Mathieu v. Hunter

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

JAMES J. MATHIEU, )

)

Petitioner, )

)

v. ) Case No. 19-CV-0539-JED-JFJ

)

MIKE HUNTER, Attorney General for the )

State of Oklahoma,! )

)

Respondent. )

OPINION AND ORDER

Petitioner James Mathieu, appearing pro se, filed an amended 28 U.S.C. § 2254 petition

for writ of habeas corpus (Doc. 5) on November 14, 2019, asserting four claims for federal habeas

relief? Respondent filed a motion (Doc. 7) to dismiss the petition, alleging that petitioner failed

to exhaust available state remedies as to all four claims, as required by 28 U.S.C. § 2254(b).

Following review of the petition, the motion, and petitioner’s response (Doc. 9), the Court finds

that respondent’s motion shall be granted and that the petition shali be dismissed without prejudice.

' According to respondent, petitioner is not currently in custody but he may be required to

serve a term of confinement in the future. Doc. 7, at 1 n.1. As respondent contends, the Attorney

General is the proper respondent under these circumstances. See Rule 2(a), Rules Governing

Section 2254 Cases in the United States District Courts. The Court therefore substitutes Mike

Hunter, Attorney General for the State of Oklahoma, in place of Rogers County Court as party

respondent. The Clerk of Court shall note this substitution on the record.

2 Petitioner submitted his original petition (Doc. 1) to the United States Court of Appeals

for the Tenth Circuit when he appealed from this court’s order, in Case No. 19-CV-0262-CVE-

JFJ, dismissing the civil action he filed against the arresting officer, the Rogers County Court

Clerk, and the attorney who represented him in Case No. CM-2018-1263. Doc. 2. The Court of

Appeals for the Tenth Circuit transferred the original petition to this court, and the Clerk of Court

filed it in this matter. /d.; see also Doc. 16, Mathieu v. Brown, N.D. Okla. Case No. 19-CV-0262-

CVE-JFJ, at 3-5.

I. Background

On December 7, 2018, petitioner was charged with three misdemeanor counts in the

District Court of Rogers County, Case No. CM-2018-1263. Doc. 7, at 1; Doc. 7-6, at 2-43

Represented by counsel, petitioner entered an Alford plea* on December 10, 2018. Doc. 7-1, at 1.

The trial court accepted the plea and imposed a one-year suspended sentence as to each count, with

all sentences to be served concurrently. Jd. The trial court advised petitioner of his appeal rights.

Id. On December 12, 2018, petitioner, proceeding pro se, filed a letter seeking permission to

withdraw his plea, alleging that his plea was a “calculated mistake.” Doc. 7-2, at 1. The trial court

set a hearing on the motion for January 19, 2019. Doc. 7-3, at 1. Petitioner alleges he did not

receive timely notice of this hearing, and it appears from the record that no hearing was held. Doc.

5, at Doc. 7, at 2 n.3; Doc. 7-6, at 10-11.

On January 25, 2019, the State moved to revoke petitioner’s suspended sentences, alleging

that he violated the terms and conditions of his probation by failing to report to the District

Attorney supervision office to sign up for probation. Doc. 7, at 2; Doc. 7-4, at 1. The state district

court issued a warrant for petitioner’s arrest and ordered a hearing on the State’s revocation motion.

Doc. 7-5, at 1. The revocation motion remains pending. Doc. 7, at 2; Doc. 7-6, at 11.

Petitioner filed his amended habeas petition (Doc. 5) on November 19, 2019. In the

amended petition, he claims (1) he was unreasonably seized, in violation of the Fourth

Amendment, (2) he was deprived of the effective assistance of counsel, in violation of the Sixth

Amendment, (3) he was denied due process, in violation of the Fifth Amendment, with respect to

the lack of a hearing on his motion to withdraw his plea, and (4) he was denied due process, in

3 For consistency, the Court’s record citations refer to the CM/ECF page numbers.

4 See North Carolina v. Alford, 400 U.S. 25 (1970).

violation of the Fifth Amendment, with respect to his entire state criminal prosecution thereby

rendering his plea invalid. Doc. 5, at 5-10, 16-18.

