Mills v. Bryant et al

Filing 13

ORDER re 8 Report and Recommendation. Case re-referred to Judge Mitchell. Signed by Honorable Timothy D. DeGiusti on 04/29/2016. (jb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KERRY EUGENE MILLS,
Petitioner,
vs.
JASON BRYANT, Warden,
Oklahoma Department of
Corrections,
Respondent.

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Case No. CIV-15-619-D

ORDER
Petitioner Kerry Eugene Mills, a state prisoner appearing pro se, filed this
action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was
referred to United States Magistrate Judge Suzanne Mitchell for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C). After examining the petition and taking
judicial notice of various public records, Judge Mitchell recommended that the Court
abstain from hearing Petitioner’s claims and dismiss the petition pursuant to Younger
v. Harris, 401 U.S. 37 (1971), because Petitioner had two applications for postconviction relief that were pending in state court. Report and Recommendation at 3
[Doc. No. 8]. Petitioner timely filed his objection.
In Younger, the Supreme Court held that federal courts should not intervene in
state criminal proceedings before institution of a federal suit where the state

proceedings are (1) ongoing, (2) offer an adequate forum for the defendant’s federal
claims, and (3) implicate important state interests. Id. at 43-44; Brown ex rel. Brown
v. Day, 555 F.3d 882, 887 (10th Cir. 2009). Nevertheless, “th[e] [C]ourt must keep in
mind that abstention ‘is the exception, not the rule,’ and hence should be ‘rarely ...
invoked, because the federal courts have a virtually unflagging obligation ... to
exercise the jurisdiction given them.’” Id. (quoting Ankenbrandt v. Richards, 504 U.S.
689, 705 (1992)). Still, “Younger abstention is ‘non-discretionary ... absent
extraordinary circumstances,’ if the three conditions are indeed satisfied.” Id. (quoting
Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)).
As noted, the initial Younger prong requires the Court to determine whether
there is an ongoing state proceeding. Based on the Court’s own review of the state
court proceedings, it now appears that both applications were denied by the state
district court on December 14, 2015, and its decision was affirmed by the Oklahoma
Court of Criminal Appeals on March 29, 2016. Mandate was issued the same day.
Since subsequent developments reveal that there no longer appears to be an ongoing
criminal proceeding for Younger abstention purposes, the Court holds this case is not
the type that warrants abstention.
Accordingly, this matter is re-referred to the magistrate judge for further
proceedings consistent with the initial case referral order [Doc. No. 5].
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IT IS SO ORDERED this 29th day of April, 2016.

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