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Burks v. Janis

United States District Court, N.D. Oklahoma

June 5, 2018

BILLY RAY BURKS, Petitioner,
v.
DWAYNE JANIS, Warden, [1] Respondent.

          OPINION AND ORDER

          GREGORY K. ERIZZELL, JUDGE

         Before 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.

         I. Background

         This 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.

         The State appointed attorney Kathy Baker to represent Burks. See Dkt. 10-5 at 25. On October 17, 2013, Burks entered a blind guilty plea.[2] 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.

         Burks, 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.

         The 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.

         Burks 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.

         Burks 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, 15.

         II. Analysis

         The 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.[3] 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);[4] (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).

         “To 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).

         Essentially, 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.

         I. Ground 1: Guilty Plea

         Burks 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.

         1. ...


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