Opinion
Case No. CIV-18-54-D
02-09-2018
MARIO AKOTHE, Petitioner, v. WARDEN BEAR, et al., Respondent.
REPORT AND RECOMMENDATION
State prisoner Mario Akothe seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Timothy D. Degiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The Court should summarily DISMISS the petition without prejudice.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to "summarily dismiss [a] petition without ordering a responsive pleading," Mayle v. Felix, 545 U.S. 644, 656 (2005), "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
"The district court may apply any or all" of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
II. FACTUAL BACKGROUND AND PETITIONER'S CLAIMS
Petitioner informs the Court that he is confined at the Joseph Harp Correctional Center, but he fails to identify anything else about his sentence(s). That is, the Court does not know when or where Petitioner was sentenced, or for what and for how long. See ECF No. 1:1.
In the Petition, Mr. Akothe raises two grounds for relief. In Ground One, he alleges that the state of Oklahoma is illegally incarcerating him because Petitioner's "tribe" has signed a treaty with the United States President. (ECF No. 1:7). Although the Court presumes that Petitioner is Native American, he does not specify his tribal affiliation. (ECF No. 1:7). In Ground Two, Petitioner claims that Oklahoma state courts: (1) refuse to enforce U.S. Supreme Court opinions and (2) have suspended "habeas corpus, due process, equal protection of laws, access to courts, and terms of statehood charter." (ECF No. 1:7).
In the areas of the Petition which allow for explanation of Grounds Three and Four, Mr. Akothe writes that these grounds are "reserved" for the hearing. The Court should not consider these "potential," yet unspecified grounds for relief.
III. DISMISSAL
It is "the nature of a prisoner's confinement, not the fact of his confinement" that is the gravamen of a Section 2241 petition or challenge. Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (emphasis in original). Here, Mr. Akothe alleges no facts to show that he is challenging the execution of his sentence or the nature of his confinement. He does not, for instance, seek to challenge "certain matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters . . . affecting the fact or duration" of his custody. Hale v. Fox, 829 F.3d 1162, 1165 n.2 (10th Cir. 2016) (internal quotation omitted). Instead, Petitioner's Ground One "attempts a frontal assault on his conviction." Prost, 636 F.3d at 581. For example, he apparently believes that his conviction is invalid due to a treaty signed by the President with his tribe. See ECF No. 1:7. While an attack on Petitioner's conviction may be proper in a Section 2254 action, McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997), it fails to establish a basis for habeas relief arising under Section 2241 because it does not attack the execution of his sentence. Therefore, the Court should dismiss Ground One, without prejudice. To the extent Petitioner desires to challenge the validity of his conviction, then he must file an action pursuant to Section 2254 utilizing the proper form. The Court, however, will not construe Ground One as arising under Section 2254.
The Court lacks sufficient information about Petitioner's claims to know, for example, whether they have been exhausted in state court or if they are timely. As such, construing the Petition as arising under Section 2254 could have unintended consequences for Petitioner. See, e.g., Davis v. Roberts, 425 F.3d 830, 834-35 (10th Cir. 2005) (discussing unintended consequences of construing a petitioner's habeas petition as arising under § 2254). --------
In Ground Two, Petitioner asserts that Oklahoma state courts: (1) refuse to enforce U.S. Supreme Court opinions and (2) have suspended "habeas corpus, due process, equal protection of laws, access to courts, and terms of statehood charter." (ECF No. 1:7). But this challenge is not cognizable on habeas review, as it involves a direct challenge to Oklahoma state procedural rules and laws. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[F]ederal habeas corpus relief does not lie for errors of state law," and "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.") (internal quotation marks omitted); Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) ("[Petitioner's] claims of state law violations are not cognizable in a federal habeas action.") (citing 28 U.S.C. §§ 2241(c)(3), 2254(a)); Stryker v. Bear, No. CIV-17-695-W, 2017 WL 4533968, at *3 (W.D. Okla. Sept. 5, 2017) (unpublished report and recommendation) (finding that petitioner's claim that Oklahoma denied him "access to court, suspended habeas corpus, . . . and denied him equal protection and due process" did "not demonstrate any violation of federal law"), adopted, 2017 WL 4533138 (W.D. Okla. Oct. 10, 2017) (unpublished district court order). Therefore, the Court should dismiss Ground Two, without prejudice. See Rael v. Williams, 223 F.3d 1153, 1154-55 (10th Cir. 2000).
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the petition be summarily dismissed, without prejudice.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by February 26, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on February 9, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE