Opinion
CIV-22-631-R
02-02-2023
JAMIE LYNN PAYNE, Petitioner, v. STEVEN HARPE, Director of the Oklahoma Department of Corrections,[1] Respondent.
REPORT AND RECOMMENDATION
Suzanne Mitchell, United States Magistrate Judge
Petitioner, a Louisiana prisoner housed at the David Wade Correctional Center and appearing pro se, seeks habeas corpus relief under 28 U.S.C. § 2241. See Doc. 1; Doc. 8, at 2 n.2 (liberally construing Petitioner's claims as falling under § 2241). Petitioner alleges he has been subject to an Oklahoma detainer for over sixteen years and has been deprived of a speedy trial in violation of the Sixth Amendment. Doc. 1, at 5. Petitioner seeks an order requiring an Oklahoma court to provide him with a speedy trial or dismiss the charges against him. Id. at 15. Respondent moved to dismiss and filed a brief in support arguing this Court lacks jurisdiction over Petitioner's claim, Petitioner failed to exhaust his state remedies, and Petitioner did not timely file this action. Docs. 15, 16. Petitioner filed a Traverse to Response, which the undersigned construes as a response brief. Doc. 17.
Citations to a court document are to its CM/ECF designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
To the extent Petitioner's Traverse to Response seeks the appointment of counsel and is construed as a pending motion, the undersigned recommends denial of the motion.
The undersigned recommends the Court should grant Respondent's motion in part and dismiss Petitioner's § 2241 habeas petition for failure to exhaust his state remedies.
I. Petitioner's claim for habeas relief.
Petitioner was convicted of armed robbery in Louisiana and received a thirty-year sentence in 2005. Doc. 1, Ex. 2, at 2, 8. Petitioner asserts that at some point during his Louisiana sentence, a “prison authority” notified him that “Oklahoma had a detainer filed against him for armed robbery.” Id. at 5. He contends the “detainer has been affixed to [his] records [for] better tha[n] 16 years.” Id.; see also id. Ex. 2, at 2-3. He also alleges the detainer “is having an adverse [e]ffect upon [his] eligibility for Correctional rehabilitative programs and other activities accessible to offender classified a[s] trustees.” Id. Ex. 2, at 3. Petitioner attached a record from the Louisiana Department of Public Safety and Corrections noting that he is subject to an out-of-state detainer. Id. Ex. 2, at 8.
On August 6, 2021, Petitioner filed a motion in Oklahoma County District Court requesting a speedy trial or withdrawal of the detainer in accordance with the United States Constitution. Id. Ex. 2, at 1, 3 (citing Smith v. Hooey, 393 U.S. 374 (1969); Klopfer v. North Carolina, 386 U.S. 213, 221-26 (1967); Dickey v. Florida, 398 U.S. 30, 37-38 (1970)). He also sought to have his charges dismissed under Oklahoma law. Id. Ex. 2, at 3-4 (requesting dismissal under the Oklahoma Constitution and “Section 152 of Title 22 Oklahoma Criminal Procedures”). That motion is still pending. See State v. Payne, Case No. CF-2005-369, Docket Entry dated Aug. 6, 2021, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-2005-369&cmid=1873205 (last visited Jan 11, 2023) (Payne).
The Court may take “judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
Here, Petitioner contends he “has a right . . . to implore federal intervention on a claim of a blatant deprivation of a speedy trial right.” Doc. 1, Ex. 2, at 5 (citing Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484 (1973); Smith, 393 U.S. 374). He seeks an order from this Court directing the state trial court to provide him with a speedy trial or to dismiss the charges against him. Id. at 15.
II. The Court has jurisdiction to entertain the Petition.
A. Respondent contends the Court lacks jurisdiction because Petitioner does not meet § 2241's “in custody” requirement.
Section 2241 provides a federal court with authority to grant a writ of habeas corpus to a person held in custody “in violation of the Constitution or law and treaties of the United States.” 28 U.S.C. § 2241(c)(3). A state prisoner's challenge to a detainer lodged by a sovereign other than the one currently holding him in custody, whether it be another State or federal authorities, is normally raised in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
Petitioner filed his petition in the Western District of Louisiana, which transferred the matter to this Court: “Pursuant to the authority granted in 28 U.S.C. § 1406, IT IS HEREBY ORDERED that the Clerk of Court TRANSFER the above captioned case to the United States District Court for the Western District of Oklahoma, the district in which the alleged cause of action arose.” Doc. 4.
Respondent contends the Court lacks jurisdiction because Petitioner is not in the custody of Oklahoma officials. Doc. 16, at 3-6. Respondent concedes a habeas petitioner can show he is “in custody” if-as Petitioner contends-he is subject to a detainer originating from an Oklahoma court. Id. at 3-4 (citing Clark v. Oklahoma, 789 Fed.Appx. 680, 684 (10th Cir. 2019)). But Respondent argues that Petitioner offers no proof that the out-of-state detainer originated from an Oklahoma court. Id. at 4.
Respondent asserts the Louisiana Department of Public Safety and Corrections record attached to the Petition establishes only that Petitioner is subject to an out-of-state detainer, without specifying which state issued it. Id. Respondent confirms that “Oklahoma County faxed a copy of Petitioner's arrest warrant to the facility where [he] was subject to detention.” Id. at 2. Respondent argues that the record indicating an out-of-state detainer, combined with the copy of an Oklahoma arrest warrant received from the David Wade Correctional Center, does not establish that Petitioner is subject to an Oklahoma detainer. Id. at 5. Without proof of a detainer, Respondent contends Petitioner did not meet his burden of proof to establish jurisdiction.
Respondent attests he “wrote to David Wade Correctional Center, where Petitioner is incarcerated, and requested a copy of the detainer on file.” Doc. 16, at 2 n.2 (a copy of Respondent's request is not attached to his motion). The David Wade Correctional Center sent “only a copy of the arrest warrant which appears to have been sent to Petitioner's initial place of incarceration by facsimile on February 8, 2005.” Id.
B. Respondent's detainer challenge constitutes a factual attack on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
The undersigned considers the portion of Respondent's motion attacking the Court's subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). See Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008) (“Given the jurisdictional nature of the ‘in custody' requirement, we will treat the district court's dismissal of [the plaintiff's] amended complaint as a dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction.”). Even though Respondent moves to dismiss, it is Petitioner's burden to establish jurisdiction. See, e.g., Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (“The party invoking federal jurisdiction has the burden to establish that it is proper, and there is a presumption against its existence.” (internal quotation marks omitted)); U.S. ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999) (“If jurisdiction is challenged, the burden is on the party claiming jurisdiction to show it by a preponderance of the evidence.”).
A motion to dismiss under Fed.R.Civ.P. 12(b)(1) makes either a “facial” or “factual” attack. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack “questions the sufficiency of the complaint,” and the Court “must accept the allegations in the complaint as true.” Id. A party making a factual attack “may go beyond the allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. Thus, when a party makes a factual attack, the court may not “presume the truthfulness of the complaint's factual allegations” but has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id. Respondent makes a factual attack because Respondent disputes Petitioner's assertion that he is subject to an Oklahoma detainer-a fact Respondent contends is necessary to establish jurisdiction. So, the Court will consider the evidence presented to determine whether Petitioner was subject to an Oklahoma detainer and therefore in the custody of Oklahoma officials for habeas purposes.
C. The Court has jurisdiction because Petitioner is considered to be in the custody of Oklahoma officials for purposes of § 2241.
1. Petitioner must be subject to an Oklahoma detainer to establish jurisdiction.
“Habeas corpus relief under 28 U.S.C. § 2241 is only warranted if the petitioner ‘is in custody in violation of the Constitution or laws or treaties of the United States.'” Brooks v. Hanson, 763 Fed.Appx. 750, 751 (10th Cir. 2019) (quoting 28 U.S.C. § 2241(c)(3)). “The ‘in custody' language of § 2241 is jurisdictional.” Id. (citing Hensley v. Mun. Ct., 411 U.S. 345, 353 n.10 (1973)).
For purposes of habeas jurisdiction, an individual imprisoned in one state and subject to a detainer lodged by a different state is considered to be “in custody” of the state that lodged the detainer. Braden, 410 U.S. at 498-99 (“[A] petitioner held in one State [may] attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of the prisoner's attack on the detainer.”). So if Petitioner is subject to an Oklahoma detainer, he is “in custody” of Oklahoma officials for § 2241 and this Court has jurisdiction over his habeas petition. See Maleng v. Cook, 490 U.S. 488, 493-94 (1989) (reaffirming Braden on “the narrow issue of ‘custody' for subject-matter jurisdiction of the habeas court” where the state of Washington lodged a detainer against a federal defendant to ensure defendant's return to state authorities after concluding his federal sentence); Price v. Simmons, 196 Fed.Appx. 696, 697 n.1 (10th Cir. 2006) (noting that petitioner “properly brought his challenge to the detainer in Kansas [while housed in California] and the [Kansas] district court had jurisdiction over the petition”).
A “district court lack[s] jurisdiction to hear [a petitioner's] attack on [state] charges” when “not in custody pursuant to the detainer when he filed his petition.” Ball v. Scott, 1994 WL 562023, at *2 (10th Cir. Oct. 13, 1994); see also Gilmore v. Hunter, No. CIV-20-521-D, 2020 WL 5521405, at *3 (W.D. Okla. Aug. 11, 2020) (recommending dismissal for lack of jurisdiction where “the state court record reveal[ed] that Oklahoma State officials ha[d] not lodged a detainer with Colorado state officials”), adopted, 2020 WL 5520570 (W.D. Okla. Sept. 14, 2020); Wade v. Hamilton Cnty. Prosecutor's Off., 2011 WL 5920770, at *2 (S.D. Ohio Nov. 7, 2011) (collecting cases and noting “courts faced with the issue have consistently concluded that the presence of the detainer is crucial to establish ‘in custody' habeas corpus jurisdiction” (additional internal quotation marks omitted)), adopted, 2011 WL 5914003 (S.D. Ohio Nov. 28, 2011). So, Petitioner must show he is subject to an Oklahoma detainer to establish jurisdiction.
2. The evidence presented to the Court establishes that Petitioner is subject to an Oklahoma detainer.
A detainer is “lodged against a prisoner on the initiative of a prosecutor or law enforcement officer” and “puts the officials of the institution in which the prisoner is incarcerated on notice that the prisoner is wanted in another jurisdiction for trial upon his release from prison.” United States v. Mauro, 436 U.S. 340, 358 (1978); but compare Alabama v. Bozeman, 533 U.S. 146, 148, (2001) (defining “detainer” as “a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime”), with Fex v. Michigan, 507 U.S. 43, 44 (1993) (defining “detainer” as “a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be advised when the prisoner's release is imminent”). These definitions are not entirely consistent, and “[u]nfortunately, none of the Supreme Court cases . . . reconcile the Court's differing definitions of ‘detainer.'” Gross v. Daniels, 2019 WL 2635707, at *5 (E.D. Ark. May 1, 2019), adopted, 2019 WL 2618147 (E.D. Ark. June 26, 2019).
Respondent argues that the Oklahoma County arrest warrant does not establish Oklahoma issued an out-of-state detainer. Doc. 16, at 5. An arrest warrant is not a detainer, Respondent asserts, because it amounts only to “notice that [Petitioner] is subject to prosecution in Oklahoma,” while a detainer requires a “request” that forms the “agency relationship” required to establish custody. Id.
Respondent cites Oklahoma's statute enacting the Interstate Agreement on Detainers (IAD). Doc. 16, at 4-5 (citing OKLA. STAT. tit. 22, § 1347(b)). But as Respondent concedes, the IAD only applies when both states are parties to the agreement-which Louisiana is not. See OKLA. STAT. tit. 22, § 1347(III)(a) (applying to “any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner” “in any other party state”) (emphasis added); Spratt v. Vannoy, 2021 WL 2722603, at *8 (E.D. La. June 4, 2021) (“Louisiana has never adopted the IAD[].”), adopted, 2021 WL 2710500 (E.D. La. July 1, 2021), certificate of appealability denied 2022 WL 1653180 (5th Cir. Feb. 23, 2022), cert. denied, 143 S.Ct. 143 (Oct. 3, 2022). The Court notes, though, that the suggested IAD legislation did include a provision allowing a detainer to be defined as a warrant that was filed to ensure the availability of a person already in custody. See Carchman v. Nash, 473 U.S. 716, 722, 727 (1985) (“A detainer may be defined as a warrant filed against a person already in custody with the purpose of insuring that he will be available to the authority which has placed the detainer.” (quoting Suggested State Legislation, Program for 1957, p.74)).
