Waterhouse

nited States District Court

for the Morthern District of Oklahoma

Case No. 25-cv-103-JDR-SH

SHERROD DONYALE WATERHOUSE,

Petitioner,

versus

REAR ADMIRAL GREGORY SLAVONIC (RET.), Jnterim Commissioner,

Respondent.

OPINION AND ORDER

Petitioner Sherrod Donyale Waterhouse, a person committed to the

custody of the Oklahoma Department of Mental Health and Substance Abuse

Services, seeks federal habeas relief under 28 U.S.C. § 2241 and contends he

is challenging the validity of his conviction or sentence as imposed. Dkt. 1 at

1, 3.2 Mr. Waterhouse raises three grounds for relief. Jd. at 7. Respondent

moves to dismiss the petition, asserting that all claims are unexhausted and

untimely. Dkts. 15 and 16. The Court considered Mr. Waterhouse’s petition

and supplement [Dkts. 1 and 14], Respondent’s motion and brief in support

[Dkts. 15 and 16], Mr. Waterhouse’s response [Dkt. 17] and applicable law.

For the following reasons, the motion to dismiss [Dkt. 15] is granted.

’ Because Mr. Waterhouse is committed to the custody of the Department, the

proper party respondent in this matter is Rear Admiral Gregory Slavonic (Ret.), Interim

Commissioner. See Rule 2(a), Rules Governing Section 2254 Cases in the United States District

Courts. Therefore, Admiral Gregory Slavonic is substituted in place of the State of

Oklahoma, as party respondent. The Clerk of Court shall note the substitution on the

record.

? The Court’s citations refer to the CM/ECF header pagination.

No. 25-cv-103

In 2005, Mr. Waterhouse was charged in Oklahoma County District

Court, Case No. CF-2005-2220, with robbery with a dangerous weapon

(count 1), attempted larceny from a person (count 2), and attempted robbery

with a dangerous weapon (count 3). Dkt. 16-2. Count 3 was ultimately

dismissed for lack of evidence. See Dkt. 16-3. On November 20, 2006, the

state and Mr. Waterhouse stipulated that Mr. Waterhouse was insane at the

time of his crimes and did not understand the nature of his actions. Dkt. 16-

5. As a result, the state court determined Mr. Waterhouse was not guilty by

reason of insanity as to counts 1 and 2. Dkt. 16-6. On May 18, 2007, the state

district court committed Mr. Waterhouse to the custody of the Department.

Dkt. 16-8.

On January 21, 2021, based upon an official recommendation by the

Forensic Review Board, Mr. Waterhouse was released pursuant to rules,

conditions and a release plan. Dkts. 16-31 and 16-32. On July 18, 2023, the

state dismissed counts 1 and 2. Dkt. 16-33. Subsequently, on November 15,

2024, Mr. Waterhouse’s conditional release was revoked, and he was

remanded to the custody of the Department and Oklahoma Forensic Center

due to Mr. Waterhouse violating the conditions of his release plan. Dkt. 16-

34. The instant petition followed on January 24, 2025. Dkt. 1.

II

As an initial matter, Respondent contends Mr. Waterhouse’s petition

is properly considered pursuant to 28 U.S.C. § 2254. Dkt. 16 at 16-18.

Further, regardless of the characterization of the petition, Respondent argues

dismissal is appropriate because Mr. Waterhouse failed to exhaust his claims,

and they are also untimely. See Dkt. 16.

The Court first addresses the proper characterization of Mr.

Waterhouse’s petition. A federal district court has jurisdiction to entertain a

petition for a writ of habeas corpus by a person who is “in custody in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). Generally, in the Tenth Circuit, a habeas petition under 28 U.S.C.

§ 2254 is used to challenge the validity of a state court conviction or sentence,

No. 25-cv-103

while a habeas petition under 28 U.S.C. § 2241 is used to challenge the

execution of a sentence. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

811-12 (10th Cir. 1997) (a challenge to the validity of an inmate’s conviction

and sentence should be brought under § 2254, while an attack on the

execution of his sentence is properly brought pursuant to § 2241). A person

civilly committed is a person confined pursuant to the judgment of a state

court and may challenge the fact or duration of his civil commitment by filing

a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Duncan

». Walker, 533 U.S. 167, 176 (2001); see also Wiley v. 22nd J.D.C. Clerk, Civil

Action No. 13--5040, 2014 WL 247865, at *2 (E.D. La. Jan. 17, 2014)

(unpublished)? (noting “federal courts around the country have entertained

habeas petitions under 28 U.S.C. § 2254 filed by persons in a mental

institution under an involuntary commitment order” and collecting cases).

Even granting Mr. Waterhouse the benefit of liberal construction

afforded to pro se litigants, the Court understands his petition as challenging

the fact of his civil commitment. This is evidenced by his request to be

“immediate[ly] discharge{d] from the custody of the Department of Mental

Health and Substance Abuse Services agency.” Jd. at 8. Accordingly, § 2254

is the proper avenue for Mr. Waterhouse to attack the validity of his civil

commitment. See e.g., Merryfield ». Kansas, No. 09--3140-RDR, 2009 WL

3125470, at *7 (D. Kan. Sep. 25, 2009) (unpublished) (noting that civilly

committed petitioner’s claims challenging the legality of his commitment

proceedings or the state court order of civil commitment should have been

brought in a § 2254 petition, not a § 2241 petition).

III

The Court declines to recharacterize Mr. Waterhouse’s petition as one

under § 2254.‘ “A habeas petitioner is generally required to exhaust state

> The Court cites all unpublished decisions herein as persuasive authority. FED. R.

ApP. P. 32.1(a); 10th Cir. R. 32.1(A).

“This Court may not sua sponte recharacterize a § 2241 petition but must first notify

a pro se litigant before recharacterizing a § 2241 petition as a § 2254 petition. Castro v. United

States, 540 U.S. 375, 383 (2003); Davis ». Roberts, 425 F.3d 830, 835 (10th Cir.2005).

No. 25-cv-103

remedies whether his action is brought under § 2241 or § 2254.” Montez v.

McKinna, 208 F.3d 862, 866 (10th Cir. 2000). “The exhaustion requirement

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. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “Fair

presentation, in turn, requires that the petitioner raise in state court the

substance of his federal claims.” Williams v. Trammell, 782 F.3d 1184, 1210

(10th Cir. 2015) (internal quotations and citation omitted). “This includes

not only the [federal] constitutional guarantee at issue, but also the

underlying facts that entitle a petitioner to relief.” Jd. The exhaustion

requirement applies to a petitioner challenging a state civil commitment. See

e.g., Merryfield, 2009 WL 3125470, at *7-8; see also Thomas v. Johnson, Case

No. 22--3076-SAC, 2022 WL 1102651, at *1-2 (D. Kan. Apr. 13, 2022)

(unpublished) (noting that civilly committed petitioner’s claims were

unexhausted and dismissal without prejudice was the appropriate result).

Mr. Waterhouse acknowledges he has not presented any of his claims

to the state court. See Dkt. 1 at 7. Furthermore, Mr. Waterhouse could have

challenged his confinement by filing a writ of habeas corpus in state court. See

State v. Powell, 237 P.3d 779, 780 (Okla. 2010) (recognizing that defendant

committed to the Department’s custody following adjudication of not guilty

by reason of insanity could seek release from confinement by bringing habeas

corpus action under Okla. Stat. tit. 12, § 1331); see also Moten v. Finley, Case

No. 16-CV-696-JED-PJC, 2017 WL 4767165, at *3 (N.D. Okla. Oct. 20, 2017)

(unpublished). Therefore, regardless of whether Mr. Waterhouse’s petition

is characterized as a § 2241 petition or § 2254 petition, it is subject to

dismissal without prejudice for failure to exhaust the claims in state court.>

‘The Court further concludes that no certificate of appealability shall issue

because no reasonable jurists would debate the dismissal of the petition on

5 Respondent also moves to dismiss Mr. Waterhouse’s claims as time barred. Dkt.

16 at 24-31. Because the Court determines the petition is unexhausted, it does not address

the merits of Respondent’s timeliness argument.

No. 25-cv-103

procedural grounds. 28 U.S.C. § 2253(c); Slack ». McDaniel, 529 U.S. 473,

484 (2000).

IV

Mr. Waterhouse is advised that after he properly exhausts his claims

through the state court process, he may file a § 2254 petition challenging his

state commitment proceedings or the fact of his current confinement. To

proceed on any § 2254 claims, he must submit a separate, new habeas corpus

petition pursuant to 28 U.S.C. § 2254. The new petition must be on the §

2254 habeas corpus form provided by the Court, form OKND-2254. Mr.

Waterhouse should carefully read the instructions and answer every

applicable question.

IT IS THEREFORE ORDERED that the motion to dismiss [Dkt.

15] is granted; the petition [Dkt. 1] is dismissed without prejudice for failure

to exhaust the claims in state court; a certificate of appealability is denied;

and a separate judgment of dismissal shall be entered in this matter.

IT IS FURTHER ORDERED that the Clerk of the Court shall

send to Mr. Waterhouse one petition under 28 U.S.C. § 2254 for writ of

habeas corpus by a person in state custody (form OKND-2254).

IT IS FURTHER ORDERED that the Clerk of the Court shall

note on the record the substitution of Rear Admiral Gregory Slavonic (Ret.),

Interim Commissioner, in place of Debbie Moran as party Respondent.

DATED this 29th day of October 2025.

WWW haw

JOHN D. RUSSELL

United States District Judge