TERENCE KERN, District Judge
This is a 28 U.S.C. § 2254 habeas corpus proceeding. Petitioner is a state prisoner appearing pro se. Respondent filed a response to the petition (Dkt. # 11), and provided the state court record necessary for resolution of Petitioner's claims (Dkt. ## 11, 12, 13). Petitioner filed a reply (Dkt. # 28). For the reasons discussed below, the Court finds the petition shall be denied.
BACKGROUND
On April 19, 2003, Bartlesville Police Lieutenant Rick Silver organized a team of law enforcement officers to execute a search warrant at 809 Southwest Oak, a residence located in Bartlesville, Oklahoma. The search warrant was issued pursuant to an affidavit containing information provided by a confidential informant. The confidential informant stated that Petitioner David Conway was selling marijuana from the residence. No one was home when the search warrant was executed. However, law enforcement officials recovered a large black duffle bag containing 21 large plastic bags of marijuana and a blue ice chest containing 15 large plastic bags of marijuana. Other plastic bags containing significant amounts of marijuana were found throughout the residence. Several sets of scales were found along with mail and miscellaneous papers addressed to David Conway at 809 Southwest Oak. The material in the plastic bags tested positive for marijuana.
Based on those events, Petitioner was charged with Trafficking in Illegal Drugs (Marijuana) in Washington County District Court, Case No. CF-2003-178. On February 24, 2005, Petitioner waived his right to a jury trial and proceeded to a bench trial before the Hon. Janice Dreiling. At the conclusion of the bench trial, Judge Dreiling found Petitioner guilty as charged. On April 6, 2005, the trial judge sentenced Petitioner to ten (10) years imprisonment. He was represented at trial by attorneys Jeffrey Fischer and Edward J. Lutz.
Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals ("OCCA"). Represented by attorney James L. Hankins, Petitioner raised three (3) propositions of error on direct appeal:
Proposition 1: The affidavit in support of the search warrant in this case was insufficient as a matter of law to establish probable cause to search the home and all evidence acquired pursuant to such warrant must be suppressed as violations of Article II, Sections 7 and 30 of the Oklahoma Constitution and the Fourth and Fourteenth Amendments to the United States Constitution. Proposition 2: The State failed to present sufficient evidence that Conway had dominion and control over any of the illegal substances found inside the residence and thus failed to meet its burden of proof in violation of Article II, Section 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. Proposition 3: The sentence imposed is excessive under the facts and circumstances of this case in violation of Article II, Sections 7 and 9 of the Oklahoma Constitution and the Eighth and Fourteenth Amendments to the United States Constitution and must be modified accordingly. (Dkt. # 11, Ex. 1). In an unpublished summary opinion, filed August 28, 2006, in Case No. F-2005-341, the OCCA rejected Petitioner's claims and affirmed the Judgment and Sentence of the trial court (Dkt. # 11, Ex. 3). Nothing in the record suggests that Petitioner sought a writ of certiorari from the United States Supreme Court or filed an application for post-conviction relief in state court.
Petitioner filed the instant habeas corpus petition on April 24, 2007 (Dkt. # 1). He also provided exhibits (Dkt. # 2) supporting his request for habeas corpus relief. As his grounds of error, Petitioner identifies the same three grounds raised on direct appeal. See Dkt. # 1. In response, Respondent asserts that Petitioner's claims are not cognizable in this habeas action, or do not justify habeas relief under 28 U.S.C. § 2254(d). See Dkt. # 11.
ANALYSIS
A. Exhaustion/Evidentiary Hearing
As a preliminary matter, the Court must determine whether Petitioner meets the exhaustion requirements of 28 U.S.C. § 2254(b) and (c). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Respondent concedes and the Court agrees that Petitioner fairly presented his habeas claims to the OCCA on direct appeal. Therefore, the exhaustion requirement is satisfied in this case.
The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Williams v. Taylor, 529 U.S. 420 (2000).