Whether an out-of-state arrest warrant delivered to a prisoner's place of confinement serves as a detainer remains unsettled. “Several courts have stated, without discussion, that an arrest warrant, in effect, may be treated as a detainer.” United States v. Richotte, 627 F.Supp.2d 1075, 1079-80 (D.S.D. 2009) (collecting cases). Other courts have found arrest warrants are not detainers. See Prall v. Att'y Gen. of R.I., 2010 WL 737646, at *7 (D.R.I. Mar. 1, 2010) (collecting cases and finding “there is no affirmative evidence that a detainer has been lodged” where Petitioner argued a warrant was a detainer).
Based on the evidence presented, and liberally construing Petitioner's pleadings, the undersigned finds the arrest warrant sent by Oklahoma County to Louisiana prison officials amounts to a detainer. According to Respondent, the Oklahoma County Sheriff's Office sent the arrest warrant to Petitioner's place of incarceration in Louisiana. Doc. 16, at 2 (“Oklahoma County faxed a copy of Petitioner's arrest warrant to the facility where Petitioner was subject to detention” on February 8, 2005.). Although the warrant is directed to sheriffs and peace officers within the State of Oklahoma, it requests that Petitioner be taken before an Oklahoma County Judge. Id. Ex. 3. Consistent with Mauro's definition of a detainer, Oklahoma County put Louisiana officials “on notice that [he is] wanted in another jurisdiction for trial upon his release from prison.” 436 U.S. at 358; see also United States v. Weaver, 882 F.2d 1128, 1133 (7th Cir. 1989) (“To show that a detainer has been ‘filed' there must be, at a minimum, proof that authorities from the charging jurisdiction notified the authorities where the prisoner is held that the prisoner is wanted to face charges.”). When Oklahoma County faxed the warrant to Petitioner's Louisiana custodians, an information charging Petitioner with robbery with firearms had been filed. See Payne, Docket Entry dated Jan. 25, 2005. Those Oklahoma charges are still pending. See generally Payne.
As well, Petitioner alleges that having a detainer on his record has an “adverse [e]ffect upon [his] eligibility for Correctional rehabilitative programs and other activities accessible to offender classified as a trustee.” Doc. 1, Ex. 2, at 2-3; see also Doc. 17, at 2 (“[T]he impact of the wanted for criminal prosecution affixed to the petitioner's prison records restricts some rehabilitative programs and reduction in classification status to trust[ee] and work release programs.”). These restrictions are the sort that typically accompany a detainer: The Richotte court noted that detainers “could be lodged against a prisoner and remain there for a very long time,” leading to a substantial impairment of “a prisoner's privileges and opportunities for rehabilitation,” and noted “arrest warrants that are ‘lodged as detainers' do present the same hazards as detainers.” 627 F.Supp.2d at 1080 (quoting State ex rel. Bailey v. Shepard, 584 F.2d 858, 862 (8th Cir. 1978)).
Finally, after receiving the arrest warrant, Louisiana prison officials noted they considered the warrant to be a detainer. Doc. 1, Ex. 2, at 8 (prison record noting Petitioner is subject to an out-of-state detainer); see also Doc. 16, at 2 (noting that after Respondent wrote to David Wade Correctional Center requesting a copy of the detainer on file, it received “only a copy of the arrest warrant”). Although not dispositive, combined with the other evidence that Louisiana officials interpreted the arrest warrant as a detainer, the prison record denoting a detainer is persuasive. Cf. United States v. Ray, 899 F.3d 852, 859 (10th Cir. 2018) (rejecting the argument that “the mere appearance of the word ‘detainer' on the form means that the government in fact lodged a detainer against [the defendant]”).
Respondent's argument otherwise fails because it relies on distinguishable cases. Doc. 16, at 5-6 (citing United States v. Fulford, 825 F.2d 3, 10 (3d Cir. 1987), and Prall, 2010 WL 737646, at *6-7). Unlike here- where an arrest warrant was transmitted to Petitioner's place of imprisonment to notify officials Petitioner was wanted to be tried for a crime in Oklahoma- those cases do not establish that the warrant or would-be detainer was sent directly to the petitioners' custodians. See Fulford, 825 F.2d at 11 (explaining that the arrest warrant could not “fairly be considered notice to the institution's officials” because it was not “directed . . . to the institution in which he [was] confined”); Prall, 2010 WL 737646, at *6 (explaining that the petitioner only alleged that he “was informed by [New Jersey prison] officials that local police in [Rhode Island] have warrants and detainers issued against him”). The undersigned therefore concludes Fulford and Prall do not preclude a finding that Oklahoma County lodged the arrest warrant as a detainer.
