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Draper v. State

United States District Court, W.D. Oklahoma

May 23, 2019

ERNEST DRAPER, Petitioner,
v.
STATE OF OKLAHOMA, et al., Respondents.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus. See Doc. 1.[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.

         After a 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.

         I. Petitioner's claims.

         Petitioner 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.[2] 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.

         Petitioner 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.[3] 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.[4] 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.

         Petitioner seeks release from state custody. See Id. at 9, 17.

         II. Screening.

         Rule 4 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).

         III. Grounds One through Three.

         In 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.[5] 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”).

         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 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 redress.”).

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 ...

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