Opinion
CIV-21-694-F
12-17-2021
RAYMOND ALEXANDER RAY, Petitioner, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, Respondent.
REPORT AND RECOMMENDATION
SHONT. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner Raymond Alexander Ray, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United States District Judge Stephen P. Friot has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has responded to the Petition (ECF No. 14), and Petitioner has replied (ECF No. 17). It is recommended that the Petition be DENIED.
I. BACKGROUND
On January 2, 2019, Mr. Ray brutally assaulted Lori Estrada with whom he had been in a domestic relationship for about one year. Ms. Estrada and Mr. Ray were at his mother's apartment when Mr. Ray became angry because he believed Ms. Estrada was involved with another man. When Ms. Estrada tried to leave the apartment, Mr. Ray prevented her from doing so, threatening to kill her. Mr. Ray then repeatedly hit Ms. Estrada's leg with a golf club. Ms. Estrada suffered a compound fracture of her femur which made it impossible for her to use the affected leg. When Ms. Estrada fell to the floor, Mr. Ray stomped her head, punched her, and kicked her in the ribs. After several hours, Mr. Ray became concerned because his mother would soon return to the apartment. He attempted to clean up the blood on the floor and then called his other girlfriend to help him take Ms. Estrada to a hospital. In addition to the compound fracture to her femur from the beating with the golf club, Ms. Estrada was diagnosed with a brain bleed, apparently the result of her falling to the floor or Mr. Ray's stomping on her head. Ms. Estrada was ultimately transferred to the intensive care unit of the University of Oklahoma medical center. Ms. Estrada recovered from her wounds.
Mr. Ray was convicted in the Oklahoma County District Court, Case No. CF-2019-187, on one count of Domestic Assault and Battery with a Dangerous Weapon; one count of Domestic Assault and Battery Resulting in Great Bodily Harm; and one count of Domestic Assault and Battery, Second or Subsequent Offense. Petitioner filed a direct appeal raising the following propositions of error:
1. that he was denied a fair trial by the State's introduction of prior bad acts, in defiance of a stipulation entered by the State, a course of conduct that amounts to prosecutorial misconduct (ECF No. 14-1:12-17);
2. that he was denied effective assistance of trial counsel in violation of the Sixth, Eighth and Fourteenth Amendments and Article 2, §§ 7, 9, and 20 of the Oklahoma Constitution (ECF No. 14-1:17-21);
3. that his multiple convictions and sentences for a single criminal act violate Okla. Stat. tit. 21, § 11 as well as his constitutional protection against double jeopardy (ECF No. 14-1:21-28); and
4. that cumulative errors warrant a new trial. (ECF No. 14-1:25-26).
On June 16, 2020, Mr. Ray's counsel filed a Notice in the OCCA, seeking to provide extra-record evidence in support of Proposition II, or in the alternative, for a Rule 3.11 hearing. (ECF No. 14-2).
The Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Ray's conviction on September 10, 2020. (ECF No. 14-4). Thereafter, on April 5, 2021, Mr. Ray filed an application for post-conviction relief in the Oklahoma County District Court raising the following issues:
1. that his due process rights were violated because he was not afforded a probable cause hearing within three working days of his arrest (ECF No. 14-5:2);
2. that the district attorney failed to file charges against Petitioner within ten days of his arrest as “required by the administrative order” (ECF No. 14-5:3);
3. that the arraignment before a judge of the state district court after the district attorney failed to timely file charges against Petitioner violated Petitioner's Eighth Amendment right to be free of cruel and unusual punishment (ECF No. 14-5:3);
4. that his convictions for separate crimes arising from one act, and the enhancement of his sentences based on former convictions constituted double jeopardy (ECF No. 14-5:3);
5. that the third charge against him accused him of hitting the victim in the head with a golf club, contrary to the victim's testimony (ECF No. 14-5:3); and
6. that his trial counsel was ineffective in failing to use information known to him, resulting in advantage for the prosecution (ECF No. 14-5:4).
