Doshier v. State of Oklahoma ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 15 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
LARRY JOE DOSHIER,
Petitioner-Appellant, No. 02-7151
v. (D.C. No. CIV-02-161-S)
STATE OF OKLAHOMA, (E.D. Oklahoma)
Respondent-Appellee.
ORDER
Before EBEL , HENRY , and HARTZ , Circuit Judges.
Larry Joe Doshier, a state prisoner appearing pro se, seeks a certificate of
appealability (COA) that would allow him to appeal the district court’s order
dismissing his application for a writ of habeas corpus under 28 U.S.C. § 2254 for
failure to exhaust state remedies. See 28 U.S.C. § 2253(c)(1)(A). He has also
filed with this court a “Petition for Writ of Coram Nobis” challenging his
conviction. We deny Mr. Doshier’s request for a COA, deny his petition for a
writ of error coram nobis, and dismiss the appeal.
On December 8, 2000, Mr. Doshier pleaded guilty to one count of
manufacturing a controlled dangerous substance and was sentenced to 20 years’
imprisonment. Apparently, he did not directly appeal his conviction or seek relief
under Oklahoma’s Post-Conviction Procedure Act, Okla. Stat. tit. 22, §§ 1080-
1089. Instead, on December 27, 2001, Mr. Doshier filed in the District Court of
Seminole County, Oklahoma, a petition for a writ of habeas corpus (which is a
different remedial process from an application for relief under Oklahoma’s post-
conviction statute, see Okla. Stat. tit. 22, Ch. 18, App. R. 10.6(C)(1)). His
petition was denied in a one-paragraph order dated February 13, 2002.
Mr. Doshier appealed that denial to the Oklahoma Court of Criminal Appeals
(OCCA), filing a “Habeas Corpus Petition” challenging his conviction on a
number of grounds. The OCCA declined jurisdiction over the petition on
March 13, 2002, noting that “[t]he writ of habeas corpus is not an authorization to
bypass the statutory appeal process,” and ruling that Mr. Doshier “ha[d] not
properly presented th[e] matter for consideration.” R., Tab 1, Ex. 2, at 1.
Mr. Doshier was advised that if he “believe[d] he was denied a timely appeal
through no fault of his own, he should file an application for post-conviction
relief in the District Court, seeking an out of time appeal.” Id. at 1-2 n.2.
Rather than seek an appeal out of time under Oklahoma’s post-conviction
statute, Mr. Doshier filed a § 2254 habeas corpus application in federal court. In
that application, as in his habeas petition to the OCCA, Mr. Doshier appears to
challenge his conviction on the following grounds: (1) entrapment, (2)
outrageous government conduct, (3) ineffective assistance of counsel, and (4) the
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use of a purportedly invalid search warrant. Also, he requested an evidentiary
hearing. On October 22, 2002, the district court dismissed the application without
prejudice for failure to exhaust state remedies. This request for a COA followed.
A COA can issue only if “the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the
district court has denied the application on procedural grounds without reaching
the underlying constitutional claims, a COA should issue if the applicant
demonstrates “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). We recognize that in
examining whether the district court’s “resolution was debatable amongst jurists
of reason,” we should not undertake a “full consideration of the factual or legal
bases adduced in support of the claims.” Miller-El v. Cockrell, 123 S. Ct. 1029,
1039 (2003). Rather, “[t]he COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a general assessment of their
merits.” Id. (emphasis added).
After consideration of Mr. Doshier’s brief, the district court’s order, and
the record on appeal, we conclude that the district court’s determination that
Mr. Doshier’s § 2254 application should be dismissed for failure to exhaust state
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remedies is not reasonably debatable. An applicant for a writ of habeas corpus
under § 2254 must show that he has exhausted the remedies available in the courts
of the state. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is satisfied
“once [a] federal claim has been fairly presented to the state courts.” Castille v.
Peoples, 489 U.S. 346, 351 (1989) (internal quotation marks omitted; bracket in
original). In Oklahoma, habeas corpus is a limited remedy and may not be used to
bypass the statutory appeals process. See Okla. Stat. tit. 22, Ch. 18, App. R.
10.6(C)(1); Smith v. Oklahoma, 546 P.2d 1351, 1354 (Okla. Crim. App. 1976)
(“We have consistently held that the scope of habeas corpus is limited to a
determination of whether the trial court had jurisdiction of the person, subject
matter, and authority under law to pronounce the judgment and sentence
imposed.”) Under these circumstances, the filing of Mr. Doshier’s state habeas
petition is not a “fair presentation” to the OCCA sufficient to satisfy the
exhaustion requirement. See Castille, 489 U.S. at 351 (a petitioner who invokes a
discretionary and limited state remedy does not fairly present his claims and
therefore does not exhaust state remedies); Parkhurst v. Shillinger, 128 F.3d
1366, 1369 (10th Cir. 1997) (same). We note that Mr. Doshier apparently still
has state remedies available to him, as the OCCA advised him that he could seek
an out-of-time appeal through an application for post-conviction relief in state
district court. Therefore, for substantially the same reasons set forth in the
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district court’s October 22, 2002 order, we DENY Mr. Doshier’s request for a
COA.
Mr. Doshier has also challenged his conviction by filing a “Petition for
Writ of Coram Nobis.” That petition is DENIED. See United States v. Torres,
282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] prisoner may not challenge a sentence
or conviction for which he is currently in custody through a writ of coram
nobis.”). The appeal is DISMISSED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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