United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Second
Supplemental Report and Recommendation [Doc. No. 45] issued
by United States Magistrate Judge Gary M. Purcell on March
21, 2017. Judge Purcell recommends that Petitioner's
claim to habeas relief concerning his conviction in Case No.
CF-2014-22 be denied. Petitioner, who appears pro se,
has filed a timely objection [Doc. No. 46]. Thus, the Court
must make a de novo determination of the portions of
the Report and Recommendation to which specific objection is
consideration of Petitioner's pro se filing,
which is liberally construed, the Court discerns the
following objections: (1) Judge Purcell's recitation of
facts “misconstrue” Petitioner's
understanding of what rights he waived upon entering a plea
(see Obj. [Doc. No. 46] at 1-2); (2) Judge
Purcell's reliance on McCleskey v. Zant, 499
U.S. 467 (1991), fails to establish a need for Petitioner to
show actual innocence because the facts of that case differ
from those in Petitioner's case (see Id. at
(3) the Court cannot decide this matter without first making
a finding as to Petitioner's former counsel's duty to
conduct an investigation into the existence of potentially
mitigating evidence at the time of Petitioner's
conviction (see Id. at 9-10); and (4) the
state's decision to not hear Petitioner's ineffective
assistance of counsel claim did not rest on independent state
grounds, and therefore, does not act as a procedural bar to
federal habeas corpus review (see Id. at
The Court will address Petitioner's objections in reverse
stated in the Report and Recommendation, the Oklahoma Court
of Criminal Appeals found that Petitioner had procedurally
defaulted on all claims, except for his Sixth Amendment
ineffective assistance of counsel claim. See R.
& R. [Doc. No. 45] at 9; Order Consolidating Appeals
[Doc. No. 28-8] at 3-4. Procedural default is an independent
state ground that bars this Court's consideration of
those matters unless cause to excuse the default is shown.
See Cone v. Bell, 556 U.S. 449, 467 (2009) (finding
that “[a] claim is procedurally barred when it has not
been fairly presented to the state courts for their initial
consideration”). Although “[a] showing that a
defendant received ineffective assistance of counsel will
establish cause excusing a procedural default”
(Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir.
2002)), Petitioner fails to make the required showing.
See Strickland v. Washington, 466 U.S. 668 (1984)
(establishing a two-pronged test to show ineffective
assistance of counsel). Specifically, Petitioner failed to
“show that his attorney's representation fell below
an objective standard of reasonableness and that
counsel's errors prejudiced the defense.” R. &
R. [Doc. No. 45] at 12-13; Strickland, 466 U.S. at
687. Petitioner's failure impacts both his ability to
overcome the procedural bar based on ineffective assistance
of counsel, and to establish his separate claim of
ineffective assistance of counsel.
attempt to overcome this failure, Petitioner requests the
Court make a finding as to his former counsel's duty to
conduct an independent investigation into the existence of
potentially mitigating evidence at the time of
Petitioner's conviction. The Court declines
Petitioner's request, as it is not the role of the Court
to prove Petitioner's case. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (noting that it is not the district court's
function “‘to assume the role of advocate for the
pro se litigant'”) (quoting Hall v.
Bellmon, 935 F.2d 1106, 1110 (1991)).
other opportunity to overcome the procedural bar is to show a
“fundamental miscarriage of justice” which, as
explained in McCleskey, applies to cases of
procedural default and requires a showing of actual
innocence. See R. & R. [Doc. No. 45] at 16;
McClesky, 499 U.S. at 494. Petitioner's
objection to McCleskey's applicability is
unfounded and in no way removes Petitioner's burden of
making a “colorable showing that he is ‘actually
innocent' of the offense” for which he was
convicted. R. & R. [Doc. No. 45] at 16. As stated in the
Report and Recommendation, Petitioner did not allege actual
innocence in his Amended Petition and has submitted no new
evidence in support of his innocence. See Id.
Therefore, Petitioner has failed to establish a necessary
element of the fundamental miscarriage of justice exception.
the Court finds that Petitioner's objection to Judge
Purcell's recitation of the facts is unfounded.
Specifically, paragraph one on page three, to which
Petitioner objects, reads:
According to the state court record of the plea proceeding in
Case No. CF-2014-22, Petitioner admitted that he was entering
the plea after three prior felony convictions. The district
court advised petitioner of the rights he was waiving by
entering the plea, and Petitioner affirmed that he understood
the rights he was waiving. Petitioner also affirmed that he
was entering the plea pursuant to a plea agreement.
Petitioner admitted the facts constituting a factual basis
for the plea and stated that he was entering the plea
voluntarily and with full understanding of the consequences
of the plea.
R. & R. [Doc. No. 45] at 2-3. The Court finds nothing in
the above paragraph that misconstrues the state court record
or Petitioner's understanding of the rights he
reasons set forth above, the Court fully concurs with Judge
Purcell's Second Supplemental Report and Recommendation
[Doc. No. 45], and ADOPTS it as though fully set forth
herein. Accordingly, the remainder of the Amended Petition
[Doc. No. 5] seeking habeas relief concerning
Petitioner's conviction in Case No. CF-2014-22 is DENIED.
A separate judgment shall follow.
 Petitioner's habeas challenge
regarding his conviction in Case No. CF-2014-21 was
previously dismissed pursuant to a January 10, 2017 Order of
the Court [Doc. No. 35]. Petitioner's present claim is
the only matter presented in the ...