Il. Analysis

Respondent urges this Court to dismiss the amended petition because petitioner failed to

exhaust available state remedies as to any of the claims asserted therein. Doc. 7, at 3-6. As

respondent contends, a federal habeas court may not grant relief to a habeas petitioner challenging

a state-court judgment unless the petitioner has “exhausted the remedies available in the courts of

the State” or the petitioner has shown either that “there is an absence of available State corrective

process” or that “circumstances exist that render such process ineffective to protect the

[petitioner’s] rights.” 28 U.S.C. § 2254(b)(1). The State may waive the exhaustion requirement,

but it must do so expressly. Jd. § 2254(b)(3). And respondent makes clear in this case that the

State declines to waive exhaustion. Doc. 7, at 4.

Section 2254(b)’s exhaustion requirement “is satisfied if the issues have been properly

presented to the highest state court, either by direct review of the conviction or in a postconviction

attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Dever v. Kan. State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)). In other words, a habeas petitioner who claims

the State violated his constitutional rights in obtaining a criminal judgment “must give the state

courts one full opportunity to resolve any constitutional issues by invoking one complete round of

the State’s established review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). And

it is the habeas petitioner’s burden to prove either that “he exhausted state court remedies . . . or

that exhaustion would have been futile.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011).

“A district court faced with a habeas petition containing unexhausted claims may either (1) dismiss

the entire petition without prejudice in order to permit exhaustion of state remedies, or (2) deny

the entire petition on the merits.” Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002); see

also 28 U.S.C. § 2254(b)(2) (permitting habeas court to deny petition “on the merits,

notwithstanding the failure of the [petitioner] to exhaust the remedies available in the courts of the

State”).

Here, respondent requests dismissal of the entire petition, and the Court finds that request

should be granted. Petitioner indicates in his amended petition that he did not perfect an appeal

following his conviction, that he did not seek postconviction relief in state court, and that he did

not exhaust available state remedies as to any of his four claims. Doc. 5, at 2-11. He appears to

argue that this Court should excuse his failure to exhaust available state remedies because he lives

out of state and he is indigent. Jd. at 5-10; Doc. 9, at 1-2. These circumstances may make it

inconvenient or difficult to exhaust available state remedies,’ but these circumstances do not

support petitioner’s apparent suggestion that it would be futile to present his claims in state court.

As a result, petitioner has not met his burden to show that he either exhausted available state

remedies or that it would be futile for him to do so.

III. Conclusion

Because the amended petition for writ of habeas corpus contains only unexhausted claims,

the Court grants respondent’s motion and dismisses the amended petition without prejudice.

Further, because the Court concludes that reasonable jurists would not debate that dismissal of the

entire petition is an appropriate disposition given petitioner’s failure to exhaust any of his claims,

the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (noting

5 Any asserted inconvenience or difficulty appears negligible given that petitioner has

prosecuted this federal habeas action despite living out of state and being indigent. See Doc. 5, at

19; Doc. 8, at 3; Doc. 9, at 5 (evidencing petitioner filed pleadings from Massachusetts); Doc. 6

(granting petitioner leave to proceed in forma pauperis).

that petitioner may not appeal from a final order in a habeas proceeding under 28 U.S.C. § 2254

unless a circuit justice or judge issues a certificate of appealability); Slack v. McDaniel, 529 U.S.

473, 484 (2000) (describing showings habeas petitioner must make to obtain certificate of

appealability).

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. The Clerk of Court shall note on the record the substitution of Mike Hunter, Attorney

General for the State of Oklahoma, in place of Rogers County Court as party respondent.

2. Respondent’s motion to dismiss (Doc. 7) is granted.

3. The amended petition for writ of habeas corpus (Doc. 5) is dismissed without prejudice

for failure to exhaust available state remedies.

4. Acertificate of appealability is denied.

5. A separate judgment shall be entered in this matter.

ORDERED this dhe toy of July 2020.

7 D@WDELL. CHIEF JUDGE

UNIFED STATES DISTRICT COURT