On May 6, 2021, Petitioner filed a supplemental application for post-conviction relief raising three more issues:
7. that Petitioner's sentences are shocking to the conscience where the fifteen-year sentence for Domestic Assault and Battery with a Dangerous Weapon exceeds the ten-year maximum sentence for that crime (ECF No. 14-6:2);
8. that Petitioner's conviction for Domestic Assault and Battery in Count 3 was unlawfully enhanced to a felony with the use of his prior domestic abuse conviction in Oklahoma District Court Case No. CF-2016-6490 which was amended to a misdemeanor (ECF No. 14-6:2); and
9. that Petitioner received ineffective assistance of trial counsel as appellate counsel had argued on direct appeal (ECF No. 14-6:4-5).
The state district court denied relief on May 12, 2021. (ECF No. 14-8), and the OCCA affirmed the denial of post-conviction relief on June 30, 2021. (ECF No. 14-10).
Mr. Ray filed a second Application for Post-Conviction Relief on July 12, 2021, the same day he filed the instant habeas petition. Mr. Ray challenged the jurisdiction of the state court based on his allegation that he is half Indian and that the crime took place on Indian land. (ECF No. 14-11). The district court denied his application on August 16, 2021. (ECF No. 14-14). Mr. Ray appealed to the OCCA. (ECF No. 14-15). On September 10, 2021, the OCCA declined jurisdiction and dismissed the appeal because Mr. Ray had failed to comply with a procedural rule requiring that he attach a certified copy of the order from which he was appealing to his Petition in Error.
The OCCA's Order in Case No. PC-2021-893 may be accessed at www.oscn.net (last viewed November 12, 2021). Mr. Ray does not raise this ground for relief in this action.
Petitioner raises four grounds for habeas relief in the instant Petition:
1. Petitioner was denied effective assistance of trial counsel when his trial counsel did not advise the court that he had not been given a probable cause hearing within three days of his arrest and had not been timely charged by the district attorney.
2. Petitioner's convictions for three different “companion cases which were suppose[d] to have been out of the same act” subjected him to double jeopardy and violated State law.
3. Petitioner's sentence is illegal.
4. Petitioner was subjected to cruel and unusual punishment and his due process rights were violated when the trial court assessed excessive bail.
III. STANDARD OF REVIEW
A. Exhaustion of State Court Remedies
Before a federal court can consider a ground for habeas relief, the court must determine that the petitioner has exhausted his state court remedies by presenting the claim to the state's highest court. In Oklahoma, the exhaustion doctrine, a matter of comity which has long been a part of habeas corpus jurisprudence, requires a federal court to consider in the first instance whether the petitioner has presented his grounds for relief to the OCCA. “[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) (“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
“Exhaustion requires that the claim be ‘fairly presented' to the state court, which means that the petitioner has raised the ‘substance' of the federal claim in state court.” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (citation omitted). Thus “a federal habeas petitioner [must] provide the state courts with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
The exhaustion doctrine is set forth in 28 U.S.C. § 2254(b). Section 2254(b)(1)(A) prohibits the court from granting habeas relief in the absence of exhaustion (although Section 2254(b)(1)(B) sets forth two limited exceptions to this rule (not applicable here), but Section 2254(b)(2) expressly authorizes the court to deny habeas relief “notwithstanding the failure of the applicant to exhaust the Remedies available in the courts of the State.”
B. Procedural Bar and Anticipatory Procedural Bar
Additionally, the Court must examine how the OCCA adjudicated each of a petitioner's grounds for relief to determine whether the OCCA addressed the merits of a petitioner's grounds or declined to consider them based on a state procedural rule. “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 judgment.'” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). “The doctrine applies to bar federal habeas [relief] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) (“When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them.”).
But federal courts may also apply a procedural bar to unexhausted claims raised for the first time in a habeas petition if the court determines that, upon returning to state court, the claim would be barred based on the state's procedural rules. “Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted).
