Reed v. Parker

Filing 20

ORDER by District Judge James H. Payne : Denying 10 Petition for Writ of Habeas Corpus (2241/2254); granting 13 Motion to Dismiss. (case terminated) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

CHAD WILLIAM REED,

)
)
Petitioner, )
)
v.
)
)
DAVID PARKER, Warden,
)
)
Respondent. )

Case No. CIV-12-414-JHP-KEW

ORDER
On October 4, 2012, petitioner appearing pro se, filed a filed a 28 U.S.C. § 2254
petition for writ of habeas corpus (Dkt. # 1). Thereafter, on November 1, 2012, petitioner
filed a motion to amend (Dkt. # 8) which was granted by minute order on November 7, 2012
(Dkt. # 9). On December 10, 2012, petitioner filed his amended petition for writ of habeas
corpus (Dkt. # 10). The State has filed a motion to dismiss for failure to exhaust state court
remedies (Dkt. # 13).
“A threshold question that must be addressed in every habeas case is that of
exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). A federal habeas
petition may not be granted as to any claim unless the petitioner has exhausted available state
court remedies regarding that claim; there is an absence of available State corrective process;
or circumstances exist that render the state process ineffective to protect the rights of the
applicant. See, 28 U.S.C. § 2254(b)(1). “[T]he federal claim must be fairly presented to the
state courts so that the state courts have had the first opportunity to hear the claim sought to

be vindicated in the federal habeas proceeding.” Ogle v. Johnson, 488 F.3d 1364, 1368 (11th
Cir.2007) (internal quotation marks omitted) (citation omitted). Where a claim has not been
exhausted, federal courts do not have the authority to grant a writ of habeas corpus unless the
State expressly waives exhaustion. 28 U.S.C. § 2254(b)(1) and (3).
In the instant case, it is clear from Petitioner’s petition that he has not exhausted many
of the claims raised in his amended petition. Specifically, the first claim raised by Petitioner
is that he has been deprived due process because the state district court has not ruled on his
post-conviction application in a timely manner. Additionally, petitioner indicates this was
not raised on direct appeal and has not been raised in his state post-conviction proceedings.
Claims two through eight of the amended petition appear to raise claims that were raised in
petitioner’s direct appeal. Thus, these claims have been exhausted. Further, according to the
amended petition, claims nine through fourteen have also not been exhausted but are
currently pending in the District Court of McCurtain County, State of Oklahoma. See also,
Respondent’s Reply to Petitioner’s Response to Motion to Dismiss for Failure to Exhaust
State Court Remedies, Dkt. # 19 (petitioner’s unexhausted claims are currently pending
before the state court on post-conviction review, and the state district court has been ordered
to act on them by April 17, 2013 - Dkt. # 19-8). Since the Petitioner has not exhausted his
claims and the State has not waived the exhaustion requirement, the Petitioner is not entitled
to habeas relief. Accordingly, Respondent's motion to dismiss the petition for writ of habeas
corpus for failure to exhaust (Dkt. # 13) should be granted and the petition should be dismissed
without prejudice.
2

It is so ordered on this 12th day of April, 2013.

3