United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. ERIZZELL, JUDGE
the Court is Billy Ray Burks' 28 U.S.C. § 2254
habeas corpus petition. He challenges his state conviction
and sentence entered in Delaware County District Court No.
CF-2013-144. Dkt. 1 at 1. For the reasons discussed below,
the petition is denied.
case arises from a failed robbery attempt involving Burks and
a co-conspirator. According to the victim, he offered Burks
and another man a ride while they were hitchhiking near Jay,
Oklahoma. See Dkt. 10-1 at 4. Burks then assaulted
the victim and tried to steal his vehicle. Id. at
9-13. The victim fought back and started honking his horn,
and the men fled. Id. at 12. Police arrested Burks
near the Cherokee Turnpike on April 9, 2013. See
Dkt. 10-5 at 8. The State charged him with attempted robbery
in the first degree after conviction of two or more felonies
in violation of Okla. Stat. tit. 21, §§ 42 and 798.
Id. at 4, 6.
State appointed attorney Kathy Baker to represent Burks.
See Dkt. 10-5 at 25. On October 17, 2013, Burks
entered a blind guilty plea. See Dkt. 9-2. The plea
worksheet, signed by Burks and Baker, reflects a range of
punishment of 20 years to life imprisonment. See
Dkt. 9-3 at 6, 9. During the plea colloquy, Burks admitted
guilt and indicated he reviewed the plea worksheet with
counsel. See Dkt. 10-2 at 3-5. Burks also admitted
he served prison time for two other felony convictions within
the preceding ten years, including concealing stolen property
and grand larceny. Id. at 6. The state court
accepted the plea as knowing and voluntary and set the matter
for sentencing. Id. at 7.
represented by Baker, appeared for sentencing on December 18,
2018. See Dkt. 10-3. After hearing argument from the
attorneys and a statement by Burks, the state court sentenced
him to life imprisonment. See Dkt. 10-5 at 81. Burks
then filed a handwritten letter to withdraw his guilty plea,
alleging Baker promised a lower sentence. See Dkt.
9-3 at 15-16. Four days later, Burks filed a formal motion to
withdraw the plea. Id. at 17. He alleged he was
unaware of the consequences of the plea and that Baker
rendered ineffective assistance. Id. Baker notarized
the motion, although he filed it pro se. Id.
State appointed conflict counsel, Ken Gallon, to represent
Burks in the withdrawal proceedings. See Dkts. 9-4
at 3 at 10-5 at 78. Gallon adopted the pro se
filings, appeared at the January 15, 2014 motion hearing, and
elicited testimony about why the plea should be withdrawn.
See Dkt. 10-4 at 4-10. The state court denied the
motion. Id. at 30.
appealed the decision with the assistance of new counsel,
Thomas Purcell. See Dkt. 9-1 at 1. Burks argued: (1)
the plea was not intelligent or voluntary because Baker
advised him the minimum penalty was 20 years imprisonment,
when it was actually four years (“Ground 1”); and
(2) he lacked effective assistance of counsel while preparing
his motion to withdraw the plea (“Ground 2”).
Id. at 2. By an Order entered August 22, 2014, the
Oklahoma Court of Criminal Appeals (“OCCA”)
affirmed. See Dkt. 9-2.
filed the instant federal habeas petition on July 24, 2015.
See Dkt. 1. He seeks relief based on the same
grounds he raised on appeal. Id. at 2. The Oklahoma
Attorney General filed an opposition response, which includes
the state court record. See Dkts. 9 and 10. The
Attorney General concedes, and the Court finds, the petition
is timely and Burks exhausted his claims by presenting them
to the OCCA, as required by 28 U.S.C. §§ 2244(d)(1)
and (b)(1)(A). See Dkt. 9 at 2. The Attorney General
argues, however, Ground 1 is procedurally barred and that
both grounds fail on the merits. See Dkt. 9 at 3,
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
this Court's review of Burks' habeas claims.
See 28 U.S.C. § 2254. Relief is only available
under the AEDPA where the petitioner “is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). “Before
addressing the merits of [the] claim, [the petitioner] must
show that he can satisfy [certain] procedural
requirements.” U.S. v. Greer, 881 F.3d 1241,
1245 (10th Cir. 2018). Those requirements generally include
timeliness, exhaustion, and - at issue here - the absence of
a procedural bar. See 28 U.S.C. §§
2244(d)(1) and (b)(1)(A); Fairchild v. Workman, 579
F.3d 1134, 1141 (10th Cir. 2009). If the procedural
requirements are satisfied or excused, the petitioner must
then show the OCCA's adjudication of the claim: (1)
“resulted in a decision that was contrary to ...
clearly established Federal law as determined by Supreme
Court of the United States, ” 28 U.S.C. §
2254(d)(1); (2) “resulted in a decision that ...
involved an unreasonable application of, clearly established
Federal law, ” id.; or (3) “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. § at 2254(d)(2).
determine whether a particular decision is ‘contrary
to' then-established law, a federal court must consider
whether the decision ‘applies a rule that contradicts
[such] law' and how the decision ‘confronts [the]
set of facts' that were before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 182 (2011)
(alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 405-6 (2006)). When the state
court's decision “‘identifies the correct
governing legal principle' in existence at the time, a
federal court must assess whether the decision
‘unreasonably applies that principle to the facts of
the prisoner's case.'” Id. (quoting
Williams, 562 U.S. at 413). Significantly, an
“unreasonable application of” clearly established
federal law under § 2254(d)(1) “must be
‘objectively unreasonable, ' not merely
wrong.” White v. Woodall, 134 S.Ct. 1697, 1702
(2014) (quoting Lockyer v. Andrade, 538 U.S. 63,
75-76 (2003)). “[E]ven clear error will not
suffice.” Id. Likewise, 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). The Court must presume the correctness of the
OCCA's factual findings unless Petitioner rebuts that
presumption “by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
the standards set forth in § 2254 are designed to be
“difficult to meet, ” Harrington v.
Richter, 562 U.S. 86, 102 (2011), and require federal
habeas courts to give state-court decisions the
“benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). A state prisoner
ultimately “must show that the state court's ruling
… was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103.
Ground 1: Guilty Plea
first contends his plea was not voluntary or intelligent
because his original counsel, Baker, mispresented the minimum
penalty for attempted robbery. Dkt. 1 at 2. The Attorney
General asserts the claim is procedurally barred because
Burks failed to raise it during the withdrawal proceedings.
See Dkt. at 3. Alternatively, the Attorney General
contends the claim fails on the merits. Id. at 10.