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Mason v. Martin

United States District Court, N.D. Oklahoma

July 19, 2018

JERRY LEON MASON, Petitioner,
v.
JIMMY MARTIN, [1] Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE

         This matter comes before the Court on Petitioner's amended 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 3). Petitioner challenges the judgment and sentence entered against him in Tulsa County District Court, No. CF-2012-4414. In that case, Petitioner entered pleas of no contest to one count of first degree burglary, two counts of first degree rape by force and fear, and one count of forcible sodomy. Respondent filed a response to the habeas petition and provided relevant state court records (Dkt. # 11). Petitioner filed a reply (Dkt. # 12). For the reasons discussed below, the Court dismisses in part and denies in part the petition for writ of habeas corpus. The Court also denies Petitioner's request for appointment of counsel and denies a certificate of appealability.

         BACKGROUND

         In 2012, the State of Oklahoma charged Petitioner in Tulsa County District Court, No. CF-2012-4414, with one count of first degree burglary, two counts of first degree rape, and one count of forcible sodomy. Dkt. # 11-2 at 3. Represented by attorney Brian Rayl, Petitioner pleaded no contest to all four charges. Dkt. # 11-1. As a factual basis for his pleas, Petitioner proffered that he “pushed his way into [the] victim's residence, vaginally & anally penetrated her w[ith] his penis, and put his penis in her mouth all against her will in Tulsa County.” Id. at 5. The state district court found Petitioner guilty as charged, imposed a 25-year prison sentence with all but the first 18 years suspended for each conviction, and ordered the sentences to be served concurrently. Id. at 5-6; Dkt. # 11-2 at 11.

         Represented by Matthew Day and Isaiah Parsons, Petitioner moved to withdraw his pleas within 10 days of sentencing as required by Oklahoma law. Dkt. # 11-2 at 17; Dkt. # 11-5 at 1-2; see Okla. Stat. tit. 22, § 1051; Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018). The state district court held an evidentiary hearing on June 12, 2014, denied the motion, and advised Petitioner of his appeal rights. Dkt. # 11-2 at 18. Through Day and Parsons, Petitioner filed a notice of intent to appeal on June 25, 2014. Id.; see also State v. Mason, No. CF-2012-4414, available at http://www.oscn.net/dockets (last visited July 16, 2018). Five days later, the state district court appointed an attorney from the Oklahoma Indigent Defense System (OIDS) to represent Petitioner on appeal. Dkt. # 11-3 at 2. Cindy Danner, Chief of the OIDS's General Appeals Division, moved to dismiss Petitioner's appeal without prejudice for lack of jurisdiction, asserting that Petitioner filed his notice of intent to appeal two days late. Dkt. # 11-2 at 18; Dkt. # 11-3; see Rule 4.2(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (providing 10-day period to file notice of intent to appeal from denial of motion to withdraw plea is jurisdictional and that “failure to timely file constitutes waiver of the right to appeal”). By unpublished order filed September 15, 2014, the Oklahoma Court of Criminal Appeals (OCCA) agreed the notice of appeal was untimely and dismissed the appeal for lack of jurisdiction. Dkt. # 11-4 at 2.

         Before the OCCA dismissed his untimely appeal, Petitioner filed an application for post-conviction relief in state district court seeking permission to file an appeal out of time. Dkt. # 11-5; see Okla. Stat. tit. 22, § 1080; Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (providing procedures for obtaining out-of-time appeal). In his application, Petitioner stated that he failed to timely file his notice of intent to appeal because “he was unable to make a decision on whether to appeal in the requisite short amount of time, ” and he “was not given adequate time to determine whether to appeal.” Dkt. # 11-5 at 1-2. Petitioner further stated that his “attorney visited him within the ten days required, and [Petitioner] was unable to make up [his] mind at that time, ” but Petitioner “ultimately wanted to appeal the case.” Id. By order filed November 3, 2014, the state district court denied Petitioner's motion to file an out-of-time appeal. Dkt. # 11-6. The court found “that Petitioner's indecision over whether to appeal from [the] court's denial of his Motion to Withdraw Plea does not constitute a unique circumstance such as to warrant the granting of an appeal out of time.” Id. at 3. The court further found “no facts to show that the Petitioner was denied an appeal through no fault of his own.” Id.; see Rule 2.1(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (“A petitioner's right to appeal [out-of-time] is dependent upon the ability to prove he/she was denied an appeal through no fault of his/her own.”). Petitioner did not appeal the state district court's order denying his request for an out-of-time appeal.

         Petitioner, appearing pro se, commenced this federal habeas proceeding on April 6, 2015, by filing a petition for writ of habeas corpus (Dkt. # 1). As directed by the Court, see Dkt. # 2, Petitioner filed an amended habeas petition (Dkt. # 3) on April 16, 2015.

         Petitioner alleges he is entitled to federal habeas relief on the following grounds:

Ground One: [I]nnocent of the crime ineffective assistance of counsel Fourteenth Amendment violation
Potts vs. Oklahoma defendant has been in prison before and is not allowed to have a split sentence his 25 years in and 18 years out is and [sic] illegal sentence by law under the Oklahoma statute
Ground Two: Is innocent of the crime
See order No. 15-CV-167-GKF-TLW need a lawyer appointed to this case because defendant is not cable [sic] of fight his case because DOC does not have a law library cable [sic] of helping hi[m] with this issue
Ground Three: Fourteenth Sixth 8th amendment violation
Case No. 15-CV-167-GKF-TLW

Dkt. # 3 at 5, 7, 8.

         Almost one year after filing his federal habeas petition, on March 3, 2016, Petitioner filed a second application for post-conviction relief in state district court. Dkt. # 16 at 9. Petitioner raised three issues: (1) he is innocent, (2) he received ineffective assistance of appellate counsel when counsel failed to timely file his notice of intent to appeal, and (3) the OCCA cited an incorrect procedural rule when it dismissed his appeal for lack of jurisdiction. Dkt. # 16 at 15. The state district court denied Petitioner's second application for post-conviction ...


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