Hughart v. Rankins

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 18, 2024
• Docket: 24-7004
• Status: Unpublished

Opinion

Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 18, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DONALD L. HUGHART,

Petitioner - Appellant,

v. No. 24-7004 (D.C. No. 6:19-CV-00329-RAW-DES) WILLIAM RANKINS, (E.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Donald L. Hughart, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s judgment denying his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Exercising jurisdiction

under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.

I. BACKGROUND

In 2003 and 2011, Hughart was convicted of felony offenses in Oklahoma state

court. His sentence for the 2003 conviction was commuted in 2008 to a 30-year

suspended sentence. He received a 20-year suspended sentence for the 2011 conviction.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 2

Both suspended sentences were subject to certain rules and conditions of supervised

probation, one of which was that Hughart would refrain from violating any laws.

In 2017, Hughart was charged in Oklahoma state court with felony domestic

assault and battery, second and subsequent. Based on this charge, the State applied for

revocation of the suspended sentences. The state district court held a hearing at which

the victim testified about the incident. The court granted the State’s applications,

revoked the suspended sentences in full, and ordered that they run concurrently. Several

months later, the State dismissed the domestic assault and battery charge. Hughart filed a

counseled appeal of the revocation ruling, raising three issues, none of which involved

the matter on which he would later seek federal habeas relief.1 The Oklahoma Court of

Criminal Appeals (“OCCA”) affirmed.

Hughart then filed a pro se application for post-conviction relief (“APCR”),

arguing that the State’s dismissal of the domestic assault and battery charge deprived him

of his right to prove his innocence to a jury. The state district court denied relief, holding

that to the extent Hughart had already raised the issue before the OCCA, it was

procedurally barred because “[i]ssues that were previously raised and ruled upon by [the

OCCA] are procedurally barred from further review under the doctrine of res judicata,”

1 The issues were whether (1) the trial court violated Hughart’s due process rights by predetermining it would fully revoke his 20-year suspended sentence instead of considering a partial revocation; (2) he was denied due process when the trial court based the revocation determination on matters not alleged in the State’s application to revoke; and (3) the trial court abused its discretion in basing revocation on evidence not pertinent to the revocation application and instead relied on matters raised in a previous revocation application. 2 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 3

Logan v. Oklahoma, 293 P.3d 969, 973 (Okla. Crim. App. 2013). The state district court

also held that to the extent the claim of error was not previously raised and ruled on, it

was barred by waiver under Logan, which explained that under Okla. Stat. tit. 22, § 1086,

“issues that were not raised previously on direct appeal, but which could have been

raised, are waived for further review,” 293 P.3d at 973.2 Hughart did not appeal.

Hughart next filed a second APCR raising essentially the same argument as his

first APCR. The state district court again denied relief based on res judicata and waiver.

Hughart did not appeal.

Hughart then filed a third APCR. He raised the same due process argument as in

his first and second APCRs, but he added two claims: (1) revocation counsel provided

constitutionally ineffective assistance by not objecting to the State’s dismissal of the

domestic assault and battery charge, and (2) appellate counsel was constitutionally

ineffective in not raising the State’s dismissal of that charge as an issue in the revocation

appeal. The state district court determined that res judicata barred consideration of the

due process claim and that the ineffective assistance claims were waived.

2 Section 1086 provides:

All grounds for relief available to an applicant under the Post-Conviction Procedure Act, including claims challenging the jurisdiction of the trial court, must be raised in his or her original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.

3 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 4

Hughart appealed the denial of his third APCR. The OCCA affirmed, concluding

that all issues were either barred by res judicata or waived for failure to raise them on

direct appeal or, with regard to his appellate ineffectiveness claim, in his first APCR as

§ 1086 requires.

Hughart then filed his pro se habeas petition. He raised three grounds for relief

that largely mirrored those in his third APCR. The State responded, raising procedural

default as an affirmative defense. Under the procedural default doctrine, federal courts

are precluded from “consider[ing] issues on habeas review 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.”

McCracken v. Gibson, 268 F.3d 970, 976 (10th Cir. 2001) (internal quotation marks

omitted).

In its decision, the federal district court first explained that although Hughart’s

petition nominally invoked 28 U.S.C. § 2254, the petition was properly construed as one

arising under 28 U.S.C. § 2241 because his claims challenged the execution of his

sentence. See Leatherwood v. Allbaugh, 861 F.3d 1034, 1041 (10th Cir. 2017) (“A state

prisoner’s challenge to the revocation of a suspended sentence is properly brought under

§ 2241 . . . .”). The court also construed the petition as seeking relief from only the

revocation of the 30-year suspended sentence because Hughart represented he had

completed the 20-year sentence during the pendency of his § 2241 action.

