Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Draper v. Martin

United States District Court, W.D. Oklahoma

April 2, 2019

JAMAR J. DRAPER, Petitioner,
v.
JIMMY MARTIN, Warden, [1] Respondent.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.

         1. Background

         Petitioner 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.

         The 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.[2]

         A. Petitioner's Direct Appeal

         The 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.

         The OCCA denied Petitioner's appeal on August 12, 2016. Doc. No. 13-4.

         B. Petitioner's First Federal Habeas Action

         On 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).[3] 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.[4] 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; and
2. that Petitioner had been found guilty by association for crimes he did not actually commit.

         Conversely, Judge Jones found Petitioner had not exhausted state court remedies with respect ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.