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Sherrod v. Dowling

United States District Court, N.D. Oklahoma

March 20, 2018

JOE DON SHERROD, Petitioner,
v.
JANET DOWLING, Warden, [1] Respondent.

          OPINION AND ORDER

          CLAIRE V. EAGAN, JUDGE

         Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by petitioner Joe Don Sherrod, a state inmate appearing pro se. Petitioner challenges his convictions and sentences in Ottawa County District Court No. CF-2010-428, alleging (1) his guilty pleas were not knowing and voluntary and (2) the state district court abused its discretion by revoking him from the Ottawa County Drug Court Program and ordering him to serve life in prison. See Dkt. # 1 at 5-8; Dkt. # 2 at 6-21.[2] Petitioner also challenges the revocation of his suspended sentence in Ottawa County District Court No. CF-2011-138, alleging the state district court abused its discretion in revoking his 10-year suspended sentence in full. See Dkt. # 1 at 10; # 2 at 21-25. Respondent filed a response to the petition (Dkt. # 10) and provided the state-court record (Dkt. ## 10, 11) necessary to adjudicate petitioner's claims. Petitioner filed a reply (Dkt. # 14). For the reasons discussed below, the Court shall deny the habeas petition.

         BACKGROUND

         In December 2010, Petitioner was charged in Ottawa County District Court, No. CF-2010-428, with manufacturing a controlled dangerous substance-methamphetamine (Count 1), possessing a firearm during the commission of a felony (Count 2), possessing a sawed-off shotgun (Count 3), falsely personating another (Count 4), possessing a controlled dangerous substance-marijuana (Count 5), possessing drug paraphernalia (Count 6), and transporting an opened container of beer (Count 7). Dkt. # 2 at 1.

         In April 2011, pursuant to a drug court plea agreement, petitioner pleaded guilty to Counts 1-4, and the State dismissed Counts 5-7. Dkt. # 10-8, Plea of Guilty/Summary of Facts, ¶ 2-4; Dkt. # 11-1, Tr. Plea Hr'g (Apr. 22, 2011), at 9-11. Based on his acceptance into the Ottawa County Drug Court Program, the state district court deferred petitioner's sentencing for two years. Dkt. # 11-1 at 11-23. Under the terms of the plea agreement, if petitioner successfully completed the drug court program, he would receive a controlling 21-year suspended sentence. See id. at 15; Dkt. # 11-4, Tr. Mot. Hr'g (Mar. 15, 2013), at 82. If petitioner failed to complete the program, he would receive a controlling life sentence. Dkt. # 11-4 at 82. After a thorough plea colloquy, the state district court found a factual basis for petitioner's pleas, determined that petitioner understood the terms of the plea agreement-including the sentencing terms, determined that his pleas were knowing and voluntary, and accepted his pleas. Dkt. # 11-1 at 7-11, 13-26.

         In May 2011, petitioner was charged with one count of extortion in Ottawa County District Court, No. CF-2011-138. Dkt. # 11-4 at 35. One month later, petitioner was charged, in Ottawa County District Court, No. CF-2011-183, with conspiring to commit a felony and attempting to bring a controlled dangerous substance into a correctional facility. Id. Based on these new charges the State moved to revoke petitioner from the drug court program. Id. In August 2011, the State dismissed the charges in No. CF-2011-183 due to unavailability of a necessary witness. Id. Petitioner then stipulated to the violations alleged in the State's revocation motion and, pursuant to the parties' agreement, the state district court deferred sentencing in No. CF-2010-428 and adjudication in No. CF-2011-138 to allow petitioner to attend six months of inpatient drug treatment. Id. at 36; Dkt. # 10 at 24.

         On April 9, 2012, the State withdrew its revocation motion in No. CF-2010-428. Dkt. # 11-4 at 36. Ten days later, petitioner entered a negotiated plea of guilty to one count of extortion in No. CF-2011-138. Dkt. # 11-3, Tr. Plea Hr'g (Apr. 19, 2012), at 2-4. In exchange, the State moved to waive the statutory prohibition against imposing a suspended sentence.[3] Id. at 4-5. Following a plea colloquy, the court found a factual basis for the plea, determined the plea was knowing and voluntary, and accepted the plea. Id. at 2-4. The court acknowledged that petitioner was participating in the drug court program and imposed a 10-year suspended sentence. Id. at 5, 7. The court also confirmed that petitioner had reviewed and signed the document listing the rules and conditions of his probation, advised petitioner he would be subject to those rules and conditions for the next 10 years, and explained that if the State proved by a preponderance of the evidence that petitioner violated those rules or conditions the court could revoke his suspended sentence. Id. at 5-6.

         On May 15, 2012, petitioner violated the terms of his drug court plea agreement, in No. CF-2010-428, by leaving the state without permission.[4] Dkt. # 11-4 at 36. He committed additional violations on May 29, 2012, by failing to return to his treatment facility after he had been given permission to leave, and on June 5, 2012, by failing to appear for drug court. Id. Citing these violations, the State moved on June 8, 2012, to revoke petitioner from the drug court program. Id. at 35-37. The State also charged petitioner with one count of bail jumping in Ottawa County District Court No. CF-2012-272, id. at 39, [5] and moved to revoke his 10-year suspended sentence in No. CF-2011-138, see Dkt. # 2 at 3.

         On March 15, 2013, the state district court held a combined hearing in Nos. CF-2012-272, CF-2011-138, and CF-2010-428. Dkt. # 11-4, Tr. Mot. Hr'g (Mar. 15, 2013). After hearing testimony from petitioner and the drug court coordinator, the court (1) revoked petitioner from the drug court program and, pursuant to the drug court plea agreement, imposed four, concurrent life sentences in No. CF-2010-428; (2) found probable cause to bind petitioner over on the bail jumping charge in No. CF-2012-272; and (3) fully revoked his 10-year suspended sentence in No. CF-2011-138 and ordered that sentence to be served concurrently with his life sentence. Id. at 26-27.

         After the combined hearing, petitioner moved to withdraw his guilty pleas in No. CF-2010-428. See Dkt. # 11-5, Tr. Mot. Hr'g (Mar. 29, 2013), at 3. Following a hearing, the district court denied that motion. Id. at 17. Petitioner then filed a certiorari appeal (No. C-2013-746) with the Oklahoma Court of Criminal Appeals (OCCA), raising one proposition of error: “Judge Haney's denial of [p]etitioner's motion to withdraw his plea constitutes an abuse of discretion because [petitioner] did not knowingly and voluntarily enter his pleas.” Dkt. # 10-1, Pet'r Am. Cert. App. Br., at 2.

         Petitioner also filed a direct appeal (No. RE-2013-290) challenging his termination from drug court and the revocation of his suspended sentence. Dkt. # 10-2, Pet'r Dir. App. Br., at 9. In his direct appeal he raised two propositions of error:

Proposition 1: The district court abused its discretion by prematurely terminating [petitioner's] participation in drug court, in lieu of imposing further disciplinary sanctions against [petitioner].
Proposition 2: The district court abused its discretion in revoking [petitioner's] suspended sentence.

Id. at 2.

         On June 5, 2014, the OCCA issued an unpublished summary opinion in Case. Nos. C-2013-746 and RE-2013-290, denying the petition for writ of certiorari, affirming the judgment and sentence in No. CF-2010-428, affirming the state district court's order terminating petitioner from the drug court program, and affirming the court's order revoking his suspended sentence in No. CF-2011-138. Dkt. # 10-5, Sherrod v. State, Nos. C-2013-746, RE-2013-290 (Okla. Crim. App. 2014) (unpublished) (hereafter, “OCCA Op.”), at 5.

         Petitioner filed the instant federal petition for writ of habeas corpus (Dkt. # 1), along with a supporting brief (Dkt. # 2), on January 5, 2015.

         ANALYSIS

         Petitioner seeks habeas relief on the same three grounds he asserted in his certiorari and direct appeals:

Ground 1: Judge Haney's denial of petitioner's motion to withdraw his pleas constitutes an abuse of discretion because petitioner did not knowingly and voluntarily enter his pleas.
Ground 2: The district court abused its discretion by prematurely terminating petitioner's participation in drug court, in lieu of imposing further disciplinary sanctions against petitioner.
Ground 3: The state district court abused its discretion in revoking petitioner's suspended sentence.

Dkt. # 1 at 5-8, 10.

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court's review of petitioner's 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 he 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 timely filed his federal habeas petition and exhausted state remedies by presenting his claims to the OCCA. Dkt. # 10 at 2. Because the OCCA adjudicated petitioner's claims on the merits, the Court may not grant habeas relief unless petitioner demonstrates that the OCCA'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). In applying § 2254(d)'s “highly deferential standard, ” the Court must give the OCCA's decision the “benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ...


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