B. Claimed violations of the Oklahoma Constitution are not cognizable on federal habeas corpus review (grounds 1, 2, and 3)
Mixed in with Petitioner's arguments are various statements that his rights under the Constitution of the State of Oklahoma have been violated. It is well established that it is not the role of a federal habeas corpus court to correct errors of state law. Estelle v. McGuire, 502 U.S. 62 (1991). This Court will address only the federal constitutional issues identified in the petition. "Alternative state claims, whether grounded in state statutes or the State Constitution, are not cognizable under 28 U.S.C. § 2254(a)." Davis v. Reynolds, 890 F.2d 1105, 1109 n. 3 (10th Cir. 1989) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)). To the extent Petitioner makes generalized statements that his rights under the State Constitution have been violated, such claims are not cognizable in federal habeas corpus. Accordingly, the Court concludes that habeas corpus relief is not available insofar as Petitioner claims his rights under the Oklahoma Constitution have been violated.
C. Claims adjudicated by the OCCA
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim a petitioner may obtain federal habeas relief only if the state decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). When a state court applies the correct federal law to deny relief, a federal habeas court may consider only whether the state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002). Furthermore, the "determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
As indicated above, Petitioner presented his federal claims challenging the legality of the search warrant affidavit, the sufficiency of the evidence, and the constitutionality of his sentence to the OCCA on direct appeal. The OCCA denied relief. See Dkt. # 11, Ex. 3. Therefore, to the extent the OCCA considered the constitutional grounds identified by Petitioner, the § 2254(d) standard applies to this Court's analysis of Petitioner's claims.
1. Failure to suppress illegally obtained evidence (ground 1)
Petitioner asserts that his conviction was obtained based on the introduction of evidence resulting from an unconstitutional search and seizure. See Dkt. # 1. Petitioner contends, as he did on direct appeal, that drug evidence found at the residence where he was living should have been suppressed based on violations of the Fourth Amendment. See id. On direct appeal, the OCCA rejected Petitioner's claim that the trial court erred in failing to suppress evidence resulting from an unconstitutional search and seizure, finding as follows:
. . . giving great deference to the magistrate's finding and pursuant to a review under the totality-of-the-circumstances approach set forth in
Langham v. State, 1990 OK CR 9, ¶¶ 6-7,
787 P.2d 1279, 1281, we find the affidavit for the search warrant was sufficient to provide the magistrate a substantial basis for concluding that probable cause existed to issue the search warrant.
See Gregg v. State, 1992 OK CR 82, ¶ 13,
844 P.2d 867, 874. The affidavit sufficiently established the veracity of the confidential informant and the basis of his knowledge so that the issuing magistrate could make a common sense determination there was a fair probability that illegal drugs could be found at Appellant's residence. Accordingly, we find the evidence supports the trial court's denial of the motion to suppress the evidence seized pursuant to the search.
See Battiest v. State, 1988 OK CR 95, ¶ 6,
755 P.2d 688, 690.
See Dkt. # 11, Ex. 3.
In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme Court stated that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial. The Tenth Circuit has reiterated that a federal habeas corpus court need not address a Fourth Amendment question as long as the state court has given the petitioner a full and fair opportunity for litigation on the issue. Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009).
In the instant case, the record demonstrates that the state courts granted Petitioner a full and fair opportunity to litigate his Fourth Amendment claim based on his allegation that the affidavit in support of the search warrant was insufficient as a matter of law to establish probable cause to search the home and, as a result, the evidence should have been suppressed because it was obtained following an unconstitutional search and seizure. Petitioner's attorney filed a "motion to suppress" on September 25, 2003, the day of the preliminary hearing, challenging the sufficiency of the search warrant affidavit. See Dkt. # 13, O.R. at 17. On November 5, 2003, the district judge heard argument on three issues: the sufficiency of the search warrant affidavit, an issue related to the "knock and announce" procedure used during the execution of the search warrant, and the issue of Petitioner's dominion and control over the drugs found in the residence, and denied the motion to suppress on all three grounds. See Dkt. # 13, Trans. Prelim. Hr'g dated Nov. 5, 2003. Thereafter, on January 22, 2004, counsel for Petitioner filed a "motion to quash search warrant affidavit and brief." See Dkt. # 13, O.R. at 29. By minute order entered May 27, 2004, see id. at 40, the district judge denied the motion. On December 9, 2004, Petitioner requested reconsideration of the motion to quash. See id. at 46. By order dated December 14, 2004, see id. at 49, the trial judge denied the motion to reconsider, finding "the magistrate had a substantial basis for concluding that probable cause existed." As stated above, Petitioner also raised his Fourth Amendment issue on direct appeal in Proposition 1. See Dkt. # 11, Ex. 1.
