Belcher v. Braggs

Filing 16

OPINION AND ORDER by Judge Claire V Eagan - Respondent's motion to dismiss (Dkt. # 9) is denied. Petitioner's motion to stay (Dkt. # 15) is granted. Within thirty (30) days after the conclusion of petitioner's state p ost-conviction proceedings, petitioner shall notify the Court in writing that his state proceedings are complete, provide the Court with a copy of each relevant state court decision, and request that the stay be lifted. This habeas proceeding is abated until further Order from the Court. ; staying case; denying 9 Motion to Dismiss; granting 15 Motion to Stay (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (RGG, Chambers)

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

KIANTRÉ BELCHER,
Petitioner,
v.
JEROLD BRAGGS, Warden,
Respondent.

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Case No. 18-CV-0018-CVE-JFJ

OPINION AND ORDER
This is a habeas corpus action. Before the Court are two motions: (1) respondent’s motion
to dismiss the petition for failure to exhaust necessary state remedies (Dkt. # 9) and (2) petitioner’s
motion to stay the habeas proceedings pending exhaustion of state remedies (Dkt. # 15).1 For the
reasons discussed below, the Court shall deny respondent’s motion to dismiss the petition and grant
petitioner’s motion for a stay.
BACKGROUND
Petitioner challenges the constitutional validity of the judgment and sentence entered against
him in the District Court of Tulsa County, Case No. CF-2014-3840. Dkt. # 1 at 1. In that case, a
jury convicted him of four counts of robbery with a firearm, in violation of OKLA. STAT. tit. 21,
§ 801. Id.; see also Dkt. # 10-2, Belcher v. State, No. F-2015-867 (Okla. Crim. App. 2016)
(unpublished) (hereafter “OCCA Op.”). Consistent with the jury’s recommendation, the trial court

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Petitioner’s request for a stay was submitted as part of his response to respondent’s motion
to dismiss (Dkt. # 13). The Clerk of Court then docketed the request as a separate motion
(Dkt. # 15).

imposed four five-year prison sentences and ordered them to be served consecutively. Dkt. # 10-2,
OCCA Op., at 1.
Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals, raising one
issue: his convictions are based solely on the uncorroborated testimony of accomplices. Id. The
OCCA determined that the accomplice testimony presented at trial was sufficiently corroborated by
other evidence, as required by Oklahoma law, and the evidence as a whole was sufficient for “any
rational trier of fact [to] find [petitioner] guilty beyond a reasonable doubt.” Id. at 2-3. The OCCA
affirmed petitioner’s judgment and sentence by unpublished summary opinion filed October 3, 2016.
Id. at 3. Petitioner did not seek a writ of certiorari from the United States Supreme Court. Dkt. #
1 at 2.
Petitioner filed the instant federal habeas petition (Dkt. # 1) on December 28, 2017.2
Petitioner alleges he is entitled to habeas relief on five grounds:
Ground 1:

Ground 2:

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The petitioner’s 14th U.S.C.A. due process of law rights were
violated under Jackson v. Virginia due to insufficient evidence to
sustain the guilty verdict of the jury[.]
The petitioner’s 14th U.S.C.A. due process of law rights were under
Brady and Napue deprived, denied and violated by the prosecution
withholding, suppressing and concealing of its prosecution lenicency
[sic] deals with two of its star state witnesses. Prosecutorial
misconduct

The Clerk of Court received the petition on January 4, 2018. Dkt. # 1. However, petitioner
alleges he placed his petition in the prison mail system on December 28, 2017, petitioner
signed the petition on December 28, 2017, and the envelope that contained his petition is
identified as “legal mail” and postmarked December 29, 2017. Id. at 25, 27-28. With the
benefit of the prison mailbox rule, the petition is deemed filed on December 28, 2017. See
Houston v. Lack, 487 U.S. 266, 270-72 (1998) (holding that pro se prisoner’s pleading is
deemed filed when given to prison official for mailing, “regardless of when the court itself
receives the documents”); Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005) (describing
showings pro se prisoner must make to receive benefit of prison mailbox rule).
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Ground 3:

Perjured testimony- prosecutorial misconduct 14th Amend[ment];
Napue 14th Amend[ment] violation

Ground 4:

Ineffective assistance of trial counsel 6th Amend[ment]

Ground 5:

Ineffective assistance of appellate counsel 14th Amend[ment]

Dkt. # 1 (altered to omit full capitalization of issue statements).
On January 4, 2018,3 petitioner filed an application for post-conviction relief in state district
court raising the same five issues:
Proposition 1:

Proposition 2:

The petitioner’s 14th U.S.C.A. due process of law rights were
under Napue deprived, denied and violated by the
prosecutorial misconduct of soliciting, procuring and relying
on perjured testimony of its critical state witnesses the
codefendants Gix and Wesson to obtain the wrongful
conviction of the actually factually innocent defendant
Belcher prosecutorial misconduct.

