Cozart v. Oklahoma State Reformatory

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DELMOND COZART,
Petitioner,
v.
OKLAHOMA STATE
REFORMATORY,
Respondent.
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No. CIV-26-183-J
REPORT AND RECOMMENDATION
Petitioner, 	Delmond 	Cozart, 	a 	state 	inmate 	appearing 	pro 	se1 and
proceeding in forma pauperis, seeks habeas corpus relief under 28 U.S.C.
§ 2241. 	Doc. 	1.2 	The 	Court 	referred 	this 	habeas 	corpus 	matter 	to 	the
undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B), (C). Docs. 4, 9. Having reviewed the petition, the undersigned
recommends that the Court dismiss the petition, in part, because Petitioner
seeks relief not available in a § 2241 habeas proceeding.
1 	The Court construes a pro se litigant’s pleadings liberally but will not act
as his advocate, creating arguments on his behalf. See Yang v. Archuleta, 525
F.3d 925, 927 n.1 (10th Cir. 2008); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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Doing so will leave Petitioner’s sole remaining claim challenging the
Oklahoma 	Department 	of 	Corrections’ 	(DOC) 	demotion 	of 	his 	level
classification on due process grounds, a claim properly brought in a § 2241
habeas proceeding. See Doc. 1, at 3-4.
I. 	Petitioner’s background and claims.
In 2023, Petitioner entered a plea of nolo contendere to four counts of
lewd molestation and one count of using technology to engage in sexual
communication with a minor in Tulsa County Case No. CF-2022-1717. Id. at
1; 	State 	v. 	Cozart, 	No. 	CF-2022-1717,
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=C
F-2022-1717&cmid=3517324 (last visited April 22, 2026).3
On February 3, 2026, Petitioner filed this § 2241 habeas petition, raising
two grounds for relief:
Ground One: Petitioner is “being held in violation of the 1866 Creek
Treaty 	the 	[United 	States] 	had 	with 	the 	Creek 	Reservation 	Tribe
challenging the execution of [his] sentence (lack of jurisdiction)[.]”
Ground 	Two: 	Petitioner 	alleges 	that 	Respondent 	Oklahoma 	State
Reformatory 	“unconstitutionally 	dropped 	[his] 	level 	4 	to 	level 	1 	in
violation of [his] 14th Amendment [rights.]”
3 	The 	undersigned 	takes 	judicial 	notice 	of 	Petitioner’s 	state 	court
proceedings. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir.
2007) (noting a court “may exercise [its] discretion to take judicial notice of
publicly-filed 	records 	in 	[this] 	court 	and 	certain 	other 	courts 	concerning
matters that bear directly upon the disposition of the case at hand”).
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Doc. 1, at 4. Petitioner asks the Court to return him to his Level Four
classification and restore “the $25 gang pay” for each month he was classified
as Level One, “and to release [him] back to the Creek Reservation in Tulsa
where [he] was illegal[l]y taken due to the 1866 treaty the Creek Nation Tribe
[has] with the [United States.]” Id. at 5.
II. 	Screening.
This Court must review a habeas petition and dismiss it “[i]f it plainly
appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Rule 4, Rules Governing Section 2254
Cases in the United States District Courts4; see also Garza v. Davis, 596 F.3d
1198, 1205 (10th Cir. 2010) (holding that a federal court possesses “the
discretion either to dismiss the 28 U.S.C. § 2241 petition if it appear[s] that
the petitioner was not entitled to relief or to order the respondent to file a
response”).
III. 	Discussion.
Petitioner seeks, in part, to be “release[d] . . . back to the Creek
Reservation in Tulsa where [he] was illegally taken,” which would require his
4 	The Court may apply the Rules Governing § 2254 Cases to habeas
petitions arising under § 2241. See Rule 1(b); Whitmore v. Parker, 484 F. App’x
227, 231 n.2 (10th Cir. 2012) (citing Boutwell v. Keating, 399 F.3d 1203, 1211
n.2 (10th Cir. 2005) as holding that: “The District Court . . . acted within its
discretion by applying the Section 2254 Rules to this § 2241 petition.”).