Based on that record, the Court finds that Petitioner had a full and fair opportunity to litigate in the state courts his Fourth Amendment claim based on the sufficiency of the search warrant affidavit. As a result, this Court is precluded from considering the Fourth Amendment issue raised in Petitioner's petition for a writ of habeas corpus based on Stone, 428 U.S. at 494; see also Gamble v. State, 583 F.2d 1161, 1165 (10th Cir. 1978) (opportunity for full and fair litigation in state court underStone v. Powell includes, but is not limited to the procedural opportunity to raise or otherwise present a Fourth Amendment claim). Therefore, the Court concludes that Petitioner's request for habeas relief premised on a violation of the Fourth Amendment shall be denied.
2. Insufficient evidence (ground 2)
Petitioner also claims that the state presented insufficient evidence to establish his guilt beyond a reasonable doubt. Petitioner's argument is premised on his contention that the State failed to prove he exercised dominion and control over the residence and the drugs. The OCCA adjudicated this claim as a part of Petitioner's direct appeal, finding as follows:
. . . although Appellant was not at home at the time the search warrant was executed, we find the evidence sufficiently showed he had dominion and control over the marijuana found in the home. Reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the evidence sufficient to support the verdict.
Dkt. # 11, Ex. 3 (citations omitted). Respondent asserts that the OCCA's decision was not contrary to, or an unreasonable application of, federal law. See Dkt. # 11.
As stated above, a writ of habeas corpus will not be issued unless the state court's legal conclusions are "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 the state court's factual conclusions are "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," Id. at § 2254(d)(2). "[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Tenth Circuit authority is divided as to "whether, under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1)." Romano v. Gibson, 239 F.3d 1156, 1164 n. 2 (10th Cir. 2001); see also Dockins v. Hines, 374 F.3d 935, 939 (10th Cir. 2004); Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir. 2003). Under either standard, Petitioner's claim in this case fails.
In a habeas proceeding, this Court must review the sufficiency of the evidence "in the light most favorable to the prosecution" and ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard of review respects the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the testimony presented at trial.Jackson, 443 U.S. at 319. Both direct and circumstantial evidence are considered in determining whether evidence is sufficient to support a conviction. Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). In evaluating the evidence presented at trial, the Court does not weigh conflicting evidence or consider witness credibility. Wingfield v. Massie, 122 F.3d 1329, 1332 (10th Cir. 1997); Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). Instead, the Court must view the evidence in the "light most favorable to the prosecution," Jackson, 443 U.S. at 319, and "accept the jury's resolution of the evidence as long as it is within the bounds of reason." Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993). Further, the Court evaluates the sufficiency of the evidence by "consider[ing] the collective inferences to be drawn from the evidence as a whole." United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997) (quotingUnited States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986)). Under the AEDPA, the Court must decide whether the OCCA's decision that there was sufficient evidence to support a finding of guilt was contrary to or an unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1);Spears v. Mullin, 343 F.3d 1215, 1238-39 (10th Cir. 2003).
Applying this standard, this Court concludes that there was sufficient evidence for a rational trier of fact to find Petitioner guilty of Trafficking beyond a reasonable doubt. Under Oklahoma law as applicable to the facts of this case, Petitioner could not be convicted of Trafficking in Illegal Drugs unless the State proved beyond a reasonable doubt the following elements: (1) knowing, (2) distribution, manufacture, bringing into the state, or possession, (3) twenty-five (25) pounds of marijuana.See Okla. Stat. tit. 63, § 2-415(C)(1).
"[P]ossession may be either actual or constructive, and need not be exclusive as long as there is proof that the defendant knowingly and willfully shared the right to control the dangerous substance." White v. State, 900 P.2d 982, 986 (Okla. Crim. App. 1995) (internal quotation marks omitted). "[W]hile proof of [the defendant's] mere proximity [to the contraband] is insufficient to circumstantially show constructive possession, the proof of additional independent factors from which the possession may be fairly inferred may be established by circumstantial evidence and will be sufficient to carry the case to the jury." Gilreath v. State, 627 P.2d 443, 445 (Okla. Crim. App. 1981); see also Hill v. Cody, 5 F.3d 546 (10th Cir. 1993) (unpublished) (discussing and applying Oklahoma law). Although Petitioner was not present when the search warrant was executed, there were sufficient "independent factors" to support the "knowingly possess" element required for the drug trafficking conviction. The state presented evidence that Petitioner lived at the residence where the marijuana was recovered. That evidence included photographs of several pieces of mail addressed to Petitioner at 809 Oak (Dkt. # 13, Tr. Trans. at 70, 72, 74, 76), testimony from police officers that the car driven by Petitioner was frequently parked at the house and had been parked at the house 45 minutes prior to execution of the search warrant (id. at 14, 46-47, 64), a bag containing prescription medications for David Conway (id. at 77), a folder of papers related to David Conway (id.), a shoebox containing papers related to David Conway (id.), and a book-in sheet from an arrest of David Conway showing his "home address" as 809 Oak, Bartlesville, OK (id. at 93). The Court concludes that this evidence, when viewed in a light most favorable to the State, was sufficient to allow a rational trier of fact to have found beyond a reasonable doubt that Petitioner knowingly had dominion and control over the marijuana found in the residence. Petitioner has failed to demonstrate that the OCCA's resolution of this claim was contrary to, or involved an unreasonable application of Jackson. The Court therefore finds that the OCCA's resolution of Petitioner's challenge to the sufficiency of the evidence was not contrary to or an unreasonable application of federal law, 28 U.S.C. § 2254(d)(1), or an unreasonable determination of the facts, 28 U.S.C. § 2254(d)(2). See Dockins, 374 F.3d at 939. As a result, habeas corpus relief shall be denied on this claim.
3. Excessive sentence (ground 3)
As his third proposition of error, Peterm by referencing Black's and Webster's Dictionary).
To sue is "[t]o institute a lawsuit against (another party)." BLACK'S LAW DICTIONARY 1473 (Bryan A. Garner ed., 8th ed., 2004). For "lawsuit," Black's directs us to "suit," id. at 905, which is defined as: "[a]ny proceeding by a party or parties against another in a court of law." Id. at 1475 (emphasis added); see also Weston v. City Council of Charleston, 27 U.S. (Pet) 449, 464, 7 L.Ed. 481 (1829) (defining "suit" as "any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him") (emphasis added). The plain meaning of the phrase "right to sue" thus clearly involves the right to bring an action in a court of law.
By contrast, "arbitration" is "[a] method of dispute resolution involving one or more neutral third parties who are usu[ally] agreed to by the disputing parties and whose decision is binding." BLACK'S LAW DICTIONARY 112. Arbitration is one of several mechanisms of "alternative dispute resolution," which is "[a] procedure for settling a dispute by means other than litigation, such as arbitration or mediation." Id. at 86 (emphasis added). The Corpus Juris Secundum underscores that "[arbitration is not a judicial proceeding either at common law or under statutes. It is a proceeding separate from litigation based upon its underlying purpose of encouraging dispute resolution without result to the courts, and may be characterized as an alternative to litigation." 6 C.J.S. Arbitration § 2 (June 2005) (emphasis added) (citations omitted); see also Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1208 (9th Cir. 1998) ("Arbitration is a creature of contract, a device of the parties rather than the judicial process.") (citation omitted); Becker v. Davis, 491 F.3d 1292, 1299 (11th Cir. 2007) ("[Arbitration is a contractual right that is generally predicated on an express decision to waive the right to a trial in a judicial forum."); Morrison v. Colo. Permanente Med. Group, 983 F.Supp. 937, 944 (D.Colo. 1997) ("[C]ases and statutes discuss consistently the terms `arbitration' and `civil action' in a manner that leaves no doubt that arbitration is a creature separate from, and not just a form of, a civil action.").
