McLaughlin v. Attorney General of the State of Oklahoma

          OPINION AND ORDER

          J»mes H. Payne United States District Judge

         This habeas corpus action pursuant to 28 U.S.C. § 2254 was transferred to this Court from the United States District Court for the Eastern District of Arkansas, Pine Bluff Division. McLaughlin v. Kelley, No. 17-cv-295-DPM-JJV (E.D. Ark., Pine Bluff Div. Aug. 29, 2018) (Dkt. 32-4). Petitioner is a pro se state prisoner in the custody of the Arkansas Department of Corrections who currently is incarcerated at the Barbara Ester Unit in Pine Bluff, Arkansas.

         Petitioner is challenging his Oklahoma convictions for Burglary in the Second Degree, after former conviction of nine felonies, and Unlawful Use of a Police Scanner, after former conviction of nine felonies, in the District Court of LeFlore County, No. CF-2009-340 (Dkts. 32-1; 32-3 at 3). These convictions are to be served after he completes his current Arkansas sentences. Id. Respondent has filed a motion to dismiss Petitioner's second amended petition for failure to exhaust state court remedies (Dkts. 28, 31).

         Petitioner raises three grounds for habeas relief:

I. Violation of Article III(a) of the Interstate Agreement on Detainers Act.

II. Violation of Article IV(c) of the Interstate Agreement on Detainers Act.

III. Ineffective assistance of trial counsel.

(Dkt. 28 at 5-7, 11-12).

         The record shows Petitioner entered a blind plea of no contest to the charges in LeFlore County No. CF-2009-340 (Dkt. 32-2). He subsequently filed a motion to withdraw his plea, which was denied by the state district court (Dkt. 32-5 at 5-6). Petitioner next perfected a Certiorari appeal to the Oklahoma Court of Criminal Appeals in No. C-2017-104 (Dkt. 32-6). He raised three grounds for relief in his Certiorari appeal:

I. Because Count 3 of the Information was dismissed at the plea hearing, the trial court was without jurisdiction to find Petitioner guilty and impose a sentence and a fine on Count 3 at the sentencing hearing. This court should, therefore, dismiss the count and remand the matter to the district court with instructions.

II. Because Petitioner invoked the provisions of the Interstate Agreement on Detainers Act, the trial court's failure to conduct a trial within 180 days was a violation of the Act which requires dismissal of the case.

III. Under the facts and circumstances of this case, two life sentences are shockingly excessive.

(Dkt. 32-5 at 2).

         Respondent alleges Petitioner has filed a mixed petition, because only one of the three grounds for habeas relief has been exhausted through the state courts. Petitioner alleges in his response to the motion to dismiss that all grounds in the petition raise claims of ...