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release from DOC custody. See Doc. 1, at 5. “It is ‘the nature of a prisoner’s
confinement, not the fact of his confinement’ that is the gravamen of a Section
2241 petition or challenge.” Hayes v. Bear, No. CIV-18-83-D, 2018 WL 1311211,
at *1 (W.D. Okla. Mar. 2, 2018) (quoting Prost v. Anderson, 636 F.3d 578, 581
(10th Cir. 2011)), adopted, 2018 WL 1309858 (W.D. Okla. Mar. 13, 2018). “A §
2254 petition, on the other hand, is the proper avenue for attacking the validity
of a conviction and sentence.” Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924
(10th Cir. 2008).
Petitioner, in part, challenges the validity of his conviction and sentence
by claiming that he “was unlawfully taken from . . . the Creek Reservation”
and that the trial court lacked jurisdiction to convict him due to McGirt5. See
Doc. 1, at 4.6 Petitioner’s allegations constitute “an attack on his conviction and
sentence” and “must therefore be brought under § 2254.” Yellowbear, 525 F.3d
at 924.
5 	In McGirt, the Supreme Court held that “the federal government, not the
State [of Oklahoma], may prosecute Indians for major crimes committed in
Indian country.” 591 U.S. 984, 932 (2020).
6 	This is a claim that Petitioner has brought in a § 2241 habeas petition
before this Court. See Cozart v. Hart, No. 25-311-J, Doc. 11, adopted, in part,
Doc. 13 (adopting Magistrate Judge Stephens’s finding that Petitioner could
not challenge his state court conviction under § 2241 and granting Petitioner
the opportunity to file an amended petition to bring his claims under § 2254).
There, the Court advised Petitioner that a habeas petition brought under §
2241 was the improper vehicle for challenging his conviction. See Cozart, Doc.
13, at 1-2.
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Petitioner should have brought his claim challenging his state court
conviction under § 2254. And the Court should not convert because Ground
Two of Petitioner’s habeas petition is properly raised in a § 2241, and he can
file a separate petition to pursue his § 2254 claims.7
IV. 	Recommendation.
The 	undersigned 	recommends 	the 	Court 	dismiss 	Petitioner’s 	claim
challenging his conviction in state court without prejudice. See Crosby v. True,
826 F. App'x 699, 701 (10th Cir. 2020) (“[The Tenth Circuit] has previously
directed courts to dismiss, without prejudice, a challenge . . . improperly
brought under § 2241.”).8 The undersigned advises Petitioner that he may file
an objection to this Report and Recommendation with the Clerk of this Court
7 	The Court should also decline to convert the § 2241 petition into a § 2254
petition 	because 	of 	the 	“‘longstanding 	policy 	of 	federal 	district 	courts 	in
Oklahoma ‘favoring transfer[ ] [of] habeas actions to the district of conviction.’”
Green v. Oklahoma, No. CV-18-823-D, 2019 WL 177957, at *1 (W.D. Okla. Jan.
11, 2019) (quoting Manning v. Oklahoma, CIV-13-0990-HE, 2013 WL 5923721,
at *1 (W.D. Okla. Nov. 1, 2013)). So, even if Petitioner had filed a § 2254
petition in this district, venue would have been improper as Petitioner was
convicted in Tulsa, which lies within the Northern District of Oklahoma. See
28 U.S.C. § 116(a) (“The Northern District comprises the count[y] of . . .
Tulsa.”).
8 	If the Court adopts this Report and Recommendation, Petitioner will be
allowed to proceed on Ground Two of his petition, Doc. 1, at 4, in which he
argues that DOC improperly classified him under Level One rather than Level
Four.
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by May 13, 2026. The undersigned further advises Petitioner that failure to
timely object to this Report and Recommendation waives the right to appellate
review of both factual and legal issues contained herein. Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues and does
not 	terminate 	the 	referral 	to 	the 	undersigned 	Magistrate 	Judge 	in 	the
captioned matter.
ENTERED this 22nd day of April, 2026.
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