Robinson v. Rice ( 2019 )


Menu:
  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                             June 3, 2019
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    RAITHIELE JON ROBINSON,
    Petitioner - Appellant,
    v.                                                          No. 18-7065
    (D.C. No. 6:18-CV-00099-RAW-KEW)
    EDDY RICE, Okmulgee County Sheriff,                         (E.D. Okla.)
    Respondent - Appellee.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    _________________________________
    Before LUCERO, PHILLIPS, and EID, Circuit Judges.
    _________________________________
    Petitioner Raithiele Jon Robinson, a pretrial detainee at Moore Detention
    Center (commonly known as the Okmulgee County Jail), filed a habeas petition
    pursuant to 28 U.S.C. § 2241. He seeks dismissal of his pending state criminal
    charges and release from custody. The petition asserts four grounds for relief:1
    (1) Unlawful search and arrest and/or Miranda violations.
    (2) Defects in the state court charging document.
    (3) Speedy trial violation.
    *
    This order and judgment is not binding precedent, except under the doctrines
    of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
    its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    1
    These grounds for relief are not clearly articulated, so we paraphrase.
    (4) The state of Oklahoma lacks jurisdiction because Robinson is a member of
    the Muscogee (Creek) Nation and the alleged crimes took place on Muscogee
    (Creek) land.
    ROA at 9–11. The petition also asserts that Robinson’s state-appointed attorney
    “only comes to court,” “has not visited [Robinson] ever at the jail to discuss [his]
    case,” and “doesn’t return [Robinson’s] letters” or his family’s phone calls. 
    Id. at 11.
    The district court dismissed the petition for failure to exhaust state court
    remedies. ROA at 204–05. The district court also concluded that it was required to
    abstain from interfering in the pending state criminal prosecution under Younger v.
    Harris, 
    401 U.S. 37
    (1971). 
    Id. at 205–06.
    Finally, the district court found that
    Robinson had not shown that he was entitled to a certificate of appealability. 
    Id. at 206.
    I.
    A state prisoner pursuing a § 2241 petition must obtain a certificate of
    appealability before he can be heard on the merits of his appeal. Montez v. McKinna,
    
    208 F.3d 862
    , 867 (10th Cir. 2000). When a district court denies a habeas petition on
    procedural grounds, a COA cannot issue unless the prisoner shows “that jurists of
    reason would find it debatable whether the petition states a valid claim of the denial
    of a constitutional right and that jurists of reason would find it debatable whether the
    district court was correct in its procedural ruling.” Slack v. McDaniel, 
    529 U.S. 473
    ,
    484 (2000).
    2
    The district court correctly dismissed Robinson’s petition on procedural
    grounds. A habeas petitioner seeking relief under § 2241 must exhaust available
    state remedies. 
    Montez, 208 F.3d at 866
    ; Wilson v. Jones, 
    430 F.3d 1113
    , 1118 (10th
    Cir. 2005). The petitioner bears the burden of showing that he has exhausted
    available state remedies. Miranda v. Cooper, 
    967 F.2d 392
    , 398 (10th Cir. 1992); see
    also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (unpublished).
    Robinson has not met his burden of showing that he has exhausted available
    state remedies. A review of the electronic docket in Robinson’s criminal case (case
    no. CF-2016-00480A) suggests that Robinson has not presented most of his claims to
    the Oklahoma district court, nor exhausted what appellate remedies might be
    available.2 The sole exception is Robinson’s jurisdictional argument, which is
    currently pending before the district court. Robinson does not allege that he has
    pursued his claims by any other means which are not reflected in the criminal docket.
    Nor does Robinson explain why the normal avenues for relief in state court—such as
    motions before the trial court, appeal, and the state writ of habeas corpus—are
    unavailable or inadequate to vindicate his rights. See, e.g., Beavers v. Saffle, 
    216 F.3d 918
    , 924 n.3 (10th Cir. 2000) (noting that exhaustion is not required when there
    is “no opportunity to obtain redress in state court if the corrective process is so
    clearly deficient as to render futile any effort to obtain relief”) (quoting Duckworth v.
    2
    We “exercise our 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.” United States v. Ahidley, 
    486 F.3d 1184
    , 1192 n.5
    (10th Cir. 2007).
    3
    Serrano, 
    454 U.S. 1
    , 3 (1981) (per curiam)); cf. Kugler v. Helfant, 
    421 U.S. 117
    , 124
    (1975) (noting that “ordinarily a pending state prosecution provides the accused a fair
    and sufficient opportunity for vindication of federal constitutional rights”).
    Robinson’s sole argument on appeal regarding exhaustion is that the
    exhaustion requirement does not apply to § 2241 petitions brought by pretrial
    detainees. Aplt. Br. at 9–10. Binding precedent compels rejection of that argument.
    See 
    Montez, 208 F.3d at 866
    (“A habeas petitioner is generally required to exhaust
    state remedies whether his action is brought under § 2241 or § 2254.”); 
    Wilson, 430 F.3d at 1118
    (“A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally
    required to exhaust state remedies.”); Braden v. 30th Judicial Circuit Court of
    Kentucky, 
    410 U.S. 484
    , 489–91 (1973) (applying exhaustion requirement to state
    pretrial detainee’s § 2241 petition).
    Finally, Robinson’s assertion in his habeas petition that his attorney is
    inattentive, see ROA at 11, cannot excuse his failure to exhaust, at least for now.
    Although ineffective assistance of counsel can sometimes establish cause and
    prejudice for procedural default, the ineffective-assistance claim must itself be
    exhausted before it can provide “cause” for procedural default. Murray v. Carrier,
    
    477 U.S. 478
    , 489 (1986); Edwards v. Carpenter, 
    529 U.S. 446
    , 451–52 (2000).
    Robinson has not demonstrated that he has exhausted any potential ineffective
    assistance claim.
    In short, no reasonable jurist would debate that Robinson has failed to show
    that he has exhausted available state court remedies or that exhaustion would be
    4
    futile. Because “jurists of reason would” not “find it debatable whether the district
    court was correct in its procedural ruling,” 
    Slack, 529 U.S. at 484
    , we DENY
    Robinson’s application for a certificate of appealability.3
    Entered for the Court
    Allison H. Eid
    Circuit Judge
    3
    Because we hold that the petition was correctly dismissed on exhaustion
    grounds, we need not address the district court’s alternative holding that Younger
    abstention is warranted.
    5