Filed: Patrick Fisher
Filed: Patrick Fisher
TENTH CIRCUIT
DEC 5 2000
PATRICK FISHER
Clerk
No. 00-5147
(D.C. No. 98-CV-957-H)
Respondent - Appellee.
See Montez
v. McKinna , 208 F.3d 862, 866-67 (10th Cir. 2000) (holding petitioners must be
granted COA before they may appeal a denial of a 2241 habeas petition). The
district court denied Benjamins habeas petition on the ground that the Ex Post
Facto Clause of the United States Constitution was not violated by the revocation
of his parole in 1997. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we
deny Benjamins application for COA and remand this case to the district court to
dismiss without prejudice for failure to exhaust state remedies.
In 1971 Benjamin began serving a life sentence for the Oklahoma state
crime of robbery by firearms. In 1983 he was paroled, but violated his parole in
1997, after which his parole was revoked in part, and he was sent back to prison
to serve five years.
-2-
entitled to those credits. In December 1998, Benjamin filed the instant habeas
petition in United States District Court for the Northern District of Oklahoma,
claiming the states refusal to apply earned time credits to his five-year term
violated his rights under the Ex Post Facto Clause of the United States
Constitution. Finding the record unclear as to whether Benjamin had exhausted
his state remedies, the district court nonetheless denied his habeas petition on the
merits pursuant to 28 U.S.C. 2254(b)(2).
see
Clayton , 199
According to his petition in the district court below and the states response to
his petition, Benjamin has never challenged in state court the ODOCs refusal to
The district court relied in part on a previous unpublished order of this
Court in Collins v. State , No. 95-6099, 1995 WL 405112 (10th Cir. July 10,
1995). Despite its persuasive value, that order constitutes non-binding precedent.
2
-3-
apply time credits to his sentence. Neither of the exceptions to the exhaustion
requirement applies. First, because the earned credit issue Benjamin seeks to
bring arose after his initial application for post-conviction relief, there is no
indication that he would be procedurally barred from bringing a challenge to the
ODOCs earned credit policy in Oklahoma state court.
id. 1086
(statutory provision governing second or successive applications for postconviction relief); Stewart v. State , 495 P.2d 834, 836 (Okla. Crim. App. 1972)
(holding a defendant may assert the denial of a constitutional right for the first
time under the Post-Conviction Procedure Act because the substance of the claim
did not exist at the time of the first application for state post-conviction relief).
Second, his failure to exhaust state remedies was expressly raised in the states
response to his petition and thus has not been waived.
933-34.
Due to Benjamins failure to exhaust his state remedies, we refuse to pass
judgment on the merits of the claim he raises in the instant habeas petition. Our
reluctance to do so stems from the purposes of the exhaustion doctrine itself.
The exhaustion doctrine, which was codified in 1948, began as a
judicially crafted instrument which reflects a careful balance between
important interests of federalism and the need to preserve the writ of
habeas corpus as a swift and imperative remedy in all cases of illegal
-4-
1992); see also 28 U.S.C. 2254(b)(2). In that way, we may avoid a belated
application of the exhaustion rule [that] might simply require useless litigation in
the state courts.
present case, we are not convinced that the petition is meritless. Thus,
considerations of comity and federalism otherwise counsel strict adherence to the
exhaustion doctrine. On remand, the district court should dismiss this matter
without prejudice for failure to exhaust state remedies. After exhausting his state
-5-
remedies, Benjamin is free to file a new habeas petition in federal district court.
The application for COA is
Carlos F. Lucero
Circuit Judge
-6-