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Lewallen v. Martin

United States District Court, N.D. Oklahoma

March 19, 2018

SCOTT Q. LEWALLEN, Petitioner,
JIMMY MARTIN, Warden, [1] Respondent.



         Before the Court is Petitioner Scott Lewallen's 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. 2). Petitioner, a state inmate appearing pro se, [2] challenges his convictions entered in Tulsa County District Court No. CF-2010-1971 for first degree manslaughter and driving with a revoked license. Respondent filed a response to the petition (Dkt. 11), and provided the state court record necessary for resolution of Petitioner's claims (Dkts. 11, 12). Petitioner filed a reply (Dkt. 15). For the reasons discussed below, the Court finds and concludes the petition should be denied.


         In 2010, the State of Oklahoma charged Petitioner, in Tulsa County District Court No. CF-2010-1971, with first degree manslaughter, in violation of Okla. Stat. tit. 21, § 711, after two former felony convictions (Count 1), and driving with a revoked license, in violation of Okla. Stat. tit. 47, § 6-303(B) (Count 2).[3] See Dkt. 11-10, Second Am. Information, at 1-2.[4] Petitioner's trial began on November 7, 2011. Dkt. 12-3, Tr. Mot. Hr'g (Nov. 7, 2011). During jury selection on the second day of trial, Petitioner, represented by attorneys Becki Murphy and Clint Patterson, entered blind guilty pleas to both charges.[5] Dkt. 12-4, Tr. Plea Hr'g (Nov. 8, 2011), at 1, 3, 10-11. After a thorough plea colloquy, the trial court accepted the pleas as knowing, voluntary, and supported by a factual basis, found Petitioner guilty as charged, and set the matter for sentencing. Id. at 4-13.

         Two days before his sentencing hearing, Petitioner moved to withdraw his pleas. Dkt. 11-1, Mot. to Withdraw Plea (Jan. 4, 2012), at 1. He alleged he pleaded guilty based on his attorneys' “inaccurate” advice that he would be eligible for judicial review and a possible sentence modification one year after he was sentenced.[6] Id. He further alleged that, after entering his pleas, he learned that his criminal history made him ineligible for judicial review. Id. The trial court held a hearing on the motion on January 6, 2012. Dkt. 12-5, Tr. Mot. Hr'g (Jan. 6, 2012). The court appointed attorney April Seibert to represent Petitioner at the hearing and, at the conclusion of the hearing, the trial court denied the motion. Id. at 10-11, 69-73. Immediately after the hearing, Petitioner asked the trial judge to recuse from the case. Id. at 73-79. The court held a brief hearing on that request and denied the same. Id.

         On February 10, 2012, Petitioner filed a pro se written motion renewing his recusal request. See Dkt. 11-9, Mot. to Disqualify, at 1-2.[7] The trial court held a hearing on the motion on February 21, 2012. Dkt. 12-6, Mot. Hr'g (Feb. 21, 2012). Attorney Patrick Adams represented Petitioner at the hearing and adopted the motion as his own. Id. at 2. The court denied the motion. Id. at 2-4. Petitioner sought rehearing of his recusal motion with the presiding judge of the administrative district, who also denied the motion following a hearing. Dkt. 12-7, Tr. Mot. Hr'g (Mar. 14, 2012), at 3, 55-57. Petitioner sought review of the presiding judge's ruling by filing a writ of mandamus with the Oklahoma Court of Criminal Appeals (OCCA). See Dkt. 11-4, Pet'r App. Evid. Hr'g, Att. 4 (Adams Affidavit), at 82. The OCCA dismissed the writ as untimely on May 30, 2012. Id.

         Petitioner, represented by Adams, appeared for sentencing on June 4, 2012. Dkt. 12-9, Tr. Sent. Hr'g (June 4, 2012). On the morning of the sentencing hearing, Adams filed a written motion to withdraw from the case. See Id. at 3. At the hearing, Adams advised the trial court that he sought to withdraw based on “disagreements and a complete breakdown in any ability to communicate with [Petitioner] as his attorney.” Id. The court denied the motion and proceeded with sentencing. Id. After hearing statements from several of the victim's family members, argument from the prosecutor and Adams, and a statement from Petitioner, id. at 6-44, the court imposed a life sentence for the manslaughter conviction and a concurrent one-year jail sentence for the conviction of driving with a revoked license, id. at 46-50.

         On June 11, 2012, Petitioner filed a pro se motion alleging (1) he received ineffective assistance of plea counsel and (2) the trial judge was biased and should have disqualified himself. Dkt. 11-2, Post-Sent. Mot. to Withdraw Plea (June 11, 2012). On the same day, Adams filed a separate motion on Petitioner's behalf, alleging Petitioner's plea was not “knowingly” entered based on the erroneous advice from plea counsel regarding his eligibility for judicial review. Id. at 8. The trial court denied both motions on June 13, 2012. See Dkt. 11-5, Resp. Cert. App. Brief, at 33.