As a matter of parlance, reference, and common sense, we cannot conclude that when Congress used the word "sue," it really meant "arbitrate." The district court correctly read the statute, and determined that the consumer's statutory right to sue could not be waived.
III
The Credit Providers raise a number of counter-theories, none of which is persuasive.
A
Credit Providers first argue that, by placing the "right to sue" in the mandatory "Disclosures" section of the statute, thus requiring it be explicitly stated to all consumers, does not actually create a right to sue as the terms are ordinarily understood. Under such a reading, Congress, whose purpose in enacting the statute included protecting consumers from misinformation, see 15 U.S.C. § 1679(b), drafted a statute which requires credit repair organizations to misinform consumers about a fictional right. Under Defendant's interpretation, Congress was requiring that consumers be told a lie: that they possessed a non-existent right. We should "avoid, if possible, a [statutory] interpretation that would produce `an absurd and unjust result which Congress could not have intended.'" United States v. Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000) (quoting Clinton v. City of New York, 524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998)). We do not believe Congress was playing Humpty Dumpty with the statute, and we decline to accept the Credit Providers' invitation to go down that particular rabbit hole.
B
The Credit Providers characterize the language stating "you have the right to sue" in Section 1679c as merely a simplified shorthand for the more "complicated" right to bring a claim under Section 1679g. This is actually a two-step argument. First, Credit Providers argue the "right to sue" language should not be examined independently because it is merely a "simplified" restatement for consumers of the "substantive" rights embodied in the rest of the statute, particularly Section 1679g, which sets out the punishments available for violations of the Act. Second, Credit Providers argue the more general language of Section 1679g does not preclude arbitration.
We disagree. We must, if possible, interpret a statute such that all its language is given effect, and none of it is rendered superfluous. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001). Under Credit Providers' interpretation, the "right to sue" language, indeed, the entire "Disclosures" section, becomes superfluous and insignificant, merely a restatement of other sections of the statute that expand upon the rights set out in Section 1679c. We decline to adopt such a reading.
In addition, Credit Providers argue the language "right to sue" was used in the Section because it is more "understandable" to the average consumer than a broader phrase such as the "right to bring a claim." This is despite the fact that, according to Credit Providers, Congress meant to give consumers that latter right, rather than the former. If the purpose of the "Disclosures" was to communicate to consumers their right to sue or to proceed using some form of alternative dispute resolution, the phrase "right to sue" is a phrase particularly likely to cause confusion, and lead consumers to misunderstand their rights under the CROA. We see no reason to interpret the language in a way that goes against the purpose even Credit Providers have ascribed to it. The language actually chosen by Congress should be given effect because it is plain and clear on its face, and we "presume that [the] legislature says in a statute what it means and means in a statute what it says there." BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (citing Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)).
