FILED
United States Court of Appeals
Tenth Circuit
June 22, 2017
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TYRONE LESLIE FARRIS,
Petitioner - Appellant,
v. No. 16-6347
(D.C. No. 5:15-CV-01116-R)
JOE ALLBAUGH, Director of the (W.D. Okla.)
Department of Corrections,
Respondent - Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,
ordered submitted without oral argument.
Tyrone Leslie Farris requests a certificate of appealability (COA) to appeal the
district court’s order and judgment denying (in part as untimely and, in balance, on the
merits) his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
*
This order and judgment is not binding precedent, except under the doctrines of law of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.
Farris claims the State of Oklahoma is miscalculating his remaining prison sentence by
failing to account for various credits to which he allegedly is entitled. He also claims
that, for these and other reasons, the State lacks jurisdiction to continue his imprisonment.
Farris additionally requests a COA to appeal the district court’s order denying his motion
to reconsider, filed pursuant to Federal Rule of Civil Procedure 60(b)(6). Also pending
before us are his motions to proceed in forma pauperis (IFP) and for appointment of
counsel.
We conclude the timeliness and merits of at least one of Farris’s claims are
reasonably debatable, and therefore grant him a COA. However, Farris admits he has not
exhausted applicable state court remedies. Consequently, exercising jurisdiction pursuant
to 28 U.S.C. § 1291, we dismiss Farris’s petition for failure to exhaust. We grant Farris’s
motion to proceed IFP, deny as moot his motion for appointment of counsel, and affirm
the district court’s judgment, as modified to provide Farris with the opportunity to
exhaust.
I. Background
In 1985, Farris was convicted by an Oklahoma jury of first-degree rape, for which
he was sentenced to a 99-year term of imprisonment in the custody of the Oklahoma
Department of Corrections (ODOC). In 2015, Farris filed this pro se § 2241 petition in
the district court.1 Farris challenges as unconstitutional the manner in which the ODOC is
1
We review Farris’s pro se petition liberally, United States v. Weeks, 653 F.3d 1188,
1200 n.7 (10th Cir. 2011), and we omit from our quotations of the record unnecessary
emphasis and capitalization. We also note that this § 2241 petition is not related to
2
executing his sentence, raising claims of two general types2 that, he alleges, require his
“immediate discharge” from custody. ROA at 47.
First, Farris claims the Constitution’s relevant proscription on ex post facto laws
deprives Oklahoma of custody over him. See U.S. Const. art. I, § 10, cl. 1 (“No State
shall . . . pass any . . . ex post facto law . . . .”). In particular, Farris contends the State’s
passage of the “Truth in Sentencing Act,” in 1997, and subsequent “repeal[]” of that
purportedly “existing law[]” has had three alleged “ex post facto” effects on him. ROA at
14. By passing and repealing the Act (albeit before it was to take effect), Farris claims
the State “commuted” his “disproportionate sentence and conviction” to a “maximum of
12 years,” id. at 13, which he claims to have served “completely.” Id. at 34. According
to Farris, Oklahoma also “relinquished jurisdiction” and “custody” over him by passing
and repealing the Act. Id. at 14. Finally, he contends the State’s legislative actions
“rendered the judgment of execution” of his sentence “void,” id., and that “his judgment
of conviction is void” as well. Id. at 32.
Second, Farris alleges that the ODOC has miscalculated various “earned credits,”
id. at 75, he has accumulated toward the completion of his sentence, so much so that he
would be entitled to “immediate discharge.” Id. at 47. More specifically, according to
Farris’s several prior appeals to this court. This particular filing therefore is not subject to
our previous orders directed at Farris, and our consideration of it does not alter those
orders. Finally, though Farris was transferred to another facility after he appealed, this
does not affect our review because he remains in ODOC custody. See 28 U.S.C. §
2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490–91 (1989).
2
Farris also purports to challenge the ODOC’s calculations of other individuals’
sentences. On these facts, this apparent class claim is not even debatably meritorious.
3
the ODOC’s records, Farris began his term of imprisonment with 35,999 days remaining
on his sentence and a projected release date of March 4, 2084. Id. at 121. But “[i]n
Oklahoma, with a few exceptions, inmates can earn credits towards reducing their term of
imprisonment. Each earned credit is equivalent to one day of incarceration.” Dulworth v.
Evans, 442 F.3d 1265, 1266 n.2 (10th Cir. 2006) (citation omitted). Due to these credits,
according to the ODOC, as of February 2016, Farris “had approximately 10,897 days left
to serve.” ROA at 113.
However, Farris contends that the ODOC has significantly miscalculated his
remaining sentence by failing to award him all of the credits he is due. In short, he claims
also to be entitled to: 15 days of “achievement credits” for each month he was
incarcerated from August 1985 until July 2014; “80 days per year for blood time
credits”3; “Ekstrand”4 credits of “62 days per month” of incarceration; “statutory class
level credits at level 4,” totaling “44 days per month” of incarceration; and “municipality”
credits “at a rate of 3[]days for every day of work in the private” prison where he has
been incarcerated since 1996. Id. at 38. Were Farris to receive all of these purportedly
earned credits, his remaining sentence would be reduced by well over 50,000 days,
entitling him to immediate release.
3
See Abdulhaseeb v. Allbaugh, 652 F. App’x 712, 714–15 (10th Cir. 2016) (unpublished)
(discussing the ODOC’s long-abandoned practice of awarding credits for blood
donations).
4
See Ekstrand v. State, 791 P.2d 92, 94–95 (Okla. Crim. App. 1990) (discussing
significant changes to the ODOC’s system of awarding credits), abrogated in part on
other grounds by Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993).
4
The ODOC submitted with its response to the petition summary records indicating
that Farris was not awarded at least some of these credits that he claims to have earned.
For example, he has never been awarded any blood time credits. In addition, the records
indicate that at various times Farris was not awarded so-called Ekstrand credits, under
Oklahoma’s old system for awarding credits, or class credits, under the State’s new
system. See James v. Carr, 30 F.3d 141, 1994 WL 363542, at *2 (10th Cir. 1994)
(unpublished) (“In essence, under the new scheme for applying credits[, a prisoner
incarcerated before the new system took effect] is receiving the best of both statutes,
because whichever gives him the greatest amount determines the credits applied.”).
Throughout 1992, for example, the ODOC did not award Farris either “pre-Ekstrand” or
“post-Ekstrand” credits. ROA at 22; see id. at 123 (summarizing the credits Farris was
awarded in 1992).
In addition, Farris claims the ODOC “didn’t let [him] know” about these and other
purported miscalculations. Id. at 78. For example, Farris claims that, “due to” the
ODOC’s “poor record keeping,” the instances in which he “gave blood” were not
“documented,” such that he was “denied his statutory blood credits.” Id. at 159. He also
claims that the ODOC “has hidden and suppressed” this information from him for years.
Id.
Farris also contends that his “calendar days, earned credits and any additional days
credited were not documented and not properly calculated.” Id. at 170. He also appears
to argue that he was not given access to this “record card” or other “documentation” from
5
which he could have determined that he was not being awarded all of the credits he is
due. Id. at 332. Indeed, the “record card,” id., itself contains no signature or other
notation that Farris received a copy of it or was given access to it prior to the instant
litigation, nor does any of the other evidence in this record so indicate.
In 2014 and 2015, Farris sent letters to ODOC officials challenging the purported
failure to calculate correctly the length of his remaining sentence. He also filed several
grievances and sent a letter to the Governor of Oklahoma detailing his concerns. He
received no response to several of his letters. And though the ODOC awarded him
certain additional credits for the period beginning as of the date of his grievances, it did
not address his claims with respect to his previously earned but uncounted credits. Farris
thus claims he has exhausted his administrative remedies.
