LeBlanc v. Bridges

Filing 12

OPINION AND ORDER by District Judge Ronald A. White : Granting 9 Motion to Dismiss and Denying certificate of appealability (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
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CHARLES LESLIE LeBLANC,
Petitioner,
v.
CARRIE BRIDGES, Warden,
Respondent.

Case No. CIV 23-301-RAW-GLJ

OPINION AND ORDER
This matter is before the Court on Respondent’s motion to dismiss Petitioner’s petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Dkt. 9). Petitioner is a pro se state
prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated
at James Crabtree Correctional Center in Helena, Oklahoma. He is attacking his conviction and
sentence in Pottawatomie County District Court Case No. CF-2022-249 for Burglary in the First
Degree, raising the following grounds for relief:
Claim One: I am a member of the Western Cherokee. My crime occurred within
Indian Country of Seminole Nation Reservation. My crime was one of 18 U.S.C. §
1153 Major Crimes Act crimes. The state court holds that I cannot appeal my case
to the . . . OCCA, Because they Lack Jurisdiction to hear it.1
Claim Two: My Attorney was not Qualified Counsel of Choice.

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Respondent asserts in the motion to dismiss that Petitioner has failed to provide to this
Court or to the state courts any documentation of his alleged tribal membership or that his crime was
committed in the Seminole Nation Reservation. (Dkt. 10 at 4 n.3). In Petitioner’s Objection to the
motion to dismiss, he reiterates his claims that he is a tribal member and that the crime occurred in
Indian Country, however, he again fails to produce documentation. (Dkt. 11). To the extent the
Objection requests “specialized counsel,” id. at 2, the Court finds Petitioner has failed to show his
claim has sufficient merit to warrant such appointment. See McCarthy v. Weinberg, 753 F.2d 836,
838 (10th Cir. 1985).

Claim Three: I was not given a trial in a court authorized By Art. III U.S.
Constitution thereby not authorized to issue a warrant.
Claim Four: As I was not In-Personam by Lawful Service of process, I was denied
a Speedy Trial and could not get one.
(Dkt. 1 at 5-11) (capitalization in original).
Respondent alleges Petitioner has failed to exhaust the state court remedies for his claims.
The record shows that Petitioner was convicted in Case No. CF-2022-249 of Burglary in the First
Degree, a felony, in violation of Okla. Stat. tit. 21, § 1431 (2021) (Count 1), and Obstructing an
Officer, a misdemeanor, in violation of Okla. Stat. tit. 21, § 540 (2021) (Count 3). (Dkt. 10-1). He
was found not guilty of Count 2. Id. Petitioner was sentenced to 20 years’ imprisonment for the
burglary conviction and to three months’ incarceration in the county jail for the obstruction offense,
both sentences to run concurrent with each other. Id.
On September 14, 2023, Petitioner appealed his convictions to the Oklahoma Court of
Criminal Appeals (OCCA) in Case No. F-2023-327. (Dkt. 10-2). At the time Respondent filed this
present motion to dismiss on February 26, 2024, the OCCA had not entered a decision on the direct
appeal. (Dkt. 10-4). According to the Oklahoma State Courts Records website, however, on August
29, 2024, the OCCA issued a Summary Opinion affirming Petitioner’s Judgment and Sentence.2
Petitioner’s claims on direct appeal were:
(1)

whether the evidence was sufficient to support his conviction for first degree
burglary;

(2)

whether instructional error requires relief; and

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The Court takes judicial notice of the public records of the Oklahoma State Courts Network
at http://www.oscn.net. See Pace v. Addison, No. CIV-14-0750-HE, 2014 WL 5780744, at *1 n.1
(W.D. Okla. Nov. 5, 2014).
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(3)
whether there was a fatal variance between the Information and the case
presented at trial.
LeBlanc v. State, No. F-2023-327, slip op. at 2 (Okla. Crim. App. Aug. 29, 2024).
“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). 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 (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 post-conviction 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, 51819 (1982).
A claim has been exhausted when it has been “fairly presented” to the state court.
Picard v. Connor, 404 U.S. 270, 275 (1971). “Fair presentation” requires more than
presenting “all the facts necessary to support the federal claim” to the state court or
articulating a “somewhat similar state-law claim.” Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam). “Fair presentation” means that the petitioner has raised the
“substance” of the federal claim in state court. Picard, 404 U.S. at 278. The
petitioner need not cite “‘book and verse on the federal constitution,’” id. (quoting
Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), but the petitioner cannot
assert entirely different arguments from those raised before the state court.
Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2009).
There is an exception to the exhaustion requirement when exhaustion would be futile,

