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Libby v. State

United States District Court, W.D. Oklahoma

March 24, 2019

PHILIP LIBBY, Petitioner,
v.
STATE OF OKLAHOMA, Respondent.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, filed an action for a writ of habeas corpus under 28 U.S.C. § 2254. 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. For the following reasons, it is recommended the Petition be dismissed without prejudice.

         I. Background

         Petitioner was convicted of nine counts of sexual abuse of a child. See Doc. No. 1 (“Petition”) at 1; see also Oklahoma State Court's Network, Oklahoma County District Court, No. CF-2015-249.[1] Petitioner filed a direct appeal. Petition at 2; Oklahoma State Court's Network, Oklahoma Court of Criminal Appeals, No. F-2017-75.[2]

         In his direct appeal, Petitioner raised three grounds for relief. First, he argued the prosecution failed to distinguish the specific allegations underlying each count of sexual abuse for which he was convicted and this failure required reversal of the same because it is impossible to determine if the verdict for each was unanimous. Petition at 2; Oklahoma State Court's Network, Oklahoma Court of Criminal Appeals, Order dated March 22, 2018, No. F-2017-75.[3] Second, Petitioner asserted that four of his convictions violated state law and federal constitutional concerns regarding double jeopardy. Id. Third, Plaintiff argued the prosecution failed to present sufficient evidence to support the nine convictions. Id. The Oklahoma Court of Criminal Appeals denied his appeal on March 22, 2018. Id. Petitioner has not sought any further post-conviction relief. Petition at In the present action, Petitioner raises the second and third grounds he raised in his direct appeal and an additional ground based on ineffective assistance of counsel. Petition at 5. Petitioner acknowledges that his ineffective assistance of counsel claim has not been presented to any state court. Id. at 13.

         II. Screening Requirement

         Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits . . . .” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).

         III. Analysis

         It is firmly established in the habeas context that “a state prisoner's federal petition should be dismissed if the prisoner has not exhausted available state remedies.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). To satisfy the exhaustion requirement, a state prisoner must fairly present his federal habeas claims in state court. Fair presentation “requires that the petitioner raise in state court the substance of his federal claims . . . includ[ing] not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief.” Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015) (quotations and citations omitted). “The prisoner's allegations and supporting evidence must offer the state courts a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997) (quotations omitted).

         A state prisoner is relieved from this obligation only if exhaustion would be futile “because of an absence of available State corrective process or because circumstances exist that render such process ineffective to protect the rights of the applicant.” Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009) (quotations omitted). Therefore, prior to seeking federal habeas relief, a state prisoner must first exhaust available state court remedies by raising the substance of his or her claims in state court and invoking one complete round of the state's appellate review process, including discretionary review. See 28 U.S.C. §2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845-47 (1999).

         Petitioner clearly states in his Petition that he is raising an ineffective assistance of counsel claim that has not been exhausted in state court proceedings. In his first ground for relief, Petitioner explains that his trial and appellate counsel, though separate individuals, were each appointed by the state court from the Oklahoma Public Defender's Office. Petition at 5. He asserts that he received ineffective assistance of trial counsel based on counsel's failure to investigate and present evidence regarding the relationship between Petitioner, the child he was convicted of sexually abusing, and that child's mother, as well as the incentive the child might have possessed to lie about the allegations underlying his convictions. Id. Petitioner states this claim was not raised in his direct appeal because his appellate counsel, also a Public Defender, refused to assert the same. Id. at 6, 13.

         As noted, an unexhausted ground for relief raised in a federal habeas petition is ordinarily subject to dismissal unless exhaustion would have been futile because either “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Petitioner has available state judicial remedies for exhausting his ineffective assistance claim under Oklahoma's Post-Conviction Procedure Act, Okla. Stat. tit. 22, § 1080, et seq. Moreover, there is no statute of limitations applicable to non-capital applications for post-conviction relief. Moore v. Gibson, 27 P.3d 483, 484 n.1 (Okla. Crim. App. 2001). Thus, in Oklahoma, “an application for post-conviction relief in a non-capital case is always deemed to be timely filed.” Id.; see also Scott v. Franklin, 122 Fed.Appx. 980, 983 (10th Cir. 2005) (“Oklahoma has no time limit on initial post-conviction habeas proceedings for non-capital offenses”); Okla. Stat. tit. 22, § 1080 (specifying no time limit for filing initial post-conviction application). Accordingly, Petitioner faces no statute of limitations issue if he returns to state court to exhaust his ineffective assistance of counsel claim.

         Moreover, although under Oklahoma law a prisoner may not raise an issue omitted from his direct appeal in an application for post-conviction relief, there are exceptions to this rule. Jones v. State, 704 P.2d 1138, 1140 (Okla. Crim. App. 1985). Specifically, prisoners may raise issues not asserted on direct appeal if “sufficient reason” prevented the assertion of the error, or if the defendant bypassed direct appeal because of an error of counsel. Id.; see also Pickens v. State, 910 P.2d 1063, 1069 (Okla. Crim. App. 1996) (stating that for ineffective assistance of counsel claims raised for the first time in post-conviction proceedings, the court will “review each case on its individual merits, examining each specific proposition in connection with the specific facts of each case as that need arises”); Okla. Stat. tit. 22, § 1086. Petitioner blames his appellate counsel for failing to raise this ground for relief on direct appeal and “an independent constitutional violation of the right to effective assistance of counsel may constitute cause for a procedural default.” Clark v. Bryant, No. CIV-16-1406-HE, 2017 WL 4479360, at *5 (W.D. Okla. July 14, 2017) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).

         Because there is a possibility that the state court may allow review of Petitioner's ineffective assistance of trial counsel claim, there remains an available state avenue of redress. Petitioner must exhaust that remedy before proceeding with his federal habeas petition. See 28 U.S.C. § 2254(c); see also, e.g., Braggs v. Attorney Gen. of Okla., No. 98-6156, 1998 WL 864070, at *2 (10th Cir. Dec. 14, 1998); Garza v. Gibson, No. 99-7036, 1999 WL 1054679, at *2 (10th ...


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