However, Farris did not pursue relief in the Oklahoma courts prior to filing this
petition. Indeed, among other things, the ODOC argued that because Farris has “failed to
exhaust his” claims “before an Oklahoma court,” his petition should be dismissed in its
entirety. Id. at 114. Farris conveniently shifted his position in reply, arguing that he does
“not seek immediate release” and, therefore, cannot seek relief in the Oklahoma courts.
ECF No. 13 at 4. The district court accepted this disclaimer and concluded that, because
Farris is not “asserting that he would be entitled to immediate release if he prevailed,
there is no state judicial remedy” available to him. ECF No. 14 at 3. But to the contrary,
as we will discuss, Farris can “seek habeas corpus relief” in the State courts because, “if
6
he is awarded all credits he contends are due to him, he will . . . be entitled to immediate
release . . . .” Id. at 3–4.
To that end, rather than addressing the exhaustion issue, the district court denied
on the merits Farris’s claims of entitlement to retroactive “achievement credits,” ROA at
323, and all of his claims that Oklahoma’s sentencing scheme operates as an ex post facto
law with respect to him. The district court also denied as untimely Farris’s claims that he
is entitled to “credits for blood donation, municipality credits and” so-called Ekstrand
credits. Id. at 320. More specifically, in the district court’s view, Farris “would have . . .
receiv[ed] reports of his release date and quarterly reports of his accumulated time,” from
which he “could have easily discovered the factual predicate for” these claims years
before he filed this petition. Id. at 321. As noted, however, Farris claims that the ODOC
“should have,” but failed to, “notif[y] him of his entitlement to the credits” that the
ODOC allegedly “failed to provide him.” Id. at 322 n.2. That is, Farris disputes that he
received the reports of his earned credits, and no evidence in the record establishes when
he first received them. In any event, the district court entered judgment to this effect on
November 14, 2016.
Farris timely filed a notice of appeal. However, he contemporaneously filed in the
district court an “Objection to the Order and Judgment,” id. at 327, in which, inter alia,
he reiterated that there is no “proof” that “notice was given to [him] by the” ODOC of his
awarded credits. Id. at 332. He also requested that the district court issue him a “COA.”
7
Id. at 333. We abated Farris’s attempt to appeal pending the outcome of the proceedings
in the district court. See Fed. R. App. P. 4(a)(4)(B)(i).
The district court liberally construed Farris’s objection as a “timely motion for
reconsideration,” ROA at 337; cf. Fed. R. Civ. P. 60(b)(6), which it further construed as
raising only procedural challenges to its order denying the petition. Cf. Gonzalez v.
Crosby, 545 U.S. 524, 534 (2005) (“[A] Rule 60(b) motion that seeks to revisit the federal
court’s denial on the merits of a claim for relief should be treated as a successive habeas
petition.”). The district court denied the motion, though without passing on Farris’s
request for a COA. In addition, the district court denied Farris’s separate motion for
leave to proceed IFP on appeal.
Farris timely filed an amended notice of appeal. See Fed. R. App. P.
4(a)(4)(B)(ii). We lifted the abatement, and Farris submitted a combined application for a
COA and amended opening brief. Finally, as noted, Farris also filed motions for
appointment of counsel and for leave to proceed IFP on appeal, both of which were
referred to this panel for disposition with the request for a COA.
II. Analysis
A. COA
Before we can address the merits of Farris’s claims, we must determine whether
we have jurisdiction over his appeal. Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir.
