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Hooks v. Crow

United States District Court, W.D. Oklahoma

July 19, 2019

ANTONIO DEWAYNE HOOKS, Petitioner,
v.
SCOTT CROW, Respondent.[1]

          MEMORANDUM OPINION AND ORDER

          SHONT. ERWIN, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254. (ECF No. 1). Because the sole habeas claim challenges the revocation of a prior suspended sentence, rather than the validity of Petitioner's underlying conviction, the Court will construe the Petition under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.[2]The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Petition is DENIED.

         I. PROCEDURAL BACKGROUND

         On June 15, 2012, Petitioner pled guilty to a charge of attempted robbery with a dangerous weapon. (ECF No. 1:1). He was sentenced to 20 years in prison, with all but the first seven years suspended. (ECF No. 1:1). On January 27, 2017, the State filed an application to revoke Mr. Hooks' suspended sentence, alleging that he had committed 10 new crimes in three separate Oklahoma County cases: Case Nos. CF-2016-6800; CF-2016-2632; and CF-2016-8283. (ECF No. 23-5).[3]

         In Case No. CF-2016-6800, Mr. Hooks was charged with: (1) domestic abuse by strangulation; (2) kidnapping; (3) attempting to prevent a witness from giving testimony; and (4) domestic abuse assault and battery resulting in great bodily injury.[4] In Case No. CF-2016-2632, Petitioner was charged with: (1) felon in possