Brown v. Bear

Filing 13

OPINION AND ORDER by Judge John E Dowdell Respondent's "motion to dismiss pursuant to Younger v. Harris, 401 U.S. 37 (1971), and for failure to exhaust necessary state court remedies" (Doc. 10) is denied. Within thirty (30) days of the entry of this Order, or by October 22, 2018, Petitioner may file a brief demonstrating either "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his procedural default of his Ground 4 claim. Responden t may file a response within thirty (30) days after the filing of Petitioner's brief. Within thirty (30) days of the entry of this Order, or by October 22, 2018, Respondent shall file a response to the habeas petition addressing the claims raise d in Grounds 1, 2 and 3 of the habeas petition. Petitioner may file a reply brief within thirty (30) days after the filing of Respondent's response to the petition. ; setting/resetting deadline(s)/hearing(s): ( Responses due by 10/22/2018); denying 10 Motion to Dismiss (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
BILLY BROWN,
Petitioner,
v.
CARL BEAR, Warden,
Respondent.

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Case No. 17-CV-0651-JED-FHM

OPINION AND ORDER
This is a habeas corpus action. Before the Court is Respondent’s “motion to dismiss
pursuant to Younger v. Harris, 401 U.S. 37 (1971), and for failure to exhaust necessary state court
remedies” (Doc. 10). Respondent filed a brief in support of the motion (Doc. 11), and Petitioner
filed a response (Doc. 12). For the reasons discussed below, the Court shall deny Respondent’s
motion to dismiss the petition.
BACKGROUND
Petitioner challenges the judgment and sentence entered against him in the District Court of
Tulsa County, Case No. CF-2014-5068. Doc. 1 at 1. In that case, a jury convicted Petitioner of first
degree murder, after former conviction of two or more felonies. Doc. 11-1, Brown v. State, No.
F-2015-855 (Okla. Crim. App. 2016) (unpublished), at 1.

Consistent with the jury’s

recommendation, the state district court imposed a prison sentence of life without the possibility of
parole and a $10,000 fine. Id. Petitioner filed a direct appeal raising three propositions of error:
(1) the trial court improperly admitted evidence of other crimes, (2) the prosecutor committed
misconduct by attempting to define reasonable doubt during voir dire and by denigrating Petitioner’s
voluntary-intoxication defense during closing argument, and (3) trial counsel provided ineffective

assistance by failing to object to the admission of other crimes evidence and the prosecutor’s
improper remarks. Id. at 3-8. In an unpublished opinion filed November 9, 2016, in Case No.
F-2015-855, the Oklahoma Court of Criminal Appeals (OCCA) rejected all three claims on the
merits and affirmed petitioner’s conviction and sentence. Id. Petitioner did not seek a writ of
certiorari from the United States Supreme Court. Doc. 1 at 3.
On March 23, 2017, Petitioner filed an application for post-conviction relief in state district
court, raising 11 propositions of error:
Proposition I:

New law Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015),
proves trial court lacked jurisdiction.

Proposition II:

It has been newly discovered by investigators that both trial
and appeals counsel had major conflict of interest against
Petitioner and it denied Petitioner his Sixth Amendment right.

Proposition III:

The trial court lacked jurisdiction because the records show
no grand jury waiver was signed or read into the record.

Proposition IV:

No procedural bar to jurisdictional claims.

Proposition V:

The doctrine of double jeopardy and pre-trial detainer
punishment barred jurisdiction to a court to impose a 2nd
punishment.

Proposition VI:

22 O.S. 1514 creates a liberty interest in consideration for
sentence modification of suspension of remainder.

Proposition VII:

Investigators have discovered that the prosecutor failed to do
his duty and lacked legal standing to prosecute.

Proposition VIII:

The accumulation of errors, and newly discovered evidence
warrant relief or a hearing.

Proposition IX:

New ruling of
enhancement.

Proposition X:

Trial is void when judge fails to get a waiver of his being a
former prosecutor 20 O.S. Section 1401.
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law

required

resentencing without

Proposition XI:

Ineffective assistance of appeals counsel because:
A. Appellate counsel failed to argue that trial counsel was
ineffective for failing to present evidence that Mr. Brown’s
use of alcohol rendered him incapable of forming criminal
intent, the res gestae and mens rea of First Degree Murder, to
be convicted of the same.
B. Appellate counsel failed to argue that trial counsel was
ineffective for failing to call for a psychiatric evaluation of
Mr. Brown.

Doc. 11-2 at 2-3. In an unpublished order filed July 26, 2017, the state district court thoroughly
considered each of Petitioner’s claims and denied relief. Id. at 3-14. Petitioner appealed that denial
to the OCCA in Case No. PC-2017-817. Doc. 11-3. The OCCA affirmed the denial of Petitioner’s
application for post-conviction relief on November 3, 2017. Id. at 3-7.
On August 30, 2017, Petitioner filed a second application for post-conviction relief in state
district court, raising three propositions of error:
Proposition I:

On August 8, 2017, the Tenth Circuit Court of Appeals issued
an opinion clarifying jurisdictional law back to 1866 in
Oklahoma holding that no state court has jurisdiction to try a
defendant for any crime committed in Oklahoma involving an
Indian, as all of Oklahoma, except the Panhandle, is “Indian
Country,” thus the state had no jurisdiction over this case.

Proposition II:

On July 10, 2017, the Oklahoma Attorney General in the
Supreme Court case of Martin v. Bear, No. 16-9498, admitted
no state of Oklahoma court has jurisdiction to prosecute a
defendant on an Information without first getting a waiver of
a grand jury indictment from the defendant, or the conviction
is void.

Proposition III:

On August 11, 2017, the D.C. Circuit Court of Appeals held
in the Blackwater Private Contractor case that a life sentence
for killing 15 people was cruel and unusual punishment.
Therefore, applying that new federal decision to this case,
Petitioner’s sentence should be modified to time served or a
new trial should be conducted.
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Doc. 11-4 at 3-4. In an unpublished order filed October 3, 2017, the state district court denied relief
as to all three claims. Id. at 4-9. Petitioner appealed that denial to the OCCA in Case No.
PC-2017-1109. Doc. 11-5 at 2.
On December 4, 2017, while his post-conviction appeal in Case No. PC-2017-1109 was
pending, Petitioner filed the instant petition for a writ of habeas corpus. Doc. 1. Petitioner identifies
four grounds for habeas relief:
Ground 1:

State court lacked jurisdiction over crime committed by an Indian,
upon an Indian, in Indian country, inside an Indian reservation.
Petitioner was tried in wrong court; he is ‘detained’ in violation of
clearly established federal laws, Constitution, and treaties. [S]tate
courts refuse to address this issue; but admit it’s true. Nov. 9th 2017,
in Kincaid v. Bear, CV-17-1117, U.S. Dist. Judge West. Dist. OK
found all Okla. state prisoners are entitled to habeas corpus on this
issue.

Ground 2:

Due process of law denied Petitioner; depriving state court of
jurisdiction.
State court failed to advise Petitioner of his federal rights and that his
waivor [sic] of a grand jury indictment in Martin v. Bear, No.
16-1689, U.S. S. Ct., St Att Gen admitted under U.S. v. Ferguson,
106 S. Ct. 124, all state courts lacked jurisdiction unless they
received a waivor [sic] of federal right to indictment, before they
could proceed on an information.

Ground 3:

Conviction contrary to federal laws, and denied due process
State courts refused to follow their own rules, laws or Constitution;
refused to address merits of my claim; refused to apply, or comply
with U.S. Supreme Court opinions, acts of Congress, violated U.S.
Constitution.
Petitioner is actually innocent, it was proven in post-conviction to be
an accident but state courts refused due process of a hearing.

Ground 4:

Discrimination because of disabilities denied equal protection and due
process of law.

4

If Petitioner was not disabled, incompetent, poor or black, state
courts would have given him a fair trial; appeals counsel would have
raised 10 appeal issues instead of (3); appeals courts would have
reversed on same grounds as they did Nov. 23, 2017, in the Nowata
State v. Barnes case; a police officer committed murder and rich
white people like Rev. Hearns [sp?] grand-son, are not charged by the
Tulsa prosecutor or were treated differently. Prosecutor lacked legal
standing to prosecute crime.
Doc. 1 at 5, 7-8, 10.
In response to the petition, Respondent filed a “motion to dismiss pursuant to Younger v.
Harris, 401 U.S. 37 (1971), and for failure to exhaust necessary state court remedies” (Doc. 10), and
a brief in support (Doc. 11). Petitioner filed a response (Doc. 12).
ANALYSIS
Respondent contends the claims alleged in Grounds 1, 2 and 3 should be dismissed without
prejudice under the Younger abstention doctrine1 because those claims are pending before the OCCA
in Case No. PC-2017-1109. Doc. 11 at 5-6. Respondent contends Petitioner’s Ground 4 claim
should be dismissed for failure to exhaust available state remedies because Petitioner has not
presented that claim in any prior state court proceeding. Id. at 6-7.
Petitioner filed a response to the motion to dismiss, asserting (1) his claims are exhausted
because the OCCA affirmed the denial of his application for post-conviction relief on November 3,
2017, (2) there have never been any state remedies available to any Oklahoma state prisoner over

