United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge.
matter 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. 8) and
Petitioner's motion for stay of proceedings (Dkt. 6).
Petitioner is a pro se prisoner in the custody of the
Oklahoma Department of Corrections who currently is
incarcerated at James Crabtree Correctional Center in Helena,
Oklahoma. He is attacking his conviction and sentence in
Okmulgee County District Court Case No. CF-2015-25 for
Domestic Assault and Battery, After Former Conviction of Two
Felonies, raising the following grounds for relief:
I. Petitioner's 55-year sentence should be modified to
remedy errors that occurred in the trial's sentencing
II. The State of Oklahoma lacked jurisdiction to prosecute,
because the Major Crimes Act gives the federal government
exclusive jurisdiction to prosecute crimes against persons
committed by Indians in Indian Country.
III. Petitioner was deprived of the effective assistance of
counsel on appeal.
alleges the petition must be dismissed, because it is a
“mixed” petition with two unexhausted claims. At
the time of filing, only Ground I of the petition was
exhausted through Petitioner's direct appeal in
Fitzer v. State, No. F-2016-230 (Okla. Crim. App.
Jan. 4, 2017) (unpublished) (Dkt. 1-1 at 14-15). Petitioner
raised the remaining two claims in an application for
post-conviction relief which was filed on December 14, 2017,
denied on May 15, 2018. (Dkt. 1-1 at 36). When this habeas
petition was filed on August 21, 2018, Petitioner's
appeal of the post-conviction denial was pending in an appeal
to the Oklahoma Court of Criminal Appeals (OCCA) in Case No.
PC-2018-695 (Dkt. 1-1 at 37).
direction of the Court, Petitioner advised that the OCCA
declined jurisdiction of his post-conviction appeal and
dismissed the attempted appeal for failure to file a timely
notice of appeal. (Dkts. 14, 16). See Fitzer v.
State, No. PC-2018-695 (Okla. Crim. App. Jan. 8, 2019)
(unpublished) (Dkt. 16 at 4-8). The OCCA advised Petitioner
that “[i]f he believes that through no fault of his own
he has been denied his opportunity to appeal the order
denying him post-conviction relief, then he may seek a
recommendation from the District Court for an out-of-time
post-conviction appeal in accordance with the procedures
established under Rule 2.1(E)(3) of this Court's
Rules.” Id. at 7.
further advised that on January 31, 2019, he filed in the
state district court a second post-conviction application,
requesting an appeal out of time. Id. at 2, 9-16. He
alleged in the second post-conviction application that he was
deprived of an appeal of his first post-conviction
application through no fault of his own. Id. at12.
He claims in the second application that his Notice of Intent
to Appeal the state district court's denial of the first
application was timely sent to the state court on May 22,
2018. Id. at 14. The Notice, however, was
inexplicably not filed by the Okmulgee County District Court
Clerk until June 11, 2018, twenty (20) days after it was
given to the law library supervisor at his prison facility.
Id. at 10-11. As stated above, Petitioner's
attempted post-conviction appeal was declined, and his
Petition in Error and brief were dismissed. Id. at
the online docket sheet for Petitioner's state-court case
indicated no activity after he filed his second
post-conviction application, the Court directed Respondent to
advise the Court of the status of the proceedings. (Dkt. 17).
Respondent acknowledged not having filed a response to
Petitioner's notice of his second post-conviction
application, as directed by the Court (Dkt. 14), explaining
the failure resulted from an unintentional docketing error
(Dkt. 18 at 3 n.1). Respondent also advised that on August
16, 2019, the State of Oklahoma filed a response to
Petitioner's second post-conviction application in the
state district court. (Dkt. 18-3.) The State's response
indicated it had no objection to the state district
court's recommending to the OCCA that Petitioner receive
an appeal out of time, with the reservation of the
State's right to otherwise object to any post-conviction
relief. (Dkt. 18-3). As of the date of this Opinion and
Order, the Okmulgee County District Court has not entered a
ruling on the second post-conviction application.
has requested that this Court enter a stay of these habeas
proceedings to allow him time to exhaust his state court
remedies. (Dkt. 6). Respondent objects to a stay during the
pendency of Petitioner's state-court exhaustion
proceedings, asserting Petitioner's unexhausted claims
lack merit. (Dkt. 9 at 7).
district court has four options when faced with a
“mixed” petition containing both exhausted and
(1) dismiss the mixed petition in its entirety, Rhines v.
Weber, 544 U.S. 269, 273 (2005); (2) stay the petition
and hold it in abeyance while the petitioner returns to state
court to raise his unexhausted claims, id. at
275-76; (3) permit the petitioner to dismiss the unexhausted
claims and proceed with the exhausted claims, id. at
278; or (4) ignore the exhaustion requirement altogether and
deny the petition on the merits if none of the
petitioner's claims has any merit, 28 U.S.C. §
Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir.
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that
failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are
plainly meritless. Cf. 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas ...