Tucker v. Reeve

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION for 6 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 10/2/14. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID LEWIS TUCKER,
Petitioner,
v.
ROGER REEVE, Washita Co.
Sheriff,
Respondent.

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Case No. CIV-14-971-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Suzanne Mitchell entered September 15, 2014. Doc. No. 6. Petitioner has filed an
Objection to the Magistrate Judge’s conclusions in the Report and Recommendation.
Doc. No. 7. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and
Recommendation de novo in light of Petitioner’s objections.
Petitioner files under 28 U.S.C. § 2241 seeking review of his pretrial detention in
Washita County Jail, where he awaits trial for Second Degree Burglary. Doc. No. 1, at 12; http://www1.odcr.com/detail?court=075-&casekey=075-CF++1400110 (last accessed
October 1, 2014). He alleges excessive bond, illegal prosecution, illegal search, and
denial of a speedy trial. Doc. No. 1, at 6-7. Petitioner asks the Court to sanction District
Attorney Dennis Smith for malicious prosecution, and to order his immediate release and
his case dismissed. Id. at 8, 13.

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Younger Abstention
Judge Mitchell recommends that this Court abstain from exercising its jurisdiction
in this case under the Younger doctrine. Younger requires the Court to consider three
factors when deciding whether abstention is required:
(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.
Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006) (citation omitted). There is an
ongoing state criminal prosecution in this case, and there can be no dispute that the state
of Oklahoma has an interest in prosecuting criminal cases to their conclusion, without
interference from the federal court. Therefore, the only issue is whether the state court
offers an adequate forum to hear Petitioner’s claims.
The Court finds that Petitioner is able to adequately have his claims heard in
Oklahoma state court. First, regarding his allegation of excessive bond, Petitioner may
bring a petition for habeas corpus in state court seeking a reduction of bail. See, e.g.,
Application of Pulliam, 356 P.2d 755 (Okla. Crim. App. 1960) (reviewing a petitioner’s
request for reduction of bail in pending cases). Second, his claim of illegal prosecution
may also be raised in state court. Petitioner has a right to a preliminary hearing in which a
magistrate will determine if there is probable cause that he committed the crime. OKLA.
CONST. art. II, § 17 (“No person shall be prosecuted for a felony by information without
having had a preliminary examination before an examining magistrate, or having waived
such preliminary examination.”); OKLA. STAT. ANN. tit. 22, § 258 (West) (“A preliminary
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magistrate shall have the authority to limit the evidence presented at the preliminary
hearing to that which is relevant to the issues of … whether there is probable cause to
believe the defendant committed the crime.”). Third, Petitioner may file in state court a
motion to suppress evidence obtained as a result of an illegal search or seizure. See, e.g.,
Jacobs v. State, 128 P.3d 1085 (Okla. Crim. App. 2006) (reviewing a Fourth Amendment
claim originally asserted in the trial court via a motion to suppress illegally obtained
evidence). Finally, regarding his desire for a speedy trial, Petitioner may file a writ of
habeas corpus ad prosequendum in state court. See, e.g., Johnson v. District Court of
Muskogee Cnty., 413 P.2d 914, 914-15 (Okla. Crim. App. 1966) (directing petitioner to
file such a writ if he desires a speedy trial).
Exceptions
Although all three considerations of Younger abstention are met, there are
exceptions to this doctrine. Intervention into a state proceeding is appropriate “in cases of
proven harassment or prosecutions undertaken by state officials in bad faith without hope
of obtaining a valid conviction and perhaps in other extraordinary circumstances where
irreparable injury can be shown.” Perez v. Ledesma, 401 U.S. 82, 85 (1971). In assessing
whether a state action was commenced in bad faith or intended to harass, the Court
considers:
(1) whether it was frivolous or undertaken with no reasonably objective hope
of success; (2) whether it was motivated by the defendant’s suspect class or in
retaliation for the defendant’s exercise of constitutional rights; and (3) whether
it was conducted in such a way as to constitute harassment and an abuse of
prosecutorial discretion, typically through the unjustified and oppressive use
of multiple prosecutions.

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Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir.1995) (citations and footnotes omitted).
“[I]t is the plaintiff’s ‘heavy burden’ to overcome the bar of Younger abstention by
setting forth more than mere allegations of bad faith or harassment.” Phelps v. Hamilton,
122 F.3d 885, 889 (10th Cir. 1997) (citation omitted).
A. Frivolous Charge
The Court finds that Petitioner has not proven that the burglary prosecution was
“frivolous or undertaken with no reasonably objective hope of success.” Although
Petitioner alleges that “[t]here is no evidence to support their alleged burglary
allegation,” the only document he offers as support is the probable cause affidavit for
Petitioner’s arrest warrant. Doc. No. 1, at 6. The affidavit, however, contains allegations
that would reasonably support a burglary conviction. Therefore, Petitioner has failed to
demonstrate that his burglary charge was frivolous.
Petitioner also alleges that he was “charged fraudulently in Beckham Co. for drugs
found in police car, on someone else. Just because this person said they were mine.” Doc.
No. 1, at 13. Because Petitioner merely alleges that this charge was frivolous, the Court
need not consider whether the filing of an unrelated drug charge would justify
intervention into a subsequent prosecution for burglary. See Phelps, 59 F.3d at 1066
(“Under Younger, intervention cannot be predicated on mere allegations; rather, the
federal plaintiff must prove bad faith or harassment before intervention is warranted.”).

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B. Suspect Class/Retaliation
Furthermore, Petitioner has not alleged that Smith’s actions were “motivated by
the defendant’s suspect class or in retaliation for the defendant’s exercise of
constitutional rights.” Phelps, 59 F.3d at 1065. Defendant has not alleged that he belongs
to a suspect class, or that he has exercised his constitutional rights to his detriment.
Therefore, the Court must determine whether Petitioner’s allegations “constitute
harassment and an abuse of prosecutorial discretion.” Id.
C. Harassment
Petitioner alleges the following: (1) Smith was in some way responsible for him
missing a court date because he was incarcerated in Comanche County at the time, and
“[t]here is no reason for Smith not to know where [he] was,” Doc. No. 1, at 14; (2) Smith
asked for Petitioner’s bond in the burglary case to be raised from $30,000 to $100,000 in
order to “hamper [his] progress in other cases,” id.; (3) Smith has not charged anyone
with the theft of his car, even though “someone was pulled over and the car was
impounded the same day,” Doc. No. 1, at 15; and (4) Smith delayed charging him with
burglary for five months, id. Petitioner notes that the probable cause affidavit for the
burglary was sworn on June 9, 2014, yet it was not filed until July 18, 2014. Doc. No. 1,
at 10, 12. He believes that Smith waited until he was released from Beckham Co. Jail to
charge him with burglary. Doc. No. 1, at 16. The Court finds these claims insufficient to
satisfy the Petitioner’s “heavy burden” of proving that the prosecution has been
conducted in a harassing manner. Phelps, 122 F.3d at 889.

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D. Irreparable Injury
Finally, Petitioner has failed to demonstrate irreparable injury if the Court does not
intervene. The “irreparable injury” contemplated by Younger “must be one that cannot be
eliminated by [Petitioner’s] defense against a single criminal prosecution.” Younger v.
Harris, 401 U.S. 37, 46 (1971). Petitioner argues that he will suffer an irreparable injury
due to a violation of his privacy rights and his attorney questioning him before saying
that he had a conflict of interest because he represented the co-defendant. Doc. No. 7. But
Petitioner’s “pending state court action may resolve any violation which may have
occurred to his protected rights.” See Weitzel v. Div. of Occupational & Prof’l Licensing,
240 F.3d 871, 877 (10th Cir. 2001). Accordingly, he suffers no irreparable injury under
Younger.
Because all three requirements of Younger abstention are present, and Petitioner
has failed to demonstrate that he falls within an exception, the Court declines to exercise
jurisdiction over this case.
In accordance with the foregoing, the Report and Recommendation of the
Magistrate Judge is ADOPTED, as supplemented herein, and the Petition [Doc. No. 1] is
DISMISSED.
IT IS SO ORDERED this 2nd day of October, 2014.

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