United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE
the Court is Randle Raymond Lockett's pro se
Motion to Stay his 28 U.S.C. § 2254 habeas proceeding.
Dkt. 2. Lockett seeks a stay while he exhausts state
remedies. For the reasons discussed below, the Court will
deny the Motion because all claims are exhausted.
seeks federal habeas relief from his convictions for first
degree murder (Count 1) and felon in possession of a firearm
(Count 4), No. CF-2013-4823. Dkt. 1 at 1; see also
Dkt. 7-1. Lockett shot a man outside of a Tulsa apartment but
claimed self-defense. Dkt. 1 at 5-7. A jury rejected his
theory and convicted him of the above charges. Dkt. 7-1 at 1.
The state court sentenced Lockett to life imprisonment on
Count 1 and 10 years imprisonment on Count 2, to be served
consecutively. Id. Lockett filed a direct appeal
based on four propositions of error that are not relevant
here. Id. The Oklahoma Court of Criminal Appeals
(OCCA) affirmed the conviction and sentence on November 4,
filed his first post-conviction application about a year
later. Dkt. 7-3 at 1. He argued, inter alia, police
investigators committed misconduct based on:
(Claim 3(b)): The failure to search or photograph the
interior of the apartment where the dispute between Lockett
and the victim purportedly began; and
(Claim 3(c)): The failure to “provide the Medical
Examiner with clothes to test for gunpowder residue and other
evidence that would establish [Lockett's claim of
Dkt. 7-3 at 3-4. The state court denied post-conviction
relief, and the OCCA affirmed the decision on January 9,
weeks later, on January 28, 2019, Lockett filed the federal
§ 2254 Petition and the Motion to Stay (Motion). Dkts.
1, 3. The Petition raises the two police-misconduct arguments
identified above. The Motion seeks to stay the federal
proceedings while he exhausts another unspecified claim based
on “new information.” Dkt. 3. Lockett's
second post-conviction proceeding - which he filed on the
same day as the federal petition - provides insight into the
new information. Dkt. 7-4. There Lockett argued Detective
Baumann “was fully aware … the [altercation]
began inside the apartment and that DNA and/or physical
evidence [existed] inside the apartment.” Id.
at 3. Lockett also wished to proffer a news report detailing
misconduct by Detective Baumann in an unrelated case.
Id. The state court denied the second
post-conviction application on March 19, 2019. Id.
filed an opposition response to the Motion on May 8, 2019.
Dkt. 7 Respondent concedes, and the Court finds, that Lockett
timely filed his federal petition. See 28 U.S.C.
§ 2244(d)(A). However, Respondent argues the claim
regarding Baumann is not exhausted and a stay is not
appropriate under the factors set forth in Rhines v.
Weber, 544 U.S. 269 (2005). Dkt. 7. Lockett filed a
reply, which reiterates the above arguments about Baumann.
Antiterrorism and Effective Death Penalty Act (AEDPA)
generally “prohibits federal courts from granting
habeas relief to state prisoners who have not exhausted
available state remedies.” Ellis v. Raemisch,
872 F.3d 1064, 1076 (10th Cir. 2017); see also 28
U.S.C. § 2254(b)(1). “The exhaustion requirement
is satisfied if the federal issue has been properly presented
to the highest state court, either by direct review of the
conviction or in a postconviction attack.” Dever v.
Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.
1994). “Fair presentation, in turn, requires that the
petitioner raise in state court the ‘substance' of
his federal claims.” Williams v. Trammell, 782
F.3d 1184, 1210 (10th Cir. 2015).
state prisoner timely files a “mixed” petition,
i.e., a habeas petition that includes both exhausted
and unexhausted claims, federal courts have four options.
See Rhines v. Weber, 544 U.S. 269, 275-78 (2005).
Based on the facts of the case, the Court may: (1) dismiss
the entire petition without prejudice and permit the
petitioner to return to state court to exhaust all claims;
(2) stay the federal proceeding and permit the petitioner to
return to state court to exhaust his claims; (3) allow the
petitioner to amend the petition to dismiss unexhausted
claims and proceed only on exhausted claims; or (4) deny the
entire petition on the merits. See Wood v. McCollum,
833 F.3d 1272, 1273 (10th Cir. 2016); Moore v.
Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002). The
second option (a stay) is only warranted if “the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines, 544 U.S.
case is unusual because, while Lockett seeks a stay, it does
not appear he actually filed a mixed petition. Lockett
exhausted his police misconduct claims. As noted above, he
alleged a female responding officer mischaracterized the
condition of the apartment near the murder; failed to search
the apartment; and withheld clothes to prevent laboratory
testing. Dkt. 7-3 at 5. Lockett's “new
information” appears to consist of the officer's
name and an article describing her misconduct in another
case. These “bits of [new] evidence” do not
amount to a new, unexhausted claim; they merely add color to
the claims Lockett already presented in state court.
Fairchild v. Workman, 579 F.3d 1134, 1148 (10th Cir.
2009) (emphasizing that “not every new piece of
evidence makes a claim a new one”); see also
Gardner v. Galetka, 568 F.3d 862, 881, 882 (10th Cir.
2009) (allowing new evidence where the materials “would
likely only have added color” to the claim presented in
state court, and the difference between the new evidence and
that presented in state court was ...