Opinion
Case No. CIV-17-1266-D
09-11-2018
JOHN P. STURGIS, JR., Petitioner, v. JASON BRYANT, Respondent.
REPORT AND RECOMMENDATION
Petitioner, appearing pro se, is currently serving two consecutive thirty-five-year sentences imposed after he pleaded guilty to conspiracy and second-degree burglary. Doc. 17. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Id. United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citation to the state court records will refer to the original pagination. Additionally, when quoting Petitioner, quotations are verbatim, but the undersigned has altered some capitalization for ease of reading.
In response to Petitioner's original petition, Doc. 1, Respondent filed a motion to dismiss for failure to exhaust state court remedies and a brief in support. Docs. 15, 16. Without seeking leave of court, Petitioner then filed an amended petition. Doc. 17. In the amended petition, Petitioner removed the claim Respondent raised as unexhausted in the motion to dismiss and added a new claim. See id. at 16. Respondent filed a response to the amended petition, stating "Petitioner's amended petition now contains all exhausted claims . . . ." Doc. 21,at 2. Respondent also filed the Preliminary Hearing transcript, the Motion to Withdraw Plea transcript (MTW Tr.), and the original state court record (OR). Petitioner then moved to hold the amended petition in abeyance while Petitioner pursued an application for post-conviction relief in state district court on unexhausted issues, Doc. 26, Respondent filed a response in opposition, Doc. 28, and the undersigned denied Petitioner's motion, Doc. 29. Petitioner replied to Respondent's response. Doc. 30. For the reasons set forth below, the undersigned recommends the court deny habeas relief.
Because the amended petition contains no unexhausted claims, the court should deny Respondent's motion to dismiss for failure to exhaust as moot. Doc. 15.
I. Background.
A. State court.
Petitioner entered a blind plea of no contest to one count of conspiracy, two counts of second degree burglary, one count of larceny of a motor vehicle, one count of knowingly concealing stolen property, and one count of unauthorized use of credit card. Doc. 21, Ex. 1, at 2. He had previously been convicted of two or more felonies. Id.
The trial judge sentenced Petitioner to thirty-five years on each of the first five counts to run consecutively and thirty days on count six to run concurrently with counts one through five. See id. at 1.
Petitioner then filed a timely motion to withdraw plea of guilty on October 21, 2016. Doc. 21, Ex. 2. Petitioner requested his plea of guilty be withdrawn because it was "entered through inadvertence, ignorance, mistake or coercion and cannot be considered to have been entered knowingly and voluntarily" and because of "ineffective assistance of counsel." Id. at 1. After a hearing, Petitioner's motion was denied, id. Ex. 8, but the judge re-sentenced and reduced Petitioner to two thirty-five-year sentences to be served concurrently with each other. Id. at 9-10.
Represented by appellate counsel, Petitioner appealed, and the Oklahoma Court of Criminal Appeals affirmed Petitioner's conviction. Id. Ex. 4. The OCCA denied Grounds One, Four, and Five on the merits. See id. at 2-4. The OCCA dismissed Grounds Two and Three on procedural grounds finding Petitioner "did not raise these issues in the motion to withdraw his plea, and has waived certiorari review of their merits." Id. at 3.
B. Federal court.
Petitioner raises as his grounds for federal habeas relief the same five grounds he raised before the OCCA. Doc. 17.
In Ground One, Petitioner alleges "[t]he trial court abused its discretion in denying the Petitioner's motion to withdraw his plea on a record that fails to show the plea was entered knowingly, intelligently, and voluntarily, in violation of federal due process." Id. at 6.
In Ground Two, Petitioner alleges "[t]he trial court erred when it admitted written victim impact statements at Petitioners sentencing hearing. The States refusal to apply the protections of its own laws relating to victim impact statement denied Petitioner his due process rights under the Federal Constitutional Amendments 5 and 14." Id. at 8.
In Ground Three, Petitioner alleges "[t]here was insufficient proof of the recipients' actual losses to support the restitution order. The states' failure to apply the protections of its own laws relating to Oklahoma restitution laws denied Petitioner federal due process under the fifth and fourteenth amendments to the United States Constitution." Id. at 10.
In Ground Four, Petitioner alleges "Petitioner was denied the effective assistance of counsel to which he was entitled under the sixth and fourteenth amendments to the United States Constitution. Trial counsel failed to explain the consequences of entering a blind plea; failed to object to the introduction of the victim's impact statements, and for failing to object to the trial court's order of restitution." Id. at 15.
In Ground Five, Petitioner alleges "Petitioner was denied the effective assistance of counsel for failing to recognize inadmissible victim impact evidence and in assessing restitution." Id.
II. Subject matter jurisdiction.
As an initial matter, Ground Three of Petitioner's amended petition—alleging that his restitution was erroneously imposed—is not cognizable in this § 2254 action. See Frye v. Medina, 660 F. App'x 634, 636 (10th Cir. 2016) ("The district court lacked jurisdiction to consider [petitioner's] restitution arguments because a restitution payment is not the sort of significant restraint on liberty contemplated by 28 U.S.C § 2254(a) . . . ."); see also Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir. 2008) ("[T]o the extent [Petitioner] is seeking habeas relief under § 2254, the district court correctly concluded that it lacked subject-matter jurisdiction over this action."). The undersigned finds that this Court lacks subject matter jurisdiction over this claim and only reviews Petitioner's remaining claims.
III. Standard of review for habeas relief.
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011); see also Johnson v. Williams, 568 U.S. 289, 301 (2013). A petitioner is entitled to federal habeas relief only if that merits-based adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). "It is the petitioner's burden to make this showing and it is a burden intentionally designed to be 'difficult to meet.'" Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). This standard "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice system, not a substitute for ordinary error correction through appeal." Harrington, 562 U.S. at 102-03.
This Court first determines "whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions." Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015); see also Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). Clearly established federal law consists of Supreme Court holdings in cases where the facts are similar to the facts in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242.
"A state court's decision is 'contrary to' clearly established federal law 'if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.'" Id. (citations omitted). Notably, "'[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be 'diametrically different' and 'mutually opposed' to the Supreme Court decision itself.'" Id. (citation omitted).
The "'unreasonable application' prong requires [the petitioner to prove] that the state court 'identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.'" Id. (citations and internal brackets omitted). On this point, "the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was 'objectively unreasonable.'" Id. (citations omitted). So, to qualify for habeas relief on this prong, the petitioner must show "'there was no reasonable basis' for the state court's determination." Id. at 1243 (citation omitted). "In other words, 'so long as fairminded jurists could disagree on the correctness of the state court's decision,' habeas relief is unavailable." Id. (citation omitted); see also Harrington, 562 U.S. at 103 ("As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
IV. Analysis.
A. Ground One: Petitioner's plea was not entered knowingly, intelligently, and voluntarily.
1. Clearly established law.
"On review, a federal court may set aside a state court guilty plea only for failure to satisfy due process." Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir.1996) (citation omitted). The Supreme Court clearly established the due process standard in Boykin v. Alabama, 395 U.S. 238, 242 (1969), holding that acceptance of a guilty plea is permissible only when it is knowing and voluntary. Under Boykin, the defendant must have "a full understanding of what the plea connotes and of its consequence." 395 U.S. at 244.
Nonetheless, a "defendant need not understand every collateral consequence of the plea, but need only understand its direct consequences." United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002). "Consequences of a guilty plea unrelated to the length and nature of the federal sentence are not direct consequences." Id. at 1231 (internal citation omitted). And, "[a] consecutive sentence does not affect the length or nature of the federal sentence, even though it increases the total length of the defendant's incarceration. Thus, the consecutive nature of a sentence is not a direct consequence about which the defendant must be advised." Id.
2. The OCCA's holding.
The OCCA held:
In Proposition One, Petitioner alleges that his plea was not knowing and voluntary. A valid plea 'represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.ED.2d 162 (1970). We ordinarily review a ruling on a motion to withdraw a plea for an abuse of discretion, Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998; unless it involves a question of statutory or constitutional interpretation, which we review de novo. Weeks v. State, 2015 OK CR 16, ¶ 16, 362 P.3d 650, 654. We find no abuse of discretion in the denial of Petitioner's motion to withdraw the plea. Proposition One is therefore denied.
