Colburn v. Billingsley

Filing 35

OPINION & ORDER by Judge Frank H. Seay granting 31 Motion to Dismiss. This action is dismissed in its entirety. Petitioner also is denied a certificate of appealability. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RAY D. COLBURN,
Petitioner,
v.
ROBERT PATTON, Director,
Oklahoma Department of
Corrections,1
Respondent.

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No. CIV 12-370-FHS-KEW

OPINION AND ORDER
This action is before the court on the respondent’s motion to dismiss petitioner’s
amended petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner,
an inmate in the Federal Correctional Institution in Otisville, New York, again is challenging
a detainer placed against him following parole revocation in Seminole County District Court
Case No. CF-1995-176. As alleged in his previously-decided § 2241 petition, Colburn v.
Jones, No. CIV-13-250-JHP-KEW (E.D. Okla. Sept. 30, 2014), he is claiming “the detainer
should be invalidated, and Oklahoma authorities should be enjoined from extraditing [him]

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Generally, the proper respondent in a § 2241 action is the warden of the institution where
the petitioner is confined. Rumsfeld v. Padilla, 542 U.S. 426, 433–436 (2004); Scott v. United
States, 586 F. Supp. 66, 68 n.1 (E.D.Va. 1984) (citing Copeland v. State of Mississippi, 415 F. Supp.
1271, 1272 n.1 (N.D. Miss. 1976)). However, “the immediate physical custodian rule, by its terms,
does not apply when a habeas petitioner challenges something other than his present physical
confinement.” Rumsfeld, 542 U.S. at 438. Here, Petitioner is not challenging his present physical
federal confinement; rather, he is challenging a state detainer lodged against him, seeking to be
released at the end of his federal prison term. Therefore, the proper respondent is Robert Patton,
Director of the Oklahoma Department of Corrections.

because its prior failure to do so on two occasions resulted in an unreasonable delay and
violated [his] right to due process of law.” (Dkt. 22 at 4). He also asserts that “the manner
in which parole was revoked violated petitioner’s right to due process of law.” Id. at 5.
Citing 28 U.S.C. § 2244(b), the respondent alleges this second habeas petition must
be dismissed as successive. Section 2241 habeas petitions, however, “are not mentioned
anywhere in § 2244(b). Accordingly, the requirement for prior circuit authorization
contained in § 2244(b)(3) does not apply to habeas petitions brought under § 2241.” Stanko
v. Davis, 617 F.3d 1262, 1269 n.5 (10th Cir. 2010) (citations omitted). Furthermore, this
action was filed before Case No. 13-250-JHP-KEW.
While § 2244(b) does not apply, the court finds 28 U.S.C. § 2244(a) prevents the court
from considering this petition:
No circuit or district judge shall be required to entertain an application for a
writ of habeas corpus to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears that the legality of such
detention has been determined by a judge or court of the United States on a
prior application for a writ of habeas corpus . . . .
28 U.S.C. § 2244(a). A federal court is authorized “to decline to consider a habeas petition
presenting a claim that was previously raised and adjudicated in an earlier habeas proceeding,
unless the court determine[s] that hearing the claim would serve the ends of justice.” Stanko,
617 F.3d at 1269 (footnote omitted) (citing McClesky v. Zant, 499 U.S. 467, 480-82 (1991)).
Furthermore, as argued by the respondent in this case and in the 2013 action,
petitioner has failed to properly exhaust the available state administrative and judicial
remedies for his claims.

Petitioner again claims he lacked access to the DOC’s

administrative remedy process, and state court remedies have been exhausted. The court,

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however, again finds he has not met the exhaustion requirement.
The record shows petitioner has not sought relief through the Oklahoma
Department of Corrections inmate grievance procedure or through a state
petition for a writ of habeas corpus. He did, however, file an application for
post-conviction relief in the trial court on October 14, 2011. The denial of that
application was affirmed in Colburn v. State, No. PC 2012-343, slip op. (Okla.
Crim. App. Feb. 4 2013). . . . The court finds petitioner did not exhaust his
remedies before filing this federal habeas petition, as required by 28 U.S.C.
§ 2254(b)(1)(A).
Colburn, No. CIV-13-250-JHP-KEW, slip op. at 2-3.2 Therefore, this action must be
dismissed.
The court further concludes petitioner has not shown “at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether [this] court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also 28
U.S.C. § 2253(c). Therefore, petitioner is denied a certificate of appealability.
ACCORDINGLY, the respondent’s motion to dismiss petitioner’s amended petition
for a writ of habeas corpus (Dkt. 31) is GRANTED, and this action is DISMISSED in its
entirety. Petitioner also is denied a certificate of appealability.

Dated: November 26, 2014

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The court also found in Case No. 13-250-JHP-KEW that petitioner’s habeas petition was
barred by the statute of limitations imposed by 28 U.S.C. § 2244(d)(1)(D). Id., slip op. at 3-5. The
deadline for petitioner to raise his claims was June 28, 2011. Id. at 4.

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