Based on the evidence presented, the undersigned finds Petitioner has established he is in custody under an Oklahoma detainer and the Court has jurisdiction to entertain his habeas petition. Braden, 410 U.S. at 498-99. The Court next considers whether Petitioner is entitled to habeas relief.
III. Petitioner is not entitled to habeas relief because he did not exhaust his state remedies.
Respondent contends Petitioner has not exhausted his state remedies. Doc. 16, at 12-15. Although Petitioner explains his failure to exhaust, Doc. 1, at 5; Doc. 17, at 1-2, the circumstances do not justify waiver of the exhaustion requirement. The undersigned finds Petitioner has not exhausted his state remedies and recommends the Petition be dismissed without prejudice on that basis.
A. Petitioner must exhaust state-court remedies.
A prisoner applying for habeas relief under § 2241 must prove he exhausted all available state-court remedies before seeking a federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (“A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254.”); Esparza v. Dist. Ct. of Oklahoma Cnty., No. CIV-19-392-G, 2019 WL 5791457, at *2 (W.D. Okla. June 12, 2019) (applying Montez in habeas action by federal prisoner challenging state detainer), adopted, 2019 WL 5789926 (W.D. Okla. Nov. 5, 2019). “This generally requires, absent extraordinary circumstance, that the claim be properly presented to the highest state court.” Fuller v. Baird, 306 Fed.Appx. 430, 431 (10th Cir. 2009). And “[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c); Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
The exhaustion requirement applies unless exhaustion would be futile- that is, unless no state-court remedy exists or such a remedy would be ineffective to protect the prisoner's rights, under the circumstances. 28 U.S.C. § 2254(b)(1); Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir. 2005). Futility is a “narrow exception to the exhaustion requirement.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).
B. Petitioner has not exhausted his state-court remedies.
Petitioner filed a Pro-Se (Petition) Writ of Habeas Corpus on March 23, 2009, with the Oklahoma County District Court. Doc. 16, at 2; Payne, Docket Entry dated March 23, 2009. Respondent represents he “was able to confirm with the Oklahoma County Court Clerk that this petition was filed but was told [the] court does not have the corresponding paperwork.” Doc. 16, at 2 n.3. The Oklahoma County District Court has not ruled on the motion. See generally Payne. The undersigned is unaware of the basis of the state habeas petition because Petitioner does not reference it in his filings.
Petitioner also filed a motion requesting either a speedy trial or the dismissal of the criminal charges and the withdrawal of the detainer. Doc. 1, Ex. 2, at 3; Doc. 16, Ex. 4; Payne, Docket Entry dated Aug. 6, 2021. Although copies were sent to a judge and the district attorney's office, the motion remains pending. See generally Payne.
Respondent asserts there are minor differences between the copy of the motion attached to the Petition and the copy of the motion attached to Respondent's motion. Doc. 16, at 2 n.4. These differences do not impact exhaustion.
Because neither of Petitioner's state-court filings have been adjudicated by the Oklahoma County District Court or presented to the Oklahoma Court of Criminal Appeals, they are unexhausted absent an extraordinary circumstance. See Fuller, 306 Fed.Appx. at 431.
C. Petitioner has neither demonstrated that exhaustion would be futile nor presented extraordinary circumstances sufficient to excuse the exhaustion requirement.
In the Petition, Petitioner attests:
I have written several letters, one to the Oklahoma Legal Aid; another to the Clerk of Court, and finally a Motion for a Speedy
trial and or a Motion to Dismiss the Charge. (All documents attached)[.]Doc. 1, at 5. Petitioner argues that he is “held in an out-of-state penal institution[,] that has limited resources enabling him to perfect and file proper litigation material to address the outstanding charging document and or detainer.” Doc. 17, at 2. These show neither futility nor extraordinary circumstances sufficient to excuse the exhaustion requirement.
