United States District Court, N.D. Oklahoma
OPINION AND ORDER
Terence C. Kern United States District Judge
the Court is Petitioner Tommy Montana Wheeler's habeas
corpus petition under 28 U.S.C. § 2254 (Dkt. 1).
Petitioner challenges his Tulsa County District Court
convictions for armed robbery, Case No. CF-2008-5609. Dkt. 1
at 1. For the reasons below, the Court will deny the
convictions stem from an incident in 2008, when he robbed a
pharmacy. Dkt. 12-2 at 3. The State charged him with robbery
using a firearm after three felonies in violation of Okla.
Stat. tit. 21, § 801. Dkt. 12-5 at 1; see also
Dkt. 4 at 3. On April 20, 2009, Petitioner entered a
negotiated plea. Dkt. 12-2. He agreed to plead guilty in
exchange for a sentence of up to 30 years imprisonment.
Id. The state court accepted the plea and sentenced
Petitioner to 30 years imprisonment, a $500 fine, and a $250
victim of crime assessment. Dkt. 12-1. Petitioner must serve
85% of his sentence before becoming eligible for parole. Dkt.
12-2 at 2. Judgment on the conviction and sentence was
entered April 22, 2009. Dkt. 12-1.
days later, Petitioner consulted with other inmates and
decided to withdraw his plea. Dkt. 4 at 2. He asked counsel
to file a motion to that effect, but counsel allegedly failed
to do so within the ten-day withdrawal window. Id.
On September 22, 2009, Petitioner filed an application for
post-conviction relief. Dkt. 12-4 at 8. He was eventually
granted the right to appeal out of time. Id. at 9.
Thereafter, the Oklahoma Court of Criminal Appeals (OCCA)
directed the public defender to file a motion to withdraw the
plea. Id. at 9-10. Plea Counsel filed the motion on
September 13, 2011. Id. at 10. The motion alleged
Plea Counsel failed to advise Petitioner that: (a) robbery is
an 85% crime; (b) a 30-year sentence is grossly excessive.
Id. The state court appointed Conflict Counsel, held
a hearing on October 10, 2011, and denied the motion to
withdraw. Id. at 10-11.
some procedural glitches, Petitioner eventually perfected a
certiorari appeal to the Oklahoma Court of Criminal Appeals
(“OCCA”). Dkt. 12-4 at 10-13. His appellate
counsel raised three propositions of error:
(Proposition 1): The plea was involuntary.
(Proposition 2): Plea Counsel rendered ineffective
(Proposition 3): The sentence is excessive.
Dkt. 12-5 at 2. By a Summary Opinion entered February 25,
2016, the OCCA denied certiorari relief and affirmed
Petitioner's conviction. Id.
filed the instant § 2254 Petition (Dkt. 1) on March 22,
2016. He identifies the same grounds for relief as he raised
in the certiorari appeal. Respondent filed a Response (Dkt.
12) along with copies of the state court record (Dkt. 13).
Respondent concedes, and the Court finds, that the petition
is timely and the exhaustion requirement is satisfied.
See Dkt. 12 at 2; see also 28 U.S.C.
§§ 2244(d)(1), 2254(b)(1)(A). The matter is
therefore ready for a merits review.
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
this Court's review of petitioner's 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). Further,
because the OCCA already adjudicated petitioner's claims,
this Court may not grant habeas relief unless he demonstrates
that the OCCA's ruling: (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
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) (quotations omitted). 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. (quotations omitted).
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) (quotations omitted). “[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.
1: Involuntary Plea
Ground 1, Petitioner contends his guilty plea was
involuntary. Dkt. 1 at 6. He argues he signed the plea
agreement while suffering from opiate withdrawals and taking
new prescription medication (antipsychotics and mood
stabilizers). Dkt. 4 at 2, 7. Petitioner further argues he
only signed the agreement to obtain a transfer out of the
Tulsa County Jail, where he felt unsafe due to his gender
confusion. Id. Under these circumstances, Petitioner
contends the state court violated the Due Process Clause by
denying his motion to withdraw the plea. Id.
comport with due process, a plea must be knowing, voluntary
and intelligent. See Brady v. United States, 397
U.S. 742, 747-78 (1970); Boykin v. Alabama, 395 U.S.
238, 242 (1969). A plea is knowing and intelligent if the
defendant “understands [the plea's] direct
consequences, ” even if he does “not understand
every collateral consequence.” United States v.
Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002). At a
minimum, the defendant must understand the nature of the
charges against him, the possible penalties, including the
maximum penalty that may be imposed, and the constitutional
rights he is waiving by entering a plea. See Brady v.
United States, 397 U.S. 742, 756-57 (1970);
Boykin, 395 U.S. at 242-44. To be voluntary, the
defendant must make the ultimate decision to plea. See
Fields v. Gibson, 277 F.3d 1203, 1213 (10th Cir. 2002)
(explaining that a plea may be involuntary if counsel
“materially misinforms the defendant of the
consequences of the plea”) (quoting United States
v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990));
United States v. Estrada, 849 F.2d 1304, 1306 (10th
Cir. 1988) (“[C]oercion by the accused's counsel
can render a plea involuntary.”). “Whether a plea
is voluntary is a question of federal law, but this legal
conclusion rest on factual findings and inferences from those
findings.” Fields, 277 F.3d at 1212.
determining whether a plea is knowing and voluntary, habeas
courts may consider the petitioner's signed plea
worksheet or other written documents relevant to the plea.
See Hoffman v. Young, 23 Fed. App'x 885, 887
(10th Cir. 2001) (unpublished) (“[R]eliance upon …
documentary evidence such as the questions and answers to a
form may be sufficient to make th[e] determination”
that “a guilty plea is knowing and voluntary”);
Cross v. Franklin, 520 Fed. App'x. 671, 674-75
(10th Cir. 2013) (unpublished) (rejecting involuntary plea
claim where the signed plea worksheet listed the proper range
of punishment and petitioner indicated he knew the punishment
range); Brown v. Dep't of Corrs. Oklahoma State
Penitentiary, 597 Fed.Appx. 960, 963 (10th Cir. 2014)
(finding a plea was voluntary where defendant acknowledged
the maximum penalty in writing). The petitioner's
testimony at the plea hearing as to the knowing and voluntary
nature of his plea is also accorded a strong presumption of