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6:12-cv-00487-RAW-KEW Document 9 Filed in ED/OK on 09/19/13 Page 1 of 4








) Case No. CIV 12-487-RA W-KEW


This matter is before the court on the respondent's motion to dismiss petitioner's

petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. Petitioner, an inmate

in the custody of the Oklahoma Department of Corrections (DOC) who currently is

incarcerated at Jess Dunn Correctional Center in Taft, Oklahoma, is challenging the

execution of his sentence in Kiowa County District Court Case No. CF -2008-42 for

Distribution of Controlled Substance within 2,000 Feet of a Park or School. He alleges his

sentence is being calculated under the 85% Rule, 1 when it should be calculated as a 50%

sentence. The respondent has moved for dismissal, alleging petitioner has failed to exhaust

all his available remedies, the applicable statute of limitations has expired, and petitioner is

not entitled to the credits he seeks.

"A threshold question that must be addressed in every habeas case is that of

exhaustion." Harris v. Champion, 15 F.3d 1538, 1554 (lOth 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

1 Under the 85% Rule of Okla. Stat. tit. 21, § 13.1, a prisoner serving a sentence for certain
offenses is "required to serve not less than eighty-five percent (85%) of any sentence of
imprisonment ... prior to becoming eligible for consideration for parole. Persons convicted of these
offenses shall not be eligible for earned credits or any other type of credits which have the effect of
reducing the length of the sentence to less than eighty-five percent (85%) of the sentence imposed."

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his state court remedies as required by 28 U.S.C. § 2254(b ). See Clonce v. Presley, 640 F .2d

271, 273 (lOth Cir. 1981); Bond v. Oklahoma, 546 F.2d 1369, 1377 (lOth 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 (lOth 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


The record shows that petitioner entered a guilty plea in Case No. CF-2008-42, and

his Judgment and Sentence was entered on February 25, 2009. He did not seek to timely

withdraw his plea or seek a direct appeal to the Oklahoma Court of Criminal Appeals, but

he did file an application for post-conviction relief in the Kiowa County District Court on

June 10, 2011. The post-conviction application was denied on December 2, 2011, and his

post-conviction appeal was dismissed at petitioner's request on March 28,2012 in Case No.

PC-2011-1112. On November 30, 2012, petitioner filed in the trial court a second post(cid:173)

conviction application, or alternatively, a petition for a writ of habeas corpus. According to

the Oklahoma State Courts Network at, the application was denied on April

17, 20 13, and it appears his appeal was dismissed by the OCCA on August 14, 20 13, in Case

No. PC-2013-490. It is unclear, however, whether petitioner's claim now is exhausted.

The respondent asserts in the motion to dismiss that petitioner's sentence in CF-2008-

42 is a 50% sentence. Petitioner points out, however, that the DOC previously has advised

him that the sentence is being calculated as an 85% crime. See Request to Staff dated April

12, 2012 (Docket No. 1 at 28) and Grievance Response from Reviewing Authority, dated

May 2, 2012 (Docket No. 1 at 29). While the respondent has submitted an affidavit by the

DOC Administrator of Sentence Administration and Offender Records (Docket No. 6-3), it

(1) contradicts the previous DOC responses to the issue, (2) does not explain this


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discrepancy, and (3) cannot properly be considered in this motion to dismiss.2

With respect to the respondent's allegation that this petition is barred by the statute

of limitations, the respondent asserts petitioner's limitation period began to run when his

Judgment and Sentence was entered. This is incorrect for two reasons. The first reason

concerns the calculation of when petitioner's conviction was final.

If an Oklahoma

defendant does not see to withdraw his plea or seek a direct appeal, the conviction becomes

final ten days after entry of the Judgment and Sentence, not the day the Judgment and

Sentence is entered, as the respondent argues. See Rule 4.2, Rules of the Court of Criminal

Appeals, Okla. Stat. tit. 22, Ch.18, App; Okla. Stat. tit. 22, § 1051. Second, petitioner is not

challenging his sentence, but the execution of his sentence. He could not have known on the

day his Judgment and Sentence was entered, or most likely even ten days later, that the DOC

would calculate his sentence incorrectly. Therefore, the date the DOC's allegedly incorrect

calculation of his earned credits could have been discovered through the exercise of due

diligence is the starting point for the limitations period, not the date his sentence was

imposed. See 28 U.S.C. § 2244(d)(1)(D).

Petitioner has submitted a copy of a November 16, 2011, Request to Staffthat inquires

about the credits for his sentence, but it does not reference the 85% issue or which conviction

it concerns. (Docket No. 1 at 27). If this was when petitioner discovered an error in the

calculations, this habeas petition, filed on December 4, 2012, was untimely. Another Request

to Staff, dated April17, 2012, expressly states in the "Disposition" section of the Request

that Case No. CF-2008-42 is an 85% case. (Docket No. 1 at 28). If this was when the

discrepancy regarding his sentence in CF -2008-42 was discovered, the petition would have

been filed within the one-year limitations period. Because the record is unclear, and the

records are contradictory, the respondent's motion cannot be granted. See Ashcroft v. Iqbal,
556 u.s. 662, 678 (2009).

2 An affidavit would be proper if the court were considering a motion for summary

judgment. See Fed. R. Civ. P. 56( c).


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ACCORDINGLY, the respondent's motion to dismiss (Docket No. 6) and

petitioner's motion for summary disposition (Docket No.8) are DENIED. The respondent

is granted leave to file a proper dispositive motion with supporting documentation within

thirty (30) days.

IT IS SO ORDERED this /tJfP day of September 2013.