Proposition 3:

The petitioner’s 14th U.S.C.A. due process of law rights were
violated under Jackson v. Virginia due to insufficient
evidence to sustain the guilty verdict of the jury[.]

Proposition 4:

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The petitioner’s 14th U.S.C.A. due process of law rights were
under Brady and Napue deprived, denied and violated by the
prosecution withholding, suppressing and concealing of its
prosecution lenicency [sic] deals with two of its star state
witnesses. Prosecutorial misconduct[.]

Ineffective assistance of trial counsel

Petitioner alleges he placed his state application for post-conviction relief in the prison’s
legal mail system on the same day as his federal habeas petition, December 28, 2017. Dkt.
# 13 at 1-2. But Oklahoma does not recognize a prison mailbox rule for filings by pro se
prisoners. Burger v. Scott, 317 F.3d 1133, 1140-41 (10th Cir. 2003). As a result,
petitioner’s state application for post-conviction relief was filed on the date the state district
court clerk stamped his application as received, January 4, 2018. See id. at 1140 (explaining
that state post-conviction filing is “properly filed” under Oklahoma law as of date “the
proper documents were either delivered to or received by the courts, rather than to or by
prison officials”).
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Proposition 5:

Ineffective assistance of appellate counsel

Dkt. # 10-4 (altered to omit full capitalization of issue statements).
On February 27, 2018, respondent filed a motion to dismiss the petition for failure to exhaust
state court remedies (Dkt. # 9), along with a supporting brief (Dkt. # 10). Petitioner filed a response
to the motion to dismiss (Dkt. # 13) and a motion to stay the habeas proceeding (Dkt. # 15) on April
27, 2018.4 Respondent filed a reply (Dkt. # 14), addressing petitioner’s response to the motion to
dismiss and opposing petitioner’s request for a stay.
ANALYSIS
Respondent moves to dismiss the habeas petition because it is a “mixed petition,” i.e., a
petition containing both exhausted and unexhausted claims. Dkt. ## 9, 10. Respondent concedes
petitioner exhausted the claim alleged in Ground 1, but argues he failed to exhaust the claims alleged
in Grounds 2 through 5. Dkt. # 10 at 2, 6. Respondent opposes petitioner’s request for a stay and
urges the Court to either dismiss the petition without prejudice or permit petitioner to file an
amended petition omitting the unexhausted claims. Dkt. # 10 at 6; Dkt. # 14 at 2-8.

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The Clerk of Court received petitioner’s response on May 3, 2018. Dkt. # 13 at 1. Petitioner
swears, under penalty of perjury, that he placed the response in the prison’s legal mail
system, with the appropriate amount of postage affixed, on April 27, 2018. Id. at 8. The
corresponding envelope, stamped “legal mail,” is postmarked April 30, 2018. Id. at 9.
Applying the prison mailbox rule, see Price,420 F.3d at 1166, the response is deemed filed
on April 27, 2018. As respondent points out in his reply, petitioner filed his response
beyond the deadline of April 20, 2018. Dkt. # 14 at 1-2; Dkt. # 12 (establishing deadline).
Respondent therefore “objects to Petitioner’s untimely request for a stay and abeyance.”
Dkt. # 14 at 1-2. The Court agrees petitioner’s response to the motion to dismiss is untimely.
But by establishing a response deadline, the Court did not impose a deadline for filing a
motion to stay. Moreover, because respondent fully addresses petitioner’s request for a stay
in his reply, see id. at 2-8, the Court sees no reason to deny the motion for a stay as
“belated,” id. at 1.
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Petitioner concedes that four of his five claims are unexhausted. Dkt. # 13 at 3. Relying on
Rhines v. Weber, 544 U.S. 269 (2005), Pace v. DiGuglielmo, 544 U.S. 408 (2005), and Doe v.
Jones, 762 F.3d 1174 (10th Cir. 2014), petitioner characterizes his petition as a “protective” habeas
petition and asks the Court to stay this habeas proceeding and hold the petition in abeyance pending
the conclusion of his state post-conviction proceedings. Id. at 1, 4-7.
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). 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). Several years before Congress
enacted the AEDPA, the United States Supreme Court determined in Rose v. Lundy, 455 U.S. 509
(1982), that principles of comity and federalism required “total exhaustion.” See Rhines, 544 U.S.
at 274 (discussing Lundy’s “total exhaustion” requirement). To enforce this total exhaustion
requirement, the Supreme Court directed district courts to dismiss mixed petitions so that petitioners
could return to state court and exhaust previously unexhausted claims before returning to federal
court. Rhines, 544 U.S. at 274.
However, in enacting the AEDPA, Congress imposed a one-year limitation period for the
filing of a federal habeas petition by a state prisoner. 28 U.S.C. § 2244(d)(1). In most cases, the
one-year period commences on the date the prisoner’s conviction becomes final, which occurs at the
conclusion of direct review or when the time for direct review has expired. Id. § 2244(d)(1)(A).
The AEDPA also includes a provision that tolls the one-year limitation period during the time a state

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prisoner’s application for collateral review is pending in state court. Id. § 2244(d)(2). However,
to benefit from statutory tolling, a state prisoner must file his or her application for state collateral
review in accordance with applicable state rules and within the AEDPA’s one-year limitation period.
Id.; Burger, 317 F.3d at 1138-41. In Rhines, the Supreme Court recognized,
“As a result of the interplay between AEDPA’s 1-year statute of limitations and
Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’
petitions run the risk of forever losing their opportunity of any federal review of their
unexhausted claims. If a petitioner filed a timely but mixed petition in federal
district court, and the district court dismisses it under Lundy after the limitations
period has expired, this will likely mean the termination of any federal review.”
544 U.S. at 275. The Supreme Court also noted that Lundy’s total exhaustion requirement was not
intended to “unreasonably impair the prisoner’s right to relief.” Rhines, 544 U.S. at 278. Thus, the
Rhines Court held, in limited circumstances it is appropriate for a district court to stay a federal
habeas proceeding and hold the federal habeas petition in abeyance to allow a petitioner presenting
a mixed petition to return to state court and exhaust his or her unexhausted claims. Id. at 275-79.
In short, district courts are no longer required to dismiss mixed petitions in order to enforce
the total exhaustion requirement. Rather, a court faced with a mixed petition may (1) dismiss the
entire petition without prejudice and permit the petitioner to return to state court to exhaust
unexhausted claims, (2) employ the stay and abeyance procedure and permit the petitioner to return
to state court to exhaust unexhausted claims, (3) allow the petitioner to amend the petition to dismiss
unexhausted claims and proceed only on exhausted claims, or (4) deny the entire petition on the
merits. Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016); see also Grant v. Royal, 886
F.3d 874, 892 (10th Cir. 2018) (noting that dismissal without prejudice for lack of exhaustion is not
appropriate if the state court would find the petitioner’s claims procedurally barred and concluding

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a district court may apply an anticipatory procedural bar to those claims and deem them procedurally
defaulted for purposes of federal habeas review).
The Court finds the circumstances of this case support granting a stay rather than either
dismissing the petition without prejudice or requiring petitioner to omit his unexhausted claims.
First, petitioner faces the very situation contemplated in Rhines: he filed a timely but mixed federal
habeas petition and his AEDPA deadline has now expired. Petitioner’s conviction became final on
January 1, 2017, 90 days after the OCCA affirmed his convictions on direct appeal. See Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (holding direct review concludes when 90-day period
for filing petition for writ of certiorari in the United States Supreme Court expires). His one-year
limitation period commenced the next day, January 2, 2017, and expired on January 2, 2018. See
United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003) (holding AEDPA limitation period is
calculated in accordance with FED. R. CIV. P. 6(a)). With the benefit of the prison mailbox rule,
petitioner filed his federal habeas petition on December 28, 2017, five days before his AEDPA
deadline expired. However, while he simultaneously mailed his federal habeas petition and his state
application for post-conviction relief, his state application was not filed until January 4, 2018, two
days after his AEDPA deadline expired. As a result, petitioner’s application for post-conviction
relief was filed too late for petitioner to benefit from § 2244(d)(2)’s statutory tolling provision.
Should the Court dismiss his habeas petition on exhaustion grounds, any subsequent federal habeas
petition would almost certainly be time barred. In other words, dismissal of his habeas petition
would “likely mean the termination of any federal review.” Rhines, 544 U.S. at 275.
Even in this situation, however, a district court does not have unfettered discretion to grant
a stay. Rhines, 544 U.S. at 277; Doe, 762 F.3d at 1181. Instead, a district court should grant a stay

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only if the court finds that “the petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. Here, contrary to Respondent’s
assertion, the Court finds no indication in the record that petitioner engaged in intentionally dilatory
litigation tactics. And, on the facts alleged in the habeas petition, petitioner’s unexhausted claims
appear to be potentially meritorious. Thus, the only remaining question is whether petitioner has
demonstrated good cause for his failure to exhaust his claims.
For two reasons, the Court finds petitioner has demonstrated good cause. First, petitioner
alleges he was “confused as to when the State court clerk was required to stamp file [his] postconviction pleading after having received those pleadings in the Court clerk’s office for filing.” Dkt.
# 13 at 5. In Pace, the Supreme Court discussed Rhines’ good cause requirement and reasoned that
“[a] petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily
constitute ‘good cause’ for him to file in federal court” before fully exhausting his state remedies.
Pace, 544 U.S. at 416. Here, in recognition that his AEDPA deadline might expire before he could
exhaust state remedies as to the claims he did not raise on direct appeal, petitioner simultaneously
mailed his state application for post-conviction relief and his federal habeas petition. Dkt. # 13 at
5. As petitioner contends, the Pace Court specifically suggested that a state prisoner concerned that
his one-year limitation period might expire before he could exhaust state remedies could “fil[e] a
‘protective’ petition in federal court and ask[] the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.” Pace, 544 U.S. at 416; see also Doe, 762 F.3d at
1179-81 (discussing the use of a “protective” federal habeas petition). In Doe, the Tenth Circuit
described a petitioner’s federal habeas petition as “the quintessential ‘protective petition’” when the

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petitioner “raised the exact same claims in both his state postconviction application and federal
habeas petition, which were filed simultaneously just before the AEDPA statute of limitations had
run.” 762 F.3d at 1181; see also Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006) (discussing
protective habeas petitions and suggesting “it would be wise for a petitioner to file in both state and
federal court simultaneously, particularly where there is some procedural uncertainty about the state
court post-conviction proceeding, and then ask the district court to stay the federal case until the
state case concludes to ensure that she does not miss the one-year deadline”). The Tenth Circuit
reasoned that by filing the “protective petition,” the petitioner in Doe sought “only the opportunity
to receive a stay and abeyance for the same reasons the Court in Rhines adopted the procedure in
the first place.” Doe, 762 F.3d at 1181. The Tenth Circuit further reasoned, “Where a petitioner
files a protective federal habeas petition during the pendency of state court proceedings because of
the short time period remaining on the federal statute of limitations and can meet the Rhines
three-part test, the total exhaustion rule’s protection against ‘needless piecemeal litigation’ and
‘proceedings whose only purpose is to vex, harass, or delay’ is not compromised.” Id. at 1180-81.
Here, like the petitioner in Doe, petitioner filed a quintessential protective habeas petition, raising
the same five claims as he did in his application for state post-conviction relief, based on his
confusion about when his state application would be deemed properly filed. Second, petitioner
alleges that he was held in the Tulsa County detention center for four months during his one-year
limitation period and, as a result, he did not have access to his legal materials. Dkt. # 13 at 4-5.
Thus, he had only eight months to prepare and file both his state application for post-conviction
relief and his federal habeas petition. This abbreviated limitation period resulted from circumstances

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beyond petitioner’s control. For these reasons, the Court finds petitioner has demonstrated good
cause for failing to exhaust his state remedies before filing his federal habeas petition.
CONCLUSION
Based on the foregoing analysis, the Court finds dismissal of petitioner’s federal habeas
petition, without prejudice, would likely result in the termination of any federal review. Thus, the
Court denies respondent’s motion to dismiss the petition for lack of exhaustion. The Court further
finds the circumstances of this case warrant granting petitioner’s motion for a stay and holding his
federal habeas petition in abeyance until the conclusion of his state post-conviction proceedings.
Within thirty (30) days after the conclusion of his state court proceedings, petitioner shall file written
notice with the Court, attaching a copy of each relevant state court decision, and requesting that the
stay be lifted. Upon receipt of that notice, the Court shall lift the abatement and establish deadlines
for a response and reply.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Respondent’s motion to dismiss (Dkt. # 9) is denied.

2.

Petitioner’s motion to stay (Dkt. # 15) is granted.

3.

Within thirty (30) days after the conclusion of petitioner’s state post-conviction proceedings,
petitioner shall notify the Court in writing that his state proceedings are complete, provide
the Court with a copy of each relevant state court decision, and request that the stay be lifted.

4.

This habeas proceeding is abated until further Order from the Court.
DATED this 10th day of September, 2018.

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