Akre v. Lightle et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION for 18 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 7/11/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DANIEL ROBERT AKRE,
Petitioner,
v.
JOE M. ALLBAUGH,
Respondent.

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Case No. CIV-16-665-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Bernard Jones, Doc. 18, and Petitioner’s Objection, Doc. 19. The Magistrate Judge
recommended that this Court dismiss Petitioner’s habeas petition under 28 U.S.C. § 2254
on jurisdictional grounds and as untimely and that this Court deny Petitioner injunctive
relief, Doc. 12.
Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has reviewed de novo those portions
of the Report and Recommendation to which Petitioner has objected. The Court concurs
with the Magistrate Judge that Petitioner’s habeas petition is jurisdictionally defective and
untimely and that injunctive relief is inappropriate. The Court will adopt the Report and
Recommendation as it pertains to denying habeas relief. It will also adopt the Report and
Recommendation that injunctive relief be denied, though on slightly different grounds.
The State of Oklahoma charged Petitioner Daniel Akre with four counts of lewd
molestation and one count of indecent proposal stemming from alleged conduct with a
minor victim between 2003 and 2006. On February 1, 2008, Mr. Akre entered an Alford
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Plea on all five charges. The court sentenced him to twenty years in prison on each count,
to be served concurrently, with all but the first ten years suspended.
More than six years later, on June 6, 2014, Mr. Akre applied to the state trial court
for post-conviction relief. His application was denied on February 24, 2016. Petitioner then
filed a Petition in Error on March 24, 2016, challenging the trial court’s denial. The
Oklahoma Court of Criminal Appeals affirmed the trial court’s denial on May 13, 2016.
Petitioner was released from incarceration on July 19, 2016, and is now serving a
suspended sentence.
I. Motion for Habeas Relief
Mr. Akre seeks habeas relief on nine grounds. Of those nine, the Magistrate Judge
found that the first, along with the third through ninth, were untimely. These arguments
essentially concerned some combination of the trial court’s denial of a competency hearing,
ineffective assistance of counsel, the denial of Miranda rights and/or his (allegedly
coerced) waiver of them, prosecutorial misconduct, and the trial court’s evidentiary rulings.
All of these arguments were untimely, according to the Magistrate Judge, under the
Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations on state
prisoners seeking habeas relief under 28 U.S.C. § 2254. Per § 2244(d)(1)(A), this
limitations period generally begins to run from the date on which the conviction became
final by the conclusion of direct review. As the Magistrate Judge found, Mr. Akre’s
conviction became final on April 7, 2008, meaning he had until April 8, 2009, to file his
Petition. Mr. Akre first challenged his conviction by filing an Application for PostConviction Relief with the trial court on June 6, 2014. The trial court denied his application
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on February 24, 2016. He then filed a Petition in Error on March 24, 2016, challenging the
trial court’s denial. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the trial
court’s decision on May 13, 2016.
Mr. Akre filed this Petition for habeas relief on June 8, 2016, more than seven years
after his conviction had become final. Mr. Akre does not address this procedural time bar
in his Objection to the Report and Recommendation. Consequently, Court will adopt the
portion of the Report and Recommendation finding that Mr. Akre’s arguments in his first
and third through ninth grounds are untimely and are not saved by statutory or equitable
tolling, including his state-court applications for post-conviction relief.
Mr. Akre’s remaining ground for relief, his second, also fails—though not for
timeliness reasons. His argument concerns the Oklahoma Sex Offender Registration Act
(OSORA), which imposes requirements on him as a convicted sex offender. He believes
the State is unconstitutionally applying OSORA because he was allegedly not informed of
the Act’s supervisory conditions before he pled guilty and because OSORA has been
amended since his conviction, thereby imposing ex-post-facto requirements upon him.
The Magistrate Judge denied his OSORA-argument, finding that Mr. Akre could
not advance it via petition under § 2254. The impediment was jurisdictional; the writ of
habeas corpus is “used to collaterally attack the validity of a conviction and sentence.”
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (emphasis added).
“The collateral consequence of a conviction, those consequences with negligible effects on
a petitioner’s physical liberty of movement, are insufficient to satisfy the custody
requirement.” Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir. 2014).