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however, a petitioner still has the burden of proving it. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii); Selsor v.
Workman, 644 F.3d 984, 1026 (10th Cir. 2011); Hurst v. Crow, CIV 21-308-RAW-KEW, 2022 WL
3050005, at *1 (E.D. Okla. Aug. 2, 2022) (unpublished); Garrett v. Crow, CIV-21-918-JD, 2021 WL
6425383, at *3 (W.D. Okla. Dec. 7, 2021) (unpublished). “To prove that exhaustion of a claim
would be futile, Petitioner must show there is an absence of available State corrective process or
circumstances exist that render such process ineffective to protect the rights of the applicant.” Hurst,
2022 WL 3050005, at *1 (quoting Selsor, 644 F.3d at 1026) (internal quotation marks omitted).
Petitioner admits in his petition that he did not raise his present habeas claims in state court.
(Dkt. 1 at 5-11). He asserts there are no adequate remedies available to him, because Oklahoma
courts, including the OCCA, lack authority to prosecute his claims, because he is an Indian who
committed crimes in Indian Country. Id. Such arguments, however, have repeatedly been rejected
by the federal district courts in Oklahoma. See Garrett, 2021 WL 6425383, at *3 (unpublished)
(rejecting the petitioner’s argument that it would be futile to appeal the state district court’s
post-conviction denial to the OCCA in light of the decision in Matloff v. Wallace). See also Chilton
v. Bridges, No. CIV-22-32-G, 2022 WL 4587161, at *2 (W.D. Okla. Sep. 29, 2022) (unpublished)
(holding that a petitioner must fully exhaust a claim that the State court lacked jurisdiction pursuant
to McGirt v. Oklahoma, 591 U.S. 894 (2020) (collecting cases). Therefore, this Court finds
Petitioner’s habeas petition is unexhausted, and his unsupported claim that the OCCA lacked
“jurisdiction” to resolve his claims on direct appeal does not mean exhaustion would be futile. See
Duncan v. Walker, 533 U.S. 167, 179 (2001); Rose, 455 U.S. at 518-22.
To the extent Petitioner argues that his appellate counsel was “unauthorized,” or “not
qualified” as justification for his failure to exhaust these claims (Dkt. 1 at 7), his assertion is
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meritless. While a claim of ineffectiveness of appellate counsel can be sufficient cause to excuse
procedural default, it is not cause to bypass the exhaustion requirement. See Crowder v. McCollum,
No. CIV-17-54-R, 2017 WL 892734, at *2-3 (W.D. Okla. Feb. 21, 2017) (unpublished report and
recommendation), adopted by district court, 2017 WL 894434 (W.D. Okla. Mar. 6, 2017)
(unpublished) (rejecting claim that habeas petitioner should be allowed to “bypass” exhaustion
requirement for claim of ineffective assistance where appellate counsel also served as trial counsel
and thus would not raise an ineffectiveness claim against himself on direct appeal). See also Murray
v. Carrier, 477 U.S. 478, 489 (1986) (holding that while ineffective assistance of appellate counsel
can be cause to excuse procedural default, the exhaustion requirement mandated that a claim of
ineffective assistance of counsel must be presented to the state court as “an independent claim”
before it could be used to establish cause for procedural default).
Further, to the extent Petitioner alleges his conviction was “void,” and consequently
exhaustion of these claims was futile (Doc. 1 at 10), this argument also is meritless because he has
failed to meet his burden of showing that a void judgment renders exhaustion futile. See, e.g., Rael
v. Reid, No. 09-CV-01361-BNB, 2010 WL 628200, at *3 (D. Colo. 2010) (unpublished) (rejecting
habeas petitioner’s argument that exhaustion would be futile because the judgment was void); Neil
v. Crow, 2021 WL 4143948, at *1 n.2 (W.D. Okla. Aug. 18, 2021) (unpublished) (rejecting the
petitioner’s futility argument, noting that the petitioner still was required to fully exhaust his
jurisdiction claim). Based on the above authority, this Court finds that Petitioner has failed to meet
his burden of showing exhaustion would be futile, and Respondent’s motion to dismiss this habeas
petition (Dkt. 9) should be granted.
In addition, Petitioner’s reliance on Rule 60(b)(4) is misplaced, (Doc. 1 at 7) (“I was given

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an unauthorized state court attorney to represent me, in an unlawful court requiring a Fed. R. App.
P. 60(b)(4) (Void conviction)”) (syntax in original), as that rule is entirely inapplicable to this case.
Rule 60(b)(4) is applicable only after a final judgment, and this Court has not rendered a decision
in this case. Therefore, that rule is irrelevant at this point, and the Court still should dismiss
Petitioner’s petition for failure to exhaust state remedies.
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,
1.

To the extent Petitioner requested appointment of counsel in his Objection (Dkt. 11),

the request is DENIED.
2.

Respondent’s motion to dismiss Petitioner’s petition for a writ of habeas corpus as

unexhausted (Dkt. 9) is GRANTED.
3.

Petitioner is DENIED a certificate of appealability.

IT IS SO ORDERED this 24th day of September 2024.

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