The extremely broad anti-waiver provision in the CROA protects the enumerated "right to sue," by treating as void "[a]ny waiver by any consumer of any protection provided by or any right of the consumer under this subchapter. . . ." 15 U.S.C. § 1679f(a) (emphasis added). The Act further provides that "[a]ny attempt by any person to obtain a waiver from any consumer of any protection provided by or any right of the consumer under this sub-chapter shall be treated as a violation of this subchapter." 15 U.S.C. § 1679f(b). The plain language of the statute demonstrates that the waiver provision applies to the previously enumerated "right to sue." First, the use of the word "any" to describe which rights are covered is "expansive language [that] offers no indication whatever that Congress intended" to limit a statute's reach. Harrison v. PPG Indus., Inc., 446 U.S. 578, 588-89, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980). Thus, we read the term "any right of the consumer" to apply to all the rights in the statute, including the "right to sue." Second, Congress's consistent use of the word "right" indicates the waiver prohibition applies to the "right to sue," as identical words in a statute should be given a consistent and identical meaning throughout the statute. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). Therefore, we conclude that Congress meant what it said. Accordingly, the non-waiver provision invalidates any waiver of the right to sue.
C
We are also not convinced by Credit Providers' argument regarding the language in 15 U.S.C. § 1679f(a). The section states a consumer waiver of any right or protection "may not be enforced by any Federal or State court or any other person." 15 U.S.C. § 1679f(a). Credit Providers argue the "any other person" language demonstrates Congress intended arbitrators to be able to decide CROA claims. First, we do not think this language leads to such a clear and unilateral conclusion. For example, it is foreseeable that a credit repair organization would institute arbitration proceedings against a consumer for collection of the organization's fees under its contract with the consumer. The CROA creates various non-waivable consumer rights and protections other than the right to sue. In an arbitration collection proceeding, one of the other non-waivable consumer rights or protections could arise. The "any other person" language of Section 1679f(a) assures that these rights and protections, would be preserved in an arbitration instituted by a credit repair organization or debt collection agency. It is consistent with a consumer's explicitly stated non-waivable right to sue. Given the plain language creating such a right, we do not find this language requires a different conclusion.
In addition, the statutory language underscores the central role of courts in enforcement of the statute in § 1679g. This section, which sets out available damages for violations of the CROA, repeatedly refers only to "courts" as the enforcement mechanism. For example, punitive damages may be assessed in "such additional amount as the court may allow" and lays out factors that " the court shall consider." 15 U.S.C. § 1679g(a)(2)(A), (b) (emphasis added). Thus, the language in the remainder of the statute supports the plain reading of the text creating the right to sue, rather than requiring a different outcome.
We agree with other courts that the "CROA's non-waiver of rights provisions, combined with its proclamation of a consumer's right to sue, represent precisely the expression of congressional intent required by" the Supreme Court to find that a waiver of judicial remedies is precluded. Alexander v. U.S. Credit Management, Inc., 384 F.Supp.2d 1003, 1011 (N.D.Tex. 2005). "Congress did not intend to void all waivers of rights under the Act, and require consumers to sign a congressionally mandated enumeration of their rights under the Act, only to permit those very same rights to waived mere moments later upon the signing an agreement such as the one in question here." Id. at 1012. We agree with the district court that "[t]o recognize that CROA voids all waivers of `any right of the consumer' and mandates that any waiver of the right to sue is void strikes the court as embracing an unhealthy regard for the federal policy favoring arbitration." Dkt. 64, at 8 (citation omitted). Thus, we hold the plain language of the CROA prohibits enforcement of the arbitration agreement.
Having found a congressional intent to preclude the waiver of judicial remedies under the CROA in the text of the Act itself, there is no need for us to examine legislative history or any inherent tension between arbitration and the Act's underlying purpose.
IV
We realize this decision is in conflict with that of two of our sister circuits, but we are unpersuaded by the reasoning of those cases. See Gay v. CreditInform, 511 F.3d 369 (3d Cir. 2007); Picard v. Credit Solutions, Inc., 564 F.3d 1249 (11th Cir. 2009). Both Gay and Picard give surprisingly little regard to the "right to sue" language in the statute, and rely upon reasoning in Supreme Court cases that are distinguishable from the situation here. As Picard essentially follows and adopts the reasoning in Gay, we will not deal with the two cases separately.
