McNabb v. Rodgers

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARTEZ F. MCNABB, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-25-1258-PRW
)
MIKE RODGERS, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner Martez F. McNabb, proceeding pro se and in forma pauperis,
brings this action under 28 U.S.C. § 2254, seeking habeas corpus relief from
his state conviction and sentence. Doc. 1.1 Judge Patrick R. Wyrick referred
the case to the undersigned Magistrate Judge for submission of findings and
recommendations 	consistent 	with 	28 	U.S.C. 	§ 	636(b)(1)(B), 	(C). 	Doc. 	4.
Respondent has moved to dismiss the amended petition, and Petitioner has not
responded. Docs. 11 & 12. The undersigned recommends the Court grant
Respondent’s motion and dismiss the petition.
I. 	State court proceedings.
On 	August 	26, 	2024, 	Petitioner 	pleaded 	no 	contest 	to 	Aggravated
Trafficking in Cocaine, After Former Conviction of a Felony, and Aggravated
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 1 of 15

2
Trafficking in Methylenedioxymethamphetamine, in the District Court of
Custer County Case No. CF-2023-40. Doc. 12, at 10 & Exs. 5-7. Under his plea,
the state district court sentenced Petitioner to fifteen years on each count, to
run concurrently and with credit for time served. Id. at 10 & Exs. 6-7.
Despite the court informing Petitioner of his “Notice of Right to Appeal,”
Petitioner did not move to withdraw his plea within ten days or otherwise seek
an appeal through Oklahoma’s certiorari process. Doc. 12, at 10-12 & Ex. 5 at
10; see Rule 4.2(A), (D), Rules of the Oklahoma Court of Criminal Appeals, Title
22, Ch. 18, App.
On October 2, 2024, Petitioner filed a letter in the state district court.
Doc. 12, at 11 & Ex. 8, at 1-4. Petitioner complained about the conditions of the
Custer County Jail and expressed that he was trying “so hard” to exhaust his
state remedies Id. Ex. 8, at 1-2. The next day, Petitioner filed another letter
explaining that he wanted to “file charges” against the Oklahoma Highway
Patrol officers that “committed crimes” against him. Id. at 5. Petitioner also
filed an Application for Post-Conviction Relief raising ten claims of error:
1. 	Unlawful and unconstitutional traffic stop (Illegal stop);
2. 	Unlawful and unconstitutional search and seizure (Illegal
search);
3. 	Police 	Misconduct, 	exceeding 	authority, 	theft,
embezzlement;
4. 	Tampering, 	Staging 	with 	evidence 	and 	records, 	altered
evidence, Spoilation of evidence;
5. 	Perjury;
6. 	Violation of United States Constitution;
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 2 of 15

3
7. 	Violation of Oklahoma Constitution;
8. 	Entrapment;
9. 	Prosecutorial Misconduct; and
10. 	Judicial misconduct, abuse of discretion
Doc. 12, at 11 & Ex. 9, at 4-14. On November 20, 2024, the State moved to
dismiss, arguing Petitioner never perfected a certiorari appeal. Id. at 11-12 &
Ex. 	10. 	The 	state 	district 	court 	agreed 	and 	dismissed 	Petitioner’s 	post-
conviction application. Id. at 11 & Ex. 11. Petitioner filed a notice of his intent
to appeal this ruling. Id. at 11-12 & Ex. 12.
On December 13, 2024, and December 18, 2024, Petitioner filed two more
letters in the state district court requesting counsel, expressing his wish to
appeal, and his intent “to file a post-trial motion.” Id. at 12 & Ex. 8, at 8-11.
On December 19, 2024, the state district court directed Petitioner to file a
pauper’s affidavit if he wanted the court to consider appointing him counsel.
Id. at 12 & Ex. 13. On December 20, 2024, Petitioner filed a pauper’s affidavit,
along with two more letters. Id. at 12 & Ex. 8, at 12-16; Ex. 14, at 16. Petitioner
requested copies and included various complaints in the letters. Id. at 12 & Ex.
8, at 12-14. He also expressed his wish to “amend” his plea and the judgment
against him. Id. Ex. 8, at 12. On December 30, 2024, the state district court
entered an order stating that Petitioner had filed “numerous letters” and that
he “was appointed [counsel from Oklahoma Indigent Defense System (OIDS)]
to represent him in matters of appeal.” Doc. 12, at 12 & Ex. 15. The state
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 3 of 15

4
district court advised Petitioner that any future letters would be forwarded to
OIDS. Id. Ex. 15.
On March 7, 2025, March 31, 2025, August 22, 2025, September 8, 2025,
and October 23, 2025, Petitioner filed letters requesting copies of certain
documents. Doc. 12, at 12 & Ex. 8, at 17-22, 25-28. On August 29, 2025,
Petitioner filed a motion to compel his plea counsel to “surrender” his case file
to Petitioner for purposes of federal habeas proceedings. Doc. 12, at 12 & Ex.
16.
On September 3, 2025, Petitioner filed a letter expressing concern that
he had not heard from his appointed counsel about his appeal. Id. at 13 & Ex.
8, at 23. On November 10, 2025, Petitioner again submitted a letter with
additional concerns 	about his 	appointed counsel 	and her alleged lack of
communication. Id. at 13 & Ex. 8, at 29.
On November 21, 2025, Petitioner (proceeding pro se) filed a motion to
withdraw plea out-of-time in the state district court. Id. at 13 & Ex. 17.
Petitioner alleged that his plea counsel was ineffective and failed to adequately
inform him of his rights. Id. at 13 & Ex. 17, at 1. Petitioner also alleged that
his counsel appointed for appeal “went ghost” and failed to “do anything in the
matters or affairs of his appeals.” Id. at 13 & Ex. 17, at 4. The state district
court liberally construed Petitioner’s motion as a post-conviction application
for an appeal out-of-time and granted the motion. Id. at 13 & Ex. 18, at 1, 3.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 4 of 15

5
In its November 25, 2025 order, the state district court made these
findings of fact and conclusions of law:
FINDINGS OF FACT:
1. 	The 	Petitioner 	was 	represented 	by 	counsel 	at 	plea.
Petitioner did not file a motion requesting to withdraw plea.
Petitioner did not file a direct appeal in this matter.
2. 	Petitioner filed an Application for Post Conviction Relief on
October 	3, 	2024, 	containing 	10 	propositions. 	The 	Court
denied the Application for failing to properly file a direct
appeal and failing to request to withdraw his plea. The
Order was filed on November 25, 2024. Thereafter Petitioner
sent a pro se Notice of Intent to Appeal by letter filed on
December 9, 2024, but nothing further was filed. Petitioner
has sent numerous letters to the Court which all indicate his
desire to appeal. The Court appointed an attorney to go see
Petitioner in the prison facility but the attorney was not
allowed to see him.
3. 	Petitioner 	has 	continued 	to 	attempt 	to 	navigate 	the
complexities 	of 	the 	appeal 	process 	pro 	se 	without 	the
knowledge of how to do so.
CONCLUSIONS OF LAW:
Petitioner requests an appeal out of time. He was obviously
struggling with complying with the Court of Criminal Appeals
rules and ultimately failed to provide the required filings in a
timely manner.
Accepting Petitioner’s allegations as true, he was denied an
appeal through no fault of his own. The Court is satisfied that
Petitioner was denied an appeal at no fault of his own, and he is
entitled to post-conviction relief.
ORDER: IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the Court recommends an appeal out of time in
this matter be granted.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 5 of 15

6
Id. at 13-14 & Ex. 18, at 2-3. The state district court also included instructions
to Petitioner about how to perfect his request for an appeal out-of-time to the
Oklahoma Court of Criminal Appeals (OCCA) via a post-conviction appeal. Id.
Ex. 18, at 3. On December 1, 2025, Petitioner filed an application for post-
conviction relief seeking an appeal out-of-time, in which he alleged that he was
denied 	an 	appeal 	through 	no 	fault 	of 	his 	own 	and 	reiterating 	several
arguments previously presented to the state district court. Doc. 12, at 14-15 &
Ex. 19.2
On December 15, 2025, Petitioner filed a pro se application for post-
conviction relief seeking an appeal out-of-time. See McNabb v. State, No. PC-
2025-1005 	(Okla. 	Crim. 	App.)
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&numbe
r=PC-2025-1005&cmid=141444 (docket entry dated Dec. 15, 2025) (last visited
Mar. 13, 2026). The OCCA, based on the district court’s recommendation,
granted the request on December 22, 2025. Id. (docket entry dated Dec. 22,
2025).
On December 29, 2025, Petitioner filed a motion for judicial review. See
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=custer&number=
2 	Petitioner dated and signed this document on November 19, 2025, so it
appears he mailed this document before knowing the state district court
recommended granting him an appeal out of time. Id. at 14-15 & Ex. 19, at 5.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 6 of 15

7
CF-2023-40 (last visited Mar. 13, 2026).3 And on December 31, 2025, the state
district court appointed OIDS to perfect an appeal for Petitioner. Id. (docket
entries dated Dec. 31, 2025 and Jan. 5, 2026). His appointed counsel sought to
withdraw Petitioner’s plea on January 5, 2026, and the court set a hearing for
January 30, 2026. 	Id. (docket entry dated Jan. 5, 2026). Petitioner also
submitted a letter 	expressing his 	displeasure 	with 	appointed counsel 	on
January 29, 2026. Id. (docket entry dated Jan. 29, 2026).
The state district court held a counseled hearing on the motion to
withdraw plea on February 6, 2026. Id. (docket entry dated Feb. 6, 2026). In a
minute order, the court stated that Petitioner had withdrawn his request to
withdraw his plea of no contest. Id.
II. 	Federal court proceedings.
Petitioner filed his petition seeking habeas relief in this Court on October
23, 2025. Doc. 1, at 14. He raises fourteen grounds of error:
1. 	Illegal search and seizure, pretextual stop, traffic stop;
2. 	Selective law enforcement, equal protection;
3. 	Due 	process, 	procedural 	due 	process, 	Administrative
Procedure Act;
4. 	Ineffective assistance of counsel;
5. 	Legal mail;
6. 	Abuse of discretion;
3 	The Court takes judicial notice of Petitioner’s state court docket sheet.
See 	United 	States 	v. 	Ahidley, 	486 	F.3d 	1184, 	1192 	n.5 	(10th 	Cir. 	2007)
(exercising “discretion to take judicial notice of publicly-filed records in our
court and certain other courts concerning matters that bear directly upon the
disposition of the case at hand”).
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 7 of 15

8
7. 	Prosecutorial misconduct;
8. 	Giglio violation;
9. 	Jencks act violation;
10. 	Brady violation;
11. 	Perjury;
12. 	Extrinsic fraud;
13. 	Entrapment; and
14. 	Blatant miscarriage of justice.
Id. at 5-10 & Ex. 1, at 1-10. The State moved to dismiss, arguing that Petitioner
failed to exhaust and that the Court should abstain under Younger v. Harris,
401 U.S. 37, 46 (1971). Doc. 12, at 20-21.4 The Court should grant the motion.
III. 	Analysis.
A. 	Petitioner has not exhausted his state-court remedies.
A state prisoner must exhaust all available state-court remedies before
seeking a federal writ of habeas corpus unless exhaustion would be futile—
that is, unless no state-court remedy exists or such a remedy would be
ineffective to protect the prisoner’s rights, under the circumstances. See 28
U.S.C. § 2254(b)(1); see also Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir.
2011). “To exhaust a claim, a state prisoner must pursue it through ‘one
complete round of the State’s established appellate review process,’ giving the
4 	Petitioner’s time to respond has expired. See Doc. 9 (establishing a
twenty-one-day deadline to file a response to a motion and a fifteen-day
deadline to reply to an answer or other response). The Court, therefore, finds
Respondent’s 	motion 	confessed. 	See 	LCvR7.1(g). 	The 	undersigned 	has
considered 	Respondent’s 	motion 	and 	finds 	dismissal 	based 	on 	failure 	to
exhaust is appropriate.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 8 of 15