1

Under the Younger abstention doctrine, a federal court must abstain from exercising equity
jurisdiction when three conditions are met: “(1) there is an ongoing state criminal, civil, or
administrative proceeding, (2) the state court provides an adequate forum to hear the claims
raised in the federal complaint, and (3) the state proceedings involve important state
interests, matters which traditionally look to state law for their resolution or implicate
separately articulated state policies.” Walck v. Edmonson, 472 F.3d 1227, 1233 (10th Cir.
2007) (quoting Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215
(10th Cir. 2003)).
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the last 30 years, (3) the Oklahoma Attorney General “confessed” to the United States Supreme
Court in Martin v. Bear, No. 16-9488, that Oklahoma state prisoners have no available state court
remedies, that all state courts deny access to courts, due process and equal protection, and that the
State has suspended habeas corpus, and (4) he should be granted a hearing “to show extraordinary
circumstances.” Doc. 12 at 1.
The Antiterrorism and Effective Death Penalty Act (AEDPA) generally “prohibits federal
courts from granting habeas relief to state prisoners who have not exhausted available state
remedies.” Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017); see also 28 U.S.C. §
2254(b)(1). Before a federal court may grant habeas relief, the petitioner must show that he
exhausted available state-court remedies, 28 U.S.C. § 2254(b)(1)(A), by “fairly present[ing] the
substance of his federal habeas claim[s] to state courts,” Hawkins v. Mullins, 291 F.3d 658, 668
(10th Cir. 2002). The AEDPA’s exhaustion requirement “is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those claims are presented to the
federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Ordinarily to enforce this exhaustion requirement, “a federal court should dismiss
unexhausted claims without prejudice so that the petitioner can pursue available state-court
remedies.” Grant v. Royal, 886 F.3d 874, 891-92 (10th Cir. 2018) (quoting Bland v. Sirmons, 459
F.3d 999, 1012 (10th Cir. 2006)). “However, dismissal without prejudice for failure to exhaust state
remedies is not appropriate if the state court would now find the claims procedurally barred on
independent and adequate state procedural grounds.” Id. at 892 (quoting Smallwood v. Gibson, 191

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F.3d 1257, 1267 (10th Cir. 1999)). Rather, under the doctrine of anticipatory procedural bar,2 those
unexhausted claims that the state court would find procedurally barred are deemed procedurally
defaulted for purposes of habeas review. Id. To overcome the procedural default, a petitioner must
“demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Id. (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
I.

Petitioner exhausted the claims alleged in Grounds 1, 2 and 3.
On the record presented, the Court agrees with Respondent that Petitioner’s claims asserted

in Grounds 1, 2 and 3 were unexhausted when he filed the instant habeas petition because, at that
time, his second post-conviction appeal, in Case No. PC-2017-1109 was pending. See Doc. 11 at
3-4 (detailing Petitioner’s attempts to exhaust habeas claims).3 However, the state court docket in
Case No. PC-2017-1109 reflects that the OCCA issued an unpublished opinion on March 21, 2018,
affirming the state district court’s denial of Petitioner’s second application for post-conviction relief.
See Brown v. State, No. PC-2017-1109, available at http://www.oscn.net, last visited September 17,

2

“‘Anticipatory 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) (quoting Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)).

3

The Court is not persuaded that Petitioner’s overly broad allegations in Ground 3 state a
cognizable federal habeas claim. See Doc. 1 at 8 (asserting unspecified due process
violations, actual innocence, denial of a hearing, and alleging state court failed to comply
with federal law). However, for purposes of adjudicating Respondent’s motion to dismiss,
the Court accepts Respondent’s assertion that Petitioner raised this claim in his second postconviction appeal. Doc. 11 at 4.
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2018.4 Because the claims alleged in Grounds 1, 2 and 3 are now exhausted, the Court declines
Respondent’s request to dismiss those claim under the Younger abstention doctrine.
II.

Petitioner failed to exhaust the claim alleged Ground 4.
Nonetheless, the Court finds Ground 4 is unexhausted. As Respondent argues, it is clear

from the state court decisions that Petitioner has not presented his Ground 4 claim in any prior state
court proceeding. See Doc. 11 at 4; see also Docs. 11-1, 11-2, 11-3, 11-4. However, applying
Grant, the Court finds dismissal of the petition to permit Petitioner to exhaust this claim would not
be appropriate. Though his Ground 4 claim is not entirely clear, Petitioner appears to allege that
because he is “disabled, poor [and] black,” (1) the State discriminated against him by charging him,
prosecuting him and denying him a fair trial, (2) appellate counsel discriminated against him by
failing to raise more issues on direct appeal, and (3) the OCCA discriminated against him by failing
to reverse his conviction and sentence. Doc. 1 at 10. To the extent Petitioner claims he was
discriminated against before or during trial or during the direct appeal process, he could have raised
his Ground 4 claim either on direct appeal or in his applications for post-conviction relief. That he
did not do so makes it very likely that, should he return to state court to exhaust this claim, the state
courts would find this claim waived or procedurally barred.
The OCCA routinely applies a procedural bar to claims that could have been, but were not,
raised on direct appeal or in a first application for post-conviction relief. See OKLA. STAT. tit. 22,
§ 1086 (generally barring post-conviction relief for claims not raised in first post-conviction