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OSORA’s requirements, the Magistrate Judge found, are merely collateral consequences
of Mr. Akre’s conviction and sentence—meaning they are not subject to habeas attack.
That conclusion was correct. And to be fair, Mr. Akre’s displeasure with OSORA’s
requirements and their accompanying social unease are more likely than not sincere. But
in dismissing his argument on jurisdictional grounds, the Magistrate Judge correctly
applied Tenth Circuit precedent, Dickey v. Allbaugh, 664 F. App'x 690, 693 (10th Cir.
2016), cert. denied, No. 16-1006, 2017 WL 661756 (June 26, 2017). There, the court held
that OSORA’s requirements do not “impose a severe restraint on [a defendant’s] freedom
sufficient to satisfy the ‘in custody’ requirement of § 2254.” Id. And that decision was
consonant with those of other federal courts of appeal evaluating states’ sex-offenderregulatory schemes. See, e.g., Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir. 2012);
Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008); Leslie v. Randle, 296 F.3d 518 (6th Cir.
2002); Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d
1180 (9th Cir. 1998).
Section 2254 is thus not a proper vehicle to challenge OSORA’s requirements, and
Mr. Akre’s objections to the contrary are overruled.
II. Motion for Injunctive Relief
Petitioner has also moved for injunctive relief, asking that this Court enjoin the
Oklahoma Department of Corrections from enforcing some of OSORA’s requirements.
Mr. Akre’s qualms lie with the policy’s requirement that he regularly meet with his
probation officer to answer questions and take polygraph examinations, which he believes
violates his Fifth Amendment privilege against self-incrimination.
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The Magistrate Judge denied injunctive relief on the grounds that Mr. Akre’s habeas
motion and his Motion for Injunctive Relief seek different remedies: a party seeking a
preliminary injunction must ask for intermediate relief of the same character as that which
may be granted at the conclusion of the underlying case. See De Beers Consol. v. Mines v.
United States, 325 U.S. 212, 220 (1945); also see Palma-Salazar v. Davis, 677 F.3d 1031,
1035 (10th Cir. 2012). As the State argued and the Magistrate Judge concluded, Mr. Akre
seeks a release from “custody” in his underlying § 2254 action, while his Motion for
Injunctive Relief asks the Court to excuse him from complying with OSORA’s reporting
requirements; because his Motion for Injunctive Relief does not seek a release from
“custody” per se, Mr. Akre cannot bring it in a § 2254 action.
The problem with denying injunctive relief on those grounds is it is not exactly clear
what Mr. Akre would have this court enjoin—OSORA’s supervisory conditions or those
of his suspended sentence. His Motion for Injunctive Relief does not delineate between the
two. And to be sure, that distinction matters. If he is challenging his suspended sentence
and parole, then he is necessarily challenging the conditions of his “confinement”, i.e.
custody—meaning his Motion does in fact seek the same relief as his habeas Petition. But
if he is arguing that OSORA’s supervisory regulations themselves (and not the conditions
of his suspended sentence) are violating his Fifth Amendment right against selfincrimination, then he would not seem to be challenging his sentence or conviction since,
as the State argues, OSORA’s regulations are only collateral consequences of his sentence
of conviction. The State’s positions, then, seem conflicted. When addressing Mr. Akre’s
habeas Petition, the State argues that Mr. Akre cannot challenge OSORA via § 2254
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because OSORA is not part of his sentence. Now, in opposing his Motion for Injunctive
Relief, the State argues his sought-after relief is inappropriate because he essentially wants
a lifting of his suspended sentence which may or may not impose OSORA’s
requirements—a remedy he can only seek through § 2254.
In any event, the Court need not resolve this dichotomy. Even assuming that Mr.
Akre can request injunctive relief in this § 2254 action, injunctive relief is not warranted
here.
Preliminary injunctive relief is an “extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, and that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Id. at 20. Though Mr. Akre addresses none
of these elements, it is his failure to show that he will prevail on the merits and that his
feared injury is imminent and concrete, rather than speculative, that militates against
injunctive relief.
“The privilege against self-incrimination protects the person claiming it from being
compelled to give answers that would in themselves support a conviction or that would
furnish a link in the chain of evidence needed to prosecute the claimant for a crime. United
States v. Jones, 703 F.2d 473, 475 (10th Cir. 1983) (quotes omitted). “The claim of
privilege cannot be sustained if the fear of self-incrimination rests on remote and

