5:24-cv-01139•Mosley v. Oklahoma State of
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA CALVIN MOSLEY, JR., ) ) Petitioner, ) ) v. ) Case No. CIV-24-1139-R ) WILLIAM “CHRIS” RANKINS, ) ) Respondent. ) REPORT AND RECOMMENDATION Petitioner Calvin Mosley Jr., a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241. Doc. 1. Upon Petitioner’s motion, the Court granted him leave to file a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Petition”), Doc. 10, challenging his state court conviction and sentence in Case No. CF-2023-2590, District Court of Oklahoma County, Oklahoma. United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Respondent filed a motion to dismiss with brief in support, Docs. 19 and 20, and Petitioner filed a response and brief in support, Docs. 21 and 22. For the reasons set forth below, the undersigned recommends that the Court grant Respondent’s motion. I. Background and Procedural History On November 27, 2024, Petitioner pleaded guilty to one count of sexual battery. Pet. at 1; Doc. 20-2. That same day, Petitioner was sentenced to a term of imprisonment of twenty years, with all suspended except for the first ten years. Pet. at 1; Doc. 20-1. Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 1 of 11
2 Before entering his guilty plea, Petitioner filed the following pleadings in the Oklahoma state courts: • On September 25, 2023, Petitioner filed a pro se Petition for Habeas Corpus with the Oklahoma Court of Criminal Appeals (“OCCA”), seeking a reduction in bond. Doc. 20-4; Mosley v. State, HB-2023- 765 (Okla. Crim. App. Sep. 25, 2023).1 On September 26, 2023, the OCCA denied the pro se petition on the procedural ground that Petitioner was represented by counsel and “only pleadings submitted by the attorney of record will be accepted for filing.” Doc. 20-5 at 1; Mosley v. State, HB-2023-765 (Okla. Crim. App. Sep. 25, 2023). • On March 29, 2024, Petitioner filed a motion for bail hearing. Doc. 10-1 at 36. On June 11, 2024, the District Court of Oklahoma County held a hearing and considered the pro se Motion for Writ of Habeas Corpus that Petitioner filed that day. Id. at 24-34; 35-45. The District Court then denied Petitioner’s “motion for bond reduction.” Id. at 3. • In response to the District Court’s denial, Petitioner sought the following relief from the OCCA: o On July 3, 2024, Petitioner filed a Notice of Intent to Appeal the District Court’s denial of his motion for bond reduction. Doc. 20-6; Mosley v. State, HC-2024-506 (Okla. Crim. App. July 3, 2024). On July 19, 2024, the OCCA declined jurisdiction on the procedural ground that Petitioner failed to include a copy of the trial court’s order. Doc. 20-7 at 3; Mosley v. State, HC-2024-506 (Okla. Crim. App. July 19, 2024). o On July 11, 2024, Petitioner filed a Petition for Writ of Habeas Corpus with the OCCA, arguing that the trial court erred in its June 11, 2024, denial of his motion for writ of habeas corpus. Doc. 10-1 at 1-20; Doc. 20-8; Mosley v. State, HC-2024-522, Petition (July 11, 2024). On July 26, 2024, the OCCA denied 1 The undersigned takes judicial notice of the docket in Plaintiff’s various cases in the Oklahoma state courts, available at www.oscn.net/dockets. 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”). Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 2 of 11
3 relief on the merits of the petition after determining that Petitioner had not met his burden to show that his confinement was unlawful or that he was entitled to immediate release. Doc. 10-1 at 47-48; Mosley v. State, HC-2024-522 (Okla. Crim. App. July 26, 2024). • On July 17, 2024, Petitioner filed a petition for writ of mandamus with the OCCA, complaining that the District Court of Oklahoma County had failed to rule on his motion for expert services. Doc. 20-9. Mosley v. State, MA-2024-538, Petition (July 17, 2024). On July 26, 2024, the OCCA denied the petition as premature. Doc. 20-10; Mosley v. State, MA-2024-538 (Okla. Crim. App. July 26, 2024). After Petitioner’s plea, conviction, and sentencing, he did not request to withdraw his guilty plea or file a direct appeal. Pet. at 2; Doc. 20-3. Petitioner did seek post- conviction relief from the OCCA, but on grounds unrelated to the current Petition: • On November 27, 2024, Petitioner filed a petition for writ of mandamus seeking an evidentiary hearing. Mosley v. State, MA- 2024-940, Petition (Nov. 27, 2024). The OCCA declined jurisdiction on procedural grounds. Mosley v. State, MA-2024-940 (Okla. Crim. App. Dec. 13, 2024). • On August 15, 2025, Petitioner again filed a petition for writ of mandamus seeking an evidentiary hearing. Mosley v. State, MA- 2025-647, Petition (Aug. 15, 2025). After the District Court of Oklahoma County set an evidentiary hearing in response to Petitioner’s motion, the OCCA dismissed the petition as moot. Mosley v. State, MA-2025-647 (Okla. Crim. App. Oct. 31, 2025). II. Petitioner’s Grounds for Relief Before this Court, Petitioner seeks habeas relief on the following grounds: 1. Ground One: Petitioner challenges his conviction on the grounds that a state judge issued a probable cause arrest warrant setting a bond amount of $150,000.00 pursuant to Okla. Stat. tit. 22, § 173 and a bail schedule. Petitioner asserts the state judge’s use of a bail schedule violated his right to due process “under [the] 4th, 5th, and 14th Amendments of the United States Constitution” because he did not receive an individualized determination of bail. Pet. at 5-6. Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 3 of 11
4 2. Ground Two: Petitioner challenges his conviction on the grounds that, at his first judicial appearance with counsel, the state judge “still set bail at 150,000.00 dollars” and ordered a preliminary hearing continuance. Id. at 8. Petitioner asserts the amount of bail set at his first judicial appearance “without rebuttable presumption or motion” by the government violated his right to due process “under [the] 5th, 8th, 11th and 14th Amendments of the United States Constitution.” Id. at 7-8. 3. Ground Three: Petitioner challenges his conviction on the grounds that his appointed counsel was not “effective in advocating bail and process at his first judicial appearance, preliminary hearing, and arraignment in violation of his constitutional rights under [the] 5th, 6th and 14th Amendments of the United States Constitution.” Id. at 9-10. 4. Ground Four: Petitioner challenges his conviction on the grounds that his trial was fundamentally unfair because his defense was “hampered and oppress[ed] during the prosecutorial process,” “in violation of his constitutional rights under [the] 5th, 6th, 8th and 14th Amendments of the United States Constitution.” Id. at 11. Petitioner asserts that his defense was “impaired” because he was forced to proceed pro se and, therefore, was unable to properly investigate the case, evaluate potential witnesses, and otherwise prepare for trial. Id. at 12-13. He was forced to proceed pro se because (1) he was unlawfully detained without due process regarding his bail amount, (2) his unlawful detainment prevented him from obtaining a financial loan to hire an attorney, and (3) his public defender rendered ineffective assistance at his preliminary hearing and arraignment. Id. at 12. He alleges these same factors caused anxiety and caused him to “reluctantly” plead guilty with the “ill-advisement of counsel.” Id. at 13. 5. Ground Five: Petitioner challenges his conviction on the grounds that, in Case No. HC-2024-522, the OCCA denied his Petition for Writ of Habeas Corpus on improper grounds, thus violating his rights “under [the] 5th, 8th and 14th Amendments of the United States Constitution.” Id. at 14-15; see Doc. 10-1 at 47-48; Mosley v. State, HC-2024-522 (Okla. Crim. App. July 26, 2024). Specifically, Petitioner asserts the OCCA erred in (1) citing the incorrect date on which the Oklahoma County District Court set bail and (2) relying on inapplicable case law. Pet. at 14-15. 6. Ground Six: Petitioner challenges his conviction on the grounds that, in Case No. HC-2024-522, the OCCA denied his Petition for Writ of Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 4 of 11
5 Habeas Corpus on improper grounds, thus violating his rights “under [the] 5th, 8th and 14th Amendments of the United States Constitution.” Id. at 16-17; see Doc. 10-1 at 47-48; Mosley v. State, HC-2024-522 (Okla. Crim. App. July 26, 2024). Specifically, Petitioner asserts the OCCA erred in failing to adjudicate the merits of his petition. Pet. at 16-17. Petitioner asserts that each of these grounds was exhausted during the OCCA’s “habeas review.” Id. at 5, 7, 9, 11, 14, 16 (citation modified). The undersigned understands Petitioner to be referencing Mosley v. State, HC-2024-522. See id. at 2.2 III. Analysis Respondent argues that Petitioner’s claims are unexhausted and the Petition should be dismissed without prejudice to afford Petitioner the opportunity to exhaust his state court remedies. The undersigned agrees. A. Exhaustion The Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254. As a preliminary matter, AEDPA codifies the exhaustion doctrine, which is a matter of comity and requires the Court to consider in the first instance whether Petitioner has presented his grounds for relief to the OCCA. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“The States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.” 2 In that case, Petitioner filed a Petition for Writ of Habeas Corpus with the OCCA on July 11, 2024, arguing that the trial court had erred in its June 11, 2024, denial of his motion for writ of habeas corpus requesting a bond reduction. Doc. 10-1 at 1-20; Doc. 20-8. The OCCA issued its order of denial on July 26, 2024. Doc. 10-1 at 47-48. Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 5 of 11
6 (citation modified)). AEDPA provides that, aside from two narrow exceptions,3 habeas relief for a state prisoner shall not be granted unless the remedies available in state court have been exhausted. 28 U.S.C. § 2254(b)(1). Habeas relief may, however, be denied notwithstanding Petitioner’s failure to exhaust state court remedies. Id. § 2254(b)(2). “The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). To exhaust a claim, that claim must be “fairly presented to the state court.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (citation modified). That means the “substance of the federal claim [must be] raised in state court.” Simpson v. Carpenter, 912 F.3d 542, 565 (10th Cir. 2018). “The petitioner need not cite ‘book and verse on the federal constitution,’ but the petitioner cannot assert entirely different arguments from those raised before the state court.” Bland, 459 F.3d at 1011 (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). Instead, the claims in state and federal court should be of the same nature. Petitioner argues that he presented to the OCCA “all the facts on which he based his federal constitutional claims.” Doc. 22 at 2 (citation modified). But “a fair presentation requires more than presenting all the facts necessary to support the federal claim to the state court.” Grant v. Royal, 886 F.3d 874, 890 (10th Cir. 2018) (citation modified). Indeed, “the crucial inquiry is whether the substance of the petitioner’s claim has been 3 Exhaustion is not required if “there is an absence of available State corrective process” or certain circumstances “render such process ineffective to protect [a petitioner’s] rights.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 6 of 11
7 presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Id. (citation modified). Here, Petitioner’s claims were not presented to the OCCA in a manner sufficient to put that court on notice of the federal constitutional claims he raises before this Court. Indeed, Petitioner now challenges his conviction with his Petition before this Court. But when he raised his claims of excessive bond in a habeas petition before the OCCA, he had not yet been convicted. The claims Petitioner presented to the OCCA before his conviction—challenging his continued detention and bond amount—had a different focus than his claims presented to this Court—challenging his conviction. Petitioner never filed a direct appeal or post-conviction challenge on grounds related to the Petition. As such, Petitioner did not exhaust his federal habeas claims. See id. at 891 (“To satisfy exhaustion, then, the habeas petition’s focus—as well as the alleged error that it identifies—cannot depart significantly from what the petitioner had presented to the state court.”). B. Dismissal without prejudice 1. Options for unexhausted petitions When considering a petition containing only unexhausted claims, a district court ordinarily has two options: (1) dismiss the petition so the petitioner can return to state court to exhaust his claims, or (2) deny the petition on the merits pursuant to 28 U.S.C. § 2254(b)(2), notwithstanding the petitioner’s failure to exhaust state court remedies. Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002).4 Respondent moves for the 4 Petitioner requests that if the Court determines his claims have not been exhausted, the case be stayed rather than dismissed. Doc. 22 at 2. A stay may be available for mixed Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 7 of 11
8 first option—to dismiss the Petition without prejudice to afford Petitioner the opportunity to return to state court to exhaust his claims—and does not provide the Court with briefing for the second option. See Doc. 20 at 9 n.6 (“This Motion to Dismiss does not address whether Petitioner’s claims are sufficiently grounded in federal law (as opposed to state law) to permit federal habeas corpus relief, because that would be a merits assessment, and this Motion seeks dismissal on a purely procedural ground.”). This Court can “dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies,” but the Tenth Circuit has cautioned that it “is not appropriate if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds.” Grant, 886 F.3d at 891-92 (citation modified). Accordingly, the undersigned has considered whether Petitioner’s claims would be barred by an anticipatory procedural bar. 2. Anticipatory procedural bar A habeas petitioner may exhaust state court remedies through either direct appeal or post-conviction proceedings. Dever, 36 F.3d at 1534. Petitioner, however, has missed the window for raising his claims on direct appeal because he did not seek either to withdraw his guilty plea within ten days or to file a petition for writ of certiorari within 90 petitions containing both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 276 (2005). But Petitioner’s petition is not a mixed petition. Additionally, a stay “is an exercise of judicial discretion and the party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Ind. State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 961 (2009) (citation modified). Petitioner has not carried his burden, and the undersigned declines to recommend that the case be stayed. Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 8 of 11
9 days of the judgment and sentence. See Davis v. Bridges, No. 22-6107, 2024 WL 140026, at *4 (10th Cir. Jan. 12, 2024) (explaining the procedure for taking a direct appeal from a plea of guilty). And because Petitioner could have, but did not, raise on direct appeal the claims he now asserts, those claims would be considered waived in any post-conviction proceeding. See Mann v. State, 856 P.2d 992, 993 (Okla. Crim. App. 1993) (explaining that any claims for post-conviction relief that “could have been raised on direct appeal, but were not” are deemed “waived”); Okla. Stat. tit. 22, § 1086 (“Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.”). As such, Petitioner failed to exhaust his state court remedies through a direct appeal and cannot now do so through post- conviction proceedings. In situations such as this, federal courts may apply an anticipatory procedural bar. “An anticipatory procedural bar creates an affirmative defense which the state may raise.” Tryon v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023) (citation modified); see also Hooks v. Ward, 184 F.3d 1206, 1216 & n.6 (10th Cir. 1999) (recognizing procedural bar as an affirmative defense and noting “traditionally the burden of proving an affirmative defense falls on the party asserting the affirmative defense”) (citation modified)). “Anticipatory procedural bar occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 9 of 11
10 exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007); see also Grant, 886 F.3d at 892 (“Where the relevant state courts would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.” (citation modified)). However, the undersigned is reluctant to recommend application of an anticipatory procedural bar here for several reasons. First, Respondent has not raised anticipatory procedural bar or attempted to prove the affirmative defense. Instead, Respondent specifically asks the Court to “dismiss the Petition without prejudice to afford [Petitioner] [the] opportunity” to present to the OCCA his constitutional challenges to his conviction. Doc. 20 at 14. Second, Respondent notes that “under Oklahoma law, Petitioner has a right to appeal out-of-time if he can demonstrate that he was denied an appeal through no fault of his own.” Id. at 13 (citing Rules of the Oklahoma Court of Criminal Appeals, 2.1(E)(1)). Third, Petitioner alleges that he can make such a showing—that he was unable to raise his claims on direct appeal—because he was suicidal and mentally incompetent during the relevant period. Doc. 22 at 9-10. 3. Conclusion Petitioner’s claims are unexhausted, and his likelihood of obtaining an appeal out- of-time is slim at best. The undersigned, though, is reluctant to foreclose that possibility by recommending application of an anticipatory procedural bar when Respondent did not raise such an affirmative defense and specifically moves for dismissal without prejudice.5 5 The undersigned recognizes that, even if Petitioner can perfect an appeal out of time in state court, he would still face AEDPA’s one-year time limit for filing a properly exhausted Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 10 of 11
11 Accordingly, the undersigned recommends that the Court grant Respondent’s motion to dismiss without prejudice to afford Petitioner the opportunity to return to state court to exhaust his claims. IV. Recommendation and Notice of Right to Object For the foregoing reasons, the undersigned recommends that the Court GRANT Respondent’s motion to dismiss the Petition without prejudice. The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of Court not later than December 23, 2025. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely waives the right to appellate review of the factual and legal issues addressed in this Report and Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter. ENTERED this 2nd day of December, 2025. habeas petition. However, the timeliness of a future petition or any tolling exception is not currently before the Court. Further, as discussed, the undersigned does not recommend granting a stay in this case while Petitioner attempts to exhaust his federal habeas claims. Case 5:24-cv-01139-R Document 23 Filed 12/02/25 Page 11 of 11
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