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Billings v. Bureau of Indian Affairs

United States District Court, W.D. Oklahoma

April 26, 2018

CLEVE BILLINGS, Petitioner,
v.
BUREAU OF INDIAN AFFAIRS, et al., Respondents.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.[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.[2]

         I. Background

         Petitioner gives the Court very little information about his underlying conviction, see Pet., passim, but does allege that it occurred “on [an] Indian Reservation.”[3] [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.

         II. Screening Requirement

         District 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.

         III. Exhaustion Requirement

         A state 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 court”).

         IV. Analysis

         Here, 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).

         RECOMMENDATION

         It is 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].

         NOTICE OF RIGHT TO OBJECT

         Petitioner 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. ยง 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 ...


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