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Hartness v. Baryant

United States District Court, N.D. Oklahoma

January 26, 2018

JOHN RICHARD HARTNESS, Petitioner,
v.
JASON BRYANT, Warden[1] Respondent.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is petitioner John Hartness's 28 U.S.C. § 2241 petition for writ of habeas corpus (Dkt. # 1).[2] Respondent Jason Bryant filed a response (Dkt. # 5) and provided copies of relevant portions of the state court record (Dkt. ## 5, 6). Hartness filed a reply to the response (Dkt. # 9). For the reasons discussed below, the Court shall dismiss in part and deny in part the petition for writ of habeas corpus.

         BACKGROUND

         Hartness brings this habeas petition to challenge both the validity and the revocation of his suspended sentence in Osage County District Court Case No. CF-99-230. Dkt. # 1 at 1. In that case, on April 24, 2000, Hartness pleaded guilty to (1) knowingly concealing stolen property, in violation of Okla. Stat. tit. 21, § 1713, and (2) possessing methamphetamine, in violation of Okla. Stat.

         tit. 63, § 2-402(B)(1), after former conviction of six felonies. Dkt. # 6-1 at 7-8. As part of the negotiated plea agreement, the district attorney agreed to file a written application requesting that the state district court waive the statutory prohibition against imposing a suspended sentence given that Hartness had been convicted of two or more felonies.[3] Id. at 9-10. In accordance with the plea agreement, the court sentenced Hartness to two concurrent terms of 45 years in prison, with all but the first seven years suspended.[4] Id. at 1, 7, 11. The court advised Hartness that if he wished to appeal he “must file a written request to withdraw his plea of guilty within 10 days” of sentencing. Id. at 13. Hartness did not seek to withdraw his plea or file a certiorari appeal with the Oklahoma Court of Criminal Appeals (OCCA). See id.; Dkt. # 1 at 2.

         On March 24, 2006, the state district court held a hearing on the state's motion to revoke Hartness's suspended sentence. Dkt. # 6-2 at 1-2. Hartness stipulated that he violated his probation by being convicted of two new crimes in Tulsa County District Court Case No. CF-2003-5713. Id. at 3-4. The court partially revoked Hartness's suspended sentence and ordered him to serve eight years in prison, concurrent with his sentence in the 2003 Tulsa County case. Id. at 4-5. The court advised Hartness that if he wished to filed a direct appeal he must file a notice of intent to appeal within 30 days of the revocation hearing. Id. at 5-6. Hartness did not file a direct appeal. Id.; Dkt. # 1 at 2.

         On January 25, 2012, the state again moved to revoke Hartness's suspended sentence, alleging that he (1) failed to pay court costs and (2) committed new crimes in Tulsa County District Court Case No. CF-2011-2873. Dkt. # 6-3 at 2-3. The state district court held a revocation hearing on September 5, 2012, and Hartness stipulated to the alleged probation violations. Id. at 1, 3. After hearing oral argument from counsel and testimony from Hartness, the court fully revoked Hartness's suspended sentence and ordered him to serve 30 years in prison, consecutive to his 14-year sentence in the 2011 Tulsa County case. Id. at 5-12. The court advised Hartness of his appeal rights. Id. at 12.

         Hartness filed a direct appeal with the OCCA, arguing that the full revocation of his suspended sentence was “excessive” under the circumstances. Dkt. # 5-3 at 2. He also sought an order nunc pro tunc to clarify the revocation order. Id. By opinion filed February 11, 2014, the OCCA affirmed the revocation order, concluding that the district court did not abuse its discretion in revoking Hartness's suspended sentence in full. Id. at 1-2. The OCCA declined to issue an order nunc pro tunc because Hartness did not first request that order from the district court. Id. at 3.

         On April 30, 2014, Hartness applied for state post-conviction relief on two grounds: (1) that he did not fully appreciate the sentencing consequences of his plea agreement, and (2) that his suspended sentence was “illegal” because he had multiple prior felonies. Dkt. # 5-4 at 1-5. The state district court denied relief, reasoning that both grounds were procedurally barred because they “could have been raised on direct appeal from the 2000 conviction but were not.” Dkt. # 5-5.

         Hartness filed a post-conviction appeal, asserting the same two grounds for relief and adding two more: (1) that defense counsel was ineffective on direct appeal for failing to argue under Bumpus v. State, 925 P.2d 1208 (Okla. Crim. App. 1996), that his suspended sentence was void, [5]and (2) that the court should “consider the updated federal sentencing guidelines” because they “now carry substantially less penalties than at the time he was convicted.” Dkt. # 5-6 at 5-9. By order filed October 23, 2014, the OCCA affirmed the state district court's order denying post-conviction relief. Dkt. # 5-7. The OCCA agreed that Hartness's first two claims were procedurally barred. Id. at 2. But the OCCA briefly addressed his argument that his suspended sentence was void. Id. Citing Bumpus, the OCCA stated that “[w]hen an unauthorized order of suspension is entered by a sentencing court, the remaining portions of the Judgment and Sentence remain intact; only that portion of the court's order suspending execution of the sentence is invalid.” Id. Thus, the OCCA reasoned, even if the district court erred in imposing a suspended sentence, that error “would be corrected by the District Court's subsequent order revoking [Hartness's] suspended sentences.” Id. The OCCA declined to address Hartness's ineffective-assistance-of-appellate-counsel claim because it “was not raised in the District Court.” Id. The OCCA did not mention Hartness's request that the OCCA consider the updated federal sentencing guidelines. Id. at 1-3.

         Hartness filed the instant § 2241 petition for a writ of habeas corpus on November 19, 2014. Dkt. # 1 at 1. He seeks federal habeas relief on the following grounds:

Ground One: The order of revokation [sic] is excessive based on the facts and circumstances in this case.
Ground Two: Even though the trial court advised me of my rights, it is apparent that I had not had ample time for deliberation, and I was laboring under a misaprehension [sic] of those rights and did not fully appreciate the consequences of this plea agreement.
Ground Three: Because I was not entitled to receive a split sentence, the suspended sentence should be void.
Ground Four: O.I.D.S. defense counsel was ineffective for failing to raise on direct appeal the issues I raised in my postconviction relief.
Ground Five: I ask the court to consider the updated Federal Sentencing Guidelines. These NON-VIOLENT property and simple possession charges from 2000 now carry substantially lower penalties than at the time I was convicted.

Dkt. # 1 at 5, 7, 8, 10, 12.

         In response to the petition, Bryant concedes that the claims raised in Grounds One and Four are timely under § 2244(d) and exhausted under § 2254(b)(1)(A). See Dkt. # 5 at 2. But he contends that Hartness is not entitled to habeas relief on these claims because Ground One alleges an error of state law that is not cognizable on habeas review and Ground Four is procedurally defaulted. Id. at 4-7, 13-16. Bryant further contends that Hartness has not demonstrated cause for the default, actual prejudice, or that failure to review the defaulted claim would result in a miscarriage of justice. Id. at 14-17. Bryant concedes that the claims raised in Grounds Two, Three and Five are exhausted, but he contends that these claims are time barred because they challenge the imposition, rather than the revocation, of Hartness's suspended sentence. Id. at 2, 7-10. Bryant further contends that Hartness has not demonstrated that he is entitled to either statutory or equitable tolling. Id. at 10-12.

         Hartness filed a reply brief, raising several “objections” to the response, alleging that he is entitled to “tolling” for any time barred claims, and asserting “cause and prejudice” warrants review of any procedurally defaulted claims to avoid a “miscarriage of justice.” Dkt. # 9 at 3, 7, 9-11. Hartness also requests an evidentiary hearing on the “issue of exhaustion” and seeks appointment of counsel.[6] Id. at 8, 13.

         ANALYSIS

         Initially, the Court notes that some claims raised in Hartness's § 2241 habeas petition appear to challenge the validity of his suspended sentence while other claims appear to challenge only the revocation of his suspended sentence. See Dkt. # 1. The Tenth Circuit has explained that “a state prisoner's federal habeas challenge to the validity of an underlying conviction or sentence must typically be brought under § 2254.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 (10th Cir. 2017). However, “[a] state prisoner's challenge to the revocation of a suspended sentence is properly brought under § 2241” because it challenges the execution, rather than the validity, of the sentence. Id. at 1041-42. Thus, to the extent that Hartness's claims challenge the revocation of his ...


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