Opinion
CIV-21-513-PRW
07-09-2021
ANTONIO ROPER, Petitioner, v. LONNIE LAWSON, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, appearing pro se, filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging the computation of his sentence. Doc. 1. United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned recommends the Court dismiss the petition for lack of exhaustion. See Yellowbear v. Wyo. Att'y Gen., 525 F.3d 921, 924 (10th Cir. 2008) (“Section § 2241 is a vehicle for . . . attacking the execution of a sentence[.]”).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
A district court may apply Rule 4 to actions arising under § 2241. See Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
I. Petitioner's claims.
In Ground One, Petitioner alleges the Oklahoma Department of Corrections is “withholding petitioner[']s ‘earned' credits, state created liberty interest[,] and not crediting them towards [his] sentence.” Doc. 1, at 7. And Petitioner alleges in Ground Two that the Oklahoma Department of Corrections is withholding his “state created liberty interests (earned credits)” without “the minimum requirements of procedural due process.” Id. at 7-8.
II. Screening.
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is obliged to review habeas petitions and to summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief ....” Rule 4, Rules Governing § 2254 Cases; see also Garza v. Davis, 596 F.3d 1198, 1205 (10th Cir. 2010) (holding a federal court possesses “the discretion either to dismiss the § 2241 petition if it appeared that the petitioner was not entitled to relief or to order the respondent to file a response”). Under this rule, the Court may dismiss a petition based on a failure to exhaust state court remedies if non-exhaustion is “clear from the face of the petition.” Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009); see also Hayden v. Upton, No. CIV-12-978-D, 2013 WL 788241, at *1-3 (W.D. Okla. Jan. 8, 2013) (finding it “clear from the face of the [p]etition” that petitioner had not exhausted administrative remedies before filing his § 2241 petition and recommending dismissal without prejudice under Rule 4), adopted, 2013 WL 787927 (W.D. Okla. Mar. 1, 2013).
III. Petitioner's failure to exhaust his available remedies.
“The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief . . . .” Garza, 596 F.3d at 1203. A narrow exception applies only “if a petitioner can demonstrate that exhaustion is futile.” Id. Likewise, “[a] state prisoner generally may not raise a claim for federal habeas corpus relief unless he ‘has exhausted the remedies available in the courts of the State.'” Farris v. Allbaugh, 698 Fed.Appx. 950, 957 (10th Cir. 2017) (quoting Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011)).
Petitioner avers that he has neither appealed, nor filed a grievance, nor sought an administrative remedy related to the arguments his raises in his Petition. Doc. 1, at 2-7. He explains, “There are no state remedies at law pertaining to this issue.” Id. at 3; see also id. at 9 (“No remedies available at law pertaining to this particular issue.”). He is incorrect. See, e.g., Dease v. Allbaugh, No. CIV-18-282-F, 2019 WL 1914809, at *2 (W.D. Okla. Mar. 25, 2019) (referencing Oklahoma Department of Corrections' policy for administrative review of a credits complaint not arising out of a disciplinary proceeding), adopted, 2019 WL 1904685 (W.D. Okla. Apr. 29, 2019), aff'd sub nom. Dease v. Webb, 791 Fed.Appx. 744 (10th Cir. 2019); see also Canady v. Reynolds, 880 P.2d 391, 400 (Okla. Crim. App. 1994) (holding an “inmate has the writ of mandamus to force prison officials to provide him with constitutional procedural due process, including proper notice and a hearing before revoking credits after they have been previously earned,” and then has the writ of habeas corpus “at such time as he or she is entitled to immediate release”). Nothing in Petitioner's pleading suggests he has exhausted available remedies before the Oklahoma state courts. Petitioner must therefore exhaust his state remedies before proceeding in habeas corpus.
As non-exhaustion is plain from the face of the petition, the undersigned concludes it is proper to raise the exhaustion issue sua sponte. See Allen, 568 F.3d at 1202 (upholding district court's sua sponte dismissal of petition for habeas relief for failure to exhaust state court remedies where petitioner's failure to exhaust “was clear from the face of his petition”). And the Court's decision to raise sua sponte Petitioner's failure to exhaust does not present a due process problem because Petitioner may present his position by filing an objection to this Report and Recommendation. See id. at 1203 (noting that in allowing petitioner “an opportunity to respond to a problem obvious from the face of his pleadings,” the district court “abided the Supreme Court's instruction that ‘before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions'” (quoting Day v. McDonough, 547 U.S. 198, 210 (2006))).
Petitioner's bare statement regarding the lack of available remedy does not demonstrate futility. See, e.g., Farris, 698 Fed.Appx. at 958 (rejecting § 2241 petitioner's claim that exhaustion of his credits issue in the Oklahoma courts would be futile as “simply not true,” because “the Oklahoma courts [were] open to him”). The Court should thus dismiss the petition without prejudice for failure to exhaust.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned finds Petitioner's failure to exhaust his remedies before filing his § 2241 action is clear from the face of the petition, and recommends the Court dismiss the petition without prejudice.
The undersigned advises Petitioner that he may refile his habeas petition in this Court after exhausting both his administrative and state-court remedies. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007) (“To exhaust administrative remedies an inmate must properly comply with grievance procedures; substantial compliance is insufficient.”); see also Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (“To exhaust a claim, a state prisoner must pursue it through ‘one complete round of the State's established appellate review process,' giving the state courts a ‘full and fair opportunity' to correct alleged constitutional errors.” (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999))).
The undersigned further advises Petitioner of his right to file an objection to this report and recommendation with the Clerk of this Court on or before July 30, 2021. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that his failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation terminates the referral in this matter.
ENTERED.