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Duncan v. Allbaugh

United States District Court, E.D. Oklahoma

March 24, 2017

ARLEY LEE DUNCAN, Petitioner,
v.
JOE M. ALLBAUGH, DOC Director, Respondent.

          OPINION AND ORDER

          James H. Payne United States District Judge.

         This action is before the Court on Respondent's motion to dismiss Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 as barred by the statute of limitations (Dkt. 12). Petitioner, a pro se prisoner in the custody of the Oklahoma Department of Corrections, is incarcerated at Davis Correctional Facility, a private prison in Holdenville, Oklahoma. He is challenging the execution of his life sentence imposed in Oklahoma County District Court Case No. CRF-83-3116 for First Degree Murder. Petitioner raises four grounds for relief:

Ground I: Petitioner's agreement for entry of a guilty plea has been rendered void as a result of grievous breaches of contract perpetrated by the very prosecutor who tendered the agreement, as well as subsequent office holders and the State of Oklahoma.
Ground II: Retroactive application of laws enacted after Petitioner's plea agreement have violated his rights under the agreement made and altered the administration and execution of his sentence, creating a liberty interest protected by the U.S. Constitution.
Ground III: Void plea due to fact Petitioner entered his plea without being fully or properly informed of the facts available to his attorney.
Ground IV: Plea is invalid due to ineffective assistance of counsel.

         The respondent alleges the petition was filed beyond the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2244(d) (AEDPA). Because of Petitioner's lengthy history of litigation of his conviction and sentence, Respondent has set forth the information relevant to the habeas petition:

         09/27/1983 Petitioner, represented by counsel, entered into a negotiated plea of guilty to the crime of First Degree Murder in Oklahoma County District Court Case No. CRF-1983-3116. (Dkt. 13-1). Judgment and Sentence were imposed after Petitioner agreed to be, and was, sentenced to life imprisonment. (Dkt. 13-2).[1] He did not seek a direct appeal or seek to withdraw his plea within the applicable time period.

         03/08/1995 Petitioner filed his first application for post-conviction relief in the trial court, challenging the voluntariness of his guilty plea and the effectiveness of his counsel. (Dkt. 13-3). He raised the following claims: (1) Petitioner was inadequately advised of his right to appeal the guilty plea, because he was not informed that if he did file an appeal, counsel and a record of the proceedings would be provided at no cost to him; (2) counsel for his plea was ineffective in not assisting Petitioner with an appeal of his guilty plea; and (3) Petitioner's guilty plea was involuntary and coerced, because he allegedly received threats of the death penalty if he did not enter the plea, notwithstanding the lack of any evidence of aggravating circumstances. (Dkt. 13-3 at 2).

         05/03/1995 The state trial court denied the post-conviction application. (Dkt. 13-3), finding Petitioner's negotiated plea for a sentence of life imprisonment was voluntary. The trial court further found Petitioner was fully advised of “each of his constitutional rights before the guilty plea, ” and that at the time of the plea, “Petitioner advised the court that he understood each and every one of his rights.” When the trial court asked Petitioner “if anyone had exerted any pressure of any kind to coerce him to enter his plea, ” Petitioner answered, “No sir.” The trial court noted that Petitioner had acknowledged his understanding that a motion to withdraw his guilty plea had to be initiated within ten (10 days. However, Petitioner chose to waive his right to remain in the county jail for ten days and to be processed into the Department of Corrections as quickly as possible. (Dkt. 13-3 at 2). With respect to the withdrawal of Petitioner's plea, the trial court noted that Petitioner “has waited over eleven years to raise this particular issue.” The trial court further found:

There is no evidence in the record that Petitioner was coerced in any way to enter a plea of guilty to the charge of Murder in the First Degree without the Bill of Particulars. It is obvious from the record that the withdrawal of the Bill of Particulars inured to the benefit of the Petitioner and not to his detriment.

(Dkt. 13-3 at 3). Petitioner also was advised of the method and time period to appeal the ruling. Id.

         06/02/1995 Petitioner attempted to appeal the trial court's denial of his first post-conviction application. (Dkt. 13-4). In his Petition in Error to the Oklahoma Court of Criminal Appeals (OCCA), he asked the court “to reverse and remand with instructions to allow [him] to plead anew.” (Dkt. 13-4 at 16). Petitioner reiterated his three claims raised in the trial court and complained he had not been allowed an evidentiary hearing. (Dkt. 13-4 at 3). He included affidavits from himself and family members that stated Petitioner wanted to appeal his guilty plea and set forth the attempts made to contact plea counsel concerning an appeal. (Dkt. 13-4 at 25-27).

         06/29/1995 The OCCA dismissed Petitioner's attempted appeal of the trial court's ruling in Case No. PC-95-573, because he failed to follow appellate rules requiring attachment of a certified copy of the trial court's written order. (Dkts. 13-5, 13-6).

