Gonzales v. Jordan

37 F. App'x 432
Court of Appeals for the Tenth Circuit·Decided June 5, 2002·No. No. 01-6415·Published·Cited by 1 cases

Opinion

ORDER AND JUDGMENT *

LUCERO, Circuit Judge.

Louis Gonzales, an Oklahoma prisoner proceeding pro se, seeks to appeal the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We deny Gonzales’s application for a certificate of appealability.

I

Gonzales was convicted of second degree rape in state court and sentenced to fifteen years’ imprisonment. After his incarceration, prison officials approved Gonzales’s participation in the prison’s Sex Offender Treatment Program (“SOTP”). Gonzales participated in at least one sex offender program in prison in 1994 but did not participate in the SOTP after he was transferred to a new prison on July 12, 1994. From that date until August 1, 1998, Gonzales was not part of the SOTP.

From July 1994 to August 1998, Gonzales also was treated as a “Level 3” or “Level 4” prisoner for purposes of accumulating credit for time served. A Level 3 prisoner receives up to thirty-three days credited to his sentence for each month served; a Level 4 prisoner receives up to forty-four days credited to his sentence for each month served.

During an audit of Gonzales’s record, a state corrections department official concluded that Gonzales had improperly been treated as a Level 3 or Level 4 prisoner during the period when he was not participating in the SOTP. The official then reclassified Gonzales as a “Level 1” prisoner — who receives no credit for time served — for that period. This reclassification resulted in the revocation of the credit for over two thousand days served by Gonzales.

Gonzales challenged the revocation of his time served credits in prison administrative proceedings and subsequently filed a petition for mandamus/habeas corpus in state district court. Gonzales argued that he had never refused to serve in the SOTP and that he had not participated in the program because his reading comprehension — below the eighth-grade level — rendered him ineligible for the SOTP. The state district court rejected Gonzales’s claims on the merits, finding that he had refused to participate in the SOTP and concluding that the state had therefore properly revoked his credits. After the entry of judgment by the state district court on December 13, 1999, Gonzales filed an appeal with the Oklahoma Court of Criminal Appeals (“OCCA”) on February 22, 2000. The OCCA denied Gonzales’s appeal as untimely pursuant to OCCA Rule 10.1(C), Okla. Stat. tit. 22, ch. 18., App., which requires all appeals from denials of extraordinary writs such as mandamus and [434] habeas corpus to be filed with the court within thirty days.1

Gonzales then filed a petition for a writ of habeas corpus in federal district court. The magistrate recommended that the petition be denied because it was procedurally barred, and the district court adopted the recommendation. Gonzales seeks to appeal.

II

Gonzales initially filed his petition pursuant to 28 U.S.C. § 2254, which allows state prisoners to challenge the validity of their convictions. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000). The district court interpreted Gonzales’s petition as a § 2241 petition, a characterization with which Gonzales has agreed. We concur because the petition is an “attack on the execution of [Gonzales’s] sentence.” Id.; see United States v. Furman, 112 F.3d 435, 438 (10th Cir.1997) (stating that challenges relating to good-time credits should be brought under § 2241).

“On habeas review, this court does not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998) (citing Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Although Gonzales’s brief before us focuses on the merits of his claims regarding the state revocation of his time served credits, we liberally construe his pro se briefs to challenge the district court’s conclusion that his § 2241 petition is proeedurally barred.

A

Gonzales disputed before the district court whether the procedural bar applies to § 2241 petitions. We reject Gonzales’s argument.

The applicability of the procedural bar to a habeas claim is closely tied to the question of whether that habeas claim must be exhausted in state court before a federal court will hear it. If § 2241 claims that are not raised before a state court and that may no longer be brought before the state court because of a procedural bar could nonetheless be brought before a federal court, “habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court.” Coleman, 501 U.S. at 732, 111 S.Ct. 2546. As a result, if the exhaustion requirement applies to § 2241 petitions, the procedural bar must apply to them as well. Because it is well-settled that claims raised in § 2241 petitions must be exhausted in state court before a federal court will hear them, 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.”), we conclude that the procedural bar applies to § 2241 petitions. See McAtee v. Cowan, 250 F.3d 506, 509 (7th Cir.2001) (applying the procedural bar to a § 2241 petition).

B

In order for federal habeas claims to be proeedurally barred, the state procedural grounds relied upon for the bar must be independent of federal law and adequate. State procedural grounds are “indepen[435] dent” if the state court has “reiie[d] on state law, rather than federal law, as the basis for the decision.” English, 146 F.3d at 1259. Where the state procedural grounds are the exclusive grounds for the denial by the state court of the prisoner’s claims, as they were here (Resp. Pet. Writ Habeas Corpus Ex. C), the grounds are clearly independent of federal law, see Steele v. Young, 11 F.3d 1518, 1521 (10th Cir.1993).

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Gonzales v. Jordan, 37 F. App'x 432 (10th Cir. 2002).

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