C. Review of State Court Decision Based on the Merits
When a federal court determines a state petitioner's federal grounds for habeas relief have been presented to the state's highest court and not barred by a procedural default, the court may examine the merits of the petitioner's claims:
[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a). As amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), § 2254 sets limits on the power of a federal court to grant an application for a writ of habeas corpus. If the application includes a claim that has been adjudicated on the merits in state court proceedings, § 2254(d) expressly limits federal court review. Under § 2254(d), a habeas corpus application “shall not be granted with respect to [such a] claim . . . unless the adjudication of the claim:
(1) resulted in a decision that 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)
resulted in a decision that 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)(1) and (2).
Under this standard, a federal habeas court “reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Wilson v. Sellers, U.S., 138 S.Ct. 1188, 1192 (2018). The standard is highly deferential to the state court rulings and demands that the state court be given the benefit of the doubt. Harrington v. Richter, 562 U.S. 86, 101 (2011); Woodford v. Visciotti, 537 U.S. 19, 24, (2002) (per curiam). The standard is difficult for petitioners to meet in federal habeas proceedings. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Section 2254(d)(1)'s reference to “clearly established Federal law, as determined by the Supreme Court of the United States” refers to the holdings of the Supreme Court's decisions as of the time of the relevant state-court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under § 2254(d)(1), a state-court decision is “contrary to” the Supreme Court's clearly established law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405-06.
A state court need not cite, or even be aware of, applicable Supreme Court decisions, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
A state-court decision is an “unreasonable application” of clearly established Supreme Court law if the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Williams, 529 U.S. at 407-08. A District Court undertakes this objective unreasonableness inquiry in view of the specificity of the governing rule: “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). An unreasonable application of federal law is not the same as an incorrect application of federal law. Williams, 529 U.S. at 410. A federal court may not issue a habeas corpus writ simply because that court concludes the state-court decision applied clearly established federal law erroneously or incorrectly-the application must also be unreasonable. Id. at 411; Harrington, 562 U.S. at 98. AEDPA authorizes issuance of a writ only in cases where there is no possibility that fair-minded jurists could disagree that the state court's decision conflicts with Supreme Court precedents. Harrington, 562 U.S. at 102.
IV. ANALYSIS
A. Ineffective Assistance of Trial Counsel
Mr. Ray contends his constitutional right to effective assistance of trial counsel was violated when his trial attorney did not advise the court that he had been held in jail more than three days without a probable cause hearing. He further contends his trial counsel was ineffective in failing to demonstrate that the district attorney did not timely file charges against him.
Mr. Ray raised an ineffective assistance of trial counsel claim on direct appeal, but it challenged his counsel's failure to object to the introduction into evidence of statements Mr. Ray had made to police after his arrest. On direct appeal, Mr. Ray, contended that nine specific statements introduced into evidence related to prior bad acts or to Mr. Ray's criminal record and were, therefore, inadmissible under Oklahoma law. (ECF No. 14-1:17-21).
Mr. Ray did not raise an ineffective assistance of counsel claim in his first Application for Post-Conviction Relief, though he did contend that his due process rights were violated because he was not afforded a probable cause hearing within three working days and because the district attorney failed to file charges against Petitioner within ten days as “required by the administrative order.” (ECF No. 14-5:2-3). Mr. Ray did not, however, attribute these alleged due process violations to his attorney. Rather, he stated it was the district attorney and the “video probable cause hearing judge” who caused the alleged deprivations of his rights. (ECF No. 14-5:2). The state district court applied a procedural bar to these claims, finding that Mr. Ray had waived his right to review because “the factual and legal basis for each of Petitioner's claims were available to him at the time of direct appeal.” (ECF No. 14-8:4). The OCCA affirmed the district court's decision. (ECF No. 14-10).
It is apparent that the ground for relief based on the alleged ineffectiveness of his trial counsel raised on direct appeal bears no resemblance to the ground for relief raised in his habeas petition. It follows that this claim of ineffective assistance of trial counsel has not been fairly presented to the OCCA and is, therefore, technically unexhausted.
