Opinion
No. CIV-16-534-D
03-21-2017
MARSHALL D. ALSTON, Petitioner, v. KAMERON HARVANEK, Respondent.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Initially, Petitioner sought habeas relief concerning his convictions in two Oklahoma state court proceedings. Petitioner sought to challenge his conviction for Unlawful Distribution of Controlled Dangerous Substance entered in the District Court of Comanche County, Case No. CF-2014-21, and his conviction for Unlawful Possession of Controlled Dangerous Substance with Intent to Distribute entered against him in the District Court of Comanche County, Case No. CF-2014-22.
Petitioner's habeas challenge to his conviction in Case No. CF-2014-21 was dismissed on the basis that the action is barred by the operative statute of limitations. Order (Doc. # 35)(DeGiusti, D.J.). With respect to Petitioner's challenge to his conviction in Case No. CF-2014-22, Respondent has filed a response to the Petition and filed the relevant state court records, including a transcript of the guilty plea proceedings in Case No. CF-2014-21 and Case No. CF-2014-22. See Response (Doc. # 42), Ex. 3, Att. A; Response, Ex. 4, at 57-60. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Petition seeking habeas relief concerning Petitioner's conviction in Case No. CF-2014-22 be denied.
I. Background
On January 14, 2014, Petitioner was charged by information in Case No. CF-2014-22 with the offense of Unlawful Possession of Controlled Dangerous Substance with Intent to Distribute. On September 9, 2014, Petitioner appeared in court with his attorney and entered a plea of guilty to the charge. Response (Doc. #42), Ex. 4, at 57-60 (transcript of plea proceeding in Case No. CF-2014-22); Response, Ex. 5, at 57-60 (State of Oklahoma v. Marshall Dean Alston, Case No. CF-2014-22, Plea of Guilty Summary of Facts). On the same date, and immediately before he entered his guilty plea in Case No. CF-2014-22, Petitioner entered a plea of guilty to the charge filed against him in Case No. CF-2014-21. Response, Ex. 3, at 8-9.
According to the state court record of the plea proceeding in Case No. CF-2014-22, Petitioner admitted that he was entering the plea after three prior felony convictions. The district court advised Petitioner of the rights he was waiving by entering the plea, and Petitioner affirmed that he understood the rights he was waiving. Petitioner also affirmed that he was entering the plea pursuant to a plea agreement. Petitioner admitted the facts constituting a factual basis for the plea and stated that he was entering the plea voluntarily and with full understanding of the consequences of the plea.
The district court found that Petitioner's plea was entered knowingly and voluntarily and that Petitioner committed the charged offense after two or more prior felony convictions. Consistent with his plea agreement, the district court sentenced Petitioner to a fifteen-year term of imprisonment with seven years to serve and eight years of the sentence suspended. The district court ordered the sentence to run consecutively to the sentence entered in Case No. CF-2014-21. The district court advised Petitioner of his rights to appeal the conviction, and Petitioner represented that he understood those rights. Petitioner's defense counsel affirmed that he also had advised Petitioner of his appeal rights.
Petitioner did not timely move to withdraw his guilty plea or appeal the conviction. On July 17, 2015, Petitioner applied in the state district court for leave to file an appeal out of time. Response (Doc. # 42), Ex. 1. In an order entered October 13, 2015, the district court denied the application. Amended Petition (Doc. # 5), Ex. 5.
Petitioner appealed this decision. In the appeal (Case No. PC-2015-956), Petitioner asserted, inter alia, that he had not been advised by the district court or by his attorney of his right to appeal the conviction and that he had been denied effective assistance of counsel. Response (Doc. # 42), Ex. 2, at 5-6. The Oklahoma Court of Criminal Appeals ("OCCA") entered an order on January 13, 2016, remanding the matter to the district court "for entry of an order setting forth findings of fact and conclusions of law addressing Petitioner's application for post-conviction relief, whether the post-conviction application was filed in both CF-2014-21 and CF-2014-22 or only in CF-2014-22, addressing Petitioner's claim of ineffective assistance of trial counsel, and determining whether Petitioner was denied an appeal through no fault of his own." Amended Petition (Doc. # 5), Ex. 6.
The district court entered a second order denying the application for leave to appeal out of time. Response (Doc. # 42), Ex. 3. Petitioner appealed this decision. Id., Ex. 4. The OCCA consolidated this appeal with Petitioner's appeal in Case No. PC-2015-956 and affirmed the district court's denial of his application for post-conviction relief seeking a certiorari appeal out of time. Brief in Support of Motion to Dismiss (Doc. # 28), Ex. 8; Amended Petition (Doc. # 5), Ex. 8. The OCCA found that Petitioner had not articulated a sufficient reason for failing to timely appeal his conviction and that he had not shown that he was denied effective assistance of trial counsel.
II. Grounds for Habeas Relief
In his first ground for habeas relief Petitioner contends that "[t]he OCCA erred in denying [his] request for appeal out of time where the district court record makes no affirmative showing Petitioner was advised of [his] appeal rights." Amended Petition (Doc. # 5), at 5.
In his second ground for habeas relief Petitioner contends that the "trial court nor [sic] OCCA conducted an analysis on merits of ineffective counsel claims. As a result, OCCA's denial of relief fails to comport with federal law." Id. at 6-7. Petitioner also contends in ground two that he "had no clue that his trial counsel was ineffective during the court of his trial proceedings until after time for pursuing an appeal had lapsed." Id. at 7.
In his third ground for habeas relief Petitioner contends that "[t]he OCCA committed plain error by not addressing the double jeopardy claim on post-conviction appeal." Id. at 8. Petitioner asserts that his rights under the Double Jeopardy Clause and Oklahoma law were violated when he was convicted in Case No. CF-2014-21 and Case No. CF-2014-22 of multiple "crimes [that] arise from one act." Amended Petition, at 8.
In his fourth ground petitioner asserts that "[t]he OCCA should have found that Petitioner was denied [his] right to a preliminary hearing in violation of his Sixth Amendment trial right." Id. at 9.
III. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court cannot grant habeas relief with respect to a constitutional claim raised by a state prisoner that was adjudicated on its merits in state court proceedings unless the (1) state court 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 (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The AEDPA directs courts to "ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Williams v. Taylor, 529 U.S. 362, 386 (2000)(quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
A state court decision is "contrary to" established Supreme Court precedent if the state court either (1) reached a conclusion that contradicts governing Supreme Court precedent or (2) reached a conclusion different from the Supreme Court on materially indistinguishable facts. Id. at 405-06, 413. A state court decision involves an "unreasonable application" of Supreme Court precedent if the state court "applies [the Supreme] Court's precedents to the facts in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 133, 141 (2005); Williams, 529 U.S. at 407. See Price v. Vincent, 538 U.S. 634, 640-41 (2003).
"[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004)(per curiam)(citations omitted. See Cullen v. Pinholster, 563 U.S. 170 (2011)(federal habeas "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits"). Further, state-court findings of fact are presumed correct and entitled to deference under the AEDPA unless the presumption is overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
IV. OCCA's Failure to Follow State Law
In ground one of the Amended Petition, Petitioner contends that the OCCA erred by failing to grant his application seeking leave to file an appeal out of time. Petitioner contends that the OCCA should have granted the application because he "could not have filed a timely direct appeal of these issues because he was not aware of them until after time for filing an appeal had lapsed." Petitioner's Reply (Doc. #44), at 5.
This claim is not cognizable in this § 2254 habeas proceeding because it raises only an alleged error of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010)("'[F]ederal habeas corpus relief does not lie for errors of state law.'")(quoting Estelle v. McQuire, 502 U.S. 62, 67 (1991)); 28 U.S.C. §2254(a)(habeas relief may be afforded to a state prisoner "only on the ground" that his or her custody violates federal law).
Likewise, Petitioner's claim in ground three that his double jeopardy rights under Oklahoma's Constitution and Oklahoma law were violated does not assert a cognizable federal habeas claim. This Court has no authority to review Oklahoma courts' interpretation of state laws. Estelle, 502 U.S. at 67-68. To the extent Petitioner asserts in ground three a violation of Oklahoma's Constitution or state law, the claim is not cognizable and should be denied on this basis.
For the same reason, Petitioner's claim in ground four that his right under Oklahoma law to a preliminary hearing was violated also fails to assert a claim that is cognizable in this federal habeas proceeding. Although Petitioner asserts that his "Sixth Amendment trial right" was violated when the trial court entered a waiver of his statutory right to a preliminary hearing in his absence, Amended Petition, at 9, the Constitution does not guarantee state prisoners a right to a preliminary hearing. See Snow v. Oklahoma, 489 F.2d 278, 279 (10th Cir. 1993). This claim, which is based entirely on state law, should be denied on this basis. To the extent Petitioner has asserted in ground four that his counsel provided constitutionally ineffective assistance by waiving his right to a preliminary hearing, that claim grounded in the Sixth Amendment will be discussed infra.
V. Procedural Default
Petitioner asserts in his Amended Petition, as he did in his state post- conviction application, that he was subjected to multiple punishments for the same offense in violation of the Constitution's Double Jeopardy Clause. In rejecting Petitioner's appeal of the district court's decision denying his post-conviction application, the OCCA refused to review the merits of this claim. The OCCA found that Petitioner had procedurally defaulted all of his claims except for his Sixth Amendment ineffective assistance claim because he had not articulated sufficient reason explaining his failure to timely file an appeal of his conviction. Motion to Dismiss (Doc. # 27), Ex. 8, at 3.
