United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge.
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
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
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). He did not seek a direct appeal or seek to
withdraw his plea within the applicable time period.
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
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.
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
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.
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).
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.
Petitioner's statutory year within which to file a habeas
corpus petition expired without any statutory tolling.
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
(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
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
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).
The Tenth Circuit procedurally terminated the appeal and
denied a certificate of appealability. (Dkt. 13-13).
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).
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).
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,
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).
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 ...