Hill v. Oklahoma City City of

Filing 13

ORDER ADOPTING 9 REPORT AND RECOMMENDATION. Signed by Honorable Robin J. Cauthron on 8/24/11. (lg, )

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

KENNETH D. HILL,
Petitioner,
vs.
THE CITY OF OKLAHOMA CITY,
Respondent.

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No. CIV-11-806-C

ORDER

This action for habeas corpus relief brought by a prisoner, proceeding pro se, was
referred to United States Magistrate Judge Gary M. Purcell consistent with the provisions of
28 U.S.C. § 636(b)(1)(B). Judge Purcell entered a Report and Recommendation (“R&R”)
on August 5, 2011, to which Petitioner has timely objected. Petitioner has also filed an
addendum to his Objection to the Report and Recommendation and a Petition for Writ or
Mandamus. The Court therefore considers the matter de novo.
Petitioner is being held pending trial on multiple outstanding municipal traffic
violations. Petitioner argues that in contravention of his constitutional rights, the bail amount
set for his release is higher than permitted under Oklahoma law. Petitioner requests the
Court to intervene and direct his release from incarceration. In the R&R, Judge Purcell noted
that Petitioner had failed to exhaust his available state court remedies prior to seeking relief
from this Court and on that basis Judge Purcell recommended dismissal of the Petition.

Judge Purcell noted that Petitioner had the right to seek habeas relief from the Oklahoma
Court of Criminal Appeals, that he could file a motion seeking to reduce his bond in
municipal court, or that he could seek a writ of prohibition from the Oklahoma Court of
Appeals. Attached to Petitioner’s addendum is an order from the Oklahoma Court of
Criminal Appeals noting that it was denying Petitioner’s application for writ of mandamus.
Petitioner argues that order is proof that he has now exhausted his administrative remedies
and is entitled to proceed further in this Court.
For the reasons set forth by the Magistrate Judge in the R&R, the Court finds no merit
in Petitioner’s arguments. As Judge Purcell noted, there are multiple avenues to seek relief
from the state courts that Petitioner has yet to undertake. Despite Petitioner’s arguments to
the contrary, this is not a case where exhaustion should be excused and therefore the Court
finds Judge Purcell’s recommendation of dismissal to be appropriate.
Turning to Petitioner’s request for a writ of mandamus, Petitioner requests this Court
order the state courts to comply with the Rules of Criminal Procedure during his
misdemeanor prosecution. In support of his argument, Petitioner notes that the municipal
court failed to comply with Rules of Criminal Procedure by not having a hearing on his writ
of habeas corpus or issuing a written order on his pretrial motions which will allow him to
pursue an appeal. Again, Petitioner’s request is not well founded. As the Tenth Circuit has
noted, a federal court does not have authority to issue a writ of mandamus which would
direct a state court judge to perform his duties. See Knox v. Bland, 632 F.3d 1290, 1292
(10th Cir. 2011).
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For the reasons set forth herein, the Court adopts in full the Report and
Recommendation of Judge Purcell issued on August 5, 2011, and the petitoin for writ of
habeas corpus is hereby DENIED. Likewise, for the reasons set forth herein, the Court
denies Petitioner’s request for a writ of mandamus (Dkt. No. 12). A separate judgment will
issue.
IT IS SO ORDERED this 24th day of August, 2011.

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