Howard v. State of Oklahoma

Filing 12

ORDER denying 5 Motion for Leave to Proceed in forma pauperis; adopting Report and Recommendations re 10 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 11/29/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JEREMY ROBERT HOWARD,
Petitioner,
v.
STATE OF OKLAHOMA, et al.,
Respondents.

)
)
)
)
)
)
)
)
)

Case No. CIV-17-893-D

ORDER
Petitioner, appearing pro se, attempted to initiate this action on August 21, 2017, by
filing a document titled, “Notice to the Court that Petitioner Filed Post-Conviction Relief
Application; Motion to Hold Habeas Corpus § 2254 Petition Briefing Time in Abeyance
While the Lower District Court Rules on Said Referenced Application” [Doc. No. 1].
Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate
Judge Bernard M. Jones for initial proceedings.
In his initial pleading, Petitioner asked the Court to hold his yet-to-be-filed habeas
petition in abeyance while he exhausted his state court remedies [Doc. No. 1]. At the time
of filing, Petitioner had not paid the required $5.00 filing fee nor submitted an application
for leave to proceed in forma pauperis (“IFP”); he also had failed to file a habeas petition.
In an August 28, 2017 Order to Cure Deficiency, Judge Jones directed Petitioner to cure
these deficiencies [Doc. No. 4]. Petitioner filed a defective motion to proceed IFP on
September 6, 2017 [Doc. No. 5]. The motion did not include a certified copy of the trust

fund account statement signed by an authorized officer of the penal institution where
Petitioner was incarcerated.
In a September 18, 2017 Second Order to Cure Deficiencies, Judge Jones granted
Petitioner additional time to cure the deficiencies and directed the court clerk to mail
Petitioner the necessary forms to comply with the Order [Doc. No. 7]. Petitioner was
cautioned that his failure to cure the deficiencies could result in dismissal of the action
[Doc. No. 7].
On September 21, 2017, Petitioner filed a Petition for Writ of Habeas Corpus [Doc.
No. 8]. In a September 25, 2017 Order, Judge Jones granted Petitioner until October 16,
2017, to cure the deficiencies in his Motion for Leave to Proceed IFP [Doc. No. 9].
On November 1, 2017, Judge Jones filed a Report and Recommendation
(“Report”) [Doc. No. 10], recommending that Petitioner’s action be dismissed without
prejudice to refiling. Specifically, Judge Jones noted that Petitioner had “twice been
warned” that his failure to pay the filing fee or submit an application to proceed IFP with
the appropriate supporting documentation could result in dismissal of the action [Doc. No.
10 at 2].
In his Report, Judge Jones advised Petitioner of his right to object and directed that
any objection be filed on or before November 21, 2017. [Doc. No. 10 at 3]. Judge Jones
further advised Petitioner that any failure to object would result in a waiver of the right to
appellate review. Id.
Within the time limits imposed, Petitioner filed his Objection to Magistrate Judge’s
Report and Recommendation [Doc. No. 11] on November 16, 2017. Petitioner, however,
2

did not address in his objections his failure to cure the deficiencies in his Motion for Leave
to Proceed IFP.

Section 636(b)(1) requires the Court only to “make a de novo

determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also FED. R.
CIV. P. 72(b)(3).
I.

Motion for Leave to Proceed IFP
Petitioner was warned at least twice by Judge Jones of the specific deficiencies in

his Motion for Leave to Proceed IFP and granted additional time to cure those deficiencies.
[Doc. Nos. 4, 7, 9]. To date, however, he has not paid the requisite filing fee or submitted
a certified copy of the trust fund account statement signed by an authorized officer.1 See
28 U.S.C. § 1915(a)(2). Moreover, Judge Jones cautioned Petitioner that his failure to cure
the deficiencies could result in the dismissal of this action without prejudice to refiling.
Section 1915(a)(2) and the Local Court Rules are clear about these requirements. See
LCvR3.3.
Proceeding IFP in a civil case “is a privilege, not a right – fundamental or
otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). “It is incumbent on

1

Petitioner asserts in his attached affidavit [Doc. No. 5-1] to his defective Motion for Leave
to Proceed IFP [Doc. No. 5] that “law library supervisor, Willa Burney” refused to process
his application. As a result, Judge Jones granted Petitioner an additional 21 days to submit
a completed application. [Doc. No. 9]. Petitioner was directed in the September 25, 2017
Order [Doc. No. 9] to show the Order “to the appropriate prison official in order to secure
the necessary Statement and signature.” Two months have passed since that date, and
Petitioner has not provided the Court with any additional explanation as to why he has not
secured the trust fund account statement signed by an authorized officer. Moreover, his
objections to Judge Jones’ Report do not address this issue. [Doc. No. 11].
3

