Draper v. State of Oklahoma et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION for 7 Report and Recommendation. Signed by Honorable Timothy D. DeGiusti on 6/12/19. (kmt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ERNEST DRAPER,

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Petitioner,
v.
STATE OF OKLAHOMA, et al.,
Respondents.

Case No. CIV-19-376-D

ORDER
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 7] issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Upon preliminary review of the Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2254, Judge Mitchell finds that the Petition should be summarily
dismissed without prejudice because Petitioner has failed to exhaust state court remedies
(as to Grounds One through Three) and otherwise fails to state a claim upon which relief
can be granted under § 2254 (Ground Four).
Within the time period to object, Petitioner has made a pro se filing, “Motion to
Appeal Report and Recommendation” [Doc. No. 8], which is construed as a timely
objection.

The Court must make a de novo determination of the portions of the Report to

which a specific objection is made, and may accept, reject, or modify the recommended
decision, in whole or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Petitioner objects to Judge Mitchell’s finding that the requirement to exhaust state
court remedies applies to his claim (as asserted in Grounds One and Two) that the State of

Oklahoma lacked jurisdiction to convict him.

Petitioner asserts that he “do[es] not need

to exhaust state remedies” because he is not attacking a finding of guilt but “simply the
right for the State of Oklahoma to hear this case.”

See Obj. at 1.

According to

Petitioner, “it’s not a state issue . . . [but] exclusively federal . . . [and] has to be heard in
federal courts.”

Id.

Review of all other issues addressed in the Report is waived.

See

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also United States v. 2121
E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
Upon de novo consideration of the issue raised by Petitioner’s Objection, the Court
rejects his position that a § 2254 petition raising a jurisdictional issue is exempt from the
exhaustion requirement. Petitioner is correct that “[t]he issue of whether the state court
properly exercised jurisdiction over [a criminal defendant] is an important federal
constitutional question.”

Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir.

2008) (“Absence of jurisdiction in the convicting court is indeed a basis for federal habeas
corpus relief cognizable under the due process clause.”).

However, Petitioner is simply

incorrect in his belief that he need not exhaust this type of claim. Id. at 924 & n.1 (finding
claim could properly be heard if state remedies were exhausted while case was pending).
The Court fully concurs in Judge Mitchell’s findings and her recommendation for summary
dismissal of the Petition without prejudice for failure to exhaust state remedies.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 7]
is ADOPTED in its entirety. The Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2254 is DISMISSED without prejudice to a future filing.
accordingly.
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Judgment shall be entered

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 if Petitioner

“has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2). “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 v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration, the Court finds the
requisite standard is not met in this case.

Therefore, a COA is DENIED.

IT IS SO ORDERED this 12th day of June, 2019.

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