         Petitioner filed a certiorari appeal with the OCCA, raising eight propositions of error, and sought an evidentiary hearing on his ineffective assistance of counsel claims. See Dkt. 11-3, Pet'r Cert. App. Brief; Dkt. 11-4, Pet'r App. Evid. Hr'g. On September 24, 2013, the OCCA issued an unpublished summary opinion denying Petitioner's request for an evidentiary hearing and affirming Petitioner's convictions and sentences. Dkt. 11-7, Lewallen v. State, No. C-2012-518 (Okla. Crim. App. 2013) (unpublished) (hereafter, “OCCA Op.”). Petitioner did not seek post-conviction relief.


         Petitioner filed the instant habeas petition on December 22, 2014. Dkt. 2. He seeks habeas relief on the following grounds: (1) his pleas were not knowingly, intelligently, or voluntarily entered; (2) he was denied his right to have a fair and impartial judge preside over his withdrawal of plea and sentencing hearings; (3) he received ineffective assistance from (A) plea counsel, (B) recusal counsel, (C) sentencing counsel, and (D) all counsel;[8] (4) his convictions for manslaughter and the underlying misdemeanor offense of driving with a revoked license violate the Double Jeopardy Clause's prohibition against multiple punishments; (5) he was deprived of his right to conflict-free sentencing counsel; and (6) the cumulative effect of errors deprived him of a fair trial. Dkt. 2.

         Because Petitioner is a state prisoner, the Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court's review of his habeas claims. See 28 U.S.C. § 2254. Under the AEDPA, a federal court may grant habeas relief to a state prisoner “only on the ground that [the prisoner] is in custody in violation of the Constitution or laws or treaties of the United States.” Id. § 2254(a). In addition, before a federal court may grant habeas relief, a state prisoner must exhaust available state-court remedies, id. § 2254(b)(1)(A), by “fairly present[ing] the substance of his federal habeas claim[s] to state courts, ” Hawkins v. Mullins, 291 F.3d 658, 668 (10th Cir. 2002). And, in most cases, the prisoner must file a federal habeas petition within one year of the date on which his convictions became final. See 28 U.S.C. § 2244(d)(1).

         Respondent concedes, and the Court finds, that Petitioner exhausted his habeas claims by presenting them to the OCCA in his certiorari appeal, and that Petitioner timely filed his habeas petition. See Dkt. 11 at 2.[9] Respondent contends, however, that § 2254(d) bars Petitioner from obtaining habeas relief on the four claims the OCCA adjudicated on the merits-Grounds 1, 2, 3(A), and 6. See Dkt. 11 at 2-36, 49-50. Respondent further contends Petitioner's remaining claims-Grounds 3(B), 3(C), 3(D), 4 and 5-are procedurally barred. See Id. at 36-49.

         I. Claims adjudicated on the merits

         Petitioner seeks habeas relief on four claims the OCCA adjudicated on the merits. The AEDPA limits the ability of a federal court to grant habeas relief for constitutional claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). With respect to such claims, a federal court may not grant habeas relief unless the prisoner demonstrates that the state court's adjudication of those claims “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by Supreme Court of the United States, ” id. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts” in light of the record presented to the state court, id. § 2254(d)(2).

         Under § 2254(d)(1), “[a] state-court decision is contrary to clearly established federal law . . . if it ‘applies a rule that contradicts the governing law set forth in Supreme Court cases or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent.'” Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (quoting Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)). For purposes of habeas review, “clearly established federal law” means “the governing legal principle or principles” stated in “the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

         A state-court decision involves an unreasonable application of clearly established federal law “if the decision ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.'” Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015) (quoting Williams, 529 U.S. at 407-08). An unreasonable application by the state court is “not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Rather, a petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

         Under § 2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). And, on habeas review, a federal court must presume the correctness of a state court's factual findings unless the petitioner rebuts the presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         Finally, even if a habeas petitioner satisfies § 2254(d)'s demanding standards, the petitioner is not automatically entitled to habeas relief. Milton v. Miller, 744 F.3d 660, 670 (10th Cir. 2014). Rather, satisfaction of these standards “effectively removes AEDPA's prohibition on the issuance of a writ” and “requires [the federal habeas court] to review de novo” the petitioner's claims, i.e., without deference to the state court's decision, to determine whether the petitioner is entitled to habeas relief. Id. at 670-71.

         A. Challenges to the validity of the guilty pleas (Grounds 1 and 3(A))

         Petitioner alleges two separate but related constitutional challenges to the validity of his blind guilty pleas. First, in Ground 1, Petitioner asserts a due-process claim, alleging his guilty pleas are neither knowing nor voluntary because his plea attorneys, Murphy and Patterson, erroneously advised him (1) that he would be eligible for a one-year judicial review and (2) that he might receive a lesser sentence if he pleaded guilty. Dkt. 3 at 23-24. Second, in Ground 3(A), Petitioner asserts a Sixth Amendment claim, alleging his plea attorneys were constitutionally ineffective when they erroneously advised him he would be eligible for judicial review and that he might receive a lesser sentence. Id. at 30-34. He further alleges that, but for that erroneous advice, he would not have pleaded guilty and would have insisted on going to trial. Id. at 31-32.

         The OCCA considered each claim separately, and rejected both on the merits. Dkt. 11-7, OCCA Op., 3-4, 7-9. As Respondent points out, the OCCA made findings relevant to both claims in addressing Petitioner's Sixth Amendment claim. See Dkt. 11 at 18 n.6. The OCCA found, and the record reflects, that Petitioner's plea attorneys “incorrectly” advised Petitioner he would be “eligible” for judicial review. Dkt. 11-7, OCCA Op., at 7-8. At the hearing on his motion to withdraw his pleas, Murphy and Patterson both testified they advised Petitioner he would be eligible for a one-year judicial review and that the possibility of a one-year review seemed “very important” and “key” to his decision to enter a blind plea. Dkt. 12-5, Tr. Mot. Hr'g (Jan. 6, 2012), at 12, 15-17, 25, 31-35, 41. Petitioner testified he understood he would be eligible for a judicial review and the possibility of obtaining a one-year judicial review was “a big part of” his decision to plead guilty. Id. at 51.

         The OCCA also found, based on Petitioner's testimony, that his “decision to plead guilty did not rest entirely on the possibility of judicial review, but also was based on other considerations.” Dkt. 11-7, OCCA Op., at 8-9.

         1. Due-process claim (Ground 1)

         As previously stated, the crux of Petitioner's due-process claim is that his guilty pleas were not entered knowingly and intelligently because plea counsel erroneously advised him (1) that he would be eligible for judicial review and (2) that he might get a lesser sentence by pleading guilty. Dkt. 3 at 23-24.[10] The OCCA rejected Petitioner's due-process claim. See Dkt. 11-7, OCCA Op., at 3-4. Citing Estell v. State, 776 P.2d 1380, 1383 (Okla. Crim. App. 1988), the OCCA stated that “[w]hen a defendant claims that his guilty plea was entered through inadvertence, ignorance, influence or without deliberation, he has the burden to show not only that the plea was entered as a result of one of these reasons, but also that there is a defense that should be presented to the jury.” Dkt. 11-7 at 3. Citing Brady v. United States, 397 U.S. 742, 757 (1970), the OCCA further stated that a plea is not necessarily invalid “if the defendant did not correctly assess every relevant fact entering into his decision” or if the defendant “misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action.” Dkt. 11-7 at 3-4. Applying Estell and Brady, the OCCA reasoned,

While [Petitioner] presents a colorable claim that his plea was entered from a misunderstanding of whether he would be eligible for judicial review of his sentence, he neither alleged in the district court, nor does he allege here, that he had any defense to present to the jury. He therefore fails to demonstrate an entitlement to withdraw his plea. The trial court judge did not abuse its discretion by denying [Petitioner's] motion to withdraw his plea.

Id. at 4.

         Petitioner contends, under § 2254(d)(1), that the OCCA's decision is either contrary to, or an unreasonable application of, clearly established federal law. Dkt. 3 at 22, 24; Dkt. 15 at 10-11. He argues the OCCA required him to show, under Estell, that he had a defense to present to the jury before he would be entitled to withdraw his plea. Dkt. 3 at 22-24. In doing so, Petitioner argues, the OCCA imposed a higher burden than the one stated in Boykin v. Alabama, 395 U.S. 238 (1969), and Brady which requires a showing that the plea was not knowing and voluntary but does not require a showing that the defendant had a viable defense. Id.; see also Dkt. 15 at 8-10. Thus, Petitioner urges this Court to review his Ground 1 claim de novo and conclude that his guilty pleas were entered in violation of his due process rights. Dkt. 3 at 24; Dkt. 15 at 10-12.

         Respondent contends the OCCA's decision is neither contrary to nor an unreasonable application of Brady. Dkt. 11 at 10. Respondent argues, in part, the OCCA's “requirement that Petitioner show there is a defense to be presented to the jury, is merely a factual circumstance used by the [OCCA] to determine the voluntariness of the plea.” Id. at 10. Alternatively, Respondent argues that even if this Court reviews Petitioner's claim de novo, ...

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