Farris v. Allbaugh
| Decision Date | 22 June 2017 |
| Docket Number | No. 16-6347,16-6347 |
| Parties | TYRONE LESLIE FARRIS, Petitioner - Appellant, v. JOE ALLBAUGH, Director of the Department of Corrections, Respondent - Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(W.D. Okla.)
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.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.
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 isexecuting 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 (). 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 tothe 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 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.
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) (). Throughout 1992, for example, the ODOC did not award Farris either "pre-Ekstrand" or "post-Ekstrand" credits. ROA at 22; see id. at 123 ().
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" fromwhich 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, "ifhe 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...
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