Ballard v. Martin
Filing
7
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Responses due by 7/6/2012, Replies due by 8/6/2012); denying 5 Motion to Dismiss (Re: 1 PETITION for Writ of Habeas Corpus - 2241 ) (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOHN STEVEN BALLARD,
Petitioner,
vs.
TERRY MARTIN, Warden,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 11-CV-806-GKF-FHM
OPINION AND ORDER
This is a 28 U.S.C. § 2241 habeas corpus action. Before the Court is Respondent’s motion
to dismiss for failure to exhaust state remedies (Dkt. # 5). Petitioner, a state inmate appearing pro
se and presently incarcerated at Dick Conner Correctional Center, Hominy, Oklahoma, filed a
response (Dkt. # 6) to the motion to dismiss. For the reasons discussed below, the Court finds
Respondent’s motion to dismiss shall be denied. Respondent shall file a response to the petition.
BACKGROUND
The record provided by the parties demonstrates that Petitioner was received into custody
of the Oklahoma Department of Corrections (ODOC) on May 15, 1987, on his convictions entered
in Tulsa County District Court, Case No. CF-1986-3892. In that case, Petitioner was convicted by
a jury of Robbery With a Firearm, After Former Conviction of a Felony (Counts 1 and 2), and
Possession of a Stolen Vehicle, After Former Conviction of a Felony (Count 3). He was originally
sentenced to fifty (50) years on each of Counts 1 and 2 and to ten (10) years on Count 3, all to be
served consecutively. His fifty (50) year sentences were later modified by the Oklahoma Court of
Criminal Appeals (OCCA) to thirty-five (35) years. On November 22, 1989, Petitioner was paroled
on Count 1 and rebilled to serve his sentence for Count 2. See Dkt. # 5, Ex. 4. On March 19, 2002,
Petitioner was paroled on Count 2 and rebilled to serve his sentence for Count 3. Id., Ex. 5. On
October 8, 2004, he was paroled on Count 3 and discharged to the street. Id., Ex. 6. On December
27, 2010, his parole was revoked, based on his conviction entered October 4, 2010, in Ottawa
County District Court, Case No. CF-2010-44A, and he was ordered to be incarcerated to serve the
remaining portion of his sentence for Count 1, Case No. CF-86-3892, concurrently with the term
received in CF-2010-44A, with no credit for street time. Id., Ex. 7.
On June 6, 2011, Petitioner began the process of exhausting administrative remedies by
submitting a Request to Staff asking that he be credited on his sentence for Count 1 for time served
while he was incarcerated on Counts 2 and 3 after having been paroled on Count 1. See Dkt. # 5, Ex.
8. He completed the exhaustion process on August 22, 2011, when the denial of his request for
sentence credits was affirmed by the ODOC’s Director Designee. Id. at 8.
On December 30, 2011, Petitioner filed his federal petition for writ of habeas corpus (Dkt.
# 1). Petitioner raises one (1) ground of error in his petition as follows: “The Oklahoma Department
of Corrections is improperly calculating the earned credits to be applied to Petitioner’s sentence on
Count 1 of CF-86-3892.” See Dkt.# 1. Petitioner argues that he is entitled to receive sentence
credits for the time he was on parole on Count 1 but still incarcerated and serving his sentences on
Counts 2 and 3. He asks that he be credited for 5,455 days, or for the time from November 22, 1989,
when he was paroled on Count 1, to October 8, 2004, when he was released to the street on parole
on Counts 2 and 3. See id. at 4. Petitioner also states that if he receives the sentence credits, he will
not be “entitled to immediate release, rather only sooner release.” Id. at 5.
On January 19, 2012, Respondent filed a motion to dismiss, arguing for dismissal based only
on Petitioner’s failure to exhaust state judicial remedies (Dkt. # 5). Respondent argues that
2
Petitioner has an available state court remedy for his claim, a petition for writ of mandamus.
Petitioner filed an objection to Respondent’s motion to dismiss, and argues that, because he would
not be entitled to immediate release if granted the relief he requests, he has no available state court
remedy. See Dkt. # 6.
ANALYSIS
The Supreme Court “has long held that a state prisoner’s federal petition should be dismissed
if the prisoner has not exhausted available state remedies as to any of his federal claims.” Coleman
v. Thompson, 501 U.S. 722, 731 (1991); see also 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509
(1982). To exhaust a claim, a habeas corpus petitioner in custody pursuant to an Oklahoma state
court judgment must have “fairly presented” that specific claim to the Oklahoma Court of Criminal
Appeals. See, e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The exhaustion requirement
is based on the doctrine of comity. Coleman, 501 U.S. at 731. Requiring exhaustion “serves to
minimize friction between our federal and state systems of justice by allowing the State an initial
opportunity to pass upon and correct alleged violations of prisoners’ federal rights.” Duckworth v.
Serrano, 454 U.S. 1, 3 (1981) (per curiam).
Section 2241 does not contain an express exhaustion requirement, but the Tenth Circuit
Court of Appeals has held that exhaustion of available state remedies “is a prerequisite for . . .
habeas relief.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). A petitioner may satisfy the
exhaustion requirement by showing either: “that a state appellate court has had the opportunity to
rule on the same claim presented in federal court,” or “that at the time he filed his federal petition,
he had no available state avenue of redress.” Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992)
(citations omitted).
3
Petitioner admits that he has not presented his claim in a state court appeal, but argues that
he has no remedies available in the Oklahoma courts. See Dkt. # 1 at 5. The Court agrees with
Petitioner. As Petitioner points out, he lacks a remedy in state court unless he can demonstrate
entitlement to immediate release. See Berryhill v. State, 43 P.3d 410, 411 (Okla. Crim. App. 2002)
(“For a writ of habeas corpus Petitioner must establish that ... he is entitled to immediate release.”
(citations omitted)); Scales v. Walters, 905 P.2d 233, 235 (Okla. Civ. App. 1995) (rejecting a
mandamus petition challenging a parole decision because “[a] writ of mandamus will not be granted
on a prisoner’s challenge to any matter related to computation of sentence or date of release unless
it is shown that the prisoner would be entitled to immediate release”). As recognized by the parties,
even a successful petition in state court would not entitle Petitioner to immediate release.1 This case
does not involve review of a prison disciplinary proceeding resulting in the revocation of previously
earned credits. See Magar v. Parker, 490 F.3d 816 (10th Cir. 2007) (recognizing availability of Okla.
Stat. tit. 57, § 564.1 (West 2007), for review of due process afforded prisoners during disciplinary
proceedings). Under the facts of this case, where Petitioner seeks to be credited for days spent in
custody serving other consecutive sentences, and without the possibility of immediate release,
Petitioner lacks an available state court remedy. For that reason, the Court finds Respondent’s
motion to dismiss for failure to exhaust state remedies should be denied. Respondent shall file a
response to the petition.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1
As of the filing of the motion to dismiss, Respondent states that Petitioner has 10,329 days
remaining to be served on his sentence for Count 1, CF-86-3892. See Dkt. # 5 at 3, ¶ 9.
4
1.
Respondent’s motion to dismiss for failure to exhaust state remedies (Dkt. # 5) is denied.
2.
Within thirty (30) days of the entry of this Order, Respondent shall respond to the claim
raised in the petition. Extensions of time will be granted for good cause only.
3.
Petitioner may file a reply brief within thirty (30) days after the filing of Respondent’s
response to the petition.
DATED THIS 6th day of June, 2012.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?