Riggins v. Redman

Filing 14

OPINION AND ORDER by Judge John E Dowdell ; setting/resetting deadline(s)/hearing(s): ( Responses due by 3/7/2016, Replies due by 4/6/2016); denying 11 Motion to Dismiss (Re: 7 Amended PETITION for Writ of Habeas Corpus - 2254 ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DARRELL JOE RIGGINS,
Petitioner,
v.
RODNEY R. REDMAN, Warden,
Respondent.

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Case No. 15-CV-0058-JED-FHM

OPINION AND ORDER
On February 4, 2015, Petitioner Darrell Joe Riggins, a state inmate appearing pro se, filed
a 28 U.S.C. § 2254 petition for a writ of habeas corpus (Doc. 1). On February 26, 2015, Petitioner
filed an amended petition (Doc. 7). In response to the amended petition, Respondent filed a motion
to dismiss for failure to exhaust state remedies (Doc. 11). Petitioner filed a response to the motion
to dismiss (Doc. 13). For the reasons discussed below, Respondent’s motion to dismiss shall be
denied. However, because Petitioner failed to present his claims raised in Grounds 2 and 3 to the
Oklahoma Court of Criminal Appeals (OCCA) and exhaustion would be futile, the claims are
defaulted and will be denied unless Petitioner can overcome the anticipatory procedural bar by
demonstrating either “cause and prejudice” or that a “fundamental miscarriage of justice” will result
if his defaulted claims are not considered. Further, Respondent shall respond to the exhausted claim
raised in the amended petition, i.e., Ground 1.
BACKGROUND
The record reflects that, at the conclusion of a jury trial held in Tulsa County District Court,
Case No. CF-2012-156, Petitioner was convicted of Endeavoring to Manufacture Controlled Drugs
(Methamphetamine), After Former Conviction of a Felony (Doc. 11-3 at 1). Attorneys Shena
Burgess and Richard Koller represented Petitioner at his trial. Id. at 4. The jury recommended a

sentence of sixteen (16) years imprisonment, and the trial judge sentenced Petitioner in accordance
with the jury’s recommendation. Id. at 1.
Petitioner perfected a direct appeal to the OCCA (Doc. 11-1). Represented by attorney
Stuart Southerland, Petitioner raised one (1) proposition of error, as follows:
Proposition 1:

The evidence was insufficient to support Appellant’s conviction for
endeavoring to manufacture methamphetamine.

Id. In an unpublished summary opinion, entered October 1, 2013, in Case No. F-2012-955, the
OCCA affirmed the trial court’s judgment and sentence (Doc. 11-3).
On September 11, 2014, Petitioner filed an application for post-conviction relief in the state
trial court (Doc. 1 at 38-53). Petitioner raised three (3) propositions of error, as follows:
Proposition 1:

Petitioner was denied effective representation by trial counsel;

Proposition 2:

Petitioner was denied his constitutional right to a fair and impartial
trial; and

Proposition 3:

Petitioner was denied effective representation on appeal.

See id. On January 27, 2015, the trial court denied Petitioner’s application for post-conviction relief
(Doc. 11-4). Nothing before the Court indicates that Petitioner appealed the denial of his application
for post-conviction relief to the OCCA.
In his amended petition for a writ of habeas corpus, Petitioner raises three (3) grounds of
error, as follows:
Ground 1:

Insufficient Evidence.

Ground 2:

Illegal Search and Inventory.

Ground 3:

False Testimony.