Turning first to futility, Petitioner's speedy trial motion has been pending at the Oklahoma County District Court for over a year. See Payne, Docket Entry dated Aug. 6, 2021. Petitioner is not without redress for this delay. “If the Court has not ruled on his petition, [Petitioner] may request a writ of mandamus from the Oklahoma Court of Criminal Appeals [] asking that it order the district court to issue a ruling.” Fields v. Oklahoma, No. CIV-14-65-R, 2014 WL 5092618, at *1 (W.D. Okla. Oct. 9, 2014); see also Doc. 16, at 10-11. “Absent allegations of taking such action, Petitioner has failed to satisfy his burden of demonstrating exhaustion of state remedies.” Fields, 2014 WL 5092618, at *1; see also Drew v. Tunica Cnty. Cir. Ct., 2013 WL 2070475, at *2 (N.D. Okla. May 14, 2013) (“Although Petitioner filed a motion to dismiss in Tunica County District Court, he does not allege that he sought relief from the Mississippi Supreme Court....Petitioner has not filed for extraordinary relief, such as a petition for writ of mandamus, from the highest Mississippi state court. Under these circumstances, this Court finds that Petitioner has failed to demonstrate that he has exhausted all available state remedies.”). Thus, the lack of action on Petitioner's motion does not render his state-court remedies futile.
To obtain a Writ of Mandamus from the Oklahoma Court of Criminal Appeals, “Petitioner has the burden of establishing (1) he has a clear legal right to the relief sought; (2) the [state district court's] refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief.” Rules of the Okla. Ct. of Crim. App., Rule 10.6(B).
Petitioner continues:
Petitioner has a right under the teaching of Braden -v- 30th Judicial Circuit Court of Kentucky, 93 S.Ct. 1123 (1973); Smith -v- Hooey, 393 U.S. 374 (1969), to implore federal intervention on a claim of a blatant deprivation of a speedy trial right.Doc. 1, at 5. But neither Braden nor Smith excuse Petitioner from exhausting his claim. Braden required the petitioner seeking habeas relief to exhaust “all available state remedies.” 410 U.S. at 489-93. Smith did not address a habeas petition-it was brought on direct appeal from the denial of mandamus by the Supreme Court of Texas-so it has no bearing on the habeas exhaustion requirement. 393 U.S. at 375.
Turning to extraordinary circumstances, Petitioner's lack of resources to prepare legal filings does not excuse his failure to exhaust. In a letter from Petitioner to Legal Aid, he asserts “[t]he Law Library here has no information about Oklahoma Law.” Doc. 1, Ex. 2, at 13. But even a lack of law library access does not excuse a petitioner's obligation to exhaust his state remedies in a habeas action. See Abeyta v. Estep, 198 Fed.Appx. 724, 727 (10th Cir. 2006) (“[L]ack of library access,” among other things, “did not constitute a sufficient showing of justifiable excuse or excusable neglect, let alone good cause (factually or legally) for the failure to exhaust”). And Petitioner's ability to file this federal habeas action and a speedy-trial motion in state court belies his claim that he lacks resources to exhaust his state-court remedies. See Angle v. Tafoya, 586 Fed.Appx. 483, 484 (10th Cir. 2014) (denying a certificate of appealability where the petitioner “had sufficient access to legal resources to pursue state remedies, given that he had been able to submit federal court filings” and “the district court ruled that [the petitioner] failed to meet his evidentiary burden of proving that exhaustion was futile”); Glover v. Rudek, No. CIV-10-1313-C, 2011 WL 1559281, at *3 (W.D. Okla. Mar. 28, 2011) (“Petitioner's ability to pursue the claims raised in the instant federal habeas petition demonstrate he has the resources sufficient to pursue state court remedies.”), adopted, 2011 WL 1542969 (W.D. Okla. Apr. 25, 2011).
Because Petitioner did not exhaust his state-court remedies and does not provide a valid reason why the exhaustion requirement should be set aside, the undersigned recommends the Petition be dismissed without prejudice. The undersigned does not reach Respondent's argument that the Petition was not timely.
IV. Recommendation and notice of right to object.
For these reasons, the undersigned recommends that the Court grant Respondent's motion in part and dismiss Petitioner's § 2241 habeas petition without prejudice for failure to exhaust state remedies.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 23, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both the factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.