De Luna v. Harpe

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LUKE E. DELUNA, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-23-890-G
)
STEVEN HARPE, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing with counsel, has filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. 	(Doc. 1). 	The matter has been referred to the
undersigned 	Magistrate 	Judge 	for 	initial 	proceedings 	consistent 	with 	28 	U.S.C. 	§
636(b)(1)(B), (C). 	(Doc. 3). 	Respondent moved to dismiss the Petition (Docs. 9, 10),
arguing that Petitioner failed to fully exhaust his state court remedies. 	Petitioner did not
respond. Both parties filed supplemental briefing (Docs. 12, 13) in response to an Order
of this Court (Doc. 11).
For the reasons below, the undersigned recommends granting Respondent’s
Motion to Dismiss (Doc. 9) and dismissing the Petition unless, within 21 days of any
order by the district court adopting this Report and Recommendation, Petitioner chooses
to amend his habeas petition to present only the exhausted claims.
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I. 	Factual and Procedural Background
Petitioner is a state inmate incarcerated at the Lawton Correctional Facility in
Lawton, Oklahoma. (Doc. 1, at 9). A jury in Kiowa County District Court found Petitioner
guilty of child abuse by injury. (Id.); see also Kiowa County District Court, Case No. CF-
2019-8.1 On July 7, 2021, Petitioner was sentenced to 30 years of imprisonment. (Doc. 1,
at 9).
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals
(“OCCA”). (Doc. 1, at 10); see also OCCA, Case. No. F-2021-745.2 Petitioner raised two
propositions of error in his appeal. (Doc. 10, at Ex. 2, at 2). In Proposition One, Petitioner
argued that “the trial court erred when it granted the state’s Burks3 motion in regard to
alleged domestic abuse,” wrongly admitting other crimes evidence in violation 	of
Petitioner’s “constitutional rights includ[ing] due process of law and fair trial before an
impartial jury.” (Id. at Ex. 2, at 11). In Proposition Two, Petitioner argued that he “was
deprived his Sixth Amendment right to effective assistance of counsel.” 	(Id. at Ex. 2, at
16).
1 	https://www.oscn.net/dockets/GetCaseInformation.aspx?db=kiowa&number=CF-2019-
00008 (Docket Sheet) (last visited May 22, 2024). The undersigned takes judicial notice of
the docket sheets and related documents in Petitioner’s state criminal proceedings. See
United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising 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”) (citation
omitted).
2 	https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-
2021-745 (Docket Sheet) (last visited May 22, 2024).
3 Burks v. State, 1979 OK CR 10, 594 P.2d 771.
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The OCCA affirmed Petitioner’s conviction and sentence on July 7, 2022. (Id. at Ex. 4).
Petitioner did not seek a writ of certiorari to the Supreme Court, so his conviction became
final 90 days later, on October 5, 2022. 	See Jenkins v. Crow, 820 F. App’x 773, 774-75
(10th Cir. 2020).
On October 5, 2023, Petitioner filed the instant Petition. 	(Doc. 1). 	As Petitioner
concedes, “Petitioner has raised exhausted and unexhausted claims in [his] petition and
requests that this action be stayed as a result of the unexhausted claims.” 	(Id. at 10).
Specifically, Petitioner re-asserts his two propositions from his appeal (Grounds I and II),
(see id. at 17-22), and then, in a section titled “Unexhausted Claims,” seeks relief for a
variety of 	numbered 	and unnumbered 	grounds and 	several altogether undeveloped
arguments, (see id. at 22-39).
II. 	Analysis
A. 	Petitioner Has Filed a Mixed Petition.
A federal court cannot grant habeas relief unless the petitioner has exhausted his
state-court remedies by presenting substantially the same federal claim or claims to the
state’s highest court. See 28 U.S.C. § 2254(b)(1)(A); Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (citing 28 U.S.C. § 2254(b), (c)). To properly exhaust, a petitioner “must ‘fairly
present’ his claim in each appropriate state court . . . , thereby alerting that court to the
federal nature of the claim” and giving the State the first “opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27,
29 (2004) (internal quotation marks omitted). The petitioner bears the burden of proving
either that he properly exhausted the federal claim(s) or that there were no “available” state
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court remedies for him to exhaust. 	Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir.
2011); see also 28 U.S.C. § 2254(b)(1)(A), (B).
If some of Petitioner’s grounds are unexhausted, his petition becomes a “‘mixed
petition,’ containing both exhausted and unexhausted claims.” 	Wood v. McCollum, 833
F.3d 1272, 1273 (10th Cir. 2016). 	In general, federal district courts may not adjudicate
mixed petitions and must dismiss them in their entirety. See Rose v. Lundy, 455 U.S. 509,
522 (1982). This rule of total exhaustion, however, “is not absolute.” Harris v. Champion,
48 F.3d 1127, 1131 n.3 (10th Cir. 1995). A district court presented with a mixed petition
has three other options. See Wood, 833 F.3d at 1273.
First, a district court may stay and abate a case, allowing a petitioner to
“return[ ] to state court to exhaust his previously unexhausted claims” under
“limited circumstances.” 	Rhines [v. Weber], 544 U.S. [269,] 275, 277
[(2005)].4 	A district court’s denial of a stay and abate would likely be an
abuse of discretion if a petitioner had (1) “good cause for his failure to
exhaust,” (2) “potentially meritorious” unexhausted claims, and (3) “no
indication . . . [of] intentionally dilatory litigation tactics.” 	Id. at 278; see
also Kell v. Benzon, 925 F.3d 448, 468 (10th Cir. 2019).
Second, “[t]he court may also permit the petitioner to delete the unexhausted
claim from his petition and proceed only on the exhausted claims.” 	Wood,
833 F.3d at 1273 (citing Lundy, 455 U.S. at 510).
Third, 	a 	petition 	“may 	be 	denied 	on 	the 	merits” 	in 	its 	entirety,
notwithstanding the failure to exhaust. 28 U.S.C. § 2254(b)(2). This option
is available only if the court denies both the unexhausted and exhausted
claims. 	See Moore v. Schoeman, 288 F.3d 1231, 1235-36 (10th Cir. 2002)
(explaining § 2254(b)(2) permits “deny[ing] the entire petition on the
merits,” but not a “hybrid approach”).
4 “The total exhaustion requirement in 28 U.S.C. § 2254(b)(1)(A) and the 1-year statute of
limitations in 28 U.S.C. § 2244(d) can foreclose ‘mixed petitions’ from federal review.
[Rhines], at 275. Rhines permitted district courts to use a ‘stay and abeyance’ procedure
‘in limited circumstances’ to avoid this result. Id. at 275, 277.” May, 794 F. App’x at, 755
n.4 (parallel citations omitted).
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May v. Heimgartner, 794 F. App’x 751, 755 (10th Cir. 2019) (parallel citations omitted).
B. 	Petitioner Has Not Shown Entitlement To A Stay.
Petitioner has asked the court to stay his case while he exhausts his remaining claims
in state court. (Doc. 1, at 10). “As discussed above, a stay and abeyance is appropriate if
the petitioner shows (1) ‘good cause for his failure to exhaust,’ (2) ‘potentially meritorious’
unexhausted claims, and (3) no ‘dilatory litigation tactics.’” 	May, 794 F. App’x at 756
(quoting Rhines, 544 U.S. at 278).
Mindful of this standard, and absent any argument from Petitioner on point, the
undersigned ordered Petitioner, who is represented by counsel, to submit supplemental
briefing on the Rhines factors to establish Petitioner’s entitlement to a stay:
The undersigned therefore orders Petitioner to file a supplemental brief
addressing the Rhines factors for each of Petitioner’s unexhausted claims.
On the meritorious prong, Petitioner shall address whether each claim could
be pursued by a presently available state remedy. 	See Moore, 288 F.3d at
1233 	n.3 	(explaining 	“anticipatory 	procedural 	bar”). 	Petitioner’s
supplemental brief shall be limited to the Rhines analysis, as the time to
respond to Respondent’s Motion to Dismiss has passed. 	See LCvR7.1(g).
Alternatively, 	Petitioner 	may 	amend 	his 	Petition 	to 	present 	only 	his
exhausted claims. See Rose, 455 U.S. at 510.
(Doc. 11, at 2). 	Petitioner thereafter submitted supplemental briefing. 	(See Doc. 12).
Inexplicably, Petitioner’s supplemental briefing entirely fails to address the Rhines factors
or otherwise set forth any grounds arguing in favor of granting Petitioner a stay. Petitioner
has therefore failed to meet his burden and is not entitled to a stay pursuant to Rhines.
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III. 	Recommendation and Notice of Right to Object.
For these reasons, the undersigned recommends granting Respondent’s Motion to
Dismiss (Doc. 9) and dismissing the Petition unless, within 21 days of any order by the
district court adopting this Report and Recommendation, Petitioner chooses to amend his
habeas petition to present only the exhausted claims.
Petitioner is advised of the right to file an objection to this Report and
Recommendation with the Clerk of Court by June 12, 2024, in accordance with 28
U.S.C. § 636 and Fed. R. Civ. P. 72. 	Petitioner is further advised that failure to timely
object to this Report and Recommendation waives the right to appellate review of both
factual and legal issues contained herein. 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 and terminates the referral unless and until the matter is re-referred.
ENTERED this 22nd day of May, 2024.
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