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Murray v. Bryant

United States District Court, E.D. Oklahoma

August 15, 2017

BEN FRANKLIN MURRAY, Petitioner,
v.
JASON BRYANT, Warden, Respondent.

          OPINION AND ORDER

          JAMES H. PAYNE, UNITED STATES DISTRICT JUDGE

         On May 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.

         On June 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.

         On 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.

         On 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.

         Thereafter, 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.

         Petitioner 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.

         This 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 requested.

         This 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 court

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; or
(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).

         As a 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 ...


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