FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:13-CV-01149-HE)
Henricksen, Henricksen & Henricksen, Lawyers, Inc.,
Oklahoma City, Oklahoma, appearing for Appellant.
L. Miller, Assistant Attorney General (E. Scott Pruitt,
Attorney General, and Jennifer B. Welch, Assistant Attorney
General, with her on the briefs), Office of the Attorney
General for the State of Oklahoma, Oklahoma City, Oklahoma,
appearing for Appellee.
HARTZ, MATHESON, and MORITZ, Circuit Judges.
MATHESON, Circuit Judge.
district court denied state prisoner Michael
Leatherwood's 28 U.S.C. § 2241 habeas application.
It granted him a certificate of appealability
("COA") on his claim that revocation of his
suspended sentence for violation of a probation condition
violated his procedural and substantive due process rights.
It denied a COA on his other claims. Exercising jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a), we affirm the
district court's denial of his due process claim. We also
deny his request for additional COAs and his motion to
supplement the record.
State Court Proceedings
2009, Mr. Leatherwood pled guilty in Oklahoma state court to
two counts of Rape in the First Degree and four counts of
Rape in the First Degree by Instrumentation. Judge Kenneth
Watson sentenced him to six concurrent 20-year terms and
suspended the sentence except for 90 days in jail.
completion of his jail time, Mr. Leatherwood was supposed to
serve "the remainder of [his] sentence(s) . . . under
the terms set forth in the probation guidelines, "
including a list of Special Probation Conditions for Sex
Offenders ("Special Probation Conditions"). Record
on Appeal ("ROA") at 1700, 1703. He would therefore
serve a suspended sentence and also be under probationary
supervision. See Okla. Stat. tit. 22 §
Leatherwood agreed to the Special Probation Conditions
"as consideration for the imposition of a probated
sentence, in whole or in part" and acknowledged that
"[f]ailure to comply with any of these conditions may
result in the revocation . . . of [his] probated
sentence." ROA at 1703.
the Special Probation Conditions, Rule 17, required that Mr.
Leatherwood "[n]ot date, socialize, or enter into a
romantic or sexual relationship with any person who has
children under the age of eighteen (18) years present in
their residence or custody at any time." Id.
Judge Watson ordered Mr. Leatherwood to report to jail on
January 8, 2010.
First Revocation - Five Years
September 23, 2009, before the scheduled start of Mr.
Leatherwood's jail term, the State applied to revoke his
suspended sentence, alleging he had violated several
probation conditions. Mr. Leatherwood was put in jail before
his revocation hearing. Judge Watson, who had imposed the
original sentence, held a revocation hearing on January 8,
2010. During the hearing, Mr. Leatherwood's counsel
stipulated to five of the alleged probation violations,
including a violation of Rule 17 based on Mr.
Leatherwood's relationship with Regina Wood, the mother
of two minor children. Judge Watson chastised Mr. Leatherwood
for refusing to follow the rules, stating, "And now they
put you in jail and you're doing the same thing over
there. . . . I gave you all the rope in the world and you
hung yourself with it." Id. at 891. Judge
Watson revoked five years of Mr. Leatherwood's suspended
Second Revocation - 15 Years
April 14, 2010, while Mr. Leatherwood was serving his
five-year prison term,  the State filed a second application to
revoke, alleging Mr. Leatherwood had continued to violate
Rule 17 while he was incarcerated. Judge Watson recused
himself. Judge Tammy Bass-LeSure presided over a second
revocation hearing on August 3, 2010. She noted that despite
Judge Watson's admonitions "not to have any
relationship . . . with a person that has children in their
custody, " Mr. Leatherwood had gone to "great
lengths to hide the fact" that he continued his
relationship with Ms. Wood. Id. at 1032-33. Mr.
Leatherwood acknowledged that he "would not do anything
to intentionally or willfully violate the conditions of my
probation except for [Rule] 17 and I take responsibility for
that." Id. at 1065. "[L]ooking at the
totality" of the circumstances, including Mr.
Leatherwood's own statements and deceptive behavior,
Judge Bass-LeSure concluded he knew he had violated Rule 17.
Id. at 1033. Consequently, she revoked the remaining
15 years of his suspended sentence.
Direct Appeal and Post-Conviction Review
Leatherwood appealed to the Oklahoma Court of Criminal
Appeals ("OCCA"), raising three issues that are
relevant here: (1) the revocation violated his procedural and
substantive due process rights because (a) Rule 17 failed to
warn him that he could violate it while incarcerated, and (b)
the revocation was so arbitrary as to be fundamentally
unfair; (2) Judge Bass-LeSure's bias violated due
process; and (3) cumulative error in the second revocation
proceeding required reversal. The OCCA affirmed.
Leatherwood then sought post-conviction relief, alleging: (1)
ineffective assistance of counsel; (2) judicial bias and
conflict; and (3) cumulative error. The state trial
court denied relief, and the OCCA affirmed.
Federal Habeas Proceedings
October 2013, Mr. Leatherwood applied for habeas relief under
28 U.S.C. § 2241 in the United States District Court for
the Western District of Oklahoma. He asserted seven grounds
for relief: (1) violation of due process; (2) insufficient
evidence; (3) improper admission of evidence; (4) judicial
bias; (5) judicial conflict; (6) ineffective assistance of
counsel; and (7) cumulative error. As on direct appeal, his
first claim alleged violation of procedural and substantive
due process because (1) Rule 17 failed to warn that he could
violate it while incarcerated, and (2) the revocation
arbitrarily deprived him of his liberty. Mr. Leatherwood
filed motions to supplement his application with affidavits
from Justin Jones, the former Director of the Oklahoma
Department of Corrections, and from Judge Watson.
magistrate judge recommended denial of Mr. Leatherwood's
habeas application. Over Mr. Leatherwood's objection, the
federal district court agreed. It also denied his request for
an evidentiary hearing and his motions to supplement the
record. The court issued a COA on the claim alleging a
violation of procedural and substantive due process but
declined any other COAs.
Leatherwood filed a timely notice of appeal on his due
process claim. He also requests COAs on his judicial
bias/conflict and cumulative error claims, and he has
moved to supplement the record on appeal with an affidavit
from Judge Watson.
Section 2241 Challenge to Revocation and Standard of
28 U.S.C. § 2241 and Revocation
habeas application under 28 U.S.C. § 2241 generally
attacks the execution of a sentence rather than its validity.
See Straley v. Utah Bd. of Pardons, 582 F.3d 1208,
1213 (10th Cir. 2009) ("[State prisoner's] §
2241 habeas petition can only challenge the execution of his
sentence, not the validity of his conviction and the original
sentence."); Yellowbear v. Wyoming Att'y
Gen., 525 F.3d 921, 924 (10th Cir. 2008) ("Section
 2241 is a vehicle for [a state prisoner] . . . attacking
the execution of a sentence." (citations omitted)). It
challenges "the fact or duration of a prisoner's
confinement and seeks the remedy of immediate release or a
shortened period of confinement." McIntosh v. U.S.
Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997)
prisoner's challenge to the revocation of a suspended
sentence is properly brought under § 2241 based on our
circuit precedent. Montez v. McKinna, 208 F.3d 862,
865 (10th Cir. 2000) (stating that a habeas application
challenging where a state sentence will be served "seems
to fit better under the rubric of § 2241");
Stoltz v. Sanders, Nos. 00-6188 & 00-6288, 242
F.3d 390, 2000 WL 1730894, at *1 (10th Cir. 2000)
(unpublished table decision) ("To the extent
[petitioner] is challenging the revocation of his [suspended]
sentence, we construe his petition as filed under 28 U.S.C.
§ 2241 because it challenges the execution of his
sentence, rather than its validity."). By contrast, a
state prisoner's federal habeas challenge to the validity
of an underlying conviction or sentence must typically be
brought under § 2254. Montez, 208 F.3d at 865.
Leatherwood challenges the execution of his sentence-whether
he will serve 15 years in prison or as a suspended sentence.
See id. He does not challenge the validity of his
rape conviction or his sentence of six concurrent 20-year
terms. He therefore properly brought a § 2241 habeas
Standard of Review
reviewing the denial of a habeas petition under § 2241,
we review the district court's legal conclusions de novo
and accept its factual findings unless clearly
erroneous." al-Marri v. Davis, 714 F.3d 1183,
1186 (10th Cir. 2013). In doing so, we employ the same
deference the district court must apply in reviewing the
state proceedings. Curtis v. Chester, 626 F.3d 540,
544 (10th Cir. 2010).
standard of federal habeas review of state court decisions
depends on which habeas statute applies. For § 2254
habeas applications, relief may not be granted unless the
state court's decision "was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,
" 28 U.S.C. § 2254(d)(1), or "was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding, "
id. § 2254(d)(2). Congress imposed these
standards when it enacted the Antiterrorism and Effective
Death Penalty Act ("AEDPA"), and it intended they
be "difficult to meet." Harrington v.
Richter, 562 U.S. 86, 102 (2011).
standard of review for a § 2241 application is less
demanding. In Walck v. Edmondson, we stated,
"The deferential standard of review contained within
§ 2254 is . . . only properly invoked when an individual
in state custody collaterally attacks the validity of a state
conviction and/or sentence." 472 F.3d 1227, 1234 (10th
Cir. 2007). Accordingly, "we review habeas claims made
pursuant to § 2241 . . . de novo." Id. at
1235; see also Phillips v. Court of Common Pleas,
Hamilton Cty., 668 F.3d 804, 810 (6th Cir. 2012)
("[H]abeas petitions governed by § 2241 are not
subject to the heightened standards contained in §
2254(d)"); Martinez v. Caldwell, 644 F.3d 238,
242 (5th Cir. 2011) ("The deferential standard afforded
to state court decisions, which is specifically articulated
in § 2254, is not included in the text of §
2241."). Thus, we review the state court's denial of
Mr. Leatherwood's § 2241 application de novo.
See Walck, 472 F.3d at 1235.
Scope of Habeas Review: State Law and ...