JOHN E. DOWDELL, District Judge.
Petitioner, a state inmate appearing pro se, commenced this action on November 30, 2017, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1). Before the Court is Respondent's motion to dismiss the petition for failure to exhaust state remedies (Doc. 6). Petitioner filed a response, urging this Court to deny the motion (Doc. 10). For the reasons discussed below, the Court grants Respondent's motion to dismiss and dismisses the habeas petition without prejudice.
Petitioner challenges the validity of the judgment and sentence entered against him in the District Court of Tulsa County, Case No. CF-2010-1691. Doc. 1 at 2. In that case, the state district court convicted Petitioner, upon his guilty pleas, of two counts of lewd molestation, in violation of OKLA. STAT. tit. 21, § 1123, and one count of possessing, procuring, manufacturing, or distributing child pornography, in violation of OKLA. STAT. tit. 21, § 1021.2. Doc. 7-1. On June 2, 2011, the state district court imposed a twelve-year prison sentence for each lewd molestation conviction and a two-year prison sentence for the child pornography conviction, with all sentences to be served consecutively. Id. Petitioner did not move to withdraw his guilty pleas within 10 days of sentencing nor did he pursue a certiorari appeal with the Oklahoma Court of Criminal Appeals (OCCA). See OKLA. STAT. tit. 22, § 1051; Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018).
On September 11, 2017, Petitioner filed a state petition for writ of habeas corpus in the District Court of Alfalfa County, seeking immediate release from custody. Doc. 7-2.
On November 1, 2017, Petitioner filed an application for a writ of habeas corpus in the Oklahoma Court of Criminal Appeals.
Id.
Petitioner filed the instant federal petition for writ of habeas corpus on November 30, 2017. Doc. 1. He seeks federal habeas relief on one ground:
Id. at 3. As he did in state court, Petitioner alleges he is a member of the Cherokee Nation and he committed his crimes within the boundaries of the Muscogee (Creek) reservation. Id. at 4. Thus, he argues, federal courts had exclusive jurisdiction over his prosecution under the Major Crimes Act, 18 U.S.C. § 1153. Id. at 1; see Murphy, 875 F.3d 896 (10th Cir. 2017) (concluding Congress had not disestablished the 1866 boundaries of the Creek Reservation and therefore [the petitioner] should have been charged and tried in federal court under the Major Crimes Act), cert. granted 138 S.Ct. 2026 (2018).
In response to the petition, Respondent filed a motion to dismiss the petition for failure to exhaust state court remedies (Doc. 6) and a brief in support (Doc. 7). Petitioner filed a response (Doc. 10), urging this Court to deny the motion.
Respondent contends Petitioner has not properly exhausted his federal habeas claim because he sought state habeas relief in his district of confinement and in the OCCA rather than seeking state post-conviction relief "in the district court where he pled guilty and was sentenced." Doc. 7 at 2-6. Because Petitioner still has an available remedy in state courts, Respondent argues, this Court must dismiss the petition based on Petitioner's failure to exhaust the sole claim asserted therein. Id. at 5-6.
Petitioner contends he properly exhausted his claim by seeking state habeas relief because he challenges the trial court's jurisdiction. Doc. 10 at 2-3. He further contends the OCCA ruled on the merits of his claim when it stated that he "has not met his burden" to show that his confinement was unlawful and that he was entitled to immediate release. Id. Finally, he argues that because the OCCA ruled on the merits of his claim, he has no available state remedies left to exhaust. Id. at 3-4.
The Antiterrorism and Effective Death Penalty Act (AEDPA) generally "prohibits federal courts from granting habeas relief to state prisoners who have not exhausted available state remedies." Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017); see also 28 U.S.C. § 2254(b)(1). The AEDPA's exhaustion requirement "is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Significantly, a state prisoner "shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of [§ 2254], if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). In Boerckel, the Supreme Court explained that § 2254(c) does not require state prisoners to "invoke any possible avenue of state court review." Id. at 844 (emphasis in original). Nonetheless, the Supreme Court held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 845; see Castille v. Peoples, 489 U.S. 346, 351 (1989) (explaining state prisoner does not properly exhaust state court remedies by presenting constitutional claim for "first and only time in a procedural context in which its merits will not be considered"). "[T]he exhaustion doctrine, in other words, turns on an inquiry into what procedures are `available' under state law." Boerckel, 526 U.S. at 847.