litigants, even those proceeding pro se, to follow the federal rules of procedure.”
Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir. 1980). Moreover, the Court must
manage its caseload and enforce the Local Court Rules and its own orders. See Id.
The Court agrees with Judge Jones that Petitioner’s failure to correct the
deficiencies warrants dismissal of this case without prejudice. Pursuant to FED. R. CIV. P.
41(b), the Court may dismiss an action where the petitioner fails to comply with court rules
or a court order. See also AdvantEdge Bus. Group v. Thomas E. Mestmaker & Associates,
Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (dismissal without prejudice warranted as
sanction for failure to comply with local or federal procedural rules); Green v. Dorrell, 969
F.2d 915, 917 (10th Cir. 1992); United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d
853, 855 (10th Cir. 2005) (dismissal appropriate where party disregards court orders and
fails to proceed as required by court rules).
II.

Motion for Stay and Abeyance
Petitioner objects to Judge Jones’ recommendation that Petitioner’s motion for stay

and abeyance be denied. [Doc. No. 11 at 2]. Petitioner asserts that his motion [Doc. No.
1] and attached form affidavit [Doc. No. 1-1] legally suffice to toll the time limitations
under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). [Doc. No.
11 at 2]. The Court disagrees.
Judge Jones addressed these issues in his first Order to Cure Deficiency [Doc. No.
4]. Finding that it was not possible to determine whether a stay and abeyance was
appropriate, Judge Jones ordered Petitioner to file a formal motion for stay and abeyance

4

identifying factors showing good cause under Rhines. [Doc. No. 4 at 4]. Petitioner never
filed a formal motion.
In “limited circumstances,” the Court may stay the petition and hold it in abeyance
while a petitioner returns to state court to exhaust unexhausted claims. See Rhines v.
Weber, 544 U.S. 269, 277 (2005). However, this procedure is only available when the
petitioner has demonstrated “good cause” for the failure to exhaust, the unexhausted claims
are “potentially meritorious,” and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics. Id. at 278. Here, the Court finds Petitioner has
failed to show good cause or that his unexhausted claims are potentially meritorious.
In his Petition, Petitioner states that he has been denied access to the court and access
to the law library from institutional lockdown [Doc. No. 8 at 4, 6-13]. Petitioner, however,
does not show how the lockdown specifically affected his efforts to exhaust his state
claims. According to Petitioner, he was still able to file his post-conviction application in
Cleveland County District Court on August 14, 2017. [Doc. No. 8 at 4]. Although he notes
the application was incomplete because he was denied access to the law library because of
the institutional lockdown, he also notes that he filed a second extension of time [Doc. No.
8 at 13]. The Tenth Circuit has rejected similar claims that lack of library access,
difficulties in obtaining a record, or lack of counsel constitute good cause. See e.g., Abeyta
v. Estep, 198 Fed. Appx. 724, 727 (10th Cir. 2006) (unpublished)2 (“difficulty obtaining the
record … lack of library access, and lack of counsel – did not constitute a sufficient

2

 Unpublished

opinion cited pursuant to FED. R. APP. P. 32.1(a) and 10TH CIR. R. 32.1. 
5

showing of justifiable excuse or excusable neglect, let alone good cause (factually or
legally) for the failure to exhaust”); Doyle v. Abbott, 330 Fed. Appx. 703, 708 (10th Cir.
2009) (unpublished)3 (citing Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
III.

Other Objections to Report
Petitioner objects broadly to the Report, stating that he objects “based upon an

inaccurate determination of the facts and incorrect conclusion of law.” [Doc. No. 11 at 12]. In light of these broad objections, the Court has reviewed all aspects of the Report de
novo. Petitioner also objects to the Report because, in his view, it mischaracterizes his
constitutional claims or only addresses some of Petitioner’s claims [Doc. No. 11 at 2].
Finally, Petitioner asserts that Judge Jones misstates the procedural history of the case in
state court [Doc. No. 11 at 2]. After de novo review, Petitioner’s broad objections are
rejected because the Court agrees with the Report’s analysis.
CONCLUSION
IT IS THEREFORE ORDERED that Judge Jones’ Report and Recommendation
[Doc. No. 10] is ADOPTED in its entirety. There is no need for a hearing, and Petitioner’s
request for same is DENIED. This action is DISMISSED without prejudice to the filing
of a new action. Petitioner’s defective Motion for Leave to Proceed IFP [Doc. No. 5] is
DENIED. Petitioner’s motion for stay and abeyance [Doc. No. 1] is DENIED as moot. A
judgment shall be issued forthwith.

3

 Unpublished

opinion cited pursuant to FED. R. APP. P. 32.1(a) and 10TH CIR. R. 32.1. 
6

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his 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 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“When the district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, 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, 529 U.S.
at 484. Upon consideration, the Court finds the requisite standard is not met in this case.
Therefore, a COA is DENIED.
IT IS SO ORDERED this 29th day of November 2017.

7