Gawlas v. Monday et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Honorable David L. Russell on 8/23/13. (ns)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CRAIG GAWLAS,
Petitioner,
vs.
WILLIAM MONDAY,
Respondent.

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Case No. CIV-13-253-R

ORDER
Before the Court is a habeas corpus petition challenging a prison disciplinary
conviction brought by Petitioner Craig Gawlas under 28 U.S.C. § 2241. This matter was
referred to United States Magistrate Judge Suzanne Mitchell. Judge Mitchell entered a
Report and Recommendation on June 4, 2013, to which Petitioner has timely objected.
Upon de novo review of the record, the Court agrees with the Report and
Recommendation and rules that Petitioner’s case should be DISMISSED WITH
PREJUDICE.
As stated in the Report and Recommendation, Petitioner was required to exhaust
any available state remedies before proceeding to federal court. Petitioner acknowledges
that he failed to do so, but argues that utilizing the available state remedy under Okla.
Stat. tit. 57, § 564.1 would have been futile. In support of this, Petitioner points to the
limitations on state court review under Okla. Stat. tit. 57, § 564.1(D). Further, Petitioner
asserts that it would have been implausible that upon direction from a state court, the

“ODOC would overturn the finding of guilt . . . because doing so would render it
vulnerable to a § 1983 action.”
It is true that the requirement that Petitioner exhaust his state remedies may be
excused if there is “an absence of available State corrective process” or where
“circumstances exist that render such process ineffective to protect the rights of the
applicant.” Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007) (citations omitted).
Here, however, State corrective process exists, and the circumstances do not render the
State process ineffective to protect Petitioner’s rights. Petitioner claims that he did not
seek the judicial review provided by Oklahoma statute because it would not have been
able to remedy his situation—namely, because his finding of guilt allegedly rested on
insufficient evidence and he could not find any state court cases holding for the prisoner.
But as the Tenth Circuit stated in Magar, insufficient evidence supporting a finding of
guilt of possession of contraband “could be remedied [in state court] by an order
commanding ODOC to afford [Petitioner] with additional process.” Id. at 819. Further,
Petitioner’s inability to find a state court case holding for the prisoner under Okla. Stat.
tit. 57, §564.1 does not establish that exhausting his state law remedies would have been
futile. Finally, Petitioner’s argument concerning the implausibility of ODOC overturning
his finding of guilt on subsequent review for fear of an action under § 1983 is groundless.
The Court may excuse Petitioner’s procedural default in failing to exhaust his state
remedies if Petitioner can show either cause for the default and actual prejudice from the
violation of federal law, or that a fundamental miscarriage of justice would result from
the failure to consider his claims. Id. at 819 (quoting Bland v. Sirmons, 459 F.3d 999,
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1012 (10th Cir. 2006)). Petitioner makes no argument for there being cause for his
procedural default. Petitioner’s only argument concerning a fundamental miscarriage of
justice involves total reliance on Hayes v. McBride, a case out of the Northern District of
Indiana. Hayes is easily distinguished from the present situation because the petitioner in
Hayes was not facing a procedural bar to federal court review. See 965 F.Supp. 1186,
1187 (N.D. Ind. 1997). Here, the Petitioner is facing such a bar.
Moreover, the Court notes that the “some evidence” standard announced by the
Supreme Court in Superintendent, Mass. Corr. Inst., Walpole v. Hill was met in this case.
See 472 U.S. 445, 455 (1985) (explaining that the standard is met “if there was some
evidence from which the conclusion of the administrative tribunal could be deduced”).
Accordingly, no fundamental miscarriage of justice will result from the Court’s failure to
consider the Petitioner’s claims. See Magar, 490 F.3d at 820 (explaining that the
fundamental miscarriage of justice exception “is a markedly narrow one, implicated only
in ‘extraordinary case[s] . . . .’” (quoting Phillips v. Ferguson, 182 F.3d 769, 774 (10th
Cir. 1999))).
As Petitioner failed to exhaust his state court remedies, this acts as a bar to federal
habeas review. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). The Report and
Recommendation is ADOPTED in its entirety. [Doc. No. 10]. Respondent’s Motion to
Dismiss is GRANTED [Doc. No. 8]. Because Petitioner has filed his objections to the
Report and Recommendation, his latest Motion for Extension of Time in which to file the
objections is DENIED AS MOOT. [Doc. No. 17]. Petitioner’s habeas petition is
DISMISSED WITH PREJUDICE.
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IT IS SO ORDERED this 23rd day of August, 2013.

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