But requiring Petitioner to return to the state courts to exhaust this claim would be futile; the state courts would find Mr. Ray's ineffective assistance of trial counsel claim waived under Oklahoma's Post-Conviction Procedure Act. Okla. Stat. tit. 22, § 1086. See also Fowler v. State, 896 P.2d 566, 569 (Okla. Crim. App. 1995). Rather, this Court should apply an anticipatory procedural bar to this claim.
To serve as an anticipatory procedural bar, a state procedural rule must be both independent of federal law and adequate to support the judgment. See Grant v. Royal, 886 F.3d 874, 892 (10th Cir. 2018) (“[D]ismissal without prejudice for failure to exhaust state remedies is not appropriate if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds.” (Quotation marks omitted)). “A state procedural default is independent if it relies on state law, rather than federal law, ” and is “adequate if it is firmly established and regularly followed.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) (internal quotation marks omitted).
The OCCA has “repeatedly stated that Oklahoma's Post-Conviction Procedure Act is not an opportunity to raise new issues, resubmit claims already adjudicated, or assert claims that could have been raised on direct appeal.” Rojem v. State [Rojem IV], 925 P.2d 70, 72-73 (Okla. Crim. App. 1996) (footnote omitted). In other words, the Post-Conviction Procedure Act “provides petitioners with very limited grounds upon which to base a collateral attack on their judgments.” Stevens v. State, 422 P.3d 741, 745 (Okla. Crim. App. 2018).
“There are even fewer grounds available to a petitioner to assert in a subsequent application for post-conviction relief.” Id. at 746. “Subsequent applications for post- conviction relief can only be filed under certain, limited circumstances, ” Rojem v. State [Rojem III], 888 P.2d 528, 530 n.6 (Okla. Crim. App. 1995), which are laid out in § 1086 of the Act:
All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. 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.Okla. Stat. Ann. tit. 22, § 1086.
This rule is “rooted solely in Oklahoma state law, ” Smallwood v. Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999), and is “regularly and even-handedly applied by the state courts, ” id. at 1268 n.8, see also Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998), making it both independent and adequate. Because the factual basis for Mr. Ray's ineffective assistance of trial counsel claim was available when he filed both his direct appeal and his first post-conviction application in state court, the OCCA would apply § 1086 and decline to entertain that claim on the merits if brought in any subsequent application for post-conviction relief. “‘Although the claim is technically unexhausted, it is beyond dispute that, were [the petitioner] to attempt to now present the claim to the Oklahoma state courts in a second [or subsequent] application for post-conviction relief, it would be deemed procedurally barred.'” Fontenot v. Crow, 4 F.4th 982, 1023-24 (10th Cir. 2021) (quoting Cummings v. Sirmons, 506 F.3d 1211, 1222-23 (10th Cir. 2007)). Mr. Ray's ineffective assistance of trial counsel claim is therefore subject to an anticipatory procedural bar and, as a result, is procedurally defaulted (and exhausted) for purposes of federal habeas review.
To overcome the anticipatory procedural bar so that this Court can consider the merits of his ineffective assistance of trial counsel claim, Mr. Ray must pass through one of two procedural gateways: he must demonstrate either cause and prejudice for the procedural default or a fundamental miscarriage of justice, commonly known as a showing of actual innocence. Id. at 1028.
