Small v. Rankins

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
VINCENT H. SMALL, )
)
Petitioner, )
)
v. ) No. CIV 22-098-RAW-KEW
)
WILLIAM “CHRIS” RANKINS, )
Warden, )
)
Respondent. )
OPINION AND ORDER
This action is before the Court on Respondent’s motion to dismiss Petitioner’s petition
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Dkt. 12). Petitioner is a pro
se prisoner in the custody of the Oklahoma Department of Corrections who is incarcerated
at Oklahoma State Reformatory in Granite, Oklahoma. He is attacking his conviction and
sentence in Sequoyah County District Court Case No. CF-2019-155 for Lewd Molestation,
After Former Conviction of Two or More Felonies. Petitioner has not filed a response to the
motion to dismiss.
Petitioner raises the following grounds for habeas relief:
I. On or around November 11, 2019, a posting on the Sequoyah County
Court website stated he had failed to appear in this case and was tried
and found guilty. No correction was made, and the posting “poisoned
the well worldwide” because of the public’s response to the charge.
II. A text message, allegedly sent to Debra Siebert’s phone, was allowed
into evidence.
III. A jury instruction for lesser-included offenses was given to the
sequestered jury after the State and the defense had rested.
IV. The video of the victims’ statements were made and edited by a child
advocacy service.
(Dkt. 1 at 7-8 ¶ 13).
Petitioner also asserts he is challenging (1) constitutional violations of ineffective
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assistance of appellate counsel, (2) insufficient evidence to sustain conviction, and (3)
excessive sentence” (Dkt. 1 at 2 ¶ 5), although these claims are not specifically alleged as
grounds for habeas relief (Dkt. 1 at 7-8 ¶ 13). Petitioner explains he did not raise these
claims in his appeal as follows: “I made every effort to have these issue[s] included in direct
appeal. I wrote my lawyer 6 letters, court clerk 5, ACLU one. No response from lawyer until
I received his completed and filed brief.” (Dkt. 1 at 9 ¶ 14; Dkt. 1 at 3 ¶ 8(b)). Petitioner
further alleges, “I’m still in time for filing second appeal and I pray to have my issues looked
into by this Court as I’ve been denied due process through no fault of my own.” (Dkt. 1 at
4 ¶ 9(b)).
Exhaustion of State Remedies
“A threshold question that must be addressed in every habeas case is that of
exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). The Court must
dismiss a state prisoner’s habeas petition if he has not exhausted the available state court
remedies as to his federal claims. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). In
federal habeas corpus actions, the petitioner bears the burden of showing he has exhausted
his state court remedies as required by 28 U.S.C. § 2254(b). See Clonce v. Presley, 640 F.2d
271, 273 (10th Cir. 1981); Bond v. Oklahoma, 546 F.2d 1369, 1377 (10th Cir. 1976). To
satisfy the exhaustion requirement, a claim must be presented to the State’s highest court
through a direct appeal or a post-conviction proceeding. Dever v. Kansas State Penitentiary,
36 F.3d 1531, 1534 (10th Cir. 1994). Under the doctrine of comity, a federal court should
defer action on claims properly within its jurisdiction until a state court with concurrent
power has had an opportunity to consider the matter. Rose v. Lundy, 455 U.S. 509, 518-19
(1982).
The record shows that a jury convicted Petitioner of Lewd Molestation, and the trial
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court sentenced him to life imprisonment in accordance with the jury’s recommendation.
(Dkt.13-1 at 1). Petitioner appealed his Judgment and Sentence to the Oklahoma Court of
Criminal Appeals (OCCA), raising one proposition of error, that “the evidence presented at
trial was insufficient to convict Mr. Small of the charged crime.” (Dkt. 13-2 at 7). The
OCCA rejected Petitioner’s argument and affirmed his judgment by summary opinion in
Small v. State, F-2020-158 (Okla. Crim. App. May 6, 2021). (Dkt. 13-1). Petitioner has not
filed an application for post-conviction relief in the state court. (Dkt. 1 at ¶ 8(b)); see also
Oklahoma State Courts Network at https:// www.oscn.net, Docket for Sequoyah County
District Court Case No. CF-2019-155).
“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires state
prisoners to ‘exhaus[t] the remedies available in the courts of the State’ before seeking
federal habeas relief.” Shinn v. Ramirez, __ U.S. __, 142 S.Ct. 1718, 1724 (2022). This
requirement is codified at 28 U.S.C. § 2254(b)(1)(A), which provides, “An application for
a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the State.” The exhaustion doctrine
expresses a policy of federal-state comity. Its purpose is to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Picard
v. Connor, 404 U.S. 270, 275 (1971) (citation omitted).
If Petitioner’s habeas petition is read to assert only the four grounds for relief set forth
in Paragraph 13 of the petition, then none of Petitioner’s claims have been exhausted in state
court. If the petition is read to include claims of ineffective assistance of appellate counsel,
insufficiency of the evidence, and an excessive sentence as set forth in Paragraph 5, then the
petition contains both exhausted and unexhausted claims. The Court construes the petition
liberally and considers the seven claims in Paragraphs 5 and 13 as Petitioner’s grounds for
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habeas corpus relief. See Haines v. Kerner, 404 U.S. 519 (1972).
A petition that contains both exhausted and unexhausted claims is considered a
“mixed petition.” See Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016). A district
court has four ways to dispose of a mixed petition: (1) dismiss the petition without prejudice
to permit the petitioner to exhaust his state remedies; (2) deny the petition on its merits; (3)
permit the petitioner the opportunity to delete unexhausted claims from the petition and
proceed only on the exhausted claim; or (4) “if the equities favor such an approach,” stay the
federal habeas petition and hold it in abeyance while the petitioner returns to state court to
exhaust the unexhausted claims. Id. The fourth option, a stay and abeyance, is appropriate
only where the petitioner shows “good cause for his failure to exhaust,” that his unexhausted
claims are potentially meritorious, and that he engaged in “no dilatory litigation tactics.”
Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Kell v. Benzon, 925 F.3d 448, 451 (10th Cir.
2019).
After careful review, the Court finds Petitioner cannot show that at the time he filed
his habeas petition, he had “no available state avenue of redress.” Miranda v. Cooper, 967
F.2d 392, 398 (10th Cir. 1992) (citing Anderson v. Harless, 459 U.S. 4, 8 (1982)).
Post-conviction review affords criminal defendants in Oklahoma the opportunity to challenge
their convictions by raising claims that could not reasonably have been raised on direct
appeal, including claims of ineffective assistance of appellate counsel. See, e.g., Logan v.
State, 293 P.3d 969, 973 (Okla. Crim. App. 2013); see also Okla. Stat. tit. 22, §§ 1080,
1080.1, 1086.1 Here, Petitioner alleges he made numerous attempts to have additional issues
1 Oklahoma’s Post-Conviction Procedure Act recently was amended to initiate a one-year
period of limitation to file for post-conviction relief. See Act of May 2, 2022, ch. 144, sec. 2, §
1080.1, 2022 OKLA. SESS. LAW SERV. (West). The amendment was effective on November 1,
2022. Id. sec. 5.
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raised in his direct appeal (Dkt. 1 at 3 ¶ 8(b)); Dkt. 1 at 9 ¶ 14), however, he apparently made
no attempts to raise claims in a post-conviction application, and he makes no claim of futility
under 28 U.S.C. § 2254(b)(1)(B). The Court thus finds he has not shown good cause for his
failure to exhaust, and a stay and abeyance is not warranted.
Petitioner’s options for proceeding with this action are to (1) dismiss this action
without prejudice in its entirety with the understanding that a second habeas petition could
be barred by the statute of limitations, (2) dismiss the unexhausted claims and continue with
the exhausted claim concerning the sufficiency of the evidence, or (3) continue this case with
all claims, with the knowledge that this Court will dismiss the petition for failure to exhaust
all state court remedies.
Petitioner is granted fourteen (14) days to advise the Court of the direction he intends
to follow by filing one of the following: (1) a motion to dismiss this action in its entirety
without prejudice, (2) a motion to dismiss the unexhausted claims, or (3) a notice that he
intends to continue the petition with both exhausted and unexhausted claims. Failure to
respond as directed by the Court in this Order will result in dismissal of this entire action
without further notice.
ACCORDINGLY, Respondent’s motion to dismiss (Dkt. 12) is DENIED. Petitioner
is directed to advise the Court of his intentions for proceeding in this case within fourteen
(14) days by filing an appropriate pleading as set forth above.
IT IS SO ORDERED this 8th day of February 2023.
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