Doc. 21, Ex. 4, at 2-3.
3. Knowledge and voluntariness.
Petitioner entered "blind" pleas in which there is no recommendation by the state or agreement as to punishment. When a blind plea is entered, sentencing is entirely in the discretion of the trial judge. See May v. State, 788 P.2d 408, 410 (Okla. Crim. App. 1990). Petitioner pleaded guilty to five felony charges. Doc. 21, Ex. 1, at 2. The record shows Petitioner was advised at the time he entered the guilty pleas of the range of punishment for each offense. Id. at 4. Four of the five felony charges carried potential life sentences. Id. Petitioner was advised of and indicated his understanding of the trial rights he was waiving by entering the pleas. Id. Petitioner stated that he could be sentenced within the range of punishment set forth for each felony change. Id. at 5. Petitioner stated he was entering the pleas voluntarily, because he was guilty of the offenses charged. Id. at 6. The pleas were entered in open court on September 30, 2016, but the hearing was not recorded. See Doc. 21, at 14.
At Petitioner's hearing on his motion to withdraw the plea, Petitioner's trial counsel testified. He testified that when discussing the option of the blind plea with Petitioner, counsel informed Petitioner that "the Court could do whatever it wanted to; it could either go lower than the State's original offer, higher than the State's original offer, could do it consecutive or concurrent . . . ." MTW Tr. 23. Counsel testified it was his understanding "from [his] discussion with [Petitioner] that [Petitioner] knew the Judge could go higher than [the State's recommendation] and could make it consecutive." Id. at 24. Petitioner's trial counsel also testified that he "never had a conversation with Judge Ross concerning what he would sentence [Petitioner] to." Id.
Petitioner states that he "was under the mistaken belief that he would receive concurrent sentences." Doc. 17, at 6. Petitioner states that he "explained repeatedly that he only entered his blind plea because he would receive concurrent prison sentences, otherwise, he would have taken the matter to trial." Id. "His trial attorney could not confirm or deny that he gave the Petitioner erroneous advice," and the "plea summary signed by the Petitioner did not advise the [P]etitioner that he could receive concurrent or consecutive prison sentences, and is therefore insufficient to establish that his pleas were knowing and voluntary." Id. at 6-7.
Apart from Petitioner's insistence otherwise, there is nothing in the record to indicate Petitioner misunderstood or was misinformed as to the maximum punishment that could be assessed by the trial court at sentencing or that Petitioner based his decision to enter the guilty pleas on any promise as to the punishment he would receive. The record shows that the plea summary advised Petitioner of the range of punishment for each offense, that he could be sentenced within this range on each offense, and the procedure for appealing his guilty pleas. Therefore, Petitioner has not shown that any of the alleged errors by counsel prejudiced the Petitioner, such that he would have proceeded to trial in the absence of the error.
The state courts reasonably applied the Boykin test and found from the evidence that Petitioner's plea was knowing and voluntary. Petitioner has not satisfied his burden of showing that the OCCA's decision was contrary to or an unreasonable application of the prevailing Boykin standard and is therefore not entitled to habeas relief on this ground.
B. Ground Two: Petitioner's claims involving the admission of the victim impact statements.
In Ground Two, Petitioner alleges that the trial court erred when it admitted written victim impact statements at Petitioner's sentencing hearing. Doc. 17, at 8. Respondent argues that this claim is procedurally barred, Doc. 21, at 17-22, and the undersigned agrees.
Petitioner states that "[i]t was error under Oklahoma law to allow victims impact statements where none of [Petitioner's] crimes were violent offenses as defined by 57 O.S. § 571(2)(a)-(yy). The error was prejudicial because it resulted in imposition of excessive sentences." Doc. 17, at 8.
1. The law of procedural bar.
A habeas claim is generally subject to procedural bar when the OCCA declines to consider a claim's merits based on a state procedural rule that is independent and adequate. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). "'To be independent, the procedural ground must be based solely on state law.'" Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (citation omitted). "'To be adequate, the procedural ground must be strictly or regularly followed and applied evenhandedly to all similar claims.'" Id. (citation omitted). If the rule is independent and adequate, a petitioner must show either cause and prejudice, or a fundamental miscarriage of justice, to overcome the default. See Coleman, 501 U.S. at 750.
2. The OCCA's holding.
The OCCA held:
Proposition Two argues that the trial court erred when it admitted written victim impact statements at Petitioner's sentencing hearing . . . Petitioner did not raise [this issue] in the motion to withdraw his plea, and has waived certiorari review of [its] merits. [Proposition Two is] therefore denied.Doc. 21, Ex. 4, at 3 (citing Weeks v. State, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d 650, 657; Rule 4.2(A), Rules of the Okla. Court of Crim. App., Ch. 18, App. (2017)).
While the OCCA cited Rule 4.2(A), it referenced the requirement in Rule 4.2(B): "No matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea, which must accompany the records filed with this Court."
3. Petitioner's procedural bar.
The OCCA's waiver rule is based on Oklahoma state law and is "considered 'independent' for purposes of federal habeas review." Cole, 755 F.3d at 1159. The waiver rule's adequacy depends on the allegation. For claims not involving ineffective assistance of trial counsel, the Tenth Circuit has "repeatedly held that Oklahoma's [waiver rule] meets the adequacy requirement." Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012).
Petitioner did not raise his claim involving the victim impact statements in his motion to withdraw the guilty plea in the District Court of Kay County, see Doc. 21, Ex. 2. The OCCA's holding that Petitioner had waived this claim was based on an independent and adequate procedural rule.
Because the OCCA's waiver rule was independently and adequately applied to Petitioner, the court should not address Ground Two on the merits unless Petitioner shows either: (1) cause and prejudice, or (2) a fundamental miscarriage of justice.
Petitioner makes no argument as to either. See Leslie v. Bryant, CIV-17-1159-HE, 2018 WL 2209525, at *2 (W.D. Okla. May 14, 2018) ("Petitioner does not challenge the state bar as inadequate or non-independent . . . ."). Petitioner also cannot show that denying review of his claim based on a state procedural bar resulted in a fundamental miscarriage of justice because to meet this standard, '"the petitioner must supplement his habeas claim with a colorable showing of factual innocence."' Sherrill v. Hargett, 184 F.3d 1172, n. 2 (10th Cir. 1997) (quoting Demarest v. Price, 130 F.3d 992, 941 (10th Cir. 1997)). The Court should find that Petitioner's Ground Two is procedurally barred.
C. Grounds Four and Five: Petitioner's ineffective assistance of trial counsel claims.
According to Petitioner, his trial counsel was constitutionally ineffective for failing to: (1) explain the consequences of Petitioner's blind plea; (2) object to the introduction of victim's impact statements; (3) object to the trial court's order for restitution; and (4) conduct an independent calculation of restitution. Doc. 17, at 15.
Because Petitioner's Grounds Four and Five both allege ineffective assistance of trial counsel and involve many of the same supporting facts, the undersigned addresses them together. --------
1. Clearly established law.
Under clearly established law, Petitioner must demonstrate his attorney's performance was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 690-91 (1984). A court will only consider an attorney's performance "deficient" if it falls "outside the wide range of professionally competent assistance." Id. at 690. "[P]rejudice" involves "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
This Court's review of the OCCA's determination of Petitioner's ineffective assistance of counsel claims is subject to the deference due all state court decisions in the context of federal habeas review. "Surmounting Strickland's high bar is never an easy task." Harrington, 562 U.S. at 105 (internal quotation marks and citation omitted). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Id. at 101.
2. The OCCA's holding.
The OCCA rejected this claim on direct appeal, holding:
In Proposition Four, Petitioner argues that his plea counsel was ineffective for failing to properly advise him before the plea, and for failing to object to the victim impact statements and the award of restitution. To prevail, Petitioner must show both deficient performance by counsel, and resulting prejudice to his defense. Strickland prejudice, in the guilty plea context, is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial . . . Petitioner has shown neither deficient performance nor prejudice from the alleged errors of plea counsel. Proposition Four is without merit.Doc. 21, Ex. 4, at 3-4 (internal citations omitted).
In Proposition Five, Petitioner claims plea withdrawal counsel rendered ineffective assistance, by failing to raise the alleged victim impact and restitution errors in the motion to withdraw the plea. Reviewing this claim according to the two-pronged test of Strickland, supra, we again find no relief is warranted.
3. Petitioner's claims.
a. Blind plea.
Petitioner points to his own "testimony during the withdrawal hearing" as support for his ineffective assistance claim. Doc. 30, at 5. At that hearing, Petitioner testified that he "decided [he] didn't want to go to trial cause [he] didn't want to make . . . any more waves," and that he was "under the assumption" that his counts "would be ran concurrently." Doc. 21, Ex. 8, at 2-3. Petitioner states he "showed that the outcome would have been different had he been given competent advice, namely, he would have proceeded to trial." Id. In contrast, in Petitioner's brief in support of his petition for a writ of certiorari, Petitioner states that he "explained, repeatedly, that he only entered a blind plea because he believed he would receive concurrent sentences. Otherwise, he would have taken the State's plea offer." Id. Ex. 3, at 15.
Petitioner fails to establish the OCCA's determination was contrary to, or an unreasonable application of, Strickland. In the guilty plea context, Strickland requires a reasonable probability that Petitioner would not have pleaded guilty and would have insisted on going to trial but for his counsel's alleged errors. Petitioner failed to make this showing of prejudice in the record before the state court. Therefore, the OCCA's decision regarding Petitioner's ineffective assistance of trial counsel claims is neither contrary to, nor an unreasonable application of Strickland. The undersigned recommends that habeas relief on Petitioner's claim of ineffective assistance of trial counsel be denied. Further, the undersigned addressed Petitioner's challenge to his knowingly having entered into a blind plea and rejected this proposition on the merits, see supra § III.A.3; see also Lovin v. Allbaugh, 732 F. App'x 698, 703 (10th Cir. 2018) ("[B]ecause the underlying claim failed on the merits, the related claim of ineffective assistance of trial counsel also failed.").
b. Victim impact statements.
Petitioner alleges that his trial counsel "failed to object to the introduction of the victim's impact statements." Doc. 17, at 15. Petitioner also states: "the victim impact statements made recommendation about the length of a sentence for Petitioner, to which counsel should have objected." Doc. 30, at 5. Relatedly in Ground Two, Petitioner alleges that it "was error under Oklahoma law to allow victims impact statements where none of his crimes were violent offenses as defined by 57 O.S. § 571(2)(a)-(yy)."
Respondent argues that under Oklahoma law, the victim statements were admissible and thus counsel's failure to object to the statements was not unreasonable. Doc. 21, at 30. Respondent also argues that Petitioner has made no claim that had his counsel been competent, he would not have pleaded guilty. Id. at 29.
Under Okla. Stat. tit. 22, § 973 (2017), "where the extent of the punishment is left with the court," the court may properly take into view circumstances "either in aggravation or mitigation of the punishment." Here, Petitioner was able to introduce evidence in mitigation of his punishment, see OR 277-282. The state court considered this evidence along with victim impact statements, see id. at 268-272. Petitioner's trial counsel's decision not to object to the admission of the victim impact statements does not fall "outside the wide range of professionally competent assistance," and the OCCA's application of the Strickland standard was not unreasonable. 466 U.S. at 690.
c. Restitution.
Petitioner also alleges this his trial counsel "failed to object to the trial court's order of restitution," and "did not conduct independent calculation of restitution." Doc. 17, at 15.
Petitioner does not argue, nor can he, that he "is in custody in violation of the Constitution or laws or treaties of the United States" because of this alleged ineffective assistance of his trial counsel with respect to the restitution order. Because Petitioner's underlying claim regarding the alleged error in imposing restitution is not cognizable, see supra § II, Petitioner cannot bring a related ineffective assistance of counsel claim on the same facts. See Frye, 660 F. App'x at 636; see also Lovin, 732 F. App'x at 703.
V. Recommended ruling and notice of right to object.
For the reasons discussed above, the undersigned recommends the court deny the amended petition for habeas relief, Doc. 17, and deny Respondent's motion to dismiss, Doc. 15, as moot.
The undersigned advises the parties of their right to object to this report and recommendation by October 2, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.
Entered this 11th day September, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE