United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE.
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.
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. Petitioner filed a direct appeal. Petition
at 2; Oklahoma State Court's Network, Oklahoma Court of
Criminal Appeals, No. F-2017-75.
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. 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
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
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).
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).
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.
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.
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,
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 ...