United States District Court, W.D. Oklahoma
JAMAR J. DRAPER, Petitioner,
JIMMY MARTIN, Warden,  Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se, brings this
habeas action under 28 U.S.C. § 2254 challenging his
state conviction. The matter has been referred to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). Rather than
respond to the merits of the Petition, Respondent has filed a
Motion to Dismiss for Failure to Exhaust State Remedies, Doc.
No. 12, and a Brief in Support of Motion to Dismiss. Doc. No.
13. Petitioner has responded to the Motion. Doc. No. 15. For
the following reasons, it is recommended that
Respondent's Motion to Dismiss be granted on the basis
that Petitioner has filed a mixed petition with both
exhausted and non-exhausted claims.
challenges his convictions pursuant to a negotiated guilty
plea to fifteen felony charges: Burglary in the First Degree
(Count 1), in violation of Okla. Stat. tit. 21, § 1431;
Conjoint Robbery with a Firearm (Count 2), in violation of
Okla. Stat. tit. 21, § 801; Assault with a Dangerous
Weapon while Masked (Count 3), in violation of Okla. Stat.
tit. 21, § 1303; Rape in the First Degree (Counts 4, 7,
13, and 14), in violation of Okla. Stat. tit. 21, §
1111; Forcible Sodomy (Counts 5, 6 and 8), in violation of
Okla. Stat. tit. 21, § 888; Possession of a Firearm
During the Commission of a Felony (Count 9), in violation of
Okla. Stat. tit. 21, § 1287; Conspiracy (Count 10), in
violation of Okla. Stat. tit. 21, § 421; Sexual Battery
(Counts 11 and 12), in violation of Okla. Stat. tit. 21,
§ 1123(B); and Kidnapping (Count 15), in violation of
Okla. Stat. tit. 21, § 741.
Honorable Donald L. Worthington, Logan County District Judge,
accepted Petitioner's guilty plea and sentenced him in
accordance with his negotiated plea agreement to twenty-five
years' imprisonment on each of Counts 1, 2, 4, 7, 13 and
14, with all but the first fifteen years suspended; twenty
years' imprisonment on Counts 5, 6 and 8 with all but the
first fifteen years suspended; ten years' imprisonment on
Counts 9, 10, and 15; and five years' imprisonment on
Counts 3, 11 and 12. Sentences on all counts were ordered to
be served concurrently.
Petitioner's Direct Appeal
trial court denied Petitioner's timely-filed motion to
withdraw his guilty plea. Petitioner then filed his first
Application for Post-Conviction Relief, seeking an appeal
out-of-time. The Oklahoma Court of Criminal Appeals (OCCA)
granted his application, and Petitioner, represented by new
counsel, raised the following claims on direct appeal:
1. Petitioner's guilty plea was based on an insufficient
factual basis in that he did not rape anyone, did not aid and
abet in the rape, and he was found guilty by association.
Doc. No. 13-3 at 13-18.
2. Petitioner's plea was unknowingly and involuntarily
made because Petitioner did not understand the theory of
conjoint criminal liability, he had no input into the
statement of the factual basis he read in the trial court,
and his attorney coerced him into pleading guilty by telling
him he would get “hammered” by a jury;
Id. at 19-22
3. Petitioner's convictions for multiple felony counts of
Conjoint Robbery with a Firearm, Assault with a dangerous
Weapon while Masked and Possession of a Firearm During the
Commission of a Felony are convictions for the same act;
id. at 24-25; and Petitioner's convictions for
rape, sodomy and kidnapping, id.at 26-27, are also
convictions for the same act.
4. Petitioner did not receive the effective assistance of
counsel in that counsel did not raise the issue of double
punishment, incorrectly advised him of his possible liability
regarding conjoint liability and repeatedly advised that if
he proceeded to trial he would “get hammered.”
Id. at 28-29.
OCCA denied Petitioner's appeal on August 12, 2016. Doc.
Petitioner's First Federal Habeas Action
October 25, 2016, Petitioner filed his first case in this
Court seeking habeas relief. See Draper v. Farris,
CIV 16-1231-R, Doc. No. 1 (filed Oct. 25,
2016). Respondent moved to dismiss the case as a
mixed petition containing both exhausted and non-exhausted
grounds for relief. United States Magistrate Judge Bernard
Jones, to whom the case had been assigned for initial
proceedings, recommended respondent's motion be granted.
See Report and Recommendation, CIV 16-1231-R, Doc.
No. 17. Judge Jones found Petitioner had exhausted
state court remedies as to the following grounds for relief:
1. that Petitioner's convictions on multiple counts of
rape and forcible sodomy violated the Double Jeopardy Clause;
2. that Petitioner had been found guilty by association for
crimes he did not actually commit.
Judge Jones found Petitioner had not exhausted state court
remedies with respect ...