Vue v. Dowling

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

ONG VUE, )

)

Petitioner, )

)

v. ) Case No. 22-CV-0125-CVE-JFJ

)

JANET DOWLING, )

)

Respondent. )

OPINION AND ORDER

Petitioner Ong Vue, an Oklahoma prisoner appearing pro se,1 petitions for a writ of habeas

corpus, under 28 U.S.C. § 2241. He claims the Oklahoma Department of Corrections (“ODOC”)

is executing his “sentence in a purely arbitrary fashion and without equal protection of the State

law thereby subjecting him to cruel and unusual punishment in violation of the Eighth Amendment

of the United States Constitution.” Dkt. # 1, at 2. Respondent Janet Dowling moves to dismiss

the petition for several reasons. Having considered Vue’s petition (Dkt. # 1), Dowling’s motion

to dismiss and brief in support (Dkt. # 13), Vue’s response in opposition to the motion to dismiss

(Dkt. # 14), and applicable law, the Court grants Dowling’s motion and dismisses the petition.

1 Because Vue appears without counsel, the Court liberally construes his petition and other

papers. Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023). But the Court does not assume the

role of an advocate by making arguments for Vue. Garrett v. Selby Connor Maddux & Janer, 425

F.3d 836, 840 (10th Cir. 2005). In addition, the Court accepts as true all well-pleaded factual

allegations in the petition and views the facts in Vue’s favor because he is the non-moving party.

Johnson, 57 F.4th at 774. But the Court is “not bound to accept as true a legal conclusion couched

as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

I. Background2

In 1997, the State of Oklahoma (“the state”) charged Vue, in Cleveland County District

Court Case No. CF-1997-628, with first-degree murder (count one) and two counts of shooting

with intent to kill (counts two and three). Dkt. # 1, at 11-12. The state later filed a bill of

particulars, seeking the death penalty. Id. at 29; Dkt. # 13-2, at 6. In 1998, on the first or second

day of his jury trial, Vue pleaded no contest to all three charges. Dkt. # 1, at 1; Dkt. # 13-2, at 12.

The trial court imposed a life sentence (count one) and two twenty-year prison sentences (counts

two and three) and ordered the twenty-year sentences to be served concurrently with each other

and consecutive to the life sentence. Dkt. # 13-2, at 13. On Vue’s motion, the trial court later

modified Vue’s sentence by ordering all sentences to be served concurrently. Id. at 14; Dkt. # 13-

11, at 11-14. In 1998, when Vue was remanded to the custody of the ODOC, Oklahoma law

provided:

A. Upon the arrest, conviction and sentencing of any defendant to the custody of

the Department of Corrections, the district attorney of the county in which the crime

was committed shall prepare a written narrative report describing the commission

of the offense and any factors which might enhance or diminish the gravity of the

offender’s conduct.

B. The report shall be provided to the Department of Corrections and the Pardon

and Parole Board, together with the judgment and sentence in the case and any

victim impact statements presented to the court in the case.

C. The form to be used for this report shall be developed and distributed by the

District Attorneys Council.

D. The provisions of this section shall not apply to offenders sentenced to terms of

incarceration of two (2) years or less.

E. No allegations or recitations of alleged facts contained in any narrative submitted

pursuant to the requirements of this section shall give rise to any cause of action by

2 The facts in the background section are drawn from the petition and exhibits attached

thereto, from public records, and, to the extent the facts are undisputed, from exhibits attached to

the motion to dismiss.

the defendant against the submitting agency unless the defendant shall first object

to such allegation or recitation in writing, with notice to the submitting agency. The

submitting agency shall be given thirty (30) days following such notice to withdraw

or amend any such allegation or recitation objected to. Nothing contained herein

shall be construed as creating a cause of action.

OKLA. STAT. tit. 19, § 215.39 (1998); see also Dkt. # 1, at 13 (citing 2021 version of law that

contains minor change in subsection D that is not relevant to Vue’s claims). Current ODOC

policies related to initial custody assessments and subsequent review of the “inmate’s custody

status/security level and placement” provide that “[i]f the [custody assessment] score undervalues

the actual severity of the crime, an override may be necessary. Staff must document the

aggravating characteristics of the crime being used for the override decision. Acceptable examples

of documentation that explain the aggravating characteristics are the District Attorney’s Narrative

or Information Sheet.” Dkt. # 13-15, at 2; Dkt. # 13-16, at 2.

Vue has been incarcerated at the Dick Conner Correctional Center (“DCCC”) since 2000,

and Dowling is the DCCC’s warden. Dkt. # 13, at 1; Dkt. # 13-3, at 1. Vue discharged both of

his twenty-year sentences in 2007 and presently is serving only a life sentence. Id. In Oklahoma,

when a prisoner is serving a life sentence, that means the prisoner shall remain incarcerated for the

remainder of the prisoner’s natural life unless the prisoner is granted parole. Jackson v. McCollum,

708 F. App’x 965, 965-66 (10th Cir. 2018).3 And “Oklahoma’s parole system is entirely

discretionary.” Id. at 966. In March 2018 and March 2021, the Oklahoma Pardon and Parole

Board (“OPBB”) denied parole for Vue. Dkt. # 13-1, at 1. Vue is scheduled to be considered for

parole in March 2024. Id.

3 The Court cites this unpublished decision, and other unpublished decisions herein, as

persuasive authority. FED. R. APP. P. 32.1(a); 10th Cir. R. 32.1(A).

For several years, Vue pursued administrative and judicial remedies in his quest to obtain

a copy of the district attorney’s narrative report relevant to his criminal case (“narrative report”).

The Court first discusses Vue’s efforts to obtain administrative relief, then discusses his attempts

to obtain relief in state court.

A. Vue’s efforts to obtain administrative relief

On March 8, 2021, Vue submitted a request to staff (“RTS”) to the records department

and/or case manager citing OKLA. STAT. tit. 19, § 215.39, requesting a copy of the narrative report,

and referencing a March parole hearing. Dkt. # 1, at 9. On April 20, 2021, a staff member from

the records department responded to the RTS by stating that “[i]nmate files are kept on unit where

this information (if obtained) is kept.” Id. The response directed Vue to either submit his request

to his case manager or submit a request through the mail to the clerk court of the appropriate

county. Id.

Six days after he received this response, Vue submitted a RTS to case manager Moutray,

asking for a copy of the narrative report from his prison file or, in the alternative, asking for

Moutray to request a copy of the report from the court clerk. Dkt. # 1, at 10. On May 17, 2021,

Moutray responded to the RTS by stating that the narrative report was enclosed with the response.

Id. According to Vue, Moutray instead enclosed a copy of the felony information that was filed

against him. Dkt. # 1, at 4, 11-12. That same day, Moutray called the Cleveland County District

Attorney’s office to request a copy of the narrative report. Id. at 4. On May 21, 2021, Moutray

received a narrative report from Assistant District Attorney SuAnne Carlson, and Moutray gave

the report to Vue. Id. at 4, 14-15. Vue immediately informed Moutray that the narrative report

contained “inaccuracies,” specifically, Vue pointed out that the report had been created on May

21, 2021. Id. at 4. On May 28, 2021, Vue filed another RTS, requesting “an accurate and timely

[r]eport.” Dkt. # 1, at 4. In response, Moutray told Vue she would no longer be working for the

ODOC and that he would need to submit his request to the records department. Id. Vue submitted

an RTS to “Guess, Records,” on July 1, 2021, alleging that he had not received a response to the

May 28, 2021, RTS and asking for “an accurate DA Narrative Report because the May 21, 2021,

report provided contains UNTRUE and INACCURATE information.” Id. at 16-17.

On July 7, 2021, Vue submitted a RTS to the case manager requesting an audit of his prison

file and alleging that his previous case manager “used DA Narrative to complete [his] records,”

when the narrative report “did not exist until May 21, 2021.” Dkt. # 1, at 18. The next day, a staff

member responded to the RTS by stating that “[r]ecords [o]fficers audit the field files.” Id. Vue

submitted a RTS to “Records Audit Person” on July 12, 2021. Id. at 19. In that RTS, Vue alleged

that the narrative report that he received “is inaccurate because [he] was sentenced in ‘1998’” and

the report was created in 2021. Id. Vue again requested an audit of his prison file and, in support

of that request, alleged that “the previous case managers cited the use of [his] ‘Narrative Report’

to classify and assess [him]” but the report “could not be produced until 2021” and, under state

law, his prison file should have included a 1998 report. Id. at 19-20.

On August 23, 2021, Vue submitted two grievances, complaining that he had not received

responses to the RTSs he submitted to “Guess, Records,” and “Records Audit Person.” Dkt. # 1,

at 21-22. On September 20, 2021, Vue received a grievance decision from Dowling, in Grievance

No. DCCC 21-026, responding to both grievances, stating that Dowling would ask records to

answer the RTSs, and noting that Dowling had combined the RTSs for one answer. Id. at 23.

On October 22, 2021, Vue submitted a grievance to Dowling alleging Vue had not received

a response even after Dowling granted relief as to Grievance No. DCCC 21-026 and asking

Dowling to provide a date certain that he would receive a response. Dkt. # 1, at 24. On November

8, 2021, Vue received a grievance decision from Dowling, in Grievance No. DCCC 21-039, stating

that Dowling had “requested that a Sentence Administration Auditor respond” to Vue’s requests.

Dkt. # 1, at 25. On that same date, Vue submitted a grievance appeal to the Administrative Review

Authority (“ARA”) regarding Grievance No. DCCC 21-039. Id. at 26. Vue alleged Dowling

committed probable error by not providing a date certain for the Sentence Administration Auditor

to respond. Id. at 26-27. The ARA affirmed the grievance decision on November 19, 2021, stating:

In your grievance appeal, you did check number two but did not substantiate your

appeal nor did you substantiate your appeal with any authority for an error. As

such, there has been nothing offered to the Director which indicates the reviewing

authority’s response is not proper. Therefore, the reviewing authority’s response is

affirmed. The inmate/offender will have satisfied the exhaustion of administrative

remedies required by 57 O.S. § 564. However, the grievance procedure does not

satisfy additional requirements for exhaustion of administrative remedies required

by the Governmental Tort Claims Act, 51 O.S. § 151 et seq.

Dkt. # 1, at 28. Vue received the ARA’s decision on November 22, 2021. Id.

B. Vue’s efforts to obtain judicial relief

In February 2018, over two years before he began asking ODOC for a copy of the narrative

report from his prison file, Vue filed a “motion to produce document, in the alternative amend

document with brief in support” in Cleveland County District Court Case No. CF-1997-628, asking

the state district court to compel the district attorney to provide Vue a copy of the narrative report.

Dkt. # 14, at 2; Dkt. # 13-2, at 19; See Motion (Feb. 13, 2018), State v. Vue, No. CF-1997-628,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF-1997-628

&cmid=15101, last visited Feb. 24, 2023. On May 1, 2018, after receiving a response from the

state, the state district court denied the motion. Dkt. # 13-2, at 19; Dkt. # 14, at 2.

On June 4, 2021, Vue filed a “Motion for Equal Protection of Laws and Freedom from

Cruel and Unusual Punishment” in Cleveland County District Court Case No. CF-1997-628. Dkt.

# 13-11, at 2-5. As relevant to this proceeding, Vue alleged in that motion that “in an attempt to

have ODOC comply w/ ‘accurate records’ the DA SuAnne Carlson produced—fabricated—the

DA Narrative w/ inaccurate information to both the ODOC and OPPB after Greg Mashburn could

not produce the 19 § 215.39 requirement.” Dkt. # 13-11, at 2. Vue further alleged that he had

“intentionally” been treated unfairly and “less than human” because he is “not white and a U.S.

citizen.” Id. at 2-3, 5. Vue also alleged that the 2021 narrative report included false information,

particularly because that report incorrectly stated that Vue had been convicted of second-degree

murder following a jury trial.4 Id. at 3-4. Vue asserted that inaccuracies in the 2021 narrative

report demonstrated “discrimination at the highest level or lack of due care or inadequate training.”

Id. at 4. The state district court denied Vue’s motion on June 7, 2021, reasoning that Vue “states

no factual or legal basis to demonstrate that he is entitled to such relief.” Id. at 1. Vue filed a

notice of appeal on June 21, 2021, in Case No. PC-2021-658, and the Oklahoma Court of Criminal

Appeals (“OCCA)” declined jurisdiction on July 21, 2021, citing Vue’s failure to comply with the

OCCA’s procedural rules. Dkt. # 13-2, at 24-25; Dkt. # 13-12, at 1-2.

On October 18, 2021, Vue filed an application for postconviction relief and a copy of a

notice of objection to narrative report (directed to Carlson) in Cleveland County District Court

Case No. CF-1997-628. Dkt. # 13-2, at 25. In the application, Vue alleged (1) that he had been

deprived of his constitutional rights to equal protection and due process of law because the

information in the 2021 narrative report is not consistent with information in his “Court files,” and

that the district attorney could not “arbitrarily apply or not apply to [Vue] a mandatory law,”

namely, OKLA. STAT. tit. 19, § 215.39, because he is “not white and a non-citizen,” and (2) that

his plea was involuntary because he was told by the district attorney and his defense attorney that

4 The state-court docket sheet reflects that Vue was convicted of first-degree murder and

further reflects, somewhat inconsistently, that Vue was convicted following a jury trial and that

Vue pleaded no contest to first-degree murder. Dkt. # 13-2, at 2-3, 12.

parole in Oklahoma is constitutionally protected but the 2021 narrative report indicates “the state

does not recommend an early release.” See Application (Oct. 18, 2021), State v. Vue, No. CF-

1997-628, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number

=CF-1997-628&cmid=15101, last visited Feb. 24, 2023. On May 10, 2022, after receiving a

response from the state, the state district court denied the application, reasoning that Vue’s “claims

are reiterations of the same arguments he raised in his previous post-conviction applications” and

are “meritless.” See Order (May 10, 2022), State v. Vue, No. CF-1997-628,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF-1997-628

&cmid=15101, last visited Feb. 24, 2023. Vue filed a postconviction appeal, in Case No. PC-

2022-568, and filed a petition-in-error making the same arguments he made in his application for

postconviction relief. Dkt. # 13-5, at 1-13. The OCCA affirmed the denial of Vue’s application

for postconviction relief on January 27, 2023, reasoning that Vue did not demonstrate a sufficient

reason for failing to adequately raise his claims in prior postconviction proceedings and stating

that Vue has exhausted his state remedies as to all issues raised in his petition-in-error and any

prior appeals. See Order (Jan. 27, 2023), Vue v. State, No. PC-2022-568,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2022-568&

cmid=133198, last visited Feb. 17, 2023.

On December 2, 2021, Vue filed a Petition for Declaratory Relief in the District Court of

Cleveland County, Case No. CV-2021-4042, against Assistant District Attorney Carlson and

District Attorney Greg Mashburn. See Docket Sheet, Vue v. Carlson, No. CV-2021-4042,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CV-2021-

4042&cmid=2393345, last visited Feb. 24, 2023. In that petition, Vue challenged the

constitutionality of OKLA. STAT. tit. 19, § 215.39, on its face and as applied to him, alleging that

the district attorney racially discriminated against Vue by failing to provide a narrative report in

1998 and by providing an inaccurate narrative report in 2021. See Petition (Dec. 2, 2021), Vue v.

Carlson, No. CV-2021-4042, https://www.oscn.net/dockets/GetCaseInformation.aspx?

db=cleveland&number=CV-2021-4042&cmid=2393345, last visited Feb. 24, 2023. In an order

filed February 8, 2022, the state district court granted the motion to dismiss filed by Carlson and

Mashburn, finding that Vue’s “claims do not rise to the level of a justiciable controversy.” Dkt. #

13-14, at 1. There is no indication on the docket sheet that Vue appealed the state district court’s

dismissal of his petition. See Docket Sheet, Vue v. Carlson, No. CV-2021-4042,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CV-2021-4042

&cmid=2393345, last visited Feb. 24, 2023.

Vue filed the instant petition for writ of habeas corpus on March 21, 2022 (Dkt. # 1),

Dowling filed a motion to dismiss and brief in support on June 30, 2022 (Dkt. # 13), and Vue filed

a response on opposition to the motion to dismiss on July 21, 2022 (Dkt. # 14). Vue subsequently

filed two motions for discovery (Dkt. ## 15, 16).5

II. Discussion

Vue seeks federal habeas relief under 28 U.S.C. § 2241, alleging that the ODOC is not

properly executing his sentence. Dkt. # 1, at 2; Dkt. # 14, at 1-2. In this circuit, a state prisoner

may “attack[] the execution of a sentence,” but not the validity of his or her conviction and

sentence, through a § 2241 petition. Leatherwood v. Allbaugh, 861 F.3d 1034, 1041-42 & n.6

(10th Cir. 2017). A state prisoner’s attack on the execution of his or her sentence “challenges ‘the

fact or duration of a prisoner’s confinement and seeks the remedy of immediate release or a

5 In the first discovery motion, which was submitted as part of Vue’s response to the

dismissal motion, Vue requests an evidentiary hearing. Dkt. # 14, at 19. In the second motion,

Vue requests various records from the ODOC. Dkt. # 16, at 2.

shortened period of confinement.’” Id. at 1041 (quoting McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997)). A federal court may grant habeas relief under § 2241 only if the

prisoner shows that he or she is “in custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2241(c)(3).

A. Allegations in the petition

In support of his claim that the ODOC is executing his sentence in an unconstitutional

manner, Vue identifies one ground for relief:

Oklahoma Department of Corrections prison at Dick Conners Correctional

Center is subjecting Petitioner VUE to cruel and unusual punishment because

EVERYONE in DOC custody, except Petitioner from 1998 to 2021, has to have a

DA Narrative Report pursuant to OKLA. STAT. tit. 19, § 215.39 used in the

execution of all similarly situated prisoners sentences. This ongoing mistreatment

was furthered when the Cleveland County District Attorney, Ms. SuAnne Carlson

submitted the required law on May 21, 2021 with inaccurate and inapposite

information rather than provide the 1998 Report.

Dkt. # 1, at 3-4. In support of his request for habeas relief, Vue describes the series of requests he

submitted to DCCC officials, between March and August 2021, the two grievances he filed with

Dowling, and the grievance appeal he filed with the ARA. Id. at 4-5. Vue then states:

Under Equal Protection of Law principles, Petitioner VUE was not treated

the same as others in application of the Oklahoma Statute law entitled in Title 19,

Section 215.39 (Exhibit 4) because that specific law need not apply to him, a

nonwhite noncitizen, in 1998 after he was sentenced and remanded into Oklahoma

Department of Corrections custody.

Because this “mandatory” law did not apply to Petitioner VUE until 2021,

he was subject to purely arbitrary and discriminatory treatment both “cruel and

unusual”—cruel in a sense that ODOC is only presented with the “facts” of the

“Information” and Petitioner is deemed NOT able to be rehabilitated and unusual

because this law was not applied based on Petitioner’s status as [a] nonwhite

noncitizen. It is common practice for the District Attorney to apply the law to its

White people and most certainly the citizens of Oklahoma. See generally 22 O.S.

§ 1514. On its face, the Offense of “Murder in the Second Degree” and “Jury Trial”

is false. Exhibit 5, at 1.

Nonetheless, the “facts” (Exhibit 5, at 2) and “information” (Exhibit 5, at 1)

can be countered by records in the Court file, specifically Petitioner’s 120-Day

Judicial Review proceedings (Exhibit 15) where the District Court considered the

“facts” presented in the statutory law of 22 O.S. § 982a proceedings and granted

Petitioner relief.

That is, the ODOC, in contrary to statute law, allowed the State to directly

provide them inaccurate and out-of-date information without questioning its police

power. This record provided by the prosecuting agency is prejudicial for it—

indirectly—commands the ODOC to hold Petitioner until he dies. The Report,

inapposite to the “plain language” of OKLA. STAT. tit. 19, § 215.39 states

“Defendant also still has not made a showing that he has a defense to present to a

jury for the heinous crimes committed. The state does not recommend an early

release from his LIFE or TWENTY (20) Year sentences.” Exhibit 5, at 2.

However—as persuasive value—Petitioner counters with the only thing available

in Petitioner’s defense in the pleading submitted under “Judicial Review.” Exhibit

15.

[The Court omits this section of the petition where Vue quotes a passage from the

motion for judicial review filed by his attorney in 1998 describing the facts of his

case and resulting in the trial court’s modification of Vue’s sentence.]

While the “facts” of Petitioner’s case is not in dispute in this instant

pleading, the facts presented by Petitioner is a part of the TRUE record. Whereas,

the Narrative Report in ODOC’s actual possession belies all the other records from

1998 until the May 21, 2021.

Of course, the ODOC records cannot be deliberately indifferent to the prima

facie mistake, whether intentional or not. As the custodians of Petitioner for—

apparently from the May 21, 2021 Report—the rest of his LIFE, the Oklahoma

Department of Corrections has the empirical duty to have accurate records.

Dkt. # 1, at 5-7.

In the portion of the petition that asks Vue whether he has presented his stated ground(s)

for relief in all appeals that were available to him, Vue references the petition for declaratory relief

that he filed against Carlson and Mashburn and his effort to seek postconviction relief as to the

issues related to the 2021 narrative report. Dkt. # 1, at 7. In the same paragraph as these references,

Vue states, “The distinguishing aspect of Petitioner’s Eighth Amendment violation is premised

upon the ‘language of the statute law,’ and the process derived from it. Of course, it is asserted

that this law is wholly applicable to EVERYONE similarly situated to Petitioner except for

Petitioner, who is nonwhite and a noncitizen.” Id. at 7-8.

In his request for relief, Vue states that he wants this Court to “[f]ind that the ODOC has

been deliberately indifferent to the law and IS treating Petitioner, a nonwhite noncitizen, like a

slave without an ‘accurate record’ mandated by Oklahoma Statute law.” Dkt. # 1, at 8. Vue further

states that

[t]his is cruel and unusual treatment for the fact simpliciter that EVERYONE else

similarly situated has the law applied to them because the word “SHALL” is

mandatory except, of course, in Petitioner’s case. As relief, Petitioner humbly

request[s] that the ODOC’s boilerplate grievance policy be found deficient and for

ODOC to audit Petitioner’s prison file to reflect District Attorney Narrative Report

is correct and in substantial compliance with the language of OKLA. STAT. tit. 19,

§ 215.39.

Dkt # 1, at 8.

B. Analysis

Applying the rule of liberal construction, the Court construes the petition as asserting two

distinct constitutional claims. First, Vue claims that the Cleveland County District Attorney’s

allegedly discriminatory failure to comply with a state-law requirement to provide a narrative

report to the ODOC in 1998 caused the ODOC to maintain inaccurate prison records, in violation

of Vue’s Eight Amendment right to be free from cruel and unusual punishment. Second, Vue

claims that the Cleveland County District Attorney’s allegedly discriminatory failure to comply

with a state-law requirement to provide a narrative report to the ODOC in 1998 caused the ODOC

to treat Vue differently than similarly situated prisoners, in violation of Vue’s Fourteenth

Amendment right to equal protection of the law.6

6 In his petition, Vue appears to also challenge the adequacy of the ODOC’s grievance

process. Dkt. # 1, at 2, 8. Vue clarifies in his response to the dismissal motion, however, that his

reference to the ARA’s “boilerplate” response was intended to show that Vue exhausted available

administrative remedies. Dkt. # 14, at 13. In any event, even if Vue intends to assert a challenge

to the ODOC’s grievance process, he fails to state a claim that implicates the Constitution. See

Burnett v. Allbaugh, 715 F. App’x 848, 852 (10th Cir. 2017) (noting that “[t]here is no independent

constitutional right to state administrative grievance procedures”).

Dowling urges the Court to dismiss the petition for five reasons. Dowling contends (1)

that Vue did not exhaust available state court remedies as to any claims he raises in the petition,

(2) that Vue does not identify any claims on which this Court could grant relief under § 2241, (3)

that even if Vue’s claims are properly raised in a § 2241 petition, he does not plausibly allege

violations of his rights under the Eighth or Fourteenth Amendments, (4) that Vue is not entitled to

injunctive relief, and (5) that Dowling is immune from suit under the Eleventh Amendment and

the doctrine of qualified immunity. Dkt. # 13, at 5-15.

1. Failure to exhaust available state remedies

Dowling contends that the petition should be dismissed as procedurally barred because Vue

did not exhaust available state court remedies. Dkt. # 13, at 5-6. The Court disagrees. Before a

state prisoner seeks federal habeas relief under § 2241, the prisoner must exhaust available state

remedies. Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). “The exhaustion of state

remedies includes both administrative and state court remedies.” Hamm v. Saffle, 300 F.3d 1213,

1216 (10th Cir. 2002). The exhaustion of state court remedies “is satisfied if the federal issue has

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

postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

Dowling concedes, and the Court finds, that Vue’s application for postconviction relief,

filed October 18, 2021, “raises highly similar claims as in the instant habeas petition.” Dkt. # 13,

at 4-6; see Application (Oct. 18, 2021), State v. Vue, No. CF-1997-628,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=cleveland&number=CF-1997-628

&cmid=15101, last visited Feb. 24, 2023. When Dowling filed the dismissal motion, Vue’s appeal

from the denial of this application for postconviction relief was pending in the OCCA. Dkt. # 13,

at 4-6. But, as previously discussed, the OCCA recently affirmed the denial of Vue’s application

for postconviction relief. See Order (Jan. 27, 2023), Vue v. State, No. PC-2022-568,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2022-568

&cmid=133198, last visited Feb. 17, 2023. And, in that decision, the OCCA stated that Vue

exhausted his state remedies as to all issues raised in his petition-in-error and any prior appeals.

Id. The Court therefore rejects Dowling’s argument that the petition should be dismissed for

failure to exhaust available state court remedies.

2. Failure to state cognizable claims for relief under § 2241

Dowling contends that even if Vue satisfied the exhaustion requirement, dismissal is

appropriate because Vue does not state any cognizable claims for relief under § 2241. Dkt. # 13,

at 6-8. The Court agrees. To state a cognizable claim for relief under § 2241, Vue must allege

facts demonstrating that the ODOC is executing his life sentence in a manner that violates the

United States Constitution. 28 U.S.C. § 2241(c)(3). Vue cannot state a cognizable claim for relief

under § 2241, if Vue alleges facts showing only that the ODOC misapplied or violated state laws

or policies. See Ali v. Franklin, 554 F. App’x 702, 704 (10th Cir. 2014) (reasoning that “to the

extent that [the petitioner] argues prison officials violated Oklahoma prison policy when they

demoted him, we note that a § 2241 habeas petition is not the proper mechanism for such a claim”);

Montez, 208 F.3d at 865 (10th Cir. 2000) (“[C]laims of state law violations are not cognizable in

a federal habeas action.”).

As discussed, Vue presently is serving a life sentence under the criminal judgment entered

against him in Cleveland County District Court Case No. CF-1997-628. That judgment directs the

ODOC to detain Vue for the remainder of his natural life unless he is granted parole under

Oklahoma’s discretionary parole system. Jackson, 708 F. App’x at 965-66 (10th Cir. 2018). As

previously noted, Vue is correct that the 2021 narrative report contains inaccuracies. That report

incorrectly states that Vue was convicted of second-degree, not first-degree murder, and that his

conviction resulted from a jury trial, not a no contest plea. Dkt. # 13-11, at 6-7. In addition, Vue

appears to correctly allege that a narrative report was not created as to his criminal case until 2021.

But Vue does not plausibly allege that the ODOC has used any information from the 2021 narrative

report to make any decisions relative to the execution of Vue’s life sentence. And none of Vue’s

allegations in the petition suggests, much less shows, that the absence of an accurate narrative

report in his prison file from 1998 to 2021 has caused the ODOC to execute his life sentence in a

racially discriminatory, cruel, or unusual manner.7 Rather, the crux of Vue’s complaint is that the

Cleveland County District Attorney violated state law by failing to provide the ODOC a narrative

report in 1998, and that the ODOC violated state law or ODOC’s internal policies regarding the

accurate record-keeping by failing to recognize that it did not receive a narrative report in 1998.

Dkt. ## 1, 14. Vue’s attempt to reframe these alleged state-law and policy violations as implicating

his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth

Amendment right to equal protection of the law is unavailing.

Moreover, even assuming Vue’s allegations could be generously construed as asserting

plausible constitutional claims, Vue does not seek a habeas remedy—i.e., he does not seek his

immediate release, or a shortened period of confinement based on the alleged constitutional

violations. Instead, Vue seeks injunctive relief—specifically, a court order directing the “ODOC

7 To the extent any of Vue’s allegations reasonably could be construed as asserting that the

ODOC has used information from the 2021 narrative report to make administrative decisions

regarding his classification or placement within the DCCC, § 2241 does not provide the correct

procedural vehicle to assert claims challenging those decisions. See Gee v. Murphy, 325 F. App’x

666, 670-71 (10th Cir. 2009) (noting that a state prisoner seeking to challenge “administrative

decisions affecting his day-to-day circumstances and prison privileges” must do so under 42

U.S.C. § 1983).

to audit [Vue’s] prison file to reflect District Attorney Narrative Report is correct and in substantial

compliance with the language of OKLA. STAT. tit. 19, § 215.39.” Dkt. # 1, at 8. And, as Dowling

asserts, this relief, even if it could be granted in this habeas proceeding, would have no “impact on

the fact or duration of [Vue’s] sentence.” Dkt. # 13, at 2. At most, Vue speculates that an audit

of his prison file might reveal additional inaccuracies that might influence the OPPB’s next

consideration of whether Vue should be granted parole from his life sentence. But an audit of his

prison file, even if it reveals inaccuracies, “wouldn’t necessarily quicken [Vue’s] release.” Barela

v. Martin, 830 F. App’x 252, 256 (10th Cir. 2020). As previously stated, Oklahoma’s parole

system is entirely discretionary. Jackson, 708 F. App’x at 966. The OPPB makes

recommendations regarding parole and the Governor has discretion to accept or reject the OPPB’s

recommendations. Burnett v. Fallin, 754 F. App’x 696, 703-05 (10th Cir. 2018). Like the habeas

petitioner in Barela, who sought expungement of his disciplinary convictions in the hope that

expungement “could conceivably boost his chances for a discretionary remedy like commutation

or parole,” Vue essentially seeks an audit of his prison file in the hope that it will reveal

inaccuracies that could conceivably boost his chances for the discretionary remedy of parole.

Barela, 830 F. App’x at 256. Vue’s request for audit of his prison file therefore is not “an available

remedy in this habeas action.” Barela, 830 F. App’x at 256.

Because Vue fails to state any cognizable claims for relief under § 2241, the Court agrees

with Dowling that the petition shall be dismissed. Further, because Vue does not state any

cognizable habeas claims, the Court finds that reasonable jurists would not debate that it is

appropriate to dismiss the petition and thus declines to issue a certificate of appealability. 28

U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Finally, based on the dismissal

of the petition, the Court dismisses as moot Vue’s pending motions for discovery.

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. Dowling’s motion to dismiss (Dkt. # 13) is granted;

2. the petition for writ of habeas corpus (Dkt. # 1) is dismissed without prejudice for

failure to state any cognizable habeas claims under 28 U.S.C. § 2241;

3. Vue’s motions for discovery (Dkt. ## 15, 16) are dismissed as moot;

4. a certificate of appealability is denied; and

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

DATED this 28" day of February, 2023.

> ‘ a

Chairs. = lab C_—

CLAIRE V.EAGAN \—

UNITED STATES DISTRICT JUDGE

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