United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. PAYNE, UNITED STATES DISTRICT JUDGE
13, 2013, Petitioner, Ben Franklin Murray, was convicted in
Pontotoc County District Court, State of Oklahoma Case No.
CF-2012-540 of Count 1: Lewd Molestation, in violation of 21
Okla. Stat. tit. 21, § 1123, and Count 2: Attempted
Forcible Sodomy, in violation of 21 Okla. Stat. tit. 21,
§ 888, each after conviction of two or more felonies and
after having entered pleas of nolo contendere. Dkt.
# 19-1. On June 13, 2013, Petitioner was sentenced to life
imprisonment on both counts, to run consecutive. Dkt. # 19-2.
26, 2013, petitioner filed a pro se motion to
withdraw his guilty plea which was denied by the district
court because it was not timely filed and defendant did not
allege any “verifiable defense to
charges/conviction.” Dkt. # 19-3. Petitioner did not
perfect an appeal to the Oklahoma Court of Criminal Appeals.
November 7, 2013, however, petitioner filed a pro se
application for post-conviction relief in the District Court
of Pontotoc County. Dkt. # 19-4. On January 9, 2014, the
state district court denied post-conviction relief.
February 3, 2014, petitioner filed a pro se Petition
in Error in the Oklahoma Court of Criminal Appeals, Appellate
Case No. PC-2014-110. Dkt. # 19-7. On April 14, 2014, the
Oklahoma Court of Criminal Appeals affirmed the district
court's denial of post conviction relief and denied
petitioner's post-conviction application for a certiorari
appeal out of time.
petitioner filed a motion to modify his sentence in the
District Court of Pontotoc County. On May 19, 2014, the state
district court denied said motion. Dkt. # 19-9. Petitioner
now seeks relief from his state court conviction, pursuant to
28 U.S.C. § 2254.
sets out four grounds for relief all of which arise out of
his first ground for relief, he was not allowed to withdraw
his blind pleas. He claims he received ineffective assistance
of counsel because his attorney told him he didn't have a
defense to the charges; he wasn't advised about the
consequences of a “second page” until after he
was given two life sentences; his attorney failed to
recognize the significance of the trial judge having
previously represented him in an earlier case; and his
attorney incorrectly advised him, due to his age, he would
not receive much time if he entered blind pleas.
court has reviewed (1) the petition for writ of habeas corpus
and attachments thereto; (2) the response to the petition
filed by the State of Oklahoma and attachments thereto,
including the transcript of the plea hearing on May 13, 2013,
the transcript of the sentencing hearing on June 13, 2013,
and the transcript of the motion to withdraw hearing on June
27, 2013; and (3) petitioner's reply. After a thorough
review of the state court records submitted to this court,
the pleadings filed herein, and the law applicable to the
facts of this case, the court finds, for the reasons set out
herein, the petitioner is not entitled to the relief
case is governed by the Anti-Terrorism and Effective Death
Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S.
320, 326-327, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).
The AEDPA delineates the circumstances under which a federal
court may grant habeas relief. Under the AEDPA's
provisions, this court is precluded from granting habeas
relief on any claim adjudicated on the merits by a state
unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
general rule, if a petitioner has failed to present a claim
to the state courts in the manner prescribed by the
procedural rules of the state, the state court may deem the
claim defaulted. Where a state prisoner defaults his federal
claims in state court based upon an independent and adequate
state procedural rule, federal review of his habeas claims
will be barred. Coleman v. Thompson, 501 U.S. 722,
729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991). If the
state court's finding is separate and distinct from
federal law, it will be considered “independent.”
See Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985); Duvall v. Reynolds, 139
F.3d 768 (10th Cir. 1998), cert. denied,525 U.S. 933, 119 S.Ct. 345, 142 L.Ed.2d 284 (1998). If the
finding is applied “evenhandedly to all similar claims,
” it will be considered “adequate.”
Maes v. Thomas, 46 F.3d 979 (10th Cir.
1995), cert. denied514 U.S. 1115, 115 S.Ct. 1972,
131 L.Ed.2d 861 (1995) (citing Hathorn v. Lovorn,
457 U.S. 255, 263, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824
(1982)). Where the state-law default prevented the state
court from reaching the merits of the federal claim, the
claim ordinarily cannot be reviewed in the federal courts.
Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590,
115 L.Ed.2d 706 (1991). “Review is precluded
‘unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice.'” See ...