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Smith v. Allbaugh

United States District Court, N.D. Oklahoma

September 6, 2017

ANTONIO DEANDRE SMITH, Petitioner,
v.
JOE M. ALLBAUGH, Director, Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEEF JUDGE UNITED STATES DISTRICT COURT

         Before 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 be denied.

         BACKGROUND

         On May 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.[1] 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.[2] However, Petitioner did not move to withdraw his guilty pleas during the ten-day period following sentencing and did not perfect a certiorari appeal.

         On 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.

         On 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 withdrew it.
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.

         In 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 denied.

         ANALYSIS

         A. Exhaustion

         Petitioner 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 procedurally barred.

         B. Motions for an evidentiary hearing and for appointment of counsel

         Upon 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 ...


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