9
state courts a ‘full and fair opportunity’ to correct alleged constitutional
errors.” Selsor, 644 F.3d at 1026 (quoting O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999)); Picard v. Connor, 404 U.S. 270, 275 (1971). Petitioner “bears the
burden [to show] that he has exhausted available state remedies. Miranda v.
Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Before a state prisoner may pursue federal habeas relief alleging that
his or her federal constitutional rights have been violated, “the federal claim
must be fairly presented to the state courts.” Picard, 404 U.S. at 275. This
requirement 	“reflects 	a 	policy 	of 	federal-state 	comity” 	and 	is 	“an
accommodation of our federal system designed to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.” Id. (internal quotation marks and citations omitted).
Petitioner has not presented his habeas claims through one complete
round of Oklahoma’s appellate review process. Oklahoma has a procedure for
directly appealing “any conviction on a plea of guilty,” which is not foreclosed
to Petitioner. See Okla. Stat. tit. 22, § 1051(A) (providing “[a]n appeal to the
Court of Criminal Appeals may be taken by the defendant, as a matter of right
from any judgment against [him]” and “all appeals taken from any conviction
on a plea of guilty shall be taken by petition for writ of certiorari to the Court
of Criminal Appeals”). The time has passed for Petitioner to timely move to
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 9 of 15

10
withdraw his plea,5 but he moved in the state district court for an appeal out-
of-time, which the court granted. See, e.g., Dixon v. State, 228 P.3d 531, 532
(Okla. Crim. App. 2010) (“[P]rior to filing any petition with [the appellate
court] seeking leave to commence an out-of-time appeal, a defendant must first
file a verified post-conviction application in the trial court for such an appeal”
and, to “be entitled to the trial court’s recommendation that he be granted an
out-of-time appeal,” the defendant “must establish before the trial court that
he always desired to exercise that right of appeal but that he was denied the
opportunity to do so through no fault of his own” (citing Rule 2.1(E), Rules of
the Okla. Ct. of Crim. Appeals, Okla. Stat. tit. 22, Ch. 18, App.)).
As Respondent notes, at the time of filing, Petitioner had not pursued
such an appeal out-of-time and therefore has not exhausted his available state
court remedies. 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have
exhausted the remedies available in 	the courts 	of the 	State, within the
meaning of this section, if he has the right under the law of the State to raise,
by any available procedure, the question presented.”); Doc. 12, at 18-20; see
5 	See Rule 4.2, Rules of the Okla. Ct. of Crim. Appeals, Okla. Stat. tit. 22,
Ch. 18, App. (requiring a defendant to file “an application to withdraw the plea
within ten [] days from the date of the pronouncement of the Judgment and
Sentence, setting forth in detail the grounds for the withdrawal of the plea and
requesting an evidentiary hearing in the trial court”).
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 10 of 15

11
also Miranda, 967 F.2d at 398. Instead, he came to this Court, alleging it was
his “only fair chance.” Doc. 1, at 10-11.
And now, despite the state courts granting Petitioner’s request for an
appeal out-of-time and appointing him counsel, he has still not completed one
round of appellate review. Because Petitioner has not provided the state courts
with an opportunity to address the claims he raises in his habeas petition, this
Court may not consider them. O’Sullivan, 526 U.S. at 842.
B. 	This 	Court 	should 	dismiss, 	not 	stay, 	the 	unexhausted
petition.
The only exception to the exhaustion requirement is a showing of futility
because there is either no available state corrective process or circumstances
render such process ineffective to protect the rights of the prisoner. See 28
U.S.C. § 2254(b)(1)(B); see also Selsor, 644 F.3d at 1026 (“If a state prisoner
has not properly exhausted state remedies, the federal courts ordinarily will
not entertain an application for a writ of habeas corpus unless exhaustion
would have been futile because either ‘there is an absence of available State
corrective process’ or ‘circumstances exist that render such process ineffective
to 	protect 	the 	rights 	of 	the 	applicant.’” 	(quoting 	§ 	2254(b)(1)(B)(i), 	(ii)));
Miranda, 967 F.2d at 398 (“In order to satisfy the exhaustion requirement, a
federal habeas corpus petitioner must show that a state appellate court has
had the opportunity to rule on the same claim presented in federal court, or
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 11 of 15

12
that at the time he filed his federal petition, he had no available state avenue
of redress.”) (internal citation omitted). Petitioner “bears the burden of proving
that he exhausted state court remedies . . . or that exhaustion would have been
futile.” Selsor, 644 F.3d at 1026 (internal citations omitted).
Petitioner argues that he has not exhausted his state court remedies on
the issues he now raises because he “was manipulated and coerced” due to
ineffective assistance of counsel. Doc. 1, at 10. And that he has “attempted to
[do so] to the best of [his] abilities, and this Court provides “his only fair
chance.” Id. at 11. He also references his difficulties as a pro se litigant. Id. Att.
1, at 11. He requests that this Court stay his case “while [he] retains the full
and fair chance to do one full round of state-court review.” Id.
Ignorance 	of 	the 	law 	is 	not 	a 	reason 	to 	excuse 	the 	exhaustion
requirement. See, e.g., Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)
(“[I]gnorance of the law, even for an incarcerated pro se petitioner,” cannot be
used 	to 	overcome 	§ 	2254’s 	procedural 	requirements 	(internal 	quotation
marks)). And Petitioner knows that he has available state remedies which he
has not pursued—so he must seek relief in the state courts before this Court
can review his habeas petition. Doc. 1, at 10-12 & Att. 1, at 11; Doc. 12, Ex. 18.
Petitioner has admittedly failed to seek relief in state court related to the
validity of his conviction. Yet he has not demonstrated he lacks the opportunity
to obtain the appropriate redress in state court. Under such circumstances,
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 12 of 15

13
this Court cannot address Petitioner’s habeas corpus claims because he has not
exhausted his available state court remedies before proceeding in habeas
corpus. Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
Petitioner asks this Court to stay this case and hold his petition in
abeyance until he has exhausted his claims in state court, citing Rhines v.
Weber, 	544 	U.S. 	269, 	276 	(2005). 	Doc. 	1, 	Att. 	1, 	at 	11-12. 	In 	limited
circumstances, the Court has discretion to stay a mixed habeas petition to
allow Petitioner to return to state court without the petition’s dismissal. See
Rhines, 544 U.S. at 276. Stay and abeyance is “available only in limited
circumstances,” where the petitioner who filed a mixed habeas petition in
federal court shows “good cause for his failure to exhaust, his unexhausted
claims 	are 	potentially 	meritorious, 	and 	there 	is 	no 	indication 	that 	the
petitioner engaged in intentionally dilatory litigation tactics.” Id. at 277-78.
But 	the 	petition 	here 	is 	not 	a 	“mixed 	petition,” 	as 	it 	contains 	no
exhausted claims. See Montgomery v. Garfield Cnty. Jail, No. CIV-13-1135-C,
2014 WL 174597, at *2 (W.D. Okla. Jan. 13, 2014) (“As the instant Petition is
not a ‘mixed petition,’ the stay-and-abeyance procedure established in Rhines
. . . is not appropriate.”); but see Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir.
2014) (concluding that “the district court had discretion to consider a Rhines
stay even though petitioner filed an unmixed petition”). Petitioner claims
ineffective assistance of counsel hindered his ability to challenge his conviction
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 13 of 15

14
on direct appeal. Doc. 1, Att. 1, at 11. On December 31, 2025, the Custer County
District Court appointed counsel for him to perfect his appeal and his state
court proceedings are ongoing in the OCCA. State v. McNabb, CF-2023-40
(docket entry dated Dec. 31, 2025); McNabb v. State, CF-2025-1005 (docket
entry dated Mar. 2, 2026); see, e.g., Rhines, 544 U.S. at 277 (“[S]tay and
abeyance is only appropriate when the district court determines there was good
cause. . . .”). The undersigned finds Petitioner has not shown good cause for
his failure to exhaust. Thus, this Court should dismiss for failure to exhaust.
IV. 	Recommendation and notice of right to object.
For the above reasons, the undersigned recommends the Court grant
Respondent’s motion to dismiss Petitioner’s habeas petition.
The undersigned advises Petitioner of his right to file an objection to this
report and recommendation with the Clerk of this Court on or before April 3,
2026, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b)(2). The undersigned further advises Petitioner that failure to
make a timely objection to this report and recommendation waives the right to
appellate review of both factual and legal questions contained herein. Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues and terminates
the referral to the undersigned Magistrate Judge in this matter.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 14 of 15

15
ENTERED this 13th day of March, 2026.
Case 5:25-cv-01258-PRW Document 13 Filed 03/13/26 Page 15 of 15