Frazier v. Gentry
OPINION AND ORDER by District Judge Ronald A. White : Granting 9 respondent's Motion to Dismiss for Petitioner's failure to exhaust administrative and state-court remedies. Petitioner is Denied a certificate of appealability. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DERIK WAYNE FRAZIER,
SCOTT CROW, DOC Director,
Case No. CIV 20-399-RAW-KEW
OPINION AND ORDER
This matter is before the Court on Respondent’s motion to dismiss (Dkt. 9)
Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Dkt. 1).
Petitioner is a pro se state prisoner in the custody of the Oklahoma Department of
Corrections (DOC) who currently is incarcerated at Davis Correctional Facility (DCF) in
Holdenville, Oklahoma. He is attacking the execution of his sentences in Bryan County
District Court Case Nos. CF-2017-111, CF-2017-619, and CF-2018-201.
Petitioner alleges that on October 26, 2018, he was sentenced in this Court to 120
months of incarceration. According to the Court’s records for Case No. CR-18-056-RAW,
Petitioner pleaded guilty to Felon in Possession of Firearm & Ammunition, and judgment
was entered.1 He further asserts that on November 21, 2018, he was sentenced in the three
Bryan County, Oklahoma, District Court cases.
“[T]he court is permitted to take judicial notice of its own files and records, as well as facts
which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.
2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
Petitioner complains that the DOC is trying to make him serve his state sentences
consecutively, when his state Judgments and Sentences indicate the sentences are concurrent
with each other and with the federal sentence (Dkt. 1 at 2).2 He contends that after he was
sentenced in the state court, he should have been returned to federal custody to serve the
federal sentence. He is requesting habeas relief in the form of his return to federal custody
to commence his federal sentence.
Respondent alleges the petition is time-barred by the statute of limitations, and
Petitioner has failed to exhaust his administrative and 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 (10th Cir. 1994). “A habeas petitioner is generally required
to exhaust state remedies whether his action is brought under § 2241 or § 2254.” Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722,
731)). 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). This requirement extends to the exhaustion of administrative remedies as
well. Dulworth v. Evans, 442 F.3d 1265, 1269 (10th Cir. 2006) (emphasis in original). See
also Clonce v. Presley, 640 F.2d 271, 273-74 (10th Cir. 1981) (stating that a petitioner must
According to the DOC Offender website at https://okoffender.doc.ok.gov, Petitioner was
received by DOC for his three Bryan County District Court cases at issue in this action on December
13, 2018. He discharged Case No. CF-2017-111 on May 11, 2020. The Court takes judicial notice
of the DOC website pursuant to Fed. R. Evid. 201. See Triplet v. Franklin, 365 F. App’x 86, 92,
2010 WL 409333, at *6 n.8 (10th Cir. Feb. 5, 2010).
“exhaust the respective state and administrative remedies before challenging his state or
federal custody by habeas corpus”).
The record shows that on April 23, 2020, Petitioner submitted a Request to Staff to
the DCF Records Department, asking to be returned to federal custody to begin his federal
sentence (Dkt. 10-5).3 The reviewing staff member responded, “I spoke to DOC & have
been informed, ‘you would need to contact Bryan County &/or the USMS to see if they want
him to serve the federal time first. At this point, ODOC is following the court order from
Bryan Co.’” Id.
Pursuant to DOC Offender Grievance Process OP-090124, an inmate may appeal the
reviewing party’s response to a grievance (Dkt. 10-6 at 1), however, Petitioner never filed
an actual grievance or appeal. Instead, he submitted a Request to Staff. He alleges he did
not file an appeal, “[b]ecause O.D.O.C. had already [sic] said what they had to say so thier
[sic] was no reason to Appeal because it would have been futile” (Dkt. 1 at 3).
Exhaustion of administrative remedies is not required when it would be futile.
Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir. 2005). The futility exception,
however, is quite narrow. We generally apply the exception when there has
been an adverse decision disposing of the precise issue raised by the petitioner.
See Goodwin v. Oklahoma, 923 F.2d 156, 157-58 (10th Cir. 1991). [Petitioner]
has not cited to any such adverse decision.
Bun v. Wiley, 351 Fed. App’x 267, 268, 2009 WL 3437831, at *2 (10th Cir. Oct. 27, 2009)
Respondent refers to the Request to Staff as a “grievance,” however, an inmate may file a
grievance after his Request to Staff is answered. After conclusion of a grievance, the prisoner then
may appeal to the Administrative Review Authority. See OP-090124(V)-(VIII) at
https://oklahoma.gov/content/dam/ok/en/doc/documents/policy/section-09/op090124.pdf; Dkt. 10-6.
(unpublished). Here, the Court finds Petitioner’s unsupported and conclusory assertion of
futility does not warrant an exception to the exhaustion requirement for administrative
Despite the suggestion in the response to the Request to Staff, there is no record of
Petitioner’s making any attempt to exhaust his state-court remedies in the Bryan County
District Court through an application for post-conviction relief under Okla. Stat. tit. 22, §
1080. In addition, he has raised no argument that this avenue was unavailable to him.
Further, to the extent Petitioner asks for a stay of this action so he can pursue his state-court
remedies, the Court finds a stay is not warranted, because he has failed to show good cause
for his failure to exhaust his state-court remedies. See Rhines v. Weber, 544 U.S. 267, 277
The Court further finds Petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). He also 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). Therefore, a certificate of appealability cannot be issued.
ACCORDINGLY, Respondent’s motion to dismiss Petitioner’s petition for a writ
of habeas corpus (Dkt. 9) is GRANTED for Petitioner’s failure to exhaust administrative and
state-court remedies, and Petitioner is DENIED a certificate of appealability.
IT IS SO ORDERED this 14th day of July 2021.
RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
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