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speculative possibilities; the privilege protects only against real dangers.” Id. (emphasis
added).
Here, Mr. Akre’s fears are speculative. He argues answering his probation officer’s
questions “may incriminate him [and] provide a lead, or link in the chain of evidence in
any future criminal proceedings” or in this case.1 Doc. 12, at 1–2 (emphasis added). He
notes that “[e]ven if [his] answers could not directly incriminate him, he may be in danger
of a possible link in the chain of evidence [in] any future criminal proceedings . . . [or] in
the instant case.” Id. at 3.
Mr. Akre is not the first prisoner to raise these fears, and this Court surely will not
be the last to dismiss them as speculative. “[P]laintiff’s conclusory statement that his
answers and responses to polygraph tests may be used to negate his claims of innocence is
not only speculative but also raises doubts about his innocence claim.” Anderson v. Holder,
69 F.Supp.2d 57, 62 (D.D.C. 2010); see also Farmer v. Dir. of AZ. Adult Prob. Dep’t, No.
CV 09-2543-PHX-RCB (MEA), 2010 WL 148221, * 3 (D. Az. Jan. 8, 2010) (holding that
plaintiff failed to state a Fifth Amendment claim based on his probation officer’s questions
since plaintiff failed to show he would face criminal liability, rather than revoked
probation, by answering the probation officer’s questions). “Persons asserting a Fifth
Amendment privilege are not exonerated from answering merely because they declare that
in so doing they would incriminate themselves—their say-so does not of itself establish the

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As an aside, the Court seriously questions how Petitioner on one hand can argue that his habeas Petition
was statutorily tolled based on the doctrine’s actual-innocence exception, and on the other hand, can argue
that his answering questions will invite criminal liability in this case.

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hazards of incrimination.” Huschak v. Gray, 642 F. Supp. 2d 1268, 1282 (D. Kan. 2009)
(denying sex offender’s claim that his answering his probation officer’s questions would
violate his privilege against self-incrimination). Mr. Akre has thus failed to show that he is
entitled to injunctive relief, and his Motion is therefore denied.
Finally, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the
United States District Courts, the undersigned denies Petitioner a Certificate of
Appealability. Where a habeas petition is denied on procedural grounds, Petitioner is
entitled to a COA only if he demonstrates that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
When a habeas petition is denied on the merits, Petitioner is entitled to a COA only if he
demonstrates “that jurists of reason could disagree with the district court’s resolution of
his/her constitutional claims or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327,
123 S.Ct. 1029, 154 L.Ed.2d 931, 944 (2003) (citing Slack v. McDaniel, supra). Petitioner
has not made either showing and is therefore not entitled to a COA.
In sum, the Magistrate’s Report and Recommendation, Doc. 18, is ADOPTED IN
PART. Mr. Akre’s Petition for Habeas Relief, Doc. 1, is DENIED, and the Government’s
Motion to Dismiss that Petition, Doc. 13, is GRANTED. The Court also DENIES Mr.
Akre’s Motion for Injunctive Relief, Doc. 12.

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IT IS SO ORDERED this 11th day of July, 2017.

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