Gay dispatches with the explicit language creating a consumer's "right to sue" in a mere footnote. The court states that since the section does not specify the forum for resolution of the dispute, it does not support the argument that it provides a "judicial, rather than an arbitral, forum for CROA violations." Gay, 511 F.3d at 377 n. 4. As discussed in more detail above, this ignores the plain meaning of the word "sue." The Third Circuit continues that even if "sue" implies the availability of a judicial forum (which we believe it does), use of the word "would not mean that the organization could not assert defenses that it had to such an action including the right to invoke a contractual arbitration provision to change the forum." Id. This ignores completely the anti-waiver clause of the statute. The anti-waiver clause explicitly states that any waiver of any right by the consumer "shall be treated as void" and "may not be enforced by any Federal or State court. . . ." 15 U.S.C. § 1679f(a)(1)-(2). Thus, the organization might assert the defense of the contractual arbitration provision, but the court is explicitly forbidden from enforcing this waiver of the right to sue.
Gay also relies upon analogies to several Supreme Court arbitration cases that we find unavailing. The Third Circuit first analogized the issue to the one the Supreme Court considered in Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), when it determined whether Section 29(a) of the Exchange Act prohibited arbitration agreements. Section 27 of the Act provides, "The district courts of the United States . . . shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder." 15 U.S.C. § 78aa. Section 29(a) of the Act declares void "[a]ny condition, stipulation, or provision binding any person to waive compliance with any provision of[the Act]." Id. § 78cc(a). The plaintiffs in McMahon argued that Section 29(a) prohibited waiver of the Section 27 right to bring suit in a federal district court.
As pointed out by the court in McMahon, the Exchange Act's anti-waiver provision, § 29(a),
forbids [] enforcement of agreements to waive "compliance" with the provisions of the statute. But § 27 itself does not impose any duty with which persons trading in securities must "comply." By its terms, § 29(a) only prohibits waiver of the substantive obligations imposed by the Exchange Act. Because § 27 does not impose any statutory duties, its waiver does not constitute a waiver of "compliance with any provision" of the Exchange Act under § 29(a).
McMahon, 482 U.S. at 228, 107 S.Ct. 2332. In summary, because the Exchange Act only prohibits waivers of compliance with its substantive obligations and the mandate of a judicial forum is not a substantive obligation, the Exchange Act does not preclude arbitration agreements.
Applying McMahon, the Third Circuit observed that "the section [of the CROA] in which this anti-waiver provision appears is entitled `Noncompliance with this sub-chapter.'" Gay, 511 F.3d at 385. The Third Circuit reasoned that the CROA's anti-waiver provision only "extend[s] to rights premised on the imposition of statutory duties." Id. Because the right to sue in a judicial forum is not a statutory duty under the CROA, the court concluded that the anti-waiver provision did not apply to it. Id. However, the plain text of 15 U.S.C. § 1679f encompasses waivers of "any protection" or "any right" under the CROA-categories which are much broader than mere noncompliance. "[H]eadings and titles are not meant to take the place of the detailed provisions of the text," and where the plain text of the statute is unambiguous, "the heading of a section cannot limit the plain meaning of the text." Bhd. of R.R. Trainmen v. Balt. Ohio R.R., Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947); Pa. Def't of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) ("[T]he title of a statute . . . cannot limit the plain meaning of the text. For interpretive purposes, it is of use only when it sheds light on some ambiguous word or phrase."). Here, because the text of § 1679f(a) is not ambiguous, we need not turn to the title of the section to clarify its meaning. Further, the substantive-procedural distinction has no application to the CROA. Unlike the Exchange Act, the CROA grants consumers the "right to sue." Vesting jurisdiction to hear a claim in a particular court is quantitatively different from a statute that expressly provides for a right to sue. Thus, § 1679f s prohibition on waivers may not be limited to "compliance" with the CROA, and McMahon does not apply.