4

The Court takes judicial notice of the state court record which is available to the public. See
United States v. Ahidley, 486 F.3d at 1184, 1192 n.5 (noting that federal courts may “take
judicial notice of publicly-filed records in . . . other courts concerning matters that bear
directly upon the disposition of the case at hand”).
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application); Walker v. State, 933 P.2d 327, 330-31 (Okla. Crim. App. 1997) (“[P]ost-conviction
claims which could have been raised in previous appeals but were not are generally considered
waived.”). In fact, the state district court and the OCCA have already applied this procedural bar
to some claims Petitioner raised in his first and second applications for post-conviction relief. See
Doc. 11-3 at 4-5; Doc. 11-4 at 5-6. And the Tenth Circuit Court of Appeals recognizes this
particular procedural bar as an independent and adequate state ground for denying habeas relief.
Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002). Under these circumstances, the Court finds
Petitioner’s unexhausted Ground 4 claim is subject to an anticipatory procedural bar and should be
deemed procedurally defaulted rather than dismissed without prejudice. The Court therefore denies
Respondent’s request to dismiss Ground 4 for lack of exhaustion.
III.

Opportunity to respond
Because Petitioner procedurally defaulted his Ground 4 claim, the Court will deny habeas

relief on that claim unless Petitioner can demonstrate either “cause and prejudice” or a “fundamental
miscarriage of justice” to excuse his procedural default of that claim. Coleman, 501 U.S. at 750.
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 unexhausted claim alleged in Ground 4 of his habeas petition. To establish cause Petitioner must
“show that some objective factor external to the defense impeded . . . efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of such external

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factors may include discovery of new evidence, a change in the law, interference by state officials,5
and constitutionally ineffective assistance of counsel. Id. However, an ineffective assistance of
counsel claim “generally must ‘be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default.’” Edwards v. Carpenter, 529 U.S. 446, 452
(2000) (quoting Carrier, 477 U.S. at 489). In addition to cause, Petitioner must also show “‘actual
prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152,
168 (1982).
If Petitioner cannot establish “cause and prejudice,” he can overcome the procedural default
of his Ground 4 claim only by showing that a “fundamental miscarriage of justice” would result if
the Court fails to address that claim on the merits. Coleman, 501 U.S. at 750. To make this
showing, Petitioner must present a credible claim of “actual innocence.” Schlup v. Delo, 513 U.S.
298, 324 (1995). “Simply maintaining one’s innocence, or even casting some doubt on witness
credibility, does not necessarily satisfy this standard.” Frost v. Pryor, 749 F.3d 1212, 1232 (10th
Cir. 2014). Instead, to present a credible actual-innocence claim Petitioner must “support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented

5

In his response to the motion to dismiss, Petitioner suggests he was not required to exhaust
any state court remedies because “for 30 years state courts refused any ‘availability’ to
exhaust.” Doc. 12. The state court decisions in this case directly contradict Petitioner’s
assertion. To date, Petitioner has exhausted 17 claims in state court, and the state courts have
thoroughly considered those claims even when some appeared to be procedurally barred.
See Docs. 11-2, 11-3, 11-4. Petitioner is advised that the Court will not consider baseless
allegations in determining whether Petitioner can make the necessary showings to overcome
the procedural default of his Ground 4 claim.
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at trial.” Schulp, 513 U.S. at 324. Petitioner must “show that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence.” Id. at 327.
Should Petitioner file a brief addressing the procedural default of his Ground 4 claim,
Respondent may file a response within thirty (30) days of the filing of Petitioner’s brief.
Within thirty (30) days of the entry of this Order, Respondent shall file a response to the
habeas petition addressing the exhausted claims raised in Grounds 1, 2 and 3 of the petition.
Petitioner may file a reply within thirty (30) days of the filing of Respondent’s response.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Respondent’s “motion to dismiss pursuant to Younger v. Harris, 401 U.S. 37 (1971), and for
failure to exhaust necessary state court remedies” (Doc. 10) is denied.

2.

Within thirty (30) days of the entry of this Order, or by October 22, 2018, Petitioner may
file a brief demonstrating either “cause and prejudice” or a “fundamental miscarriage of
justice” to excuse his procedural default of his Ground 4 claim.

3.

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

4.

Within thirty (30) days of the entry of this Order, or by October 22, 2018, Respondent shall
file a response to the habeas petition addressing the claims raised in Grounds 1, 2 and 3 of
the habeas petition.

5.

Petitioner may file a reply brief within thirty (30) days after the filing of Respondent’s
response to the petition.
ORDERED this 21st day of September, 2018.

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