FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 3, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RAITHIELE JON ROBINSON,
Petitioner - Appellant,
v. No. 18-7065
(D.C. No. 6:18-CV-00099-RAW-KEW)
EDDY RICE, Okmulgee County Sheriff, (E.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges.
_________________________________
Petitioner Raithiele Jon Robinson, a pretrial detainee at Moore Detention
Center (commonly known as the Okmulgee County Jail), filed a habeas petition
pursuant to 28 U.S.C. § 2241. He seeks dismissal of his pending state criminal
charges and release from custody. The petition asserts four grounds for relief:1
(1) Unlawful search and arrest and/or Miranda violations.
(2) Defects in the state court charging document.
(3) Speedy trial violation.
*
This order and judgment is not binding precedent, except under the doctrines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.
1
These grounds for relief are not clearly articulated, so we paraphrase.
(4) The state of Oklahoma lacks jurisdiction because Robinson is a member of
the Muscogee (Creek) Nation and the alleged crimes took place on Muscogee
(Creek) land.
ROA at 9–11. The petition also asserts that Robinson’s state-appointed attorney
“only comes to court,” “has not visited [Robinson] ever at the jail to discuss [his]
case,” and “doesn’t return [Robinson’s] letters” or his family’s phone calls. Id. at 11.
The district court dismissed the petition for failure to exhaust state court
remedies. ROA at 204–05. The district court also concluded that it was required to
abstain from interfering in the pending state criminal prosecution under Younger v.
Harris, 401 U.S. 37 (1971). Id. at 205–06. Finally, the district court found that
Robinson had not shown that he was entitled to a certificate of appealability. Id. at
206.
I.
A state prisoner pursuing a § 2241 petition must obtain a certificate of
appealability before he can be heard on the merits of his appeal. Montez v. McKinna,
208 F.3d 862, 867 (10th Cir. 2000). When a district court denies a habeas petition on
procedural grounds, a COA cannot issue unless the prisoner shows “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).
2
The district court correctly dismissed Robinson’s petition on procedural
grounds. A habeas petitioner seeking relief under § 2241 must exhaust available
state remedies. Montez, 208 F.3d at 866; Wilson v. Jones, 430 F.3d 1113, 1118 (10th
Cir. 2005). The petitioner bears the burden of showing that he has exhausted
available state remedies. Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992); see
also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (unpublished).
Robinson has not met his burden of showing that he has exhausted available
state remedies. A review of the electronic docket in Robinson’s criminal case (case
no. CF-2016-00480A) suggests that Robinson has not presented most of his claims to
the Oklahoma district court, nor exhausted what appellate remedies might be
available.2 The sole exception is Robinson’s jurisdictional argument, which is
currently pending before the district court. Robinson does not allege that he has
pursued his claims by any other means which are not reflected in the criminal docket.
Nor does Robinson explain why the normal avenues for relief in state court—such as
motions before the trial court, appeal, and the state writ of habeas corpus—are
unavailable or inadequate to vindicate his rights. See, e.g., Beavers v. Saffle, 216
F.3d 918, 924 n.3 (10th Cir. 2000) (noting that exhaustion is not required when there
is “no opportunity to obtain redress in state court if the corrective process is so
clearly deficient as to render futile any effort to obtain relief”) (quoting Duckworth v.
2
We “exercise our discretion to take judicial notice of publicly-filed records in
our court and certain other courts concerning matters that bear directly upon the
disposition of the case at hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5
(10th Cir. 2007).
3
Serrano, 454 U.S. 1, 3 (1981) (per curiam)); cf. Kugler v. Helfant, 421 U.S. 117, 124
(1975) (noting that “ordinarily a pending state prosecution provides the accused a fair
and sufficient opportunity for vindication of federal constitutional rights”).
Robinson’s sole argument on appeal regarding exhaustion is that the
exhaustion requirement does not apply to § 2241 petitions brought by pretrial
detainees. Aplt. Br. at 9–10. Binding precedent compels rejection of that argument.
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.”); Wilson, 430
F.3d at 1118 (“A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally
required to exhaust state remedies.”); Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489–91 (1973) (applying exhaustion requirement to state
pretrial detainee’s § 2241 petition).
Finally, Robinson’s assertion in his habeas petition that his attorney is
inattentive, see ROA at 11, cannot excuse his failure to exhaust, at least for now.
Although ineffective assistance of counsel can sometimes establish cause and
prejudice for procedural default, the ineffective-assistance claim must itself be
exhausted before it can provide “cause” for procedural default. Murray v. Carrier,
477 U.S. 478, 489 (1986); Edwards v. Carpenter, 529 U.S. 446, 451–52 (2000).
Robinson has not demonstrated that he has exhausted any potential ineffective
assistance claim.
In short, no reasonable jurist would debate that Robinson has failed to show
that he has exhausted available state court remedies or that exhaustion would be
4
futile. Because “jurists of reason would” not “find it debatable whether the district
court was correct in its procedural ruling,” Slack, 529 U.S. at 484, we DENY
Robinson’s application for a certificate of appealability.3
Entered for the Court
Allison H. Eid
Circuit Judge
3
Because we hold that the petition was correctly dismissed on exhaustion
grounds, we need not address the district court’s alternative holding that Younger
abstention is warranted.
5