Turning to the petition’s substance, the district court enforced the procedural

default. The court noted Hughart had not disputed the independence or adequacy of the

4 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 5

state procedural grounds on which the OCCA had denied his claims. And the district

court pointed out that this court has concluded those grounds are both independent and

adequate (with an exception inapplicable to Hughart’s case). See Hale v. Gibson,

227 F.3d 1298, 1328 (10th Cir. 2000) (explaining that the bar to claims raised in an

APCR that could have been raised on direct appeal, other than ineffective assistance

claims, is both independent and adequate); Moore v. Reynolds, 153 F.3d 1086, 1097

(10th Cir. 1998) (holding that § 1086’s bar to claims raised in a second or subsequent

APCR that could have been brought in an initial APCR is both independent and

adequate).

The district court then addressed whether Hughart could overcome the procedural

default by demonstrating either cause and prejudice or a fundamental miscarriage of

justice. The court rejected Hughart’s assertion that his appellate counsel’s failure to

assert his due process claim on direct appeal constituted cause for the default of that

claim because the ineffective assistance claim itself was procedurally defaulted.

See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (holding that an ineffective

assistance claim asserted to excuse default must not be procedurally defaulted itself).

The court also observed that Hughart had only indirectly advanced a fundamental

miscarriage of justice argument by alleging, in the context of his due process claim, that

he planned to prove at trial that he was innocent of the domestic assault and battery

charge. The court concluded, however, that even if the fundamental miscarriage of

justice exception applied, Hughart had not supplemented his constitutional claims “‘with

a colorable showing of factual innocence,’” R. vol. I at 830 n.5 (quoting Herrera v.

5 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 6

Collins, 506 U.S. 390, 404 (1993)), as required under the exception. Accordingly, the

court denied the petition, denied a COA, and entered judgment.

Hughart then filed two motions for reconsideration. In the first motion, Hughart

reiterated his argument that appellate ineffectiveness served as cause to excuse the

procedural default of his due process claim. The district court construed the motion as

arising under Federal Rule of Civil Procedure 59(e) and as raising a new due process

claim based on appellate ineffectiveness. The court denied the motion because raising a

new claim is not a ground for relief under Rule 59(e).

In the second motion for reconsideration, Hughart asked the district court to

reconsider its denial of two earlier motions in which he asked the court to allow him to

add a jurisdictional claim related to McGirt v. Oklahoma, 591 U.S. 894 (2020), and to

supplement his appellate ineffectiveness claim with an assertion that appellate counsel

was ineffective in failing to investigate or advance a McGirt claim in the appeal of the

revocation ruling.3 The court had denied those motions because Hughart’s McGirt

arguments challenged the validity of his conviction or sentence, not the execution of his

sentence, and therefore must be brought under § 2254, not § 2241. See R. vol. I at 5

(ECF No. 39; text-only minute order). The district court construed the second motion for

reconsideration as arising under Federal Rule of Civil Procedure 60(b) and denied it

because it did not meet any of Rule 60(b)’s requirements. The court again denied a COA.

3 In McGirt, the Supreme Court held that land promised to the Muscogee Nation in the 19th century remains an Indian reservation, and therefore the right to prosecute Indians for crimes committed on the reservation rests with the federal government or the Tribe, not with the State of Oklahoma. See 591 U.S. at 897–99. 6 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 7

II. DISCUSSION

To obtain appellate review of the denial of a § 2241 petition, “a state prisoner must

obtain a COA.” Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). Under

28 U.S.C. § 2253(c)(2), a COA “may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” Where, as here, a district

court denies relief on a procedural ground without reaching the merits, a petitioner

satisfies the COA standard by showing “that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and . . .

whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). “Each component of [this] showing is part of a threshold

inquiry . . . .” Id. at 485. Thus, if a petitioner cannot make a showing on the procedural

issue, we need not address the constitutional component. See id. We afford Hughart’s

pro se filings a liberal construction, but we may not act as his advocate. See Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

In his COA application, Hughart first contends the district court erred in finding

his claim of appellate ineffectiveness procedurally defaulted. But his contention is

conclusory, failing to identify any error in the district court’s procedural ruling. We have

independently reviewed that ruling and conclude that reasonable jurists would not debate

its correctness.

Hughart next argues the district court misconstrued the argument he advanced in

his first motion to reconsider as an attempt to add a due process claim to his petition

rather than as an attempt to demonstrate appellate ineffectiveness. We conclude that any

7 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 8

mischaracterization by the district court was harmless. In the first motion to reconsider,

Hughart argued that in the revocation appeal, appellate counsel should have raised “an

additional due process claim” based on Stoner v. State, 566 P.2d 142 (Okla. Crim. App.

1977).4 R. vol. I at 833–34. Even if the district court had construed this argument as

another attempt to demonstrate appellate ineffectiveness in the revocation appeal, either

as a stand-alone claim or as cause to excuse the defaulted due process claim, the denial of

Rule 59 relief would have been proper for at least two reasons: (1) a Rule 59(e) motion is

not a proper means to advance arguments that could have been raised earlier,

see Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); and (2) the

new claim concerns the merits of a procedurally defaulted claim of appellate

ineffectiveness, and he has never attempted to show cause for that default.

Hughart also seeks to “add” an argument that because he is actually innocent of

the domestic assault and battery charge, the failure to consider his claims on the merits

4 In Stoner, the OCCA held that a trial court erred in revoking a suspended sentence based solely on the defendant’s admission that he had been convicted on a later offense that had not become final. See 566 P.2d at 143. In contrast here, the state district court found Hughart had committed domestic assault and battery based on the victim’s testimony. See Tilden v. State, 306 P.3d 554, 556 (Okla. Crim. App. 2013) (“Alleged violations of conditions of a suspended sentence need be proven only by a preponderance of the evidence.”). Hughart cites two other cases in his COA application as support for his appellate ineffectiveness claim, but both are readily distinguishable. In Hole v. State, 486 P.2d 645, 645 (Okla. Crim. App. 1971), the OCCA reversed because, as in Stoner, the trial court had revoked a suspended sentence based solely on a non-final conviction. This did not occur in Hughart’s case. And in Linscome v. State, 584 P.2d 1349, 1350 (Okla. Crim. App. 1978), the OCCA reversed a revocation based on a non-final conviction where the revocation judge had heard evidence on that conviction in another hearing earlier the same day but the parties had not stipulated to that evidence in the revocation proceeding. Here, the district court heard evidence in the revocation proceeding itself. 8 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 9

would result in a fundamental miscarriage of justice. COA Appl. at 4. Because he did

not raise this argument in his habeas petition, “it is waived on appeal,” Owens v.

Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015).5

Hughart contends the district court abused its discretion in denying his motion to

amend his petition to add a McGirt claim and his motion for reconsideration of that

denial. Reasonable jurists would not debate the district court’s conclusion that Hughart

had to raise his McGirt claim in a § 2254 petition, not his § 2241 petition. See McIntosh

v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions under § 2241 are

used to attack the execution of a sentence, in contrast to § 2254 habeas . . . proceedings,

which are used to collaterally attack the validity of a conviction and sentence.” (citation

omitted)).6

5 Even if Hughart has not waived a fundamental miscarriage of justice argument, he has never made a colorable showing of actual innocence. See Herrera, 506 U.S. at 404 (“The fundamental miscarriage of justice exception is available only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” (internal quotation marks omitted)). At most he has argued legal innocence under Stoner and the other cases discussed in footnote 4, supra. That is insufficient. See Black v. Workman, 682 F.3d 880, 915 (10th Cir. 2012) (explaining that “to demonstrate a fundamental miscarriage of justice, a defendant must make a showing of factual innocence, not legal innocence”). 6 Relatedly, Hughart asks us to authorize the filing of a second or successive § 2254 petition. See 28 U.S.C. § 2244(b)(3)(A) (requiring a circuit court to authorize the filing of a second or successive § 2254 petition). But because the instant petition is properly treated as one arising under § 2241, it does not serve as a first § 2254 petition. We therefore deny Hughart’s request for authorization without prejudice to filing a proper motion for authorization (addressing the § 2244(b)(2) requirements) if he has in fact already filed a § 2254 petition regarding his convictions or sentences. 9 Appellate Case: 24-7004 Document: 23-1 Date Filed: 10/18/2024 Page: 10

Finally, Hughart asks for consideration of his claims on the merits because “no

pro se applicant should be barred simply by mistakes made in filing procedures.”

COA Appl. at 4. But “this court has repeatedly insisted that pro se parties follow the

same rules of procedure that govern other litigants.” Garrett, 425 F.3d at 840 (brackets

and internal quotation marks omitted). Accordingly, no reasonable jurist would debate

the district court’s application of procedural default merely because Hughart represented

himself, either in state court or in this habeas proceeding.

III. CONCLUSION

We deny a COA and dismiss this matter. We deny the requests within Hughart’s

COA application (1) for authorization to file a second or successive § 2254 petition and

(2) to appoint counsel.

Entered for the Court

Gregory A. Phillips Circuit Judge