# Mathieu v. Hunter

> District Court, N.D. Oklahoma · July 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10386481

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** July 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10386481

## How later opinions describe it (automated extraction)

- describing showings habeas petitioner must make to obtain certificate of appealability

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386481. Public record. Not legal advice.