner's request for
appointment of counsel, [Doc. No. 2].
OF RIGHT TO OBJECT
is advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any
objection must be filed with the Clerk of the District Court
by May 17, 2018. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to
this Report and Recommendation waives the right to appellate
review of the ...