United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se, seeks a writ of habeas
corpus. See Doc. 1. United States District
Judge Timothy D. DeGiusti has referred this matter to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C).
See Doc. 4.
careful examination of the petition and its attached exhibit,
as required by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts (Rule 4), the
undersigned recommends the summary dismissal of the petition.
filed the present action on a 28 U.S.C. § 2254 form.
Doc. 1. In the caption he states the authorized person having
custody of him is the “State of Oklahoma, ” the
“Bureau of Federal Prisons, ” and “Private
Attorney General.” Id. at 1. In the body of
the petition he seeks federal relief from the judgment and
sentence imposed against him in Oklahoma County District
Court, No. “CRF-2012-5514.” Doc. 1, at 1. In that
case, Petitioner was convicted after entering pleas of guilty
on November 16, 2012, to four counts of Lewd Acts with a
Child Under Sixteen. Petitioner was sentenced to
twenty-five years on each count and the state court ordered
the sentences run concurrently. Petitioner did not directly
appeal his convictions and sentences.
sets out four grounds which he claims entitle him to release
from state custody. Id. at 6-16. In Ground One,
Petitioner invokes the “Qui Tam” provisions of
the “False Claims Act.” Id. at
6. He explains “[t]his is a federal
case, not a state case, Oklahoma clearly did not have
jurisdiction to prosecute and house [him] in a state ran
institution.” Id. In Ground Two, Petitioner
invokes “Ad-Subjiciendum” and requests the court
inquire as to the “legitimacy” of his state
custody based on a lack of jurisdiction. Id. at 8.
In Ground Three, Petitioner asserts he had ineffective
assistance of counsel because his “court appointed
attorney did not argue any of the above mentioned claims of
jurisdiction in Indian Country or under the Major Crimes Act,
jurisdiction is exclusively federal.” Id. at
11. And in Ground Four, Petitioner asserts
“overcrowding in Oklahoma prisons” and explains
Oklahoma Department of Corrections Director Joe Allbaugh has
admitted to such overcrowding on television. Id. at
14. Petitioner asserts with respect to every ground raised
that no exhaustion has been or will be attempted in state
court because he raises only “federal issue[s].”
See Id. at 6-8, 11, 13-14, 16-17.
seeks release from state custody. See Id. at 9, 17.
requires the court to review habeas petitions promptly and to
summarily dismiss a petition “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing 2254 Cases in the
United States District Courts. Under this rule, the court may
dismiss a petition based on a failure to exhaust state court
remedies if non-exhaustion is “clear from the face of
[the] petition.” Allen v. Zavara, 568 F.3d
1197, 1202 (10th Cir. 2009).
Grounds One through Three.
Grounds One through Three, Petitioner requests this Court
examine his state court conviction and release him from
Oklahoma's custody based on a lack of state jurisdiction
to prosecute him for his crimes because they occurred in
“Indian Country.” Doc. 1, at 5-6,
9-11. Petitioner's attack on the
validity of his state court conviction and sentence falls
squarely within the purview of section 2254. See 28
U.S.C. § 2254(b)(1); see also Preiser, 411 U.S.
at 484 (holding it “clear, not only from the language
of [sections 2241 and 2254], but also from the common-law
history of the writ that the essence of habeas corpus is an
attack by a person in custody upon the legality of that
custody, and that the traditional function of the writ is to
secure release from illegal custody”).
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 Bland
v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006)
(“A state prisoner generally must exhaust available
state-court remedies before a federal court can consider a
habeas corpus petition.”); Miranda v. Cooper,
967 F.2d 392, 398 (10th Cir. 1992) (“In order to
satisfy the exhaustion requirement, a federal habeas corpus
petitioner must show that a state appellate court has had the
opportunity to rule on the same claim presented in federal
court . . ., or that at the time he filed his federal
petition, he had no available state avenue of
More specifically, AEDPA prohibits federal courts from
granting habeas relief to state prisoners who have not
exhausted available state remedies. In this regard, §
2254(b)(1) states, “An application for a writ of habeas
corpus . . . shall not be granted unless it appears that[ ] .
. . the applicant has exhausted the remedies available in the
courts of the State. . . .” 28 U.S.C. §
2254(b)(1). Section 2254(c) elaborates that “[a]n
applicant shall not be deemed to have exhausted the remedies
available in the courts of the State[ ] . . . if he has ...