Mr. Ray states, for the first time, that he was unable to raise this ineffective assistance of trial counsel claim in his direct appeal because his appellate counsel was also ineffective. (ECF 1:6; 17:1). But because ineffective assistance of counsel is a substantive constitutional claim in its own right, that claim, itself, must have been exhausted. The same is not true of every showing of cause. “‘Cause' . . . is not synonymous with ‘a ground for relief.'” Martinez v. Ryan, 566 U.S. 1, 17 (2012) (quoting 28 U.S.C. § 2254(i)). That is, “[a] finding of cause and prejudice does not entitle the prisoner to habeas relief, ” but “merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted.” Id. Federal courts apply the doctrine of procedural default out of respect for state procedural rules. See, e.g., McCleskey v. Zant, 499 U.S. 467 (1991). And “[w]hether to apply procedural default doctrine out of respect for state rules is a federal question that state court decisions do not control.” Wood v. Milyard, 721 F.3d 1190, 1194 (10th Cir. 2013). As a result, “[t]he question whether there is cause for a procedural default does not pose any occasion for applying the exhaustion doctrine when the federal habeas court can adjudicate the question of cause-a question of federal law-without deciding an independent and unexhausted constitutional claim on the merits.” Murray v. Carrier, 477 U.S. 478, 489 (1986) (emphasis added). Thus, a petitioner's “cause” argument does not itself need to be exhausted before being presented to a federal habeas court, provided such argument does not depend on an unexhausted constitutional claim for substantive relief. But where, as here, a petitioner's excuse for a procedural default is also a constitutional claim in its own right, that claim generally must “be presented to the state courts as an independent claim before it may be used to establish cause.” Fontenot v. Crow, 4 F.4th at 1022 (internal citation and quotation marks omitted). Accordingly, Mr. Ray's assertion that his default was caused by ineffective assistance of his appellate counsel cannot be used as “cause” to excuse his procedural default. It follows that the prejudice prong need not be considered.
Mr. Ray does not challenge the sufficiency of the evidence supporting his conviction and makes no showing that he is “actually innocent” of the crimes for which he was convicted. Mr. Ray's ineffective assistance of trial counsel claim raised in his habeas petition is subject to an anticipatory procedural default and the merits of his claim cannot be examined.
B. Violation of the Double Jeopardy Clause and State Law
Mr. Ray contends his convictions on multiple charges related to domestic abuse violate state law and the Double Jeopardy Clause:
I was charged, convicted and sentenced to 3 different companion cases which were suppose[d] to have been out of the same act. The victim testified on the stand that I did not hit her in the head with no golf club like
Count One said. And I was still found guilty of it and sentence[d] for it. And [using] an after former to enhance my sentence is another form of punishing again for a crime I have already been punished for.(ECF 1:7).
On direct appeal, Mr. Ray challenged his “multiple convictions and sentences for a single criminal act” based on Okla. Stat. tit. 21, § 11, and the Double Jeopardy Clause of the Fifth Amendment. The OCCA rejected this ground for relief:
Section 11 prohibits a single criminal act from being punished under different provisions of Title 21. The statute is strictly a matter of state law, not cognizable on federal habeas review. In any event, the OCCA denied relief on this ground, and “a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)).
Petitioner did not challenge the discrepancy between the charge in Count One and the evidence adduced at trial, nor did he challenge the enhancement of his sentence as a double jeopardy violation. An anticipatory procedural bar should be applied to these two added grounds for relief. S ee discussion supra at 11-13. Mr. Ray has demonstrated neither cause and prejudice nor a fundamental miscarriage of justice to overcome an anticipatory procedural bar.
In Proposition Three, Appellant argues that his convictions and sentences violate 21 O.S. 2011 Section 11, and double jeopardy. We find separate and distinct acts occurred, for which Appellant may be punished separately. Davis v. State, 1999 OK CR 48 ¶13, 1993 P.2d 124, 126-127. Section 11 does not apply. Asking whether Appellant has been punished more than once for the same offense, we conclude that each of these crimes contains an element that the others do not. The sentences do not violate double jeopardy. Blockburger v. United States, 284 U.S. 299, 304 (1932).(ECF 14-4:4).
The OCCA identified the controlling Supreme Court decision and applied it reasonably. The OCCA's decision is neither contrary to, nor an unreasonable application of Blockburger. The OCCA also reasonably applied Blockburger to the facts in Mr. Ray's case.
C. Sentencing
Grounds three and four both challenge aspects of Mr. Ray's sentences. In his third ground for relief, Mr. Ray contends his sentences were “illegal” in that he was sentenced to 15 years and 30 years on Counts One and Two respectively, even though, he asserts, the maximum sentence for these crimes is 10 years. (ECF 1:8). In his fourth ground for relief, Mr. Ray states the bail set for his release pending trial was excessive, that the district attorney did not file charges within three days, and that the charge “after prior felony conviction” was incorrect because his previous conviction was for a misdemeanor.
A challenge to excessive pretrial bail is not cognizable in a Section 2254 habeas action. The Supreme Court has held that “[t]he proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion.” Stack v. Boyle, 342 U.S. 1, 6 (1951).
Mr. Ray raised the challenge to the length of his sentences and the enhancement of one sentence using a misdemeanor in his first application for post-conviction relief.
The state district court found these claims barred by the doctrines of res judicata and waiver:
In this matter, the factual and legal basis for each of Petitioner's claims were available to him at the time of direct appeal. To be sure, Petitioner argued on direct appeal that he received ineffective assistance of trial counsel and that his convictions violate the constitutional and statutory prohibitions against multiple punishments, and the Court of Criminal Appeals denied both claims as meritless. Petitioner offers no sufficient reason for this Court to revisit the issues. Accordingly, these claims are barred by res judicata. Petitioner also offers no sufficient reason for failing to assert his remaining claims of error on direct appeal, which are consequently waived for post-conviction review. For these reasons, Petitioner's propositions of error are denied.(ECF No. 14-8:4).
The OCCA affirmed the denial of post-conviction relief:
In an order entered and filed May 12, 2021, the District Court of Oklahoma County, the Honorable Susan Stallings, District Judge, denied Petitioner's application for post-conviction relief. Judge Stallings found the claims presented in Petitioner's application for post-conviction relief had either been presented on direct appeal and rejected, and were therefore barred by res judicata, or could have been presented but were not, and therefore waived. Therefore, Judge Stallings found Petitioner was not entitled to relief and denied his request for same.
We agree. The Post-Conviction Procedure Act is not a substitute for a direct appeal, nor is it intended as a means of providing a Petitioner with a second direct appeal. Fowler v. State, 1995 OK CR 29, ¶ 2, 896 P.2d 566, 569; Maines v. State, 1979 OK CR 71, ¶ 4, 597 P.2d 774, 775. A claim which could have been raised on direct appeal, but was not, is waived. Fowler, 1995 OK CR 29 at ¶ 2, 896 P.2d at 569; Fox v, State, 1994 OK CR 52, ¶ 2, 880 P.2d 383, 384-85; Johnson v. State, 1994 OK CR 124 ¶ 4, 823 P.2d 370, 372. Claims which were raised and addressed in previous appeals are barred by res judicata. Fowler, 1995 OK CR 29 at ¶ 2, 896 P.2d at 569; Walker v. Scott, 1992 OK CR 10, ¶ 6, 826 P.2d 1002, 1004.(ECF 14-10:4-5).
The Tenth Circuit Court of appeals has found the Oklahoma Post-Conviction Procedure Act, which bars repetitive claims or claims raised for the first time in a post-conviction application, is both independent and adequate to bar subsequent federal habeas review. As discussed supra at 12, this rule is “rooted solely in Oklahoma state law, ” Smallwood v. Gibson, 191 F.3d at 1268, and is “regularly and even-handedly applied by the state courts, ” id. at 1268 n.8, see also Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998), making it both independent and adequate.
Further, Petitioner cannot now use ineffective assistance of appellate counsel as cause to excuse his procedural default, as that substantive claim has not been exhausted. See discussion supra at 13-14. And Petitioner has not attempted to demonstrate he was “actually innocent” of the crimes for which he was convicted. Mr. Ray's claims are, therefore, procedurally barred from habeas review.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed herein, it is recommended that Mr. Ray's Petition for Writ of Habeas Corpus be DENIED. The parties are hereby 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 the District Court by January 3, 2022. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral