United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Report and
Recommendation [Doc. No. 13], issued by United States
Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). After considering the claims on
the merits, Judge Mitchell recommended the denial of the
Petition for Writ of Habeas Corpus Under 28 U.S.C. §
2254. Within the time limits authorized by the Court,
Petitioner filed objections. Accordingly, the Court must make
a de novo determination of any portion of the Report
to which a specific objection is made, and may accept,
modify, or reject the recommended decision in whole or in
part. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
raises three grounds for relief in this habeas action: (1)
that his guilty plea to Count 9 was not knowingly and
voluntarily entered because his trial counsel and the trial
court erroneously informed him that the minimum sentence for
heroin trafficking was 10 years as opposed to four years in
his case; (2) that his 10-year sentence for possession of
marijuana (Count 13) was excessive where he pled to
misdemeanor possession; and (3) that he was convicted and
sentenced to a term of imprisonment on Count 4 despite not
being charged with Count 4 (Petitioner's co-defendant was
charged in Count 4).
Mitchell recommends denial of the habeas petition. Although
she acknowledges that federal courts do not review the merits
of procedurally barred claims without a petitioner satisfying
an exception to application of the procedural bar,
Judge Mitchell avoids deciding the procedural bar question.
[Doc. No. 13 at 4]. Noting the exception in Brown v.
Sirmons, 515 F.3d 1072, 1092-1093 (10th Cir.
2008), Judge Mitchell concludes that the “interest of
efficiency” is served here where the “claims can
readily be dismissed on the merits.” [Doc. No. 13 at
4-5]; see also Sirmons, 515 F.3d at 1092-1093
(quoting Snow v. Sirmons, 474 F.3d 693, 717
(10th Cir. 2007)) (“We can avoid deciding
procedural bar questions where claims can readily be
dismissed on the merits.”). Upon de novo
review, the Court concurs that Petitioner's claims can
readily be dismissed on the merits.
Minimum Sentence for Heroin Trafficking (Count 9)
contends that his guilty plea was unknowing and involuntary
because his counsel and the trial judge improperly informed
him that the minimum sentence for heroin trafficking
committed in May 2015 was 10 years' imprisonment.
According to Petitioner, the minimum sentence in his case
should have been four years' imprisonment. The Court
concurs with Judge Mitchell's conclusion that 10
years' imprisonment was the correct minimum sentence in
Petitioner's case. Pursuant to Okla. Stat. tit. 63,
§ 2-415(D)(1) (2014), the punishment range for
trafficking 10 grams or more of heroin was “[n]ot less
than twice the term of imprisonment provided for in Section
2-401 of this title.” Section 2-401(B) contains two
separate mandatory minimums depending on the identity of the
substance. See Okla. Stat. tit. 63, §
2-401(B)(1) and (2) (2012). A Schedule I substance that
“is a narcotic drug … as defined in Sections
2-204 and 2-208 of this title” would be the basis for a
term of imprisonment of not less than five years. Okla. Stat.
tit. 63, § 2-401(B)(1) (2012). However, a person
convicted of trafficking any other Schedule I controlled
substance would be exposed to a term of imprisonment of not
less than two years. Okla. Stat. tit. 63, § 2-401(B)(2)
(2012). Thus, “twice the term of imprisonment”
would be 10 years if heroin meets the definition of a
narcotic drug in Section 2-204. If it does not, “twice
the term of imprisonment” would be four years, as
2-204(B)(10) (2015) identifies heroin, an opium derivative,
as a Schedule I controlled substance. Further, under §
2-101(26) (2015), a narcotic drug includes
“opium” and “a compound, manufacture, salt,
derivative or preparation of opium whether produced directly
or indirectly by extraction from substances of vegetable
origin, or independently by means of chemical synthesis, or
by a combination of extraction and chemical synthesis.”
Petitioner's reliance on McIntosh v. State, 237
P.3d 800, 803 (Okla. Crim. App. 2010) is misplaced. That case
involved ecstasy, which is not an enumerated substance under
§ 2-204 or a narcotic drug as that term is defined in
§ 2-101(26). Accordingly, Petitioner was correctly
advised of the term of imprisonment he faced upon his guilty
plea; thus, habeas relief is denied on this ground.
Sentence for Possession of Marijuana (Count 13)
contends that the 10-year sentence he received for marijuana
possession was more than the statutory maximum for
misdemeanor possession. The Court concurs with Judge
Mitchell's conclusion that Petitioner was charged with
and convicted of felony possession of marijuana in Count 13.
Although Petitioner is correct that pursuant to plea
negotiations the State of Oklahoma dismissed Page 2 of the
Information, Petitioner's sentence was not enhanced under
Okla. Stat. tit. 21, § 51.1, which requires the district
attorney's endorsement. Rather, Petitioner's
marijuana possession conviction was a second and subsequent
offense under Oklahoma's Uniform Controlled Dangerous
Substances Act. See Okla. Stat. tit. 63, §
2-412 (“An offense shall be considered a second or
subsequent offense under this act, if, prior to his
conviction of the offense, the offender has at any time been
convicted of an offense or offenses under this act
….”); Ellison v. State, 493 P.2d 837,
840 (Okla. Crim. App. 1972); Wood v. State, 515 P.2d
245, 246 (Okla. Crim. App. 1973) (where the information
charged the defendant with unlawful distribution of a
controlled substance after a former conviction for the sale
of drugs, the defendant was subject to the punishment
prescribed under the specific legislation relating to
narcotics, not under the habitual criminal statute, Okla.
Stat. tit. 21, § 51); see also Holloway v.
State, 549 P.2d 368, 370 (Okla. Crim. App. 1976).
13 of the Information alleged that Petitioner
“feloniously” committed the crime of possession
of a controlled dangerous substance (marijuana) on May 14,
2015, in violation of Okla. Stat. tit. 63, § 2-402.
[Doc. No. 11-1 at 3]. The Information also alleged that
Petitioner's commission of this crime occurred after his
previous conviction for possession of a controlled dangerous
substance on May 9, 2014, in Oklahoma County District Court,
Oklahoma, No. CF-13-3273. Id. at 6. Under the laws
in effect on May 14, 2015, the sentencing range for a second
conviction for possession of marijuana committed within 10
years of the expiration of the previous sentence was two to
10 years. Okla. Stat. tit. 63, § 2-402(B)(3) (2012).
Further, a second or subsequent violation is classified as a
felony conviction. Id. Accordingly, Petitioner's
10-year sentence was not more than the statutory maximum
authorized under the law; thus, habeas relief is denied on
Conviction for Possession of a Firearm (Count 4 or
conducted a de novo review, the Court concludes that
Petitioner pled guilty to possession of a firearm after a
former felony conviction regardless of whether it was Count 4
or Count 5. Judge Mitchell is correct that a scrivener's
error does not entitle Petitioner to habeas relief; thus, the