Thompson v. Aldridge

Filing 18

OPINION AND ORDER by District Judge James H. Payne: Respondent's motion to dismiss 15 17 is DENIED, and Petitioner is directed to advise the Court of her intentions for proceeding in this case within twenty-one (21) days by filing an appropriate pleading as set forth above. Respondent is directed to file a response or appropriate motion within thirty (30) days of Petitioner's response to this Opinion and Order. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
AMANDA THOMPSON,
Petitioner,
v.
DEBBIE ALDRIDGE, Warden,
Respondent.

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Case No. CIV 17-414-JHP-KEW

OPINION AND ORDER
This matter is before the Court on Petitioner’s petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Petitioner is a pro se prisoner in the custody of the Oklahoma
Department of Corrections who currently is incarcerated at Mabel Bassett Correctional
Center in McLoud, Oklahoma. She is attacking her conviction and sentence in Marshall
County District Court Case No. CF-07-155 for First Degree Manslaughter. She sets forth the
following grounds for relief:
I.

Conviction obtained by plea of guilty which was unlawfully induced or
not made voluntarily.

II.

Conviction obtained by unconstitutional failure to disclose evidence
favorable to Petitioner.

III.

Court abused its discretion by violating Petitioner’s statutory and
due process rights to confront witnesses.

IV.

Court should not have presided over this case because of conflict
of interest.

V.

Court abused its discretion in revoking sentence based on incompetent
evidence.

VI.

Court abused its discretion by admitting improper victim impact
testimony at the revocation sentencing hearing.

VII.

Petitioner received ineffective assistance of counsel.

VIII. Conviction obtained by use of coerced confession.
Respondent alleges Petitioner has failed to exhaust the state court remedies for her
habeas claims. Petitioner has not filed a response to the motion.
“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 habeas
petitioner is generally required to exhaust state remedies whether [her] action is brought
under § 2241 or § 2254.” Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (citing
Coleman, 501 U.S. at 731). The court must dismiss a state prisoner’s habeas petition if she
has not exhausted the available state court remedies as to her federal claims. See Coleman
v. Thompson, 501 U.S. 722, 731 (1991). In federal habeas corpus actions, the petitioner
bears the burden of showing she has exhausted her state court remedies as required by 28
U.S.C. § 2254(b). See Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981); Bond v.
Oklahoma, 546 F.2d 1369, 1377 (10th Cir. 1976). To satisfy the exhaustion requirement, a
claim must be presented to the State’s highest court through a direct appeal or a postconviction proceeding. Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th 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).

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The record shows that on May 2, 2012, Petitioner entered a plea of guilty to First
Degree Manslaughter and was sentenced to 15 years’ imprisonment with credit for four years
already served in the Department of Corrections and with the balance suspended. (Dkt. 161). On October 14, 2015, the State of Oklahoma filed a motion to revoke Petitioner’s
suspended sentence, alleging she violated probation by (1) committing the crime of Larceny
of Merchandise in Carter County; (2) having a newborn baby who tested positive for
marijuana and hydrocodone; and (3) testing positive for marijuana. (Dkt. 16-2). On January
27, 2016, the state district court held a hearing on the motion and revoked all 11 years. (Dkt.
16-3). Petitioner appealed the revocation of her suspended sentence, and the Oklahoma
Court of Criminal Appeals (OCCA) affirmed the revocation in Thompson v. State, No. RE2016-85 (Okla. Crim. App. Mar. 22, 2017) (Dkt. 16-4). Petitioner has not, however, filed
a Certiorari appeal of her guilty plea or a request for post-conviction relief seeking to file a
Certiorari appeal out of time.
Petitioner raised habeas Grounds III, IV, V, VI , and VII as propositions of error in
her post-conviction proceedings. Thompson, No. No. RE-2016-85, slip op. at 4-5. She has
not, however, filed a Certiorari appeal of her guilty plea or a request for post-conviction
relief seeking to file a Certiorari appeal out of time. The unexhausted grounds for habeas
relief, Grounds I, II, and VIII concern her plea.
A district court has two options when faced with a “mixed” petition containing both
exhausted and unexhausted claims. One option is to require the petitioner to exhaust all her
claims in state court before bringing the petition. Rose, 455 U.S. at 510 (instructing a district
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court to dismiss without prejudice and allow the petitioner to refile once the claims are
exhausted); Rhines v. Weber, 544 U.S. 269, 277 (2005) (if a court is concerned about the
prisoner’s meeting the one-year filing requirement of 28 U.S.C. § 2244(d), and if “there was
good cause for the petitioner’s failure to exhaust [her] claims first in state court,” the court
can decline to dismiss the matter and issue a stay and abeyance of the petition, while the
petitioner exhausts state court remedies). The second option is to deny the entire petition on
the merits, notwithstanding failure to exhaust, if the court is convinced the unexhausted claim
is without merit, or that the issue is easily resolvable against the petitioner. See 28 U.S.C.
§ 2254(b)(2).
After careful review, the Court finds a stay and abeyance is not warranted, because
Petitioner has not shown good cause for her failure to exhaust Grounds I, II, and VIII. Her
options for proceeding with this action are to (1) dismiss this action without prejudice in its
entirety with the understanding that a second habeas petition could be barred by the statute
of limitations, (2) dismiss the unexhausted claims and continue with the exhausted claims,
or (3) continue this case with all claims, with the knowledge that the Court will dismiss the
petition for failure to exhaust all state court remedies.
Petitioner is granted twenty-one (21) days to advise the Court of the direction she
intends to pursue by filing one of the following: (1) a motion to dismiss this action in its
entirety without prejudice, (2) a motion to dismiss the unexhausted claims, or (3) a notice that
she intends to continue the petition with both exhausted and unexhausted claims. Failure to
respond as directed by the Court in this Order will result in dismissal of this entire action
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without further notice.
ACCORDINGLY, Respondent’s motion to dismiss (Dkt. 15) is DENIED, and
Petitioner is directed to advise the Court of her intentions for proceeding in this case within
twenty-one (21) days by filing an appropriate pleading as set forth above. Respondent is
directed to file a response or appropriate motion within thirty (30) days of Petitioner’s
response to this Opinion and Order.
IT IS SO ORDERED this 23rd day of October, 2018.

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