Case No. CIV-19-376-D (W.D. Okla. May. 23, 2019)

Case No. CIV-19-376-D


ERNEST DRAPER, Petitioner, v. STATE OF OKLAHOMA, et al., Respondents.


Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus. See Doc. 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). See Doc. 4.

Citations to a court document are to its electronic case filing designation and pagination. The undersigned alters Petitioner's use of the uppercase and deletes his underscoring but, unless otherwise indicated, attempts to quote him verbatim.

After a careful examination of the petition and its attached exhibit, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends the summary dismissal of the petition.

I. Petitioner's claims.

Petitioner filed the present action on a 28 U.S.C. § 2254 form. Doc. 1. In the caption he states the authorized person having custody of him is the "State of Oklahoma," the "Bureau of Federal Prisons," and "Private Attorney General." Id. at 1. In the body of the petition he seeks federal relief from the judgment and sentence imposed against him in Oklahoma County District Court, Case No. "CRF-2012-5514." Doc. 1, at 1. In that case, Petitioner was convicted after entering pleas of guilty on November 16, 2012, to four counts of Lewd Acts with a Child Under Sixteen. Petitioner was sentenced to twenty-five years on each count and the state court ordered the sentences run concurrently. Petitioner did not directly appeal his convictions and sentences.

The undersigned takes judicial notice of the docket report in Petitioner's state trial court proceeding. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion "to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand" (citation omitted)).

Petitioner sets out four grounds which he claims entitle him to release from state custody. Id. at 6-16. In Ground One, Petitioner invokes the "Qui Tam" provisions of the "False Claims Act." Id. at 6. He explains "[t]his is a federal case, not a state case, Oklahoma clearly did not have jurisdiction to prosecute and house [him] in a state ran institution." Id. In Ground Two, Petitioner invokes "Ad-Subjiciendum" and requests the court inquire as to the "legitimacy" of his state custody based on a lack of jurisdiction. Id. at 8. In Ground Three, Petitioner asserts he had ineffective assistance of counsel because his "court appointed attorney did not argue any of the above mentioned claims of jurisdiction in Indian Country or under the Major Crimes Act, jurisdiction is exclusively federal." Id. at 11. And in Ground Four, Petitioner asserts "overcrowding in Oklahoma prisons" and explains Oklahoma Department of Corrections Director Joe Allbaugh has admitted to such overcrowding on television. Id. at 14. Petitioner asserts with respect to every ground raised that no exhaustion has been or will be attempted in state court because he raises only "federal issue[s]." See id. at 6-8, 11, 13-14, 16-17.

"The False Claims Act covers all fraudulent attempts to cause the government to pay out sums of money." United States ex rel. Reed v. KeyPoint Gov't Sols., ___ F.3d ___, 2019 WL 1907853, at *1 (10th Cir. 2019) (internal citation omitted). "Under the FCA's qui tam provisions, an individual may sue on behalf of the government." United States ex. rel. Fortenberry v. Holloway Grp., Inc., 2014 WL 4370547, at *2 (W.D. Okla. Sept. 2, 2014) (citing 31 U.S.C. § 3730(b)).

"[H]abeas corpus ad subjiciendum" is simply the "common-law" writ "used to inquire into the illegal detention with a view to an order releasing the petitioner." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (quotation omitted).

Petitioner seeks release from state custody. See Id. at 9, 17.

II. Screening.

Rule 4 requires the court to review habeas petitions promptly 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 in the district court." Rule 4, Rules Governing 2254 Cases in the United States District Courts. 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. Zavara, 568 F.3d 1197, 1202 (10th Cir. 2009).

III. Grounds One through Three.

In Grounds One through Three, Petitioner requests this Court examine his state court conviction and release him from Oklahoma's custody based on a lack of state jurisdiction to prosecute him for his crimes because they occurred in "Indian Country." Doc. 1, at 5-6, 9-11. Petitioner's attack on the validity of his state court conviction and sentence falls squarely within the purview of section 2254. See 28 U.S.C. § 2254(b)(1); see also Preiser, 411 U.S. at 484 (holding it "clear, not only from the language of [sections 2241 and 2254], but also from the common-law history of the writ that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody").

Although not referencing the Tenth Circuit's decision in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), Petitioner is clearly relying on that case as the basis for his jurisdictional challenge to his state court custody. The issues addressed in Murphy are currently pending before the United States Supreme Court. See Royal v. Murphy, 138 S. Ct. 2026 (2018) (opinion granting a petition for writ of certiorari).

A state prisoner must exhaust all available state-court remedies before seeking a federal writ of habeas corpus unless it appears there is an absence of an available state corrective process or circumstances exist that render such process ineffective to protect the rights of the prisoner. See 28 U.S.C. § 2254(b)(1); see also Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) ("A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition."); Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992) ("In order to satisfy the exhaustion requirement, a federal habeas corpus petitioner must show that a state appellate court has had the opportunity to rule on the same claim presented in federal court . . ., or that at the time he filed his federal petition, he had no available state avenue of redress.").

More specifically, AEDPA prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies. In this regard, § 2254(b)(1) states, "An application for a writ of habeas corpus . . . shall not be granted unless it appears that[ ] . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1). Section 2254(c) elaborates that "[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." Id. § 2254(c) (emphasis added).

