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Jones v. Braggs

United States District Court, W.D. Oklahoma

February 27, 2019

JEROLD BRAGGS, Respondent.



         Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254 regarding his conviction in the District Court of Oklahoma County in No. CF-1984-1993. See Doc. 1, at 1. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to United States Magistrate Judge Shon T. Erwin for preliminary review. On October 5, 2018, Judge Erwin issued a Report and Recommendation (“R&R”) wherein he recommended the habeas petition be denied. See Doc. 8. The matter is currently before the Court on Petitioner's timely objection to the R&R, see Doc. 9, which gives rise to this Court's obligation to review de novo those portions of the R&R to which Petitioner makes specific objection. See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court . . . .”). Having conducted this de novo review, the Court ADOPTS Judge Goodwin's R&R and DISMISSES Petitioner's habeas petition.[1]

         On February 20, 1985, Petitioner pled guilty to first-degree murder, first-degree rape, robbery with a dangerous weapon, and oral sodomy. Id.; see also Doc. 1-3, at 2. He was sentenced to life imprisonment for murder, 100 years imprisonment for rape, 100 years imprisonment for robbery, and 20 years imprisonment for oral sodomy. Id. Petitioner neither appealed his conviction nor moved to withdraw his plea. See Doc. 1, at 2; Doc. 1-3, at 2-3.

         On June 6, 2017-over thirty-two years after his conviction-Petitioner filed an Application for Post-Conviction Relief in Oklahoma state court, asserting the following propositions of error:

. The trial court lacked subject matter jurisdiction because the Information did not sufficiently allege the elements of the charged offenses;
. Petitioner's convictions and sentences violated constitutional protections against double jeopardy and state statutory protections against multiple punishments for the same criminal act;
. Petitioner's sentence was excessive;
. Petitioner's due process rights were violated by the state parole board's failure to promulgate certain rules for determining Petitioner's sentencing under applicable statutory matrices; and
. Petitioner received ineffective assistance of counsel when his attorney failed to investigate and raise a double jeopardy objection and failed to negotiate a favorable plea agreement.

See Doc. 1-3, at 3. The state district court denied Petitioner relief on numerous procedural grounds on August 17, 2017, and the OCCA affirmed the denial on March 23, 2018. See Doc. 1-3-1-4.

         In his habeas petition, filed on September 4, 2018, Petitioner asserts two grounds for relief. Ground 1, brought pursuant to 28 U.S.C. § 2254, is an ineffective assistance of counsel claim-according to Petitioner, his trial counsel abandoned him and failed to perfect his direct appeal. See Doc. 1, at 5; Doc. 1-1, at 2-10. Ground 2, brought pursuant to 28 U.S.C. § 2241, challenges Petitioner's sentence; specifically, Petitioner argues that Oklahoma's failure to promulgate statutorily-mandated rules deprives him of his Due Process rights by precluding a determination of his parole eligibility. See Doc. 1, at 6-7; Doc. 1-1, at 10-11. In his R&R, Judge Erwin denied Petitioner relief on both grounds and dismissed the habeas petition, finding Ground 1 time-barred by the applicable provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and Ground 2 meritless. Petitioner has objected to Judge Erwin's disposition of both grounds.

         Ground 1

         Petitioner argues in Ground 1 that his trial counsel was ineffective for failing to perfect his direct appeal. Considering the timeliness of Petitioner's habeas petition sua sponte, Judge Erwin concluded that Petitioner was time-barred from asserting Ground 1. Under AEDPA, “[a] 1-year period of limitation . . . appl[ies] to an application for a writ of habeas corpus” by a person in state custody. 28 U.S.C. § 2244(d)(1); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The limitations period runs from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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