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See Doc. 7. In response to the amended petition, Respondent filed a motion to dismiss, arguing that
the amended petition should be dismissed as a mixed petition containing both exhausted and
unexhausted claims (Doc. 11). Respondent argues that while Petitioner exhausted Ground 1 on
direct appeal and raised Grounds 2 and 3 in his application for post-conviction relief, Petitioner
never appealed the state trial court’s denial of his application for post-conviction relief. Id. at 2.
Therefore, Petitioner has not exhausted Grounds 2 and 3. Id. Petitioner responds that “if you have
something wrong in your case it should be look[ed] at in any court. I’m only doing what I was told
to do. I just would like someone to hear me.” Doc. 13 at 1.
ANALYSIS
In the habeas corpus context, the United States Supreme Court “has long held that a state
prisoner’s federal habeas 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)
(citations omitted). To exhaust a claim, Petitioner must have “fairly presented” that specific claim
to the state’s highest court. See Picard v. Conner, 404 U.S. 270, 275-76 (1971). A petitioner “must
give the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999).
The exhaustion requirement is based on the doctrine of comity. Rose v. Lundy, 455 U.S. 509,
518-19 (1982). 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) (citations
omitted) (per curiam). To satisfy the exhaustion requirement, a prisoner must afford the state courts

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an “opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional
claim,” Picard, 404 U.S. at 277 (internal quotation marks and citation omitted) (brackets in original),
“which entails presentation both of the facts on which he bases his claim and the constitutional claim
itself.” Wilson v. Workman, 577 F.3d 1284, 1292 (10th Cir. 2009) (citations omitted), overruled on
other grounds as recognized in Glossip v. Trammell, 530 F. App’x 708, 736 (10th Cir. 2013). The
burden of proving exhaustion rests with the prisoner. See Olson v. McKune, 9 F.3d 95, 95 (10th Cir.
1993).
In this case, after reviewing the record, the Court finds that, while Petitioner raised Ground
1 on direct appeal, he has not presented Grounds 2 and 3 of his amended petition to the OCCA. In
Ground 2, Petitioner claims that his vehicle was illegally searched and seized (Doc. 7 at 7).
Petitioner did not present this claim to the OCCA on direct appeal (see Doc. 11-1). In his
application for post-conviction relief, Petitioner raised a claim of ineffective assistance of trial
counsel based on the failure of trial counsel to contest the search and seizure of his vehicle and a
claim of ineffective assistance of appellate counsel for failure to raise the issue on appeal (Doc. 1
at 40, 45). Petitioner never appealed the post-conviction denial of these claims to the OCCA. Even
if Petitioner had pursued a post-conviction appeal, exhaustion of the ineffective assistance of counsel
claims would be insufficient to exhaust the underlying “analytically distinct” illegal search and
seizure claim. See Medicine Blanket v. Brill, 425 F. App’x 751, 753-54 (10th Cir. 2011)
(unpublished)1 (finding petitioner’s due process claim was not exhausted even though it “shar[ed]
a similar factual predicate with [petitioner’s exhausted] ineffective assistance of counsel claim”

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This and other unpublished opinions are not precedential but are cited for their persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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(citation omitted)); Richardson v. Ploughe, Case No. 12-CV-01828-BNB, 2012 WL 4668759 at *5
(D. Colo. Oct. 2, 2012) (unpublished) (“To exhaust the factual basis for an ineffective assistance of
counsel claim as an independent constitutional violation, a habeas petitioner must raise the claim
separately.” (citations omitted)); Aguilar v. Tamme, Case No. 13-CV-00494-MSK, 2013 WL
4551673 at *4 (D. Colo. Aug. 28, 2013) (unpublished). In Ground 3 of his amended petition,
Petitioner claims that a witness at his trial gave false testimony (Doc. 7 at 8). It appears that
Petitioner challenged the veracity of a witness’s testimony in proposition 2 of his application for
post-conviction relief, (see Doc. 1 at 43-45). However, as stated above, he failed to file a postconviction appeal. Therefore, both Grounds 2 and 3 of the amended petition are unexhausted. The
amended petition is “mixed” because it contains both exhausted and unexhausted claims.
While the Court could require Petitioner to return to state court to raise Grounds 2 and 3 in
a second post-conviction application, the OCCA routinely applies a procedural bar to such claims
unless the petitioner provides “sufficient reason” for his failure to raise the claim in an earlier
proceeding. Okla. Stat. tit. 22, § 1086; Moore v. State, 889 P.2d 1253 (Okla. Crim. App. 1995).
Nothing in the record suggests that Petitioner has “sufficient reason” for failing to raise the claims
in Grounds 2 and 3 in a prior proceeding. As a result, the OCCA would impose a procedural bar2
on the claims if Petitioner raised them in a second application for postconviction relief. Because the
claims would be subject to a procedural bar in the state courts, the Court finds it would be futile to
require Petitioner to return to state court to exhaust the claims. See Duckworth, 454 U.S. at 3
(explaining that the futility exception is supportable “only if there is no opportunity to obtain redress

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The resulting procedural bar, based on Okla. Stat. tit. 22, § 1086, would be independent and
adequate to preclude federal habeas corpus review. See Smith v. Workman, 550 F.3d 1258, 1267
(10th Cir. 2008).
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in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain
relief”); see also Coleman, 501 U.S. 722; Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993).
Therefore, in the absence of available State corrective process, see 28 U.S.C. § 2254(b)(1)(B),
Petitioner’s claims in Grounds 2 and 3 are not barred by the exhaustion requirement. See Clayton
v. Gibson, 199 F.3d 1162, 1170 (10th Cir. 1999). For that reason, Respondent’s motion to dismiss
for failure to exhaust state remedies shall be denied.
The Court finds that an anticipatory procedural bar3 will be applied to the claims raised in
Grounds 2 and 3 unless Petitioner shows “cause and prejudice” or a “fundamental miscarriage of
justice” to excuse his procedural default of these claims. Coleman, 501 U.S. at 750; Maes v.
Thomas, 46 F.3d 979, 985 (10th Cir. 1995). The cause standard requires a petitioner to “show that
some objective factor external to the defense impeded . . . efforts to comply with the state procedural
rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of such external factors include the
discovery of new evidence, a change in the law, and interference by state officials. Id. A petitioner
is additionally required to establish prejudice, which requires showing “‘actual prejudice’ resulting
from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). The
alternative is proof of a “fundamental miscarriage of justice,” which requires a petitioner to
demonstrate that he is “actually innocent” of the crime of which he was convicted. McCleskey v.
Zant, 499 U.S. 467, 494 (1991).

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An “[a]nticipatory procedural bar occurs when the federal courts apply procedural bar to
an unexhausted claim that would be procedurally barred under state law if the petitioner returned
to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation
and internal quotation marks omitted).
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Within thirty (30) days of the entry of this Order, Petitioner may file a brief demonstrating
either “cause and prejudice” or a “fundamental miscarriage of justice” to excuse his procedural
default of the claims raised in Grounds 2 and 3 of his amended petition. Respondent may file a
response within thirty (30) days of the filing of Petitioner’s brief. Also, within thirty (30) days of
the entry of this order, Respondent shall file a response to the exhausted claim raised in Ground 1
of the amended petition. Petitioner may file a reply to Respondent’s response to the exhausted claim
within thirty (30) days of the filing of Respondent’s response.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Respondent’s motion to dismiss for failure to exhaust state remedies (Doc. 11) is denied.

2.

Within thirty (30) days of the entry of this Order, or by March 7, 2016, Petitioner may file
a brief demonstrating either “cause and prejudice” or a “fundamental miscarriage of justice”
to excuse his procedural default of the claims raised in Grounds 2 and 3 of the amended
petition.

3.

Respondent may file a response within thirty (30) days after the filing of Petitioner’s brief
addressing the defaulted claims.

4.

If Petitioner fails to file a brief as directed above, his claims raised in Grounds 2 and 3 will
be denied as procedurally barred.

5.

By the above-referenced date, Respondent shall file a response to the exhausted claim raised
in Ground 1 of the amended petition. Extensions of time will be granted for good cause only.

6.

Petitioner may file a reply brief within thirty (30) days after the filing of Respondent’s
response to Petitioner’s exhausted claim.

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ORDERED THIS 5th day of February, 2016.

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