United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
a state prisoner appearing pro se, objects to the Magistrate
Judge's Report and Recommendation (“Report”
or “R&R”) recommending that his Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2254 be denied.
Because Petitioner proceeds pro se, the Court construes his
filings liberally, but will not act as his advocate in
constructing his arguments and searching the record.
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005). Moreover, the Court will not
supply additional factual allegations to round out
Petitioner's petition or construct a legal theory on his
behalf. Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997). For the reasons set forth below,
the Court finds that Petitioner's objections are
overruled and the R&R should be adopted in its entirety.
August 26, 2014, Petitioner pled guilty in Comanche County
District Court to the offense of second-degree robbery after
two or more felony convictions. Petitioner filed an appeal
for post-conviction relief in which he alleged his trial
counsel was ineffective for urging him to plead guilty and
receive a sentence Petitioner alleges was unlawfully enhanced
by invalid and “stale” former felony convictions.
The trial court denied Petitioner's claim, finding that
(1) Petitioner waived said arguments because he had failed to
file a direct appeal, and (2) Petitioner failed to show that
his counsel was constitutionally deficient or that
counsel's performance resulted in prejudice. Petitioner
appealed to the Oklahoma Court of Criminal Appeals (OCCA)
alleging three propositions of error: (1) ineffective
assistance of counsel, (2) improper sentence enhancement, and
(3) lack of proof on the element of “force or
fear” with respect to his robbery conviction. The OCCA
affirmed, stating Petitioner waived such arguments by failing
to raise them during his guilty plea or file a direct appeal,
and Petitioner had not demonstrated his counsel's
performance was objectively unreasonable or the result of his
plea would have been different.
filed the present petition for habeas relief, again alleging
ineffective assistance of counsel. Specifically, Petitioner
contended his sentence was improperly enhanced based on the
use of former convictions and his counsel was ineffective for
encouraging him to plead guilty despite the improper
enhancements. The matter was referred to United States
Magistrate Judge Shon T. Erwin for initial proceedings
pursuant to 28 U.S.C. § 636(b)(1)(B), (C) and Rule
72(b), Federal Rules of Civil Procedure. On November 12,
2016, Judge Erwin issued his R&R in which he found
Petitioner's claims were without merit and should be
dismissed. Regarding Petitioner's argument of an
improperly enhanced sentence, Judge Erwin examined
Petitioner's prior convictions and concluded that
Petitioner's sentence was properly enhanced pursuant to
21 Okla. Stat. § 51.1(B), which imposes an enhanced
sentence of twenty years to life imprisonment if a defendant
has been convicted of at least two felonies within ten years
of the date he completed the last felony
sentence. Consequently, Judge Erwin further
determined that the OCCA's rejection of Petitioner's
ineffective assistance of counsel claim was not contrary to,
nor an unreasonable application of, prior Supreme Court
precedent. Petitioner timely objected to the R&R in which
he, liberally construed, asserts the same propositions set
forth in his petition.
reviewing the magistrate judge's Report and
Recommendation, the Court will only modify or set aside any
part of the Report that is clearly erroneous or is contrary
to law. See 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a). The Court must make a de novo review of
those portions of the Report to which objection has been
properly made. Stanley v. McMillian, 594 F.
App'x 478, 480 (10th Cir. 2014) (unpublished) (citing
United States v. 2121 E. 30th St., 73 F.3d 1057,
1059 (10th Cir. 1996)). The “clearly erroneous”
standard applies to the magistrate judge's factual
findings, Ehrenhaus v. Reynolds, 965 F.2d 916, 921
(10th Cir. 1992), while legal conclusions are reviewed under
the “contrary to law” standard. In re Motor
Fuel Temperature Sales Practices Litig., 707 F.Supp.2d
1145, 1148 (D. Kan. 2010).
order to obtain § 2254 habeas relief with respect to
claims adjudicated on the merits in state court, a petitioner
must show the state court adjudication resulted in a decision
that was either (1) contrary to clearly established federal
law, as determined by the Supreme Court of the United States,
(2) involved an unreasonable application of clearly
established federal law, as determined by the Supreme Court
of the United States, or (3) based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceedings. 28 U.S.C. §
2254(d)(1)-(2). Under § 2254(d), this standard is
“difficult to meet, ” Cullen v.
Pinholser, 563 U.S. 170, 180 (2011) (citing
Harrington v. Richter, 562 U.S. 86, 102 (2011)), and
“highly deferential” to state-court rulings,
which in turn mandates that state-court decisions be given
“the benefit of the doubt.” See Id.
(citing Harrington, supra; Woodford v.
Visciotti, 537 U.S. 19, 24 (2002)).
decision is contrary to federal law if the state court
applied a rule different from the governing law set forth in
previous Supreme Court cases, or if it decided a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Turrentine v.
Mullin, 390 F.3d 1181, 1189 (10th Cir. 2004) (citing
Bell v. Cone, 535 U.S. 685, 694 (2002)). A decision
involves an unreasonable application of federal law if the
state court correctly identifies the governing legal
principle from Supreme Court precedent, but unreasonably
applies it to the facts of the particular case. Id.
“Habeas corpus is a civil proceeding and the burden is
upon the petitioner to show by a preponderance of the
evidence that he is entitled to relief.” Miles v.
Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995) (citation
first objects to the magistrate judge's determination
that his sentence was properly enhanced based on prior
“stale” convictions. On this issue, the Court
takes judicial notice of Petitioner's criminal history
that is available on the Oklahoma Department Corrections'
website, https://okoffender.doc.ok.gov/ (last accessed April
27, 2017). See Triplet v. Franklin, 365 F. App'x
86, 92 n. 8 (10th Cir. 2010) (unpublished) (taking judicial
notice of ODOC's website pursuant to Rule 201, Federal
Rules of Evidence); Richards v. District Court of
Comanche County, No. CIV-13-149-M, 2013 WL 1855791, at
*1 (W.D. Okla. Apr. 2, 2013) (taking judicial notice of
ODOC's offender lookup page); see generally Valley
View Angus Ranch, Inc. v. Duke Energy Field Services,
Inc., 497 F.3d 1096, 1107 n. 18 (10th Cir. 2007) (noting
court may take judicial notice of its own records and files
and facts which are part of the public record).
review of these public records shows that the convictions
used to enhance Petitioner's sentence were
discharged/completed within ten years of Petitioner's
robbery conviction. As stated supra, § 51.1(B)
imposes an enhanced sentence of twenty years to life if a
defendant has been convicted of at least two felonies within
ten years of the date he completed the last felony sentence.
Accordingly, the Magistrate Judge's conclusion that (1)
Petitioner has failed to complete a ten-year span without
committing another crime and (2) the prior felonies at ...