Patterson v. Vaughn et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 20 and 21 of Magistrate Judge Robert Bacharach and grants respondent's motion to dismiss 13 ...the court denies petitioner's motion for emergency action 3 as being moot...this action is dismissed without prejudice. Signed by Honorable Joe Heaton on 02/12/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HERMAN PATTERSON,
Petitioner,
vs.
MARTIN VAUGHN, Warden, et al.,
Respondents.

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NO. CIV-12-0738-HE

ORDER
Petitioner Herman Patterson, a state prisoner appearing pro se, filed this action
seeking a writ of habeas corpus.1 He claims the Oklahoma Department of Corrections is
incorrectly administering his sentences. Consistent with 28 U.S.C. §636(b)(1)(B), the matter
was referred to Magistrate Judge Robert Bacharach, who recommends that a motion to
dismiss filed by respondents be granted and the petition be dismissed without prejudice
because petitioner failed to exhaust his available state court remedy. The magistrate judge
also recommended that a motion for “emergency action” filed by petitioner be denied on
grounds of mootness.
Petitioner objected to the Report and Recommendation, stating that he “has given the
State’s highest court(s) more than one opportunity to review his claims.” Objection, p. 4.
Citing the application he filed for a nunc pro tunc order in state district court and the petition
for writ of mandamus he filed in the Oklahoma Court of Criminal Appeals, petitioner asserts

1

Although he filed his petition under 28 U.S.C. § 2254, the magistrate judge treated it as if
filed under § 2241, as petitioner was challenging the execution of his prison term rather than the
validity of his conviction or sentence.

that he “would like to bring to light the futility of the exhaustion of state remedies in the
lower court(s).” Objection, p. 16. However, as the magistrate judge explained, petitioner has
failed to exhaust the available state habeas remedy.2 Petitioner has not demonstrated
otherwise.
Accordingly, having conducted a de novo review, the court adopts Magistrate Judge
Bacharach’s Report and Recommendation and grants respondent’s motion to dismiss [Doc.
#13]. The court also denies petitioner’s motion for emergency action [Doc. #3] as being
moot.3 This action is dismissed without prejudice.
IT IS SO ORDERED.
Dated this 12th day of February, 2013.

2

Petitioner characterizes his action as one brought for habeas relief and, alternatively, one
brought under 42 U.S.C. § 1983. The court agrees with the magistrate judge that the action should
not be recharacterized as a § 1983 action
3

In his motion petitioner seeks the same relief as that requested in his habeas petition
–immediate release – and an order enjoining defendants from retaliating against him for filing this
action.
2