United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White, United States District Judge.
action is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254 (Dkt. 1). Petitioner
is a pro se prisoner in the custody of the Texas Department
of Criminal Justice who is incarcerated at the Allred Unit in
Iowa Park, Texas.He is attacking his convictions in Marshall
County, Oklahoma, District Court Case Nos. CF-95-111 for
First Degree Rape and Case No. CF-95-112 for Second Degree
Rape. He raises the following grounds for
Ground I: Did the Oklahoma Court of Criminal Appeals
err in determining that the Petitioner was not entitled to a
Writ of Habeas Corpus . . . when the Court Ruled that it did
not have Jurisdiction when the Petitioner Put in the Notice
of Appeal in [sic] on August 20, 2018 in the Prison Mailing
System, The Petitioner Does not have Control over his Mail.
Ground II: Did the Oklahoma Court of Criminal
Appeals and the 19th District Court err in determining that
the Petitioner was not entitled to effective assistance of
Counsel, When it determined that the Petitioner's trial
Attorney was effective for not filing a Notice of Appeal
After The Trial when he was instructed to do so.
Ground III: Petitioner waived allegations of error
as to Issues which were or could have been raised on direct
appeal Pursuant to 22 O.S. § 1086 When the
Petitioner's Right to an Appeal was violated when the
trial attorney never filed a notice of appeal for the
Ground IV: Did the Oklahoma Court of Criminal
Appeals err in determining that the trial Court did not
violate the Petitioner's 5th, 6th, 14th Amendments to the
U.S. Constitution, when the Oklahoma Court of Criminal
Appeals agreed with the trial court's ruling that the
Petitioner was not entitled to his 6th Amendment right to an
attorney during the interrogation When the Petitioner
Requested Several times for an attorney during interrogations
and was denied.
Ground V: Did the Oklahoma Court of Criminal Appeals
err in determining that the Petitioner was not denied his
Constitutional Rights under the 5th, 6th, 14th Amendments by
being questioned by law enforcement while in custody.
Ground VI: Was the Oklahoma Court of Criminal
Appeals in err [sic] in Determining that the Oklahoma State
Bureau of Investigation Agent "David Seals" did not
violate the Petitioner's rights under the 5th, 6th, 14th
Amendments to the U.S. Constitution, when the Agent Mr. Seals
illicited [sic] with threats and coercion to force of
statement out of Petitioner.
has filed a motion to dismiss, alleging Petitioner is not in
custody, as required by 28 U.S.C. § 2254(a). The record
shows that Petitioner received a six-year sentence in Case
No. CF-95-111 and a three-year sentence in CF-95-112 (Dkt.
13-1). According to the Oklahoma Department of Corrections
Offender website, Petitioner was received into DOC custody in
1996, and he discharged his sentences in 1999 (Dkt.
district courts have jurisdiction to consider a 28 U.S.C.
§ 2254 habeas petition "only from persons who are
'in custody in violation of the Constitution or
laws or treaties of the United States.'" Maleng
v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C.
§ 2241(c)(3)) (emphasis in original). See also
28 U.S.C. § 2254(a). A habeas petitioner, therefore,
must be "in custody" under the conviction or
sentence the petitioner is challenging at the time the
petition is filed. Maleng, 490 U.S. at 490-91.
argues in his response to the motion to dismiss (Dkt. 19)
that he is in custody because he has to register and report
to the Sheriffs Office every 90 days for life, and he has to
reside in a particular community, because he cannot live next
to a school, playground, park or other areas where children
gather. Id. at 2. The Tenth Circuit Court of Appeals
considered and rejected this argument in Calhoun v.
Attorney Gen. of the State of Okla, 745 F.3d 1070,
1072-73 (10th Cir. 2014). As a matter of first impression,
the Tenth Circuit held the petitioner challenging his
Colorado conviction was not "in custody," because
his obligation to register as a sex offender in Colorado was
a "collateral consequence of conviction that [did] not
impose a severe restriction on [his] freedom."
Id. at 1074. In so ruling, the Tenth Circuit
announced, "[W]e join the circuits uniformly holding
that the requirement to register under state sex-offender
registration statutes does not satisfy § 2254's
condition that the petitioner be 'in custody' at the
time he files a habeas petition." Id.
(citations omitted). Id. In Dickey v.
Allbaugh, 664 Fed.Appx. 690, 693-64 (10th Cir. 2016),
the Tenth Circuit extended Calhoun to Oklahoma's
sex offender registration statute), cert, denied, __
U.S. __, 137 S.Ct. 2295 (2017). This Court thus finds
Petitioner's claim regarding his Oklahoma sex-offender
requirements do not render him "in custody" for
purposes of his § 2254 petition.
also claims in his supplemental response to the motion to
dismiss (Dkt. 20) that he meets the "in custody"
requirement, because his Oklahoma convictions in Case Nos.
CF-95-455, CF-95-111, and CF-112 were used to enhance his
Texas sentence to a life sentence. He maintains the Oklahoma
convictions were obtained without his being afforded his
Fifth, Sixth, and Fourteenth Amendment rights when he was
denied appointment of counsel before and during
interrogations. In addition, he allegedly was abandoned by
counsel during a suppression hearing and during sentencing.
He further asserts he was denied the right to file meaningful
Petitioner is foreclosed from attacking his Oklahoma
convictions and sentences in this federal habeas proceeding,
his Petition could be construed liberally as asserting a
challenge to the sentence imposed for the Texas conviction as
enhanced by the allegedly invalid Oklahoma convictions.
See Carthen v. Workman, 121 Fed.Appx. 344, 346 (10th
Cir. 2005). In Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394 (2001), the Supreme Court addressed
the very limited extent to which an enhanced conviction could
be challenged on the ground that a prior conviction was
[O]nce a state conviction is no longer open to direct or
collateral attack in its own right because the defendant
failed to pursue those remedies while they were available (or
because the defendant did so unsuccessfully), the conviction
may be regarded as conclusively valid. If that conviction is
later used to enhance a criminal sentence, the defendant
generally may not challenge the enhanced sentence through a