         09/15/1995 The OCCA denied Petitioner's petition for rehearing in Case No. 95- 573, because the OCCA's procedural rules did not permit rehearing from a final order in a post-conviction proceeding. (Dkt. 13-7).

         04/24/1996 Petitioner's one-year limitations period in which to file a petition for a writ of habeas corpus began to run pursuant to the AEDPA, absent any tolling.

         04/24/1997 Petitioner's statutory year within which to file a habeas corpus petition expired without any statutory tolling.

         08/17/1998 Petitioner filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Northern District of Oklahoma, Case No. 98-CV-621-H. (Dkt. 13-8). The petition was transferred to the Western District of Oklahoma pursuant to 28 U.S.C. § 2241(d) for review, and it was renumbered to Case No. CIV-98-1226-A. Petitioner's sole claim was that Oklahoma's newly-enacted “Truth in Sentencing Act” (the Act) should have been retroactively applied to him, and not doing so violated his rights to Equal Protection and Due Process. Petitioner argued he was entitled to the more determinate sentence of 18 to 60 years' imprisonment, because he had received the minimum sentence for Murder in the First Degree at the time of his guilty plea, and his proposed sentence range was the minimum penalty offered to first degree murderers under the Act.[2] (Dkt. 13-8 at 12-13). Petitioner requested relief in the form of a “Remedial Order resentencing [him] pursuant to the new sentencing guidelines” or a “Remedial Order resentencing [him] to the minimum sentence of Eighteen (18) years pursuant to [the Act], and ordering [his] immediate discharge and release from custody. . . .” (Dkt. 13-8 at 19).

         11/25/1998 The Western District Court dismissed Petitioner's first federal habeas corpus petition, finding he had raised non-cognizable issues concerning only issues of state sentencing law, and he was not similarly situated to those who committed the same crime after the Act's effective date. Therefore, Petitioner's rights to due process and equal protection were not violated. Petitioner also was denied a certificate of appealability. (Dkts. 13-9, 13-10 at 7-8).

         03/01/1999 Petitioner appealed to the Tenth Circuit Court of Appeals in Case No. 99-6029 (Dkt. 13-11). He argued that the district court had erred in finding no constitutional violation regarding the application of Oklahoma's Truth in Sentencing Act to him. (Dkt. 13-12).

         11/08/1999 The Tenth Circuit procedurally terminated the appeal and denied a certificate of appealability. (Dkt. 13-13).

         07/06/2001 Petitioner filed a second application for post-conviction relief in the trial court, raising claims that: (1) The trial court failed to properly inquire into his competency to enter the plea in 1983, and his competency was determined under an unconstitutional standard; (2) Preliminary hearing testimony established that the murder charge was excessive and unjustified, because Petitioner either acted in self-defense or while in the heat of passion, and he therefore could not be guilty of murder in the first degree; (3) Trial counsel was ineffective. (Dkt. 13-14 at 2).

         11/26/2001 The trial court issued written Findings of Fact and Conclusion of Law, denying Petitioner's second post-conviction application. The court found Petitioner had waived all issues to the extent they could have been, but were not, raised on direct appeal or in his first application for post-conviction relief. To the extent the issues were raised previously, they were barred by res judicata. Petitioner's arguments regarding the voluntariness of his guilty plea were meritless, because the record showed the trial court followed the appropriate procedures for accepting Petitioner's guilty plea, and the trial court “went to great lengths to ensure that Petitioner was mentally competent and that his plea was knowingly and voluntarily entered.” The trial court further found that “Petitioner's attempt to challenge the validity of the crime with which he was charged [was] frivolous.” Also, Petitioner's claim of ineffective assistance of trial counsel failed, because he had not established unreasonable performance or resulting prejudice pursuant to Strickland v. Washington, 466 U.S. 668, 687-88 (1984). (Dkt.13-14 at 3-4).

         12/18/2001 Petitioner appealed the trial court's denial of his second post-conviction application, raising the same three claims that were raised in the trial court. He included an argument that Oklahoma's “Make My Day” law, [3] which permits the use of deadly force in one's home against an intruder, constituted an intervening change in the law that should be applied retroactively to him. He asked the OCCA to reverse and remand his case, or in the alternative, issue an order reducing his charge to a lesser-included offense and release him for time served. (Dkt. 13-15).

         02/01/2002 The OCCA affirmed the denial of Petitioner's second application for post-conviction relief in Case No. PC-2001-1480. The court found that Petitioner's claims could and should have been raised in either a direct appeal of his guilty plea or in his first post-conviction application, and to that extent, the claims were waived. Petitioner's claims that previously were raised in prior proceedings were barred by res judicata. With respect to Petitioner's competency claims, the OCCA found:

Petitioner now attempts to claim he was not competent to enter his guilty plea. Petitioner has not established, and the record does not reflect, that any doubt as to his competence was ever raised during trial proceedings, or that he was ever subjected to a competency hearing or the legal standards utilized therein. . . . Petitioner does not offer any evidence of material facts, not previously presented ...

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