United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
the court is the 28 U.S.C. § 2254 habeas corpus petition
(Doc. 1) filed by Petitioner, a state prisoner appearing pro
Respondent filed a response to the petition (Doc. 8), and
provided relevant state court records (Docs. 8, 9).
Petitioner filed a reply (Doc. 12). For the reasons discussed
below, the Court denies the habeas petition.
2011, the State of Oklahoma charged Petitioner in the
District Court of Tulsa County, Case No. CF-2011-2388, with
eight counts of child sexual abuse (Counts 1-8), in violation
of Okla. Stat. tit. 21, § 843.5(E); and two counts of
unlawful distribution of a controlled substance (Counts
9-10), in violation of Okla. Stat. tit. 63, § 2-401.
Doc. 8-4 at 1. In June 2012, Petitioner, represented by
counsel and aided by a certified interpreter, entered blind
pleas of no contest to all ten counts. See Doc.
8-1; Doc. 9-1 at 2-10. Following a thorough plea colloquy,
the trial court found a factual basis for the pleas,
determined that Petitioner “freely and
voluntarily” entered the pleas, accepted the no contest
pleas, ordered a presentence investigation, and set the
matter for sentencing. Doc. 9-1 at 2-11. One month later, the
trial court imposed eight, concurrent life sentences for
Counts 1-8, and two, concurrent 10-year prison sentences for
Counts 9-10. The court ordered the controlling 10-year
sentence imposed for Counts 9 and 10 to be served
consecutively to the controlling life sentence imposed for
Counts 1-8. Doc. 8-4 at 1.
August 3, 2012, Petitioner, still represented by plea
counsel, moved to withdraw his pleas. Doc. 8-2. He alleged
that (1) his pleas were not knowingly and intelligently made,
(2) he expected all of his sentences to run concurrently, (3)
his sentence was excessive, and (4) the motion was timely
filed within 10 days of sentencing. Id. at 1. The
trial court held an evidentiary hearing on the motion on
September 4, 2012, and Petitioner was represented by new
counsel at the hearing. Doc. 9-4 at 1. The court received
testimony from three witnesses: Petitioner, plea counsel, and
the certified interpreter from the plea hearing. Id.
at 2. After hearing testimony and oral arguments, the court
denied Petitioner's motion to withdraw his pleas.
Id. at 50-54.
appealed the denial of his motion by filing a petition for
writ of certiorari with the Oklahoma Court of Criminal
Appeals (OCCA). See Doc. 8-4 at 1. Represented by
appellate counsel, Petitioner raised four propositions of
error in his appeal brief:
Proposition I: Because the drugs distributed in Counts 9 and
10 were used to facilitate the abuse alleged in Counts 1
through 8, the distribution was part of the acts of child
abuse alleged in Counts 1 through 8; therefore the
convictions in Counts 9 and 10 violated the prohibitions
against double jeopardy and double punishment.
Proposition II: The trial court erred in deciding to run the
concurrent sentences in Counts Nine and Ten consecutively
with the sentences in Counts 1 through 8.
Proposition III: Petitioner's pleas of no contest were
not entered voluntarily, but were coerced due to his attorney
being unprepared for trial.
Proposition IV: Because [Petitioner] did not understand the
punishment he was facing or that he did not have an absolute
right to withdraw his pleas, his decision to waive his right
to trial and enter pleas of no contest was not made in an
intelligent or voluntary manner.
Doc. 8-3 at 2.
August 16, 2013, the OCCA issued a summary opinion denying
the petition and affirming the trial court's denial of
Petitioner's motion to withdraw his pleas. Doc. 8-4.
then filed an application for post-conviction relief in state
district court. The court denied relief on November 15, 2013.
Petitioner filed a post-conviction appeal, but the OCCA
declined jurisdiction because the post-conviction appeal was
untimely. See Doc. 1 at 3; Doc. 8 at 2.
filed the instant federal habeas petition on September 29,
2014. Doc. 1 at 1. He alleges that he is entitled to federal
habeas relief on the same four grounds that he raised in his
Ground One: Counts 9 and 10 violate prohibitions against
double jeopardy and double punishments. USCA Const. Amends.
Ground Two: [The] imposition of consecutive sentences between
Counts 9, 10 and Counts 1-8 was error. USCA Const. Amends. 6,
Ground Three: Plea[s] of no contest were not entered
voluntarily but were coerced due to attorney being unprepared
for trial. USCA Const. Amends. 6, 14.
Ground Four: Petitioner did not understand the punishment he
was facing or that he did not have an absolute right to
withdraw pleas, decision to waive trial, enter pleas not
voluntary, knowing and intelligent.
See Doc. 1 at 4, 6, 7, 9.
response to the petition, Respondent asserts (1) that
Petitioner waived his Ground One double-jeopardy claim by
entering knowing and voluntary no contest pleas, (2) in the
alternative, that the Ground One claim is procedurally
barred, (3) that Petitioner fails to state a cognizable
federal habeas claim in Ground Two, and (4) that Petitioner
has not made the requisite showings under 28 U.S.C. §
2254(d) to obtain ...