Here, as Respondent points out, both the state district court and the OCCA advised Petitioner that filing a state habeas action was not the proper procedure for challenging the trial court's jurisdiction. Doc. 7 at 4-5. Both courts explained that Petitioner must instead seek post-conviction relief in the District Court of Tulsa County. Id. Thus, Respondent argues, Petitioner has an available state remedy that he must exhaust before he is entitled to seek habeas relief in federal court. Id.; see Doshier v. Oklahoma, 67 F. App'x 499, 500-01 (10th Cir. 2003) (unpublished)
In response, Petitioner argues that he fairly presented his claim to the OCCA and obtained a ruling on the merits as evidenced by the OCCA's statement that he did not meet his burden to show that his confinement was unlawful. Doc. 10 at 1. He further argues that Doshier's reasoning does not apply in this case because he is challenging the trial court's jurisdiction, an issue he asserts falls within the scope of the limited remedy available through a state habeas action. Doc. 10 at 2-3; see Smith v. Oklahoma, 546 P.2d 1351, 1354 (Okla. Crim. App. 1976) (stating that the OCCA "ha[s] consistently held that the scope of habeas corpus is limited to a determination of whether the trial court had jurisdiction of the person, subject matter, and authority under the law to pronounce the judgment and sentence imposed"). He also argues that, unlike the petitioner in Doshier, he has "not been invited by the OCCA to file an Appeal-Out-of-Time in the District Court." Id. at 3.
Smith does tend to support Petitioner's position that he properly exhausted his claim. The OCCA explained in Smith "that the scope of habeas corpus is limited," in part, "to a determination of whether the trial court had jurisdiction of the person, subject matter, and authority under the law to pronounce the judgment and sentence imposed." 546 P.2d at 1354. And Petitioner's sole claim challenges the trial court's jurisdiction. Doc. 1 at 3. However, as Respondent argues, under Oklahoma law, the OCCA generally will not entertain an application for a writ of habeas corpus unless "the statutory appeal procedures enacted by the [state legislature] have first been exhausted." Rule 10.6(C)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018). Rule 10.6(C)(1) specifically provides:
In Doshier, the United States Court of Appeals for the Tenth Circuit Court applied Castille to determine that invoking state habeas relief in Oklahoma does not constitute "fair presentation" of a claim "sufficient to satisfy the exhaustion requirement" when the petitioner has state post-conviction remedies "available to him." Doshier, 67 F. App'x at 500. This Court recognizes that Petitioner presents a jurisdictional claim, whereas the petitioner in Doshier presented only non-jurisdictional claims. See Doc. 1 at 3; Doshier, 67 F. App'x at 500. The Court nevertheless finds Doshier's rationale applicable and persuasive. As stated, the plain language of Rule 10.6(C)(1) expressly requires a criminal defendant to exhaust his or her claims through the statutory appeal process before the OCCA will entertain a state habeas action. And the language of Rule 10.6(C)(1) neither suggests nor supports that the defendant may bypass the statutory appeal process if he or she asserts only a jurisdictional claim. Moreover, as Respondent points out, two state courts have explicitly advised Petitioner that he must pursue his jurisdictional claim by filing an application for post-conviction relief in state court—specifically, in the District Court of Tulsa County. Under these circumstances, it is clear that Petitioner has an available state remedy. Thus, the Court agrees with Respondent that Petitioner's sole habeas claim is unexhausted and that the petition should be dismissed without prejudice. See Grant, 886 F.3d at 891-92 (stating general rule that "a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies" (quoting Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006))).
Based on the foregoing, the Court finds Petitioner's sole habeas claim is unexhausted. The Court therefore grants Respondent's motion to dismiss and dismisses the petition for writ of habeas corpus without prejudice. In addition, the Court concludes that reasonable jurists would not debate that the instant habeas petition should be dismissed without prejudice for failure to exhaust the sole claim asserted therein. Thus, the Court also denies a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rule 11, Rules Governing Section 2254 Cases in the United States District Courts.
