United States District Court, N.D. Oklahoma
SCOTT Q. LEWALLEN, Petitioner,
JIMMY MARTIN, Warden,  Respondent.
OPINION AND ORDER
GREGORY K. FRIZZELL JUDGE
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,  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.
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). See Dkt. 11-10,
Second Am. Information, at 1-2. 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. 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
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. 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.
February 10, 2012, Petitioner filed a pro se written motion
renewing his recusal request. See Dkt. 11-9, Mot. to
Disqualify, at 1-2. 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.
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.
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.
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.
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; (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.
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).
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. 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.
Claims adjudicated on the merits
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)(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)).
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
§ 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).
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.
Challenges to the validity of the guilty pleas (Grounds 1 and
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.
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.
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.
Due-process claim (Ground 1)
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. 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
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.
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.
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, ...