United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
the Court is petitioner John Hartness's 28 U.S.C. §
2241 petition for writ of habeas corpus (Dkt. #
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
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.
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. 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. 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.
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.
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.
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
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.
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,
(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
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.
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
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.
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.
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. Id. at 8, 13.
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