United States District Court, N.D. Oklahoma
TERRY L. GREEN, Petitioner,
JOE M. ALLBAUGH, Director,  Respondent.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
the Court is the 28 U.S.C. § 2254 habeas corpus petition
(Dkt. # 1) filed by Petitioner Terry L. Green, a state
prisoner appearing pro se. Respondent filed a response to the
petition and provided the state court record necessary for
resolution of Petitioner's claims (Dkt. # 9). Petitioner
filed a reply (Dkt. # 10). For the reasons discussed below,
the petition is denied.
challenges his convictions and sentences entered in Tulsa
County District Court, Case No. CF-2008-3443. In that case,
on September 12, 2011, Petitioner entered blind pleas of no
contest to Child Neglect (Count 1), Child Abuse (Count 2),
and Possession of Marijuana (Count 4).On December 14,
2011, the trial judge sentenced Petitioner to life
imprisonment on both Counts 1 and 2, and three (3) years
imprisonment on Count 4, and ordered the sentences to be
served concurrently. At the time of his blind plea,
Petitioner was represented by attorney Sharon Cole.
See Dkt. # 9-2 at 1.
December 23, 2011, Petitioner filed a motion to withdraw his
pleas. Although attorney Cole asked to withdraw based on a
“perceived conflict, ” see Dkt. # 9-7,
Tr. Mot. Withdraw Hr'g I at 3, the trial judge denied
counsel's motion and attorney Cole represented Petitioner
at the hearing on the motion to withdraw pleas. At the
conclusion of the hearing, held January 9, 2012, the trial
judge denied the motion to withdraw pleas. Id. at
23. Represented by attorney Thomas Purcell, Petitioner filed
a petition for writ of certiorari at the Oklahoma Court of
Criminal Appeals (OCCA). See Dkt. # 9-8. On
September 21, 2012, in Case No. C-2012-52 (Dkt. # 9-9), the
OCCA granted the petition for writ of certiorari and remanded
the case for rehearing on Petitioner's motion to withdraw
plea with conflict-free counsel appointed to represent
April 3, 2013, the trial judge held a second hearing on
Petitioner's motion to withdraw pleas. At the second
hearing, Petitioner was represented by attorney Lora Smart.
See Dkt. # 9-10, Tr. Mot. Withdraw Hr'g II. At
the conclusion of the second hearing, the trial judge again
denied the motion to withdraw pleas. Id. at 47.
Represented by attorney Richard Couch, Petitioner filed a
petition for writ of certiorari at the OCCA. See
Dkt. # 9-11. Petitioner raised one (1) proposition of error:
Appellant's blind plea of no contest to child neglect and
child abuse was involuntary by reason of ineffective
assistance of counsel because his counsel misinformed him
that by entering the blind plea the court would sentence him
to less than fifteen (15) years. The trial court abused its
discretion in not permitting Appellant to withdraw his blind
plea of no contest.
See Dkt. # 9-11 at 2. In an unpublished summary
opinion, filed January 28, 2014, in Case No. C-2013-388 (Dkt.
# 9-12), the OCCA denied the petition for writ of certiorari.
commenced this federal action by filing a pro se petition for
writ of habeas corpus (Dkt. # 1). Petitioner alleges that
“the state court review of Petitioner's motion for
writ of certiorari to the OCCA was contrary to clearly
established law as determined by the Supreme Court of the
United States in Missouri v. Frye, and Boykin v.
Alabama.” See Dkt. # 1 at 6. In response
to the petition, Respondent argues that Petitioner is not
entitled to habeas corpus relief. See Dkt. # 9.
preliminary matter, Court must determine whether Petitioner
meets the exhaustion requirement of 28 U.S.C. § 2254(b).
See Rose v. Lundy, 455 U.S. 509, 510 (1982).
Respondent concedes, see Dkt. # 9 at 2 ¶ 6, and
the Court agrees, that Petitioner fairly presented his habeas
claim to the OCCA on certiorari appeal. Therefore, the Court
finds that Petitioner satisfied the exhaustion requirement of
28 U.S.C. § 2254(b).
addition, the Court finds that Petitioner is not entitled to
an evidentiary hearing. See Cullen v. Pinholster,
563 U.S. 170, 184-85 (2011); Williams v. Taylor, 529
U.S. 420 (2000).
Claim adjudicated by the OCCA