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Green v. Allbaugh

United States District Court, N.D. Oklahoma

June 19, 2017

TERRY L. GREEN, Petitioner,
v.
JOE M. ALLBAUGH, Director, [1] Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE

         Before 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.

         BACKGROUND

         Petitioner 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).[2]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.

         On 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 Petitioner.

         On 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.

         Petitioner 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.

         ANALYSIS

         A. Exhaustion/Evidentiary Hearing

         As a 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).

         In 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).

         B. Claim adjudicated by the OCCA

         1. ...


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