Smith v. Glanz

Filing 8

OPINION AND ORDER by Judge John E Dowdell dismissing the petition for writ of habeas corpus for failure to exhaust state remedies. ; dismissing/terminating case (terminates case) ; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

FRANKLIN C. SMITH,
Petitioner,
vs.
STANLEY GLANZ, Sheriff,
Respondent.

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Case No. 15-CV-153-JED-TLW

OPINION AND ORDER
On March 31, 2015, Petitioner, a state prisoner presently in custody at David L. Moss
Criminal Justice Center, the facility serving as the Tulsa County Jail,1 filed a pro se 28 U.S.C. §
2254 petition for writ of habeas corpus (Doc. 1) and a motion to proceed in forma pauperis (Doc.
2). By Order filed April 3, 2015 (Doc. 3), the Court granted Petitioner’s motion to proceed in forma
pauperis and directed Petitioner to show cause in writing why his petition should not be dismissed
without prejudice for failure to exhaust state remedies. On April 14, 2015, Petitioner filed his
response (Doc. 4), along with a notice of his “history on neuroleptic drugs” (Doc. 5). On May 15,
2015, Petitioner filed a notice of change of address (Doc. 6) and supplemental response (Doc. 7).
After careful review of Petitioner’s response and supplemental response, the Court finds he failed
to exhaust available state remedies prior to filing his federal petition for writ of habeas corpus.
Therefore, his petition for writ of habeas corpus shall be dismissed without prejudice.

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When he filed his petition (Doc. 1), Petitioner was in custody at the Payne County Jail.
However, during the pendency of this matter, Petitioner was released from the Payne County Jail.
On May 15, 2015, Petitioner filed a notice of change of address (Doc. 6) reflecting that he is now
in custody at the Tulsa County Jail.

A. Background
Petitioner states that he challenges his conviction, entered October 16, 2014, in Tulsa County
District Court, Case No. CF-2014-3749, for Second Degree Burglary of a Business. See Doc. 1 at
1. He further states he was sentenced to “4 years D.O.C., suspended to probation,” and that he pled
guilty “under duress.” Id. Petitioner claims that he filed an appeal in the district court, but that his
appeal “wasn’t processed.” Id. at 2. He admits that he has not sought review by a higher state
court. Id. Petitioner identifies four (4) grounds of error, but states he has not appealed adverse
rulings entered by the trial court. During his plea proceeding, Petitioner was represented by an
attorney from the Tulsa County Public Defender’s Office. However, Petitioner complains that the
attorney provided inadequate representation. Id. at 6-7.
In his response (Doc. 4), Petitioner claims that he was never assigned a public defender and
that the trial court judge never advised him of his appeal rights and appeal procedures.2 Id. at 1. He
also claims that even if he had been advised that he had ten (10) days to file a motion to withdraw
his plea, a “medical mishap” prevented him from doing so. Id. at 2.
B. Exhaustion
The United States 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); 28 U.S.C. § 2254(b)(1)(A). 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

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In contrast to Petitioner’s allegations, the docket sheet for Tulsa County District Court, Case
No. CF-2014-3749, viewed at www.oscn.net, reflects that at the change of plea hearing, Petitioner
was represented by attorney Richard Koller, and that Petitioner was advised of his appeal rights.
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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).
In order to exhaust a claim, the applicant “must ‘fairly present’ his claim in each appropriate
state court . . . , thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541
U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam)); see
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (explaining that the exhaustion requirement
dictates that a § 2254 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,” including discretionary review by the State’s highest court). “The exhaustion requirement
is satisfied if the issues have been properly presented to the highest state court, either by direct
review of the conviction or in a postconviction attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th
Cir. 1999) (internal quotation marks omitted). In Oklahoma, the highest state court for criminal
matters is the Oklahoma Court of Criminal Appeals (OCCA).
The burden of proving exhaustion rests with the prisoner. See Olson v. McKune, 9 F.3d 95,
95 (10th Cir. 1993). An exception to the exhaustion doctrine exists if it is clear that the state courts
would impose a procedural bar on the petitioner’s claims. Coleman, 501 U.S. at 731-32. If an
applicant has failed to exhaust state remedies and state courts “would now find the claims
procedurally barred[,] the claims are considered exhausted and procedurally defaulted for purposes
of federal habeas relief.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (internal
quotation marks omitted); accord Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997); see also
Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (“In habeas, state-court remedies are described as
having been ‘exhausted’ when they are no longer available, regardless of the reason for their

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unavailability . . . . [I]f the petitioner procedurally defaulted those claims, the prisoner generally is
barred from asserting those claims in a federal habeas proceeding.”).
Upon review of the petition and Petitioner’s response and supplemental response, the Court
finds that Petitioner has not presented any constitutional challenge to his conviction entered in Tulsa
County District Court, Case No. CF-2014-3749, to the OCCA. Although Petitioner claims to have
filed an “appeal” in the state district court, he failed to file a motion to withdraw his plea of guilty,
as required to commence certiorari appeal proceedings from a guilty plea. See Rule 4.2(A), Rules
of the Oklahoma Court of Criminal Appeals (requiring the defendant to file an application to
withdraw plea of guilty within ten (10) days from the date of the pronouncement of the Judgment
and Sentence in order to commence an appeal from any conviction on a plea of guilty).
While it is now too late to commence a certiorari appeal, Petitioner has an available state
court remedy for any constitutional claim: he may present the claim in an application for postconviction relief filed in Tulsa County District Court, Case No. CF-2014-3749. Under state law,
Petitioner will be required to demonstrate “sufficient reason” for his failure to raise the claims on
certiorari appeal. Okla. Stat. tit. 22, § 1086 (providing that “[a]ny ground finally adjudicated or not
so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the
conviction or sentence or in any other proceeding the applicant has taken to secure relief may not
be the basis for a subsequent application, unless the court finds a ground for relief asserted which
for sufficient reason was not asserted or was inadequately raised in the prior application”). Should
the state district court deny post-conviction relief, Petitioner must perfect a post-conviction appeal
to the OCCA to complete the exhaustion process. Should the OCCA affirm the denial of postconviction relief, Petitioner may then file a new petition for writ of habeas corpus in this federal

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court raising only exhausted claims. Any new federal petition must be filed within the time
remaining in the one year limitations period, if any. See 28 U.S.C. § 2244(d).3
In summary, Petitioner failed to exhaust state court remedies before filing his habeas corpus
petition. For that reason, the petition shall be dismissed without prejudice.

ACCORDINGLY, IT IS HEREBY ORDERED that the petition for writ of habeas corpus
(Doc. 1) is dismissed without prejudice for failure to exhaust state remedies.

ORDERED THIS 28th day of May, 2015.

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Petitioner is advised that the one-year statute of limitations applicable to federal habeas
corpus petitions has not been tolled, or suspended, during the pendency of this federal habeas corpus
action. See § 2244(d)(2); Duncan v. Walker, 533 U.S. 167 (2001) (holding that application for
federal habeas corpus review is not “application for State post-conviction or other collateral review,”
within meaning of tolling provision of the Antiterrorism and Effective Death Penalty Act (AEDPA)).
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