United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEEF JUDGE UNITED STATES DISTRICT
the Court is Petitioner's 28 U.S.C. § 2254 petition
for writ of habeas corpus (Dkt. # 1). Respondent filed a
response (Dkt. # 5) to the petition. Petitioner filed a reply
(Dkt. # 7) to Respondent's response. For the reasons
discussed below, the petition for writ of habeas corpus shall
6, 2014, Petitioner entered blind pleas of guilty to three
(3) counts of Trafficking in Illegal Drugs (Counts 1, 2, and
7), Possession of a Firearm While in the Commission of a
Felony (Count 3), Unlawful Possession of Drug Paraphernalia
(Count 6), Acquiring Proceeds from Drug Activity (Count 8),
and Possession of a Firearm After Former conviction of a
Felony (Count 9), in Tulsa County District Court, Case No.
CF-2013-361. The trial judge accepted the pleas and
sentenced Petitioner to thirty (30) years imprisonment on
each of Counts 1, 2, 3, 7, 8, and 9, and one (1) year in the
county jail on Count 6, with the sentences ordered to be
served concurrently. The transcript from the plea hearing and
the Judgments and Sentences reflect that the trial judge
advised Petitioner of his right to appeal and appeal
procedures. See Dkt. ## 5-1, 5-2 at
31-32. However, Petitioner did not move to
withdraw his guilty pleas during the ten-day period following
sentencing and did not perfect a certiorari appeal.
December 22, 2014, Petitioner filed an application for
post-conviction relief, identifying three (3) grounds of
error, as follows:
Ground 1: Petitioner was deprived of a timely direct appeal
through no fault of his own and is now entitled to an
out-of-time appeal as a matter of due process.
Ground 2: Petitioner was denied the effective assistance of
trial counsel to which he was entitled under the 6th &
14th Amendments to the U.S. Constitution and Art. II,
§§ 7 and 20 of the OK Constitution.
Ground 3: Petitioner was denied the effective assistance of
counsel to which he was entitled under the 6th and 14th
Amendments to the U.S. Constitution and Art. II, §§
7 and 20 of the OK Constitution.
(Dkt. # 5-2 at 2, 4, 5). By order filed March 12, 2015, the
state district court recommended that an appeal out of time
be denied. See Dkt. # 5-3 at 3-7. Petitioner filed a
post-conviction appeal in the OCCA. By order filed June 17,
2015, in Case No. PC-2015-274 (Dkt. # 5-4), the OCCA denied
the post-conviction application for appeal out of time.
August 12, 2015, Petitioner filed his federal petition for
writ of habeas corpus (Docket #1). Petitioner raises two (2)
claims, as follows:
Ground 1: Ineffective assistance of counsel, and due
process.My private attorney [Kevin Adams] failed to
communicate state's plea offer to me. He presented a
false plea offer to me. As a result of that I lost the
opportunity to accept the plea offer because the state
Ground 2: Ineffective assistance of counsel, and due
process.I informed my public defender [Katherine Greubel]
that my private attorney did not convey the State's
earlier plea offer to me. The public defender failed to
inform the court of this matter. She misinformed the court
that I had rejected the offer. She failed to advise me the
offer could be reinstated.
(Dkt. # 1 at 6). In response to the petition, Respondent
asserts that Petitioner's claims are procedurally barred.
addition to a reply to the response (Dkt. # 7), Petitioner
filed motions to “supplement” (Dkt. # 9), for an
evidentiary hearing (Dkt. # 13), and for appointment of
counsel (Dkt. # 14). As discussed below, the Court finds the
motion to “supplement” is time barred and shall
be denied on that basis. Also, Petitioner's motions for
evidentiary hearing and for appointment of counsel shall be
presented his habeas claims of ineffective assistance of
counsel to the OCCA on post-conviction appeal. Therefore,
Petitioner has satisfied the exhaustion requirement of 28
U.S.C. §2254(b) for federal habeas corpus review.
However, as discussed in Part D below, the claims are
Motions for an evidentiary hearing and for appointment of
review of the record and Petitioner's claims, 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 ...