2012); see also United States v. Ruiz, 536 U.S. 622, 628 (2002) (explaining “a federal
court always has jurisdiction to determine its own jurisdiction”). Specifically, “[a] state
8
prisoner whose petition for a writ of habeas corpus is denied by a federal district court
does not enjoy an absolute right to appeal. Federal law requires that he first obtain a
COA from a circuit justice or judge.” Buck v. Davis, __ U.S. __, 137 S. Ct. 759, 773
(2017) (citing 28 U.S.C. § 2253(c)(1)). “A COA may issue ‘only if the applicant has
made a substantial showing of the denial of a constitutional right.’” Id. (quoting 28
U.S.C. § 2253(c)(2)). “Until the prisoner secures a COA, the Court of Appeals may not
rule on the merits of his case.” Id. (citing Miller–El v. Cockrell, 537 U.S. 322, 336
(2003)). Consequently, a “COA is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus.” United States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013)
(citing Miller–El, 537 U.S. at 336); see Gonzalez v. Thaler, 565 U.S. 134, 142 (2012).
1. Appeal of the § 2241 petition
As relevant here, a “petition brought under 28 U.S.C. § 2241 typically ‘attacks the
execution of a sentence rather than its validity . . . .’” Brace v. United States, 634 F.3d
1167, 1169 (10th Cir. 2011) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996)). In “this circuit, state prisoners . . . may bring § 2241 habeas petitions” to
“challeng[e] the execution of their sentence.” Stanko v. Davis, 617 F.3d 1262, 1268
(10th Cir. 2010). A state prisoner’s petition under § 2241 is subject to the relevant
limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2253(c)(1)(A). Burger v. Scott, 317 F.3d 1133, 1138–39 (10th
Cir. 2003). We have therefore held that “a state prisoner seeking to appeal the denial of
habeas relief in a § 2241 proceeding must obtain a COA to appeal.” Dulworth v. Jones,
9
496 F.3d 1133, 1135 (10th Cir. 2007) (citing Montez v. McKinna, 208 F.3d 862, 869
(10th Cir. 2000)). Thus, Farris requires a COA to challenge the district court’s denial of
his § 2241 petition.
2. Appeal of the Rule 60(b) motion
Further, with respect to Farris’s “Objection to the Order and Judgment,” we agree
with the district court that, construed liberally, his objections to the denial of his petition
are focused on the alleged “hybrid” nature of the district court’s order. ROA at 327. A
“COA is required to appeal from the denial of a true Rule 60(b) motion,” one raising such
procedural objections. Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir. 2006).
Therefore, Farris also requires a COA to challenge the district court’s order denying his
motion to reconsider. See Buck, 137 S. Ct. at 777.
3. The COA inquiry
In turn, “the COA inquiry,” the Supreme Court has “emphasized, is not
coextensive with a merits analysis.” Id. at 773. “At the COA stage, the only question is
whether the applicant has shown that ‘jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.’” Id. (quoting
Miller–El, 537 U.S. at 327). “This threshold question should be decided without ‘full
consideration of the factual or legal bases adduced in support of the claims.’” Id.
(quoting Miller–El, 537 U.S. at 336).
We cannot “sidestep” that inquiry “by first deciding the merits of an appeal”
10
before determining whether a COA should issue, because “justifying [the] denial of a
COA based on [the] adjudication of the actual merits . . . is in essence deciding an appeal
without jurisdiction.” Id. (quoting Miller–El, 537 U.S. at 336–37). When determining
whether a COA should issue, we therefore must “‘limit [our] examination . . . to a
threshold inquiry into the underlying merit of [the] claims,’” under which we “ask ‘only if
the’” district court’s “‘decision was debatable.’” Id. at 774 (quoting Miller–El, 537 U.S.
at 327, 348). A “claim can be debatable even though every jurist of reason might agree,
after the COA has been granted and the case has received full consideration, that [the]
petitioner will not prevail.” Id. (quoting Miller–El, 537 U.S. at 338).
More specifically, the COA “standard is met when ‘reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner.’” Welch v. United States, __ U.S. __, 136 S. Ct. 1257, 1263 (2016)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When “a district court has
rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Miller–El,
537 U.S. at 338 (quoting Slack, 529 U.S. at 484). This standard applies to Farris’s claims
of ex post facto violations and for achievement credits. With respect to his other claims,
however, a dual inquiry governs:
When, as here, the district court denies relief on procedural grounds, the
11
petitioner seeking a COA must show both “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.”
Gonzalez, 565 U.S. at 140–41 (quoting Slack, 529 U.S. at 484). Finally, because Farris’s
challenge to the denial of his motion to reconsider “would be reviewed for abuse of
discretion during a merits appeal,” the Supreme Court has accepted a formulation of “the
COA question” as, “whether a reasonable jurist could conclude that the” district court
“abused its discretion in declining to reopen the judgment.” Buck, 137 S. Ct. at 777
(accepting the parties’ agreed framing of this inquiry, and thus not deciding this
question).
4. Farris is entitled to a COA
Applying those standards here, we conclude that Farris is entitled to a COA.
Specifically, Farris alleges that he is entitled to receive credits each month under both the
State of Oklahoma’s “pre-Ekstrand” and “post-Ekstrand” systems. ROA at 22.
Regardless of whether this is true, it is at least reasonably debatable whether Farris is
entitled to receive credits under one of those systems every month that he is incarcerated.
However, the ODOC’s records made available to us indicate that, at least throughout
1992, he did not receive any credits under either system. It is therefore reasonably
debatable whether Farris’s petition states a valid claim of the denial of his alleged
constitutional right to these credits. See Miller–El, 537 U.S. at 338; Weaver v. Graham,
450 U.S. 24, 33–36 (1981).
12
Moreover, the district court’s procedural resolution of that claim is at least
reasonably debatable because Farris contends that he was not provided the necessary
documentation to discern that his credits were being undercounted, and the record does
not refute this. See Gonzalez, 565 U.S. at 140–41; Evans, 442 F.3d at 1268. By the same
measure, it is reasonably debatable whether the district court abused its discretion in
refusing to reconsider these determinations. See Buck, 137 S. Ct. at 777.
Accordingly, we grant Farris a COA with respect to his claim that Oklahoma has
miscalculated the number of so-called Ekstrand credits to which he is entitled. We
therefore have jurisdiction over the district court’s judgment in this case. See Jennings v.
Stephens, __ U.S. __, 135 S. Ct. 793, 799 (2015).
B. Exhaustion
Turning to the merits, when “reviewing the denial of a habeas petition under
§ 2241, we review the district court’s legal conclusions de novo and accept its factual
findings unless clearly erroneous.” al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir.
2013). Before proceeding to adjudicate the merits, however, Farris faces another
procedural obstacle. “A state prisoner generally may not raise a claim for federal habeas
corpus relief unless he ‘has exhausted the remedies available in the courts of the State.’”
Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting 28 U.S.C.
§ 2254(b)(1)(A)). We have held that this exhaustion requirement “is a prerequisite for
§ 2241 habeas relief, although we recognize that the statute itself does not expressly
contain such a requirement.” Garza v. Davis, 596 F.3d 1198, 1203–04 (10th Cir. 2010).
13
“To exhaust a claim, a state prisoner must pursue it through ‘one complete round
of the State’s established appellate review process,’ giving the state courts a ‘full and fair
opportunity’ to correct alleged constitutional errors.” Selsor, 644 F.3d at 1026 (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
If a state prisoner has not properly exhausted state remedies, the federal
courts ordinarily will not entertain an application for a writ of habeas corpus
unless exhaustion would have been futile because either “there is an
absence of available State corrective process” or “circumstances exist that
render such process ineffective to protect the rights of the applicant.”
Id. (quoting 28 U.S.C. § 2254(b)(1)(B)(i)–(ii)). “The state prisoner bears the burden of
proving that he exhausted state court remedies, or that exhaustion would have been
futile.” Id. (citations omitted). Of particular relevance here, “‘the fact that [a] petitioner
may have misunderstood or was confused about the procedural requirements provides no
basis for equitable tolling,’ since ‘ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse’” such failures. Loftis v. Chrisman, 812 F.3d 1268,
1272 (10th Cir. 2016) (citations omitted).
Where we are faced with an unexhausted or partially exhausted petition, unless we
can deny all of the claims for other procedural reasons or on the merits, we must dismiss
the petition “without prejudice and allow” the petitioner “to return to state court to present
the unexhausted claims to that court in the first instance.” Rhines v. Weber, 544 U.S.
269, 274 (2005). That is, “individual, unexhausted claims may be denied, but only if the
result allows the court to determine the entire petition on the merits.” Moore v.
Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002). “The district court did not rely on”
14
exhaustion to dismiss Farris’s “petition, but we are free to affirm on any ground for which
there is a sufficient record to permit conclusions of law.” Grossman v. Bruce, 447 F.3d
801, 805 n.2 (10th Cir. 2006).
As discussed, Farris did not attempt to exhaust any of the claims in his § 2241
petition in the Oklahoma courts. He argues that doing so would have been futile. But
that is simply not true, because (as he explicitly states in the petition) he is asserting
several claims that, if shown to have merit, would entitle him to immediate release from
custody, so the Oklahoma courts are open to him. See Canady v. Reynolds, 880 P.2d
391, 400 (Okla. Crim. App. 1994) (holding an Oklahoma prisoner “does not have a right
to an interlocutory determination of the status of his earned credits in a situation where he
is not entitled to immediate release,” but that a petition for a “writ of habeas corpus” in
the Oklahoma courts “is appropriate . . . at such time as he or she is entitled to immediate
release”); see also Burger, 317 F.3d at 1135 (explaining that “Oklahoma imposes no time
limits for filing applications for post-conviction relief in [its] district courts”). Finally, as
noted, we are not in a position to deny all of Farris’s claims for another procedural reason
or on the merits based on this record.
Therefore, like the district court, we conclude that Farris’s § 2241 petition must be
dismissed. However, the dismissal should be without prejudice to provide Farris the
opportunity to exhaust his remedies in the Oklahoma courts. But rather than vacating the
district court’s judgment and remanding for it to perform that ministerial task, we will
instead exercise our discretion to modify the judgment to operate without prejudice with
15
respect to all of Farris’s claims. See 28 U.S.C. § 2106. So modified, we affirm the
district court’s judgment dismissing Farris’s § 2241 petition and denying his motion to
reconsider.
III. Conclusion
We GRANT Farris a COA to raise his claim that the State of Oklahoma has
miscalculated his so-called Ekstrand credits. However, because Farris has failed to
exhaust this and all of his other claims, we MODIFY the district court’s judgment to
operate without prejudice so that he may exhaust his claims in the Oklahoma courts. So
modified, we AFFIRM the dismissal of Farris’s § 2241 petition and the denial of his
motion to reconsider. Accordingly, we GRANT Farris’s motion to proceed IFP on appeal
and DENY AS MOOT his motion for appointment of counsel.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
16
16-6347, Farris v. Allbaugh
HARTZ, Circuit Judge, dissenting:
It requires only one member of the court to grant a certificate of appealability
(COA), so I have no quarrel with that grant. Before we send the case back to district
court, however, we should offer the State an opportunity to file a brief. Under our local
rule 22.1(B), the State was forbidden to file a brief absent our request or the grant of a
COA. The reasoning of the panel opinion seems sound; but I think it is also sound
practice to provide an opportunity to be heard. There is always the possibility that we
have missed something that could change our decision.
Although the State can request rehearing, the time for doing that is much too short
when it is likely that no state appellate attorney has been assigned to the case. Perhaps
the panel will be willing to grant a reasonable extension of time to file a request; but what
is the advantage of our proceeding in that manner over simply giving the State a chance
to file a brief responding to the grant of a COA?