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Khoa Minh Ngo v. Martin

United States District Court, N.D. Oklahoma

November 9, 2017

KHOA MINH NGO, Petitioner,
v.
JIMMY MARTIN, Warden[1] Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE.

         Before the court is the 28 U.S.C. § 2254 habeas corpus petition (Doc. 1) filed by Petitioner, a state prisoner appearing pro se.[2] 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.

         BACKGROUND

         In 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.[3] In June 2012, Petitioner, represented by counsel and aided by a certified interpreter, entered blind pleas of no contest to all ten counts.[4] 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.

         On 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.

         Petitioner 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.

         On 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.

         Petitioner 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.

         Petitioner 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 certiorari appeal:

Ground One: Counts 9 and 10 violate prohibitions against double jeopardy and double punishments. USCA Const. Amends. 5, 14[.]
Ground Two: [The] imposition of consecutive sentences between Counts 9, 10 and Counts 1-8 was error. USCA Const. Amends. 6, 14, 5.
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.

         In 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 ...


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