The Third Circuit also relies upon the Supreme Court's reasoning in Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 481-83, 109 S.Ct 1917, 104 L.Ed.2d 526 (1989), which held that the Securities Act of 1933 does not preclude arbitration. Gay, 511 F.3d at 385. Rodriguez de Quijas considered jurisdictional and non-waiver language virtually identical to the language considered in McMahon. The main difference between the two is that the Securities Act allows for concurrent jurisdiction in state and federal courts whereas the Exchange Act provides for exclusive federal jurisdiction. Rodriguez de Quijas, 490 U.S. at 481-83, 109 S.Ct. 1917. The court, relied on the same distinction between procedural and substantive provisions and held that waiving the jurisdictional provision does not fall under the prohibition against waiving "compliance" with the Act. Id. We find this reasoning unpersuasive here for the same reasons discussed in regards to McMahon.
We are also not persuaded that the other Supreme Court cases regarding the availability of arbitration require allowing arbitration in this case. For instance, in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), the Supreme Court considered whether the language in 15 U.S.C. § 15(a) rendered antitrust claims non-arbitrable in the context of an international commercial dispute. In relevant part, § 15(a) provides that "any person who shall be injured in his business or property by reason of anything forbidden in antitrust laws may sue therefor in any district court of the United States." The Court held that this section did not evidence a congressional intent to preclude Sherman Act claims from being arbitrable, emphasizing that the Federal Arbitration Act and the Convention on the Recognition of Enforcement of Foreign Arbitral Awards favor arbitration for disputes in international commerce. The Court concluded that it was important "to subordinate domestic notions of arbitrability to the international policy favoring commercial arbitration." Mitsubishi, 473 U.S. at 639, 105 S.Ct. 3346. The present case differs in that it does not contain an international component. More importantly, the CROA contains express language which precludes waiving "any right of the consumer." 15 U.S.C. § 1679f(a). A plain reading of the statute dictates that one of those rights is the "right to sue a credit repair organization that violates" the CROA. Id. § 1679c. The Sherman Act does not contain similar non-waiver language, and thus does not apply to this situation.
In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Supreme Court considered whether an arbitration agreement in a securities registration application could be avoided on the theory that arbitration "deprives claimants of the judicial forum provided for by the [Age Discrimination in Employment Act (ADEA)]." The ADEA contains the following non-waiver provision: "any individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary." However, the ADEA does not explicitly provide for a "right to sue." Rather, the ADEA takes a "flexible approach to resolution of claims. The EEOC for example, is directed to pursue `informal methods of conciliation, conference, and persuasion,' 29 U.S.C. § 626(b), which suggests that an out-of-court dispute resolution, such as arbitration, is consistent with the statutory scheme established by Congress." Gilmer, 500 U.S. at 29, 111 S.Ct. 1647.
Contrary to the ADEA, the CROA specifically grants access to a judicial forum and a right to sue, and reveals no such "flexibility" toward alternative methods of dispute resolution. Moreover, in contrast to language in the ADEA that permits "knowing and voluntary" waiver of statutory rights, the CROA proscribes any "waiver by any consumer of any protection provided by or any right of the consumer under this title" irrespective of a consumer's knowledge or intent. 15 U.S.C. § 1679f(a). Thus, Gilmer is also inapplicable here.
Finally, in Green Tree Fin. Corp. Ala. v. Randolph, 531 U.S. 79, 80, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), the Supreme Court considered whether claims under the Truth in Lending Act (TILA) were arbitrable. The party challenging arbitration did not "contend that the TILA evinces an intention to preclude a waiver of judicial remedies." Id. Instead, plaintiffs challenged arbitration because the costs and fees would be prohibitive. Id. The Court, finding no showing regarding prohibitive costs was made, rejected the argument. Here, arbitration is challenged on the ground that the CROA evinces an intention to preclude a waiver of judicial remedies. Green Tree simply does not apply.
V
The CROA gives consumers the "right to sue," and prevents any waiver of "any right" under the statute. We find this sufficient to demonstrate Congress intended that consumers cannot waive their right to sue under the CROA, and instead submit to arbitration. Therefore, we affirm the district court's holding that the forced arbitration clause is void and the court's denial of the motion to compel arbitration of the CROA claims.
AFFIRMED.