The AEDPA "strictly limits a federal court's ability to consider issues on habeas review that the state court deemed procedurally barred." Hammon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006). "It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgement.'" Cone v. Bell, 556 U.S. 449, 465 (2009)(quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991), and Lee v. Kemna, 534 U.S. 362, 375 (2002)).
If one or more claims presented in a habeas petition have been "defaulted in state court on an independent and adequate state procedural ground," the merits of those procedurally-defaulted claims will not be addressed in the federal habeas proceeding "unless cause and prejudice or a fundamental miscarriage of justice is shown." Johnson v. Champion, 288 F.3d 1215, 1223 (10th Cir. 2002)(internal quotation marks omitted). Accord, Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008).
In declining to review Petitioner's post-conviction claims other than his Sixth Amendment ineffective assistance claim, the OCCA relied on the court's well-established procedural bar rule. See Okla. Stat. tit. 22, § 1086; Fowler v. State, 896 P.2d 566, 569 (Okla. Crim. App. 1995). This rule is an independent and adequate state basis for the OCCA's decision. Welch v. Workman, 607 F.3d 674, 687 n. 4 (10th Cir. 2010); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993).
Therefore, Petitioner must demonstrate cause and actual prejudice or a fundamental miscarriage of justice in order to obtain federal review of his procedurally-defaulted double jeopardy claim.
Petitioner has not demonstrated cause for his state court procedural default or actual prejudice. Although Petitioner contends that he was not "properly advised" of his right to appeal his conviction, the state court record demonstrates otherwise. Response, Ex. 5, at 11. Petitioner's contention that he was unaware of the claim until after the time for filing an appeal had expired does not demonstrate cause or actual prejudice. See Murray v. Carrier, 477 U.S. 478, 488 (1986)(cause excusing a procedural default must consist of "some objective factor external to the defense [that] impeded [the habeas litigant's] efforts to comply with the state procedural rules"); Steele, 11 F.3d at 1522("'Cause' must be 'something external to the petitioner, something that cannot fairly be attributed to him . . . .'")(quoting Coleman, 501 U.S. at 753).
VI. Ineffective Assistance of Counsel as Cause and as Independent Claim
In Petitioner's post-conviction application, Petitioner asserted that his defense attorney provided ineffective assistance because he did not "consult with me after the guilty pleas and sentencing proceedings [in Case No. CF-2014-21 and Case No. CF-2014-22] nor during the ten (10) day statutory period in which I could have timely filed a request to withdraw my guilty plea with respect to Case No. CF-14-22." Brief in Support of Motion to Dismiss (Doc. # 28), Ex. 4, at 8.
Petitioner also contends in the Amended Petition that his defense counsel provided constitutionally ineffective assistance by failing to consult with him following the plea proceeding about a possible appeal based on a claim of double jeopardy and a claim of deprivation of his statutory right to a preliminary hearing.
In rejecting Petitioner's ineffective assistance of counsel claim presented in his post-conviction application, the district court applied the well-established standard for reviewing such claims established in Strickland v. Washington, 466 U.S. 668 (1984). Response (Doc. #42), Ex. 3. The OCCA affirmed this decision, again relying on Strickland. Brief in Support of Motion to Dismiss (Doc. # 28), Ex. 8.
An independent constitutional violation of the right to effective assistance of counsel may constitute cause for a procedural default. See Murray, 477 U.S. at 488 (holding ineffective assistance of counsel may, in some circumstances, provide cause to excuse a procedural default); Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002)("A showing that a defendant received ineffective assistance of counsel will establish cause excusing a procedural default.").
Although Petitioner does not explicitly address the "cause" requirement, it appears Petitioner is asserting that he has shown "cause" for his state court procedural default and also asserting an independent Sixth Amendment violation. In his reply brief, Petitioner asserts that his defense counsel failed to consult with him following the plea proceeding about asserting a double jeopardy claim and a claim of denial of his right to a preliminary hearing in an appeal. See Petitioner's Reply (Doc. # 44), at 8 ("Petitioner has established by the state court records that his two convictions and separate sentences arose out of a single criminal conduct."). Petitioner bases his double jeopardy claim solely on the charging informations filed in Case No. CF-2014-21 and Case No. CF-2014-22. See id.
To establish "cause" sufficient to overcome the procedural bar based on ineffective assistance of counsel, and to establish his separate claim of ineffective assistance of counsel, Petitioner must satisfy both prongs of the test established in Strickland v. Washington, 466 U.S. 668 (1984); that is, he must show that his attorney's representation fell below an objective standard of reasonableness and that counsel's errors prejudiced the defense. Id. at 687.
