Mosley v. Oklahoma State of

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
CALVIN MOSLEY, JR., )
)
Petitioner, )
)
v. ) Case No. CIV-24-1139-R
)
WILLIAM “CHRIS” RANKINS, )
)
Respondent. )
REPORT AND RECOMMENDATION
Petitioner Calvin Mosley Jr., a state prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2241. Doc. 1. Upon Petitioner’s motion, the
Court granted him leave to file a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (“Petition”), Doc. 10, challenging his state court conviction and sentence in Case
No. CF-2023-2590, District Court of Oklahoma County, Oklahoma. United States District
Judge David L. Russell referred this matter to the undersigned Magistrate Judge in
accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Respondent filed a motion to dismiss with
brief in support, Docs. 19 and 20, and Petitioner filed a response and brief in support,
Docs. 21 and 22. For the reasons set forth below, the undersigned recommends that the
Court grant Respondent’s motion.
I. Background and Procedural History
On November 27, 2024, Petitioner pleaded guilty to one count of sexual battery.
Pet. at 1; Doc. 20-2. That same day, Petitioner was sentenced to a term of imprisonment
of twenty years, with all suspended except for the first ten years. Pet. at 1; Doc. 20-1.
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Before entering his guilty plea, Petitioner filed the following pleadings in the
Oklahoma state courts:
• On September 25, 2023, Petitioner filed a pro se Petition for Habeas
Corpus with the Oklahoma Court of Criminal Appeals (“OCCA”),
seeking a reduction in bond. Doc. 20-4; Mosley v. State, HB-2023-
765 (Okla. Crim. App. Sep. 25, 2023).1 On September 26, 2023, the
OCCA denied the pro se petition on the procedural ground that
Petitioner was represented by counsel and “only pleadings submitted
by the attorney of record will be accepted for filing.” Doc. 20-5 at 1;
Mosley v. State, HB-2023-765 (Okla. Crim. App. Sep. 25, 2023).
• On March 29, 2024, Petitioner filed a motion for bail hearing.
Doc. 10-1 at 36. On June 11, 2024, the District Court of Oklahoma
County held a hearing and considered the pro se Motion for Writ of
Habeas Corpus that Petitioner filed that day. Id. at 24-34; 35-45. The
District Court then denied Petitioner’s “motion for bond reduction.”
Id. at 3.
• In response to the District Court’s denial, Petitioner sought the
following relief from the OCCA:
o On July 3, 2024, Petitioner filed a Notice of Intent to Appeal
the District Court’s denial of his motion for bond reduction.
Doc. 20-6; Mosley v. State, HC-2024-506 (Okla. Crim. App.
July 3, 2024). On July 19, 2024, the OCCA declined
jurisdiction on the procedural ground that Petitioner failed to
include a copy of the trial court’s order. Doc. 20-7 at 3; Mosley
v. State, HC-2024-506 (Okla. Crim. App. July 19, 2024).
o On July 11, 2024, Petitioner filed a Petition for Writ of Habeas
Corpus with the OCCA, arguing that the trial court erred in its
June 11, 2024, denial of his motion for writ of habeas corpus.
Doc. 10-1 at 1-20; Doc. 20-8; Mosley v. State, HC-2024-522,
Petition (July 11, 2024). On July 26, 2024, the OCCA denied
1 The undersigned takes judicial notice of the docket in Plaintiff’s various cases in the
Oklahoma state courts, available at www.oscn.net/dockets. See United States v. Ahidley,
486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting a court “may exercise [its] discretion to
take judicial notice of publicly-filed records in [this] court and certain other courts
concerning matters that bear directly upon the disposition of the case at hand”).
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relief on the merits of the petition after determining that
Petitioner had not met his burden to show that his confinement
was unlawful or that he was entitled to immediate release.
Doc. 10-1 at 47-48; Mosley v. State, HC-2024-522 (Okla.
Crim. App. July 26, 2024).
• On July 17, 2024, Petitioner filed a petition for writ of mandamus with
the OCCA, complaining that the District Court of Oklahoma County
had failed to rule on his motion for expert services. Doc. 20-9.
Mosley v. State, MA-2024-538, Petition (July 17, 2024). On July 26,
2024, the OCCA denied the petition as premature. Doc. 20-10;
Mosley v. State, MA-2024-538 (Okla. Crim. App. July 26, 2024).
After Petitioner’s plea, conviction, and sentencing, he did not request to withdraw
his guilty plea or file a direct appeal. Pet. at 2; Doc. 20-3. Petitioner did seek post-
conviction relief from the OCCA, but on grounds unrelated to the current Petition:
• On November 27, 2024, Petitioner filed a petition for writ of
mandamus seeking an evidentiary hearing. Mosley v. State, MA-
2024-940, Petition (Nov. 27, 2024). The OCCA declined jurisdiction
on procedural grounds. Mosley v. State, MA-2024-940 (Okla. Crim.
App. Dec. 13, 2024).
• On August 15, 2025, Petitioner again filed a petition for writ of
mandamus seeking an evidentiary hearing. Mosley v. State, MA-
2025-647, Petition (Aug. 15, 2025). After the District Court of
Oklahoma County set an evidentiary hearing in response to
Petitioner’s motion, the OCCA dismissed the petition as moot.
Mosley v. State, MA-2025-647 (Okla. Crim. App. Oct. 31, 2025).
II. Petitioner’s Grounds for Relief
Before this Court, Petitioner seeks habeas relief on the following grounds:
1. Ground One: Petitioner challenges his conviction on the grounds that
a state judge issued a probable cause arrest warrant setting a bond
amount of $150,000.00 pursuant to Okla. Stat. tit. 22, § 173 and a bail
schedule. Petitioner asserts the state judge’s use of a bail schedule
violated his right to due process “under [the] 4th, 5th, and 14th
Amendments of the United States Constitution” because he did not
receive an individualized determination of bail. Pet. at 5-6.
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2. Ground Two: Petitioner challenges his conviction on the grounds
that, at his first judicial appearance with counsel, the state judge “still
set bail at 150,000.00 dollars” and ordered a preliminary hearing
continuance. Id. at 8. Petitioner asserts the amount of bail set at his
first judicial appearance “without rebuttable presumption or motion”
by the government violated his right to due process “under [the] 5th,
8th, 11th and 14th Amendments of the United States Constitution.”
Id. at 7-8.
3. Ground Three: Petitioner challenges his conviction on the grounds
that his appointed counsel was not “effective in advocating bail and
process at his first judicial appearance, preliminary hearing, and
arraignment in violation of his constitutional rights under [the] 5th,
6th and 14th Amendments of the United States Constitution.” Id. at
9-10.
4. Ground Four: Petitioner challenges his conviction on the grounds that
his trial was fundamentally unfair because his defense was “hampered
and oppress[ed] during the prosecutorial process,” “in violation of his
constitutional rights under [the] 5th, 6th, 8th and 14th Amendments
of the United States Constitution.” Id. at 11. Petitioner asserts that
his defense was “impaired” because he was forced to proceed pro se
and, therefore, was unable to properly investigate the case, evaluate
potential witnesses, and otherwise prepare for trial. Id. at 12-13. He
was forced to proceed pro se because (1) he was unlawfully detained
without due process regarding his bail amount, (2) his unlawful
detainment prevented him from obtaining a financial loan to hire an
attorney, and (3) his public defender rendered ineffective assistance
at his preliminary hearing and arraignment. Id. at 12. He alleges these
same factors caused anxiety and caused him to “reluctantly” plead
guilty with the “ill-advisement of counsel.” Id. at 13.
5. Ground Five: Petitioner challenges his conviction on the grounds that,
in Case No. HC-2024-522, the OCCA denied his Petition for Writ of
Habeas Corpus on improper grounds, thus violating his rights “under
[the] 5th, 8th and 14th Amendments of the United States
Constitution.” Id. at 14-15; see Doc. 10-1 at 47-48; Mosley v. State,
HC-2024-522 (Okla. Crim. App. July 26, 2024). Specifically,
Petitioner asserts the OCCA erred in (1) citing the incorrect date on
which the Oklahoma County District Court set bail and (2) relying on
inapplicable case law. Pet. at 14-15.
6. Ground Six: Petitioner challenges his conviction on the grounds that,
in Case No. HC-2024-522, the OCCA denied his Petition for Writ of
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Habeas Corpus on improper grounds, thus violating his rights “under
[the] 5th, 8th and 14th Amendments of the United States
Constitution.” Id. at 16-17; see Doc. 10-1 at 47-48; Mosley v. State,
HC-2024-522 (Okla. Crim. App. July 26, 2024). Specifically,
Petitioner asserts the OCCA erred in failing to adjudicate the merits
of his petition. Pet. at 16-17.
Petitioner asserts that each of these grounds was exhausted during the OCCA’s
“habeas review.” Id. at 5, 7, 9, 11, 14, 16 (citation modified). The undersigned understands
Petitioner to be referencing Mosley v. State, HC-2024-522. See id. at 2.2
III. Analysis
Respondent argues that Petitioner’s claims are unexhausted and the Petition should
be dismissed without prejudice to afford Petitioner the opportunity to exhaust his state court
remedies. The undersigned agrees.
A. Exhaustion
The Petition is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). 28 U.S.C. § 2254. As a preliminary matter, AEDPA codifies the
exhaustion doctrine, which is a matter of comity and requires the Court to consider in the
first instance whether Petitioner has presented his grounds for relief to the OCCA. See
Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“The States should have the first
opportunity to address and correct alleged violations of state prisoner’s federal rights.”
2 In that case, Petitioner filed a Petition for Writ of Habeas Corpus with the OCCA on
July 11, 2024, arguing that the trial court had erred in its June 11, 2024, denial of his motion
for writ of habeas corpus requesting a bond reduction. Doc. 10-1 at 1-20; Doc. 20-8. The
OCCA issued its order of denial on July 26, 2024. Doc. 10-1 at 47-48.
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(citation modified)). AEDPA provides that, aside from two narrow exceptions,3 habeas
relief for a state prisoner shall not be granted unless the remedies available in state court
have been exhausted. 28 U.S.C. § 2254(b)(1). Habeas relief may, however, be denied
notwithstanding Petitioner’s failure to exhaust state court remedies. Id. § 2254(b)(2).
“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. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.
1994). To exhaust a claim, that claim must be “fairly presented to the state court.” Bland
v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (citation modified). That means the
“substance of the federal claim [must be] raised in state court.” Simpson v. Carpenter, 912
F.3d 542, 565 (10th Cir. 2018). “The petitioner need not cite ‘book and verse on the federal
constitution,’ but the petitioner cannot assert entirely different arguments from those raised
before the state court.” Bland, 459 F.3d at 1011 (quoting Picard v. Connor, 404 U.S. 270,
278 (1971)). Instead, the claims in state and federal court should be of the same nature.
Petitioner argues that he presented to the OCCA “all the facts on which he based his
federal constitutional claims.” Doc. 22 at 2 (citation modified). But “a fair presentation
requires more than presenting all the facts necessary to support the federal claim to the
state court.” Grant v. Royal, 886 F.3d 874, 890 (10th Cir. 2018) (citation modified).
Indeed, “the crucial inquiry is whether the substance of the petitioner’s claim has been
3 Exhaustion is not required if “there is an absence of available State corrective process” or
certain circumstances “render such process ineffective to protect [a petitioner’s] rights.”
28 U.S.C. § 2254(b)(1)(B)(i)-(ii).
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presented to the state courts in a manner sufficient to put the courts on notice of the federal
constitutional claim.” Id. (citation modified). Here, Petitioner’s claims were not presented
to the OCCA in a manner sufficient to put that court on notice of the federal constitutional
claims he raises before this Court.
Indeed, Petitioner now challenges his conviction with his Petition before this Court.
But when he raised his claims of excessive bond in a habeas petition before the OCCA, he
had not yet been convicted. The claims Petitioner presented to the OCCA before his
conviction—challenging his continued detention and bond amount—had a different focus
than his claims presented to this Court—challenging his conviction. Petitioner never filed
a direct appeal or post-conviction challenge on grounds related to the Petition. As such,
Petitioner did not exhaust his federal habeas claims. See id. at 891 (“To satisfy exhaustion,
then, the habeas petition’s focus—as well as the alleged error that it identifies—cannot
depart significantly from what the petitioner had presented to the state court.”).
B. Dismissal without prejudice
1. Options for unexhausted petitions
When considering a petition containing only unexhausted claims, a district court
ordinarily has two options: (1) dismiss the petition so the petitioner can return to state
court to exhaust his claims, or (2) deny the petition on the merits pursuant to 28 U.S.C.
§ 2254(b)(2), notwithstanding the petitioner’s failure to exhaust state court remedies.
Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002).4 Respondent moves for the
4 Petitioner requests that if the Court determines his claims have not been exhausted, the
case be stayed rather than dismissed. Doc. 22 at 2. A stay may be available for mixed
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first option—to dismiss the Petition without prejudice to afford Petitioner the opportunity
to return to state court to exhaust his claims—and does not provide the Court with briefing
for the second option. See Doc. 20 at 9 n.6 (“This Motion to Dismiss does not address
whether Petitioner’s claims are sufficiently grounded in federal law (as opposed to state
law) to permit federal habeas corpus relief, because that would be a merits assessment, and
this Motion seeks dismissal on a purely procedural ground.”).
This Court can “dismiss unexhausted claims without prejudice so that the petitioner
can pursue available state-court remedies,” but the Tenth Circuit has cautioned that it “is
not appropriate if the state court would now find the claims procedurally barred on
independent and adequate state procedural grounds.” Grant, 886 F.3d at 891-92 (citation
modified). Accordingly, the undersigned has considered whether Petitioner’s claims
would be barred by an anticipatory procedural bar.
2. Anticipatory procedural bar
A habeas petitioner may exhaust state court remedies through either direct appeal
or post-conviction proceedings. Dever, 36 F.3d at 1534. Petitioner, however, has missed
the window for raising his claims on direct appeal because he did not seek either to
withdraw his guilty plea within ten days or to file a petition for writ of certiorari within 90
petitions containing both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S.
269, 276 (2005). But Petitioner’s petition is not a mixed petition. Additionally, a stay “is
an exercise of judicial discretion and the party requesting a stay bears the burden of
showing that the circumstances justify an exercise of that discretion.” Ind. State Police
Pension Tr. v. Chrysler LLC, 556 U.S. 960, 961 (2009) (citation modified). Petitioner has
not carried his burden, and the undersigned declines to recommend that the case be stayed.
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days of the judgment and sentence. See Davis v. Bridges, No. 22-6107, 2024 WL 140026,
at *4 (10th Cir. Jan. 12, 2024) (explaining the procedure for taking a direct appeal from a
plea of guilty). And because Petitioner could have, but did not, raise on direct appeal the
claims he now asserts, those claims would be considered waived in any post-conviction
proceeding. See Mann v. State, 856 P.2d 992, 993 (Okla. Crim. App. 1993) (explaining
that any claims for post-conviction relief that “could have been raised on direct appeal, but
were not” are deemed “waived”); Okla. Stat. tit. 22, § 1086 (“Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in any other proceeding the
applicant has taken to secure relief may not be the basis for a subsequent application, unless
the court finds a ground for relief asserted which for sufficient reason was not asserted or
was inadequately raised in the prior application.”). As such, Petitioner failed to exhaust
his state court remedies through a direct appeal and cannot now do so through post-
conviction proceedings.
In situations such as this, federal courts may apply an anticipatory procedural bar.
“An anticipatory procedural bar creates an affirmative defense which the state may raise.”
Tryon v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023) (citation modified); see also Hooks
v. Ward, 184 F.3d 1206, 1216 & n.6 (10th Cir. 1999) (recognizing procedural bar as an
affirmative defense and noting “traditionally the burden of proving an affirmative defense
falls on the party asserting the affirmative defense”) (citation modified)). “Anticipatory
procedural bar occurs when the federal courts apply procedural bar to an unexhausted claim
that would be procedurally barred under state law if the petitioner returned to state court to
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exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007); see also Grant,
886 F.3d at 892 (“Where the relevant state courts would now find those claims procedurally
barred, there is a procedural default for the purposes of federal habeas review.” (citation
modified)).
However, the undersigned is reluctant to recommend application of an anticipatory
procedural bar here for several reasons. First, Respondent has not raised anticipatory
procedural bar or attempted to prove the affirmative defense. Instead, Respondent
specifically asks the Court to “dismiss the Petition without prejudice to afford [Petitioner]
[the] opportunity” to present to the OCCA his constitutional challenges to his conviction.
Doc. 20 at 14. Second, Respondent notes that “under Oklahoma law, Petitioner has a right
to appeal out-of-time if he can demonstrate that he was denied an appeal through no fault
of his own.” Id. at 13 (citing Rules of the Oklahoma Court of Criminal Appeals, 2.1(E)(1)).
Third, Petitioner alleges that he can make such a showing—that he was unable to raise his
claims on direct appeal—because he was suicidal and mentally incompetent during the
relevant period. Doc. 22 at 9-10.
3. Conclusion
Petitioner’s claims are unexhausted, and his likelihood of obtaining an appeal out-
of-time is slim at best. The undersigned, though, is reluctant to foreclose that possibility
by recommending application of an anticipatory procedural bar when Respondent did not
raise such an affirmative defense and specifically moves for dismissal without prejudice.5
5 The undersigned recognizes that, even if Petitioner can perfect an appeal out of time in
state court, he would still face AEDPA’s one-year time limit for filing a properly exhausted
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Accordingly, the undersigned recommends that the Court grant Respondent’s motion to
dismiss without prejudice to afford Petitioner the opportunity to return to state court to
exhaust his claims.
IV. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court GRANT
Respondent’s motion to dismiss the Petition without prejudice. The parties are advised of
their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any
objection must be filed with the Clerk of Court not later than December 23, 2025. See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives the right to appellate
review of the factual and legal issues addressed in this Report and Recommendation. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 2nd day of December, 2025.
habeas petition. However, the timeliness of a future petition or any tolling exception is not
currently before the Court. Further, as discussed, the undersigned does not recommend
granting a stay in this case while Petitioner attempts to exhaust his federal habeas claims.
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