United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, JUDGE
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. 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.
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.
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.
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
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. 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.
15, 2012, petitioner violated the terms of his drug court
plea agreement, in No. CF-2010-428, by leaving the state
without permission. 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,
moved to revoke his 10-year suspended sentence in No.
CF-2011-138, see Dkt. # 2 at 3.
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.
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.
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.
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
filed the instant federal petition for writ of habeas corpus
(Dkt. # 1), along with a supporting brief (Dkt. # 2), on
January 5, 2015.
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
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.
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).
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)