"A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011)(quoting Strickland, 466 U.S. at 689). Prejudice, under the second prong, is shown by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
"Surmounting Strickland's high bar is never an easy task." Harrington, 562 U.S. at 105. "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. Finally, "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
Counsel may be ineffective for failing to consult a client about an appeal only "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).
Petitioner does not allege that he asked his attorney about an appeal. Petitioner has also failed to demonstrate that he had a nonfrivolous ground for appeal. The record of Petitioner's plea proceeding demonstrates that he entered his plea with a full understanding of the rights he was waiving by entering the plea and the consequences of that plea. The information in Case No. CF-2014-21 charged Petitioner with unlawful distribution of controlled dangerous substance, and the information in Case No. CF-2014-22 charged Petitioner with unlawful possession of a controlled dangerous substance with intent to distribute. Each charge describes separate and distinguishable facts in support of the charge. As set forth in the charging documents, the charge of distribution in Case No. CF-2014-21 is based on Petitioner's distribution of methamphetamine to an individual, and the possession - with-intent-to-distribute charge in Case No. CF-2014-22 is based on Petitioner's possession of methamphetamine at a particular location. Petitioner's Reply (Doc. #44), Exs. 1, 2. A double jeopardy claim based on the descriptions of the charges on the face of the informations would have been frivolous. Petitioner has provided no other evidence to support a nonfrivolous double jeopardy claim.
Waiver of a preliminary hearing is a common step in a criminal case involving a plea agreement. Petitioner entered his plea of guilty in exchange for the offer of a very lenient sentence, given his three prior felony convictions and possible sentence of life imprisonment. As a habitual offender with two or more prior felony convictions, Petitioner faced a possible sentence of life imprisonment if found guilty of the offense and the habitual-offender charges in a trial. Response, Ex. 5, at 4. Although the Plea of Guilty-Summary of Facts form completed and signed by Petitioner in connection with his plea in Case No. CF-2014-22 indicates that Petitioner admitted he "distributed" methamphetamine, a transcript of his plea proceeding in that case demonstrates Petitioner admitted in open court that at the time he was stopped in a motor vehicle on January 12, 2014, he had been in possession of methamphetamine with the intent to distribute. Response, Ex. 4, at 58.
In his state court post-conviction proceeding, Petitioner conceded that his defense counsel had "mixed up" the Plea of Guilty-Summary of Facts forms in the cases (Case No. CF-2014-21 and Case No. CF-2014-22) although he and his attorney had gone over the forms together prior to the plea proceeding. Response, Ex. 2, at 7. Petitioner also conceded that during the plea proceeding the district court realized the mistakes on the form and advised Petitioner that he was "charged with possession with intent" to distribute in Case No. CF-2014-22 although the Summary of Facts form indicated he had been charged with "distribution" and that his "[d]efense counsel then acknowledged the mistake." Id. Petitioner's statements in open court reflected that he understood the nature of the charge and that he was pleading guilty to the possession-with-intent-to-distribute charge with a full understanding of the consequences of his plea.
Petitioner has not demonstrated that he had a nonfrivolous claim for appeal based on a double jeopardy claim or a preliminary hearing waiver. Because Petitioner cannot show either a nonfrivolous ground for appeal or that he expressed an interest in pursuing an appeal, Petitioner has not demonstrated that his defense counsel provided constitutionally ineffective assistance. The OCCA's rejection of Petitioner's Sixth Amendment claim of ineffective assistance of counsel was not contrary to or an unreasonable application of the governing Strickland standard. Petitioner is not entitled to habeas relief concerning his Sixth Amendment claims in grounds two and four. Additionally, Petitioner has not shown cause for his procedural default of his double jeopardy claim in ground three.
VII. Fundamental Miscarriage of Justice
The fundamental miscarriage of justice exception to the procedural default doctrine requires that a habeas petitioner make a colorable showing that he is "actually innocent" of the offense of conviction. McCleskey v. Zant, 499 U.S. 467, 494 (1991). Petitioner does not allege his actual innocence, and the record does not suggest he is actually innocent of the possession-with-intent-to-distribute offense. He has not presented new reliable evidence that would indicate he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 324 (1995)(holding a credible claim that a constitutional error has resulted in the conviction of an innocent person requires "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial").
Accordingly, Petitioner has not shown a fundamental miscarriage of justice. Petitioner's failure to demonstrate cause and actual prejudice or a fundamental miscarriage of justice constitutes a bar to federal habeas review of the merits of his procedurally-defaulted double jeopardy claim in ground three.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. The parties are advised of their respective right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by April 10 , 2017, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Second Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10 Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10 Cir. 1996)("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.").
This Second Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 21 day of March, 2017.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE