Barton v. Hunter

Filing 30

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying certificate of appealability; finding as moot 26 Motion for Miscellaneous Relief; finding as moot 18 Motion for Miscellaneous Relief; finding as moot 20 Motion for Miscellaneous Relief; finding as moot 20 Motion for Miscellaneous Relief; finding as moot 20 Motion for Production; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (kjp, Dpty Clk)

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

JORDON SCOTT BARTON,
Petitioner,
v.
MIKE HUNTER,
Oklahoma Attorney General,
Respondent.

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Case No. 17-CV-100-GKF-FHM

OPINION AND ORDER
On February 27, 2017, Petitioner, a pro se litigant residing in Pine Grove, Colorado, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) and paid the filing fee
(Dkt. 2). He is challenging his conviction in Tulsa County District Court Case No. CF-2012-4901
for Domestic Abuse by Strangulation (Count 1), Interfering with an Emergency Telephone Call
(Count 3), and Threatening an Act of Violence (Count 4). Respondent filed a response in opposition
to the petition, along with the state court record (Dkts. 8, 9).
After reviewing the response to the petition, the Court directed Respondent to file a
supplement to the response to address whether Petitioner satisfied the “in custody” requirement of
28 U.S.C. § 2241(c)(3) and 28 U.S.C. § 2254(a) (Dkt. 17). Respondent’s supplement concedes that
Petitioner was not “in custody” when the habeas petition was filed (Dkt. 22 at 1). Therefore,
Respondent requests that the petition and Petitioner’s pending motions be dismissed. Id.
Respondent alleges that on November 4, 2015, Petitioner was convicted and sentenced to one
year’s imprisonment for Count 1, with credit for time served pending trial, and a $500.00 fine for
each of Counts 3 and 4 (Dkt. 8-10 at 39). Respondent asserts that because Petitioner was granted

credit for time served pending trial, his sentence expired at the conclusion of the jury trial on
November 4, 2015 (Dkt. 22 at 2). Petitioner’s docket sheet for Case No. CF-2012-4901 indicates
that on November 6, 2015, he paid the $500.00 fines ordered in Counts 3 and 4 (Dkt. 8-10 at 43).
“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and . . . the traditional function of the writ is to secure release from illegal custody.” See
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also Rhodes v. Hannigan, 12 F.3d 989, 991
(10th Cir. 1993) (“A petition for habeas corpus attacks the fact or duration of a prisoner’s
confinement and seeks the remedy of immediate release or a shortened period of confinement.”).
Because Petitioner cannot satisfy the “in custody” requirement, the Court lacks jurisdiction to
consider his habeas corpus claims, and the petition must be dismissed without prejudice.
In addition, the Court deems moot Petitioner’s pending (1) motion to add count of denying
speedy trial (Dkt. 18); (2) discovery request to JK,1 motion to add count of denying speedy trial,
necessary reason for court order to be mailed transcripts, and motion for court to take judicial notice
of attorney evil (Dkt. 20); and (3) motion for Court to take judicial notice of [Petitioner’s]
developmental disorder (Dkt. 26).
Certificate of Appealability
Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts,
instructs that “[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Pursuant to 28 U.S.C. § 2253(c)(2), the Court may issue a
certificate of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” A petitioner can satisfy that standard by demonstrating that the issues raised
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Based on the record, the Court assumes “JK” stands for Petitioner’s defense counsel.
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are debatable among jurists, that a court could resolve the issues differently, or that the questions
deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)). In addition, when the Court’s ruling is based on procedural
grounds, Petitioner must demonstrate 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 the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Court’s procedural ruling resulting in the dismissal of this action based on lack of
subject matter jurisdiction is debatable or incorrect. There is no authority in the record suggesting
that the Tenth Circuit Court of Appeals would resolve the issues in this case differently. Therefore,
a certificate of appealability is denied.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is dismissed without
prejudice for lack of subject matter jurisdiction.

2.

Petitioner’s pending motions (Dkts. 18, 20, and 26) are deemed moot.

3.

Petitioner is denied a certificate of appealability.

4.

This is a final Order terminating this action.
DATED this 1st day of February 2018.

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