Knox v. Workman

Filing 42

OPINION AND ORDER by Judge Ronald A. White :Granting 35 respondent's Motion to Dismiss. (case terminated) ; denying 40 41 petitioners's Motion to Dismiss. (case terminated) (acg, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF OKLAHOMA
ANTONE LAMANDINGO KNOX,
Petitioner,
v.
RANDALL G. WORKMAN, Warden,
Respondent.

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MAR 2. i ; iii,

Case No. CIV 12-309-RAW-KEW

OPINION AND ORDER
This matter is before the court on the respondent's motion to dismiss petitioner's
petition for a writ of habeas corpus, which was filed pursuant to 28 U.S.C. § 2241.
Petitioner, an inmate currently incarcerated at Oklahoma State Penitentiary in McAlester,
Oklahoma, is challenging his conviction of a prison misconduct that resulted in his loss of
earned credits.
Petitioner claims he was convicted in his disciplinary proceeding without any
evidence. The respondent alleges petitioner failed to exhaust his state administrative
remedies and failed to timely and properly file an appeal seeking relief in state court, so he
is procedurally barred from habeas corpus relief.
The record shows that petitioner received a copy of an Offense Report on June 28,
2011, for Individual Disruptive Behavior, after he attempted to circumvent the Department
of Corrections' legal mail procedure by sending non-legal mail marked as legal mail with a
legal disbursement. He was found guilty in his June 29, 2011, disciplinary hearing, and
punishment was imposed. The facility head reviewed and approved the proceedings on June
30, 2011, and petitioner received notice of the warden's review on July 8, 2011.
Petitioner appealed the misconduct to the facility head, and on July 12, 2011, the due
process review affirmed the disciplinary officer. Petitioner submitted an appeal to the
Administrative Review Authority (ARA) on July 15, 2011, but the appeal was returned

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unanswered because of improper filing. He was given the opportunity to refile the appeal
within the time limitations set forth in the DOC's procedure governing misconduct appeals,
OP-060 125. Petitioner sent a second appeal to the ARA on July 19, 2011, but it was returned
unanswered on that same date as improper. This failure placed him beyond the time limit to
attempt another administrative appeal. He, however, sent a third appeal to the ARA on July
29, 2011. It also was returned unanswered, because he had received a final answer to his
second appeal.
Petitioner had 90 days from July 19, 2011, or until October 18, 2011, to file a petition
for judicial review in the Oklahoma County District Court, pursuant to Okla. Stat. tit. 57, §
564.1 (A)( 1), seeking a review of the disciplinary proceedings. According to the Oklahoma
State Court Network, however, he failed to do so. [Docket No. 35-8].
In all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Here, petitioner did not properly present his claim to the Department of Corrections
and exhaust the administrative remedy provided by the DOC. Although he was given the
opportunity to file a proper appeal to the Administrative Review Authority, he did not
comply with the procedure. He then failed to seek relief in the state district court, as allowed
under§ 564.1. He, therefore, has procedurally defaulted his claims.
Petitioner's procedural default may be excused if he can "demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage ofjustice." Bland

v. Sirmons, 459 F.3d 999, 1012 (lOth Cir. 2006) (quoting Coleman, 501 U.S. at 750).
Petitioner has not filed a response to the respondent's motion to dismiss or otherwise shown
cause for his default.
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Because petitioner has failed to show cause for the default, the issue of prejudice need
not be addressed. See Steele v. Young, 11 F.3d 1518, 1522 n.7 (lOth Cir. 1993). Regarding
the fundamental miscarriage of justice exception, it "is a markedly narrow one, implicated
only in 'extraordinary case[s] where a constitutional violation has probably resulted in the
conviction of one who is actually innocent"' Magar v. Parker, 490 F .3d 816, 820 (1Oth Cir.
2007) (quoting Phillips v. Ferguson, 182 F.3d 769,774 (lOth Cir. 1999)). Petitioner has not
made this showing.
Petitioner has filed two motions to dismiss this action without prejudice to filing an
amended petition within twelve months, because he alleges this action has been prolonged
by the court's bias, prejudice, and discrimination. [Docket Nos. 40 & 41]. The court finds
petitioner's allegations are unsupported and conclusory. Furthermore, he apparently is asking
the court to grant him additional time beyond the one-year statute of limitation imposed by
28 U.S.C. § 2244(d) for filing a habeas corpus action. There is, however, no authority for
such an extension or for tolling the limitation period under these circumstances. Therefore,
his motions to dismiss are denied.

ACCORDINGLY, the respondent's motion to dismiss [Docket No. 35] is
GRANTED, petitioner's motions to dismiss [Docket Nos. 40 & 41] are DENIED, and this
action is, in all respects, DISMISSED in its entirety.

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IT IS SO ORDERED this~ day ofMarch 2013.

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