Buchanan v. Pearson

Filing 16

OPINION AND ORDER by Judge Ronald A. White : Denying 1 7 Petition for Writ of Habeas Corpus (2241/2254); Granting 11 Motion to Dismiss. (case terminated) (acg, Deputy Clerk)

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

THEODORE STEVEN BUCHANAN,
Petitioner,

v.
EDWARD EVANS,
DOC Interim Director,
Respondent.

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No. CIV 13-426-RAW-KEW

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OPINION AND ORDER
This matter is before the court on the respondent's motion to dismiss petitioner's
amended petition for a writ of habeas corpus [Docket No.7], which was filed pursuant to 28
U.S.C. § 2254. 1 Petitioner, an inmate in the custody of the Oklahoma Department of
Corrections who currently is incarcerated at the Muskogee County Jail in Muskogee,
Oklahoma, is challenging his convictions and the revocation of his suspended sentences in
Muskogee County District Court Cases No. CF-2007-1036, Second Degree Rape, and No.
CF-2007-1045, Intimidation of Witness. His supplement to the petition [Docket No. 13]
challenges his listing on the sex offender registry.
The record shows that on July 10, 2008, petitioner entered guilty pleas in both cases
and was sentenced to concurrent, ten-year suspended sentences. On August 22, 2013, he
stipulated to violations alleged in the State's Application to Revoke Suspended Sentence, and
the trial court revoked in part and ordered petitioner to serve three years' incarceration with

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The court recognizes that petitioner's claims regarding the revocation of his suspended
sentences fall under 28 U.S.C. § 2241, because he is challenging the execution of his sentences.

the Oklahoma Department of Corrections. According to the docket records at www .oscn.net,
petitioner was advised of the sex offender rules and conditions when he entered his plea in
Case No. CF-2007-1036. The record further shows he did not appeal the district court's
revocation orders, but on October 30, 2013, he filed a motion for post-conviction relief in
both cases. He has not advised this court of his recent state court filings.
The respondent has filed a motion to dismiss, alleging petitioner has failed to exhaust
his state court remedies. "A threshold question that must be addressed in every habeas case
is that of exhaustion." Harris v. Champion, 15 F.3d 1538, 1554 (lOth Cir. 1994). The court
must dismiss a state prisoner's habeas petition if he has not exhausted the available state
court remedies as to his federal claims. See Coleman v. Thompson, 501 U.S. 722, 731
(1991). In federal habeas corpus actions, the petitioner bears the burden of showing he has
exhausted his state court remedies as required by 28 U.S.C. § 2254(b). See Clonce v.

Presley, 640 F .2d 271, 273 (1Oth Cir. 1981 ); Bond v. Oklahoma, 546 F .2d 1369, 13 77 (1Oth
Cir. 1976). To satisfY the exhaustion requirement, a claim must be presented to the State's
highest court through a direct appeal or a post-conviction proceeding. Dever v. Kansas State

Penitentiary, 36 F.3d 1531, 1534 (lOth Cir. 1994). Under the doctrine of comity, a federal
court should defer action on claims properly within its jurisdiction until a state court with
concurrent power has had an opportunity to consider the matter. Rose v. Lundy, 455 U.S.
509, 518-19 (1982).
Here, petitioner clearly has failed to exhaust the state court remedies for his claims.
Although he recently has filed post-conviction applications in the state district court, federal
habeas corpus applicants are required to exhaust all remedies available in state court before
filing a habeas corpus petition. See 28 U.S.C. § 2254(b)(l)(A).

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ACCORDINGLY, the respondent's motion to dismiss for failure to exhaust state

court remedies [Docket No. 11] is GRANTED, and this action is, in all respects,
DISMISSED WITHOUT PREJUDICE. 2

IT IS SO ORDERED this /

IJI;, day ofNovember 2013.

RONALD A. WHITE
UNITED STATES DISTRICT JUDGE

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Petitioner is advised that any future habeas actions must be filed within the one-year statute
oflimitations imposed by 28 U.S.C. § 2244(d).

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