Clark v. State

          OPINION AND ORDER

          Ronald A. White, United States District Judge.

         This 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.^[1]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.^[2] He raises the following grounds for relief:

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 Petitioner.

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.

         Respondent 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. 13-2).^[3]

         Federal 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.

         Petitioner 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.

         Petitioner 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.^[4] 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 appeals.

         Although 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 obtained unconstitutionally:

[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 ...