Ellis v
. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017), cert. denied, 138 S. Ct. 978 (2018).

Petitioner plainly states in his petition he has not exhausted, and does not intend to exhaust, his state court remedies on the issues raised in Grounds One through Three. Id. at 7-8, 13-14. Additionally, Petitioner has not suggested any reason to assume a state avenue of redress is either unavailable or ineffective to protect his rights. While Petitioner states Oklahoma does not have jurisdiction to hear this case, section 2254's exhaustion requirement does not contain an exception for jurisdictional claims. See Morgan v. Bureau of Indian Affairs, No. CIV-18-290-G, 2018 WL 5660301, at *3 (W.D. Okla. Oct. 31, 2018) (noting 2254's exhaustion requirement "does not contain an exception" for a jurisdictional Murphy claim); see also Blanket v. Watkins, 44 F. App'x 350, 351 (10th Cir. 2002) ("[The petitioner's] proffered reason for not exhausting—that the State . . . lacks jurisdiction over these claims—lacks merit."). Further, Oklahoma has a procedure for addressing jurisdiction which is not foreclosed to Petitioner. See Okla. Stat. tit. 22, § 1080(b) (providing the issue of state-court jurisdiction may be raised in an application for post-conviction relief in the court in which the judgment and sentence on conviction were rendered). Consequently, Petitioner must exhaust his state court remedies before proceeding in habeas corpus. Ellis, 872 F.3d at 1076.

As non-exhaustion is plain from the face of the petition, the undersigned concludes it is proper to raise sua sponte the exhaustion issue. 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 on face of petition). Further, the decision to raise sua sponte Petitioner's failure to exhaust does not present a due process problem because Petitioner will have the opportunity to present his position by filing an objection to this Report and Recommendation. Id. at 1203 (noting 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)). --------

In an apparent attempt to circumvent the exhaustion requirement, Petitioner raises claims under the False Claims Act and "Ad-Subjiciendum." But, the False Claims Act, and its qui tam provision, only permits "the recovery of civil penalties and treble damages." Reed, 2019 WL 1907853, at *1. Thus, the Act has no application here. Further, a writ of ad subjiciendum, which is simply a reference to the common-law habeas writ, cannot be utilized to circumvent Section 2254's exhaustion requirements. See, e.g., Preiser, 411 U.S. at 489-90 ("In amending the habeas corpus laws in 1948, Congress clearly required exhaustion of adequate state remedies as a condition precedent to the invocation of federal judicial relief under those laws. It would wholly frustrate explicit congressional intent to hold that the respondents in the present case could evade this requirement by the simple expedient of putting a different label on their pleadings."); cf. Kiderlin v. U.S., 2013 WL 4094371, at *1 (E.D. Mo. Aug. 13, 2013) (The Court notes that movant did not title the instant motion as coming under § 2255: he calls it a petition for writ of habeas corpus ad subjiciendum. However, movant is not permitted to circumvent the AEDPA's second or successive petition requirements simply by labeling the motion as something other than what it is.").

Because Petitioner is clearly challenging the validity of his state conviction and is seeking release from state confinement, the court can only construe his action as arising under § 2254. See, e.g., Morgan v. Bear, No. CIV-17-797-R, 2018 WL 2210449, at *3 (W.D. Okla. Apr. 13, 2018) ("These contentions plainly challenge the fact or duration of Petitioner's confinement and, therefore, properly arise under 28 U.S.C. § 2254."), adopted, 2018 WL 2209526 (W.D. Okla. May 14, 2018). As Petitioner has wholly failed to exhaust his state court remedies as required under section 2254, Petitioner's Grounds One through Three claims should be dismissed without prejudice.

IV. Ground Four.

In Ground Four Petitioner asserts, in general, Oklahoma's prisons are overcrowded. Doc. 1, at 14-15. To the extent Petitioner seeks to assert an Eighth Amendment violation based on his conditions of confinement, he must bring his claim not in a habeas corpus case, but in a civil rights action under 42 U.S.C. § 1983. See McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) ("A habeas corpus proceeding attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action . . . attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions." (quotations omitted)). When Petitioner attempted to raise this exact claim in this court in a prior 28 U.S.C. § 2241 petition, he was notified such a claim does not lie in habeas corpus. See Draper v. United States, No. CIV-17-1289-D, 2018 WL 1352179, at *1 (W.D. Okla. Mar. 15, 2018) (dismissing Draper's prison overcrowding claim because "a § 2241 action was not the proper course for challenging conditions of confinement, including facility overcrowding"), adopted, 2018 WL 1352179 (W.D. Okla. Mar. 15, 2018). Therefore, Petitioner's Ground Four claim should be dismissed without prejudice.

V. Recommendation and notice of right to object.

Under Rule 4, the undersigned recommends the summary dismissal of this Petition. The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before June 13, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his 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).

The Clerk of Court is instructed to electronically forward this report and recommendation to the Oklahoma Attorney General on behalf of Respondent at the following address: fhc.docket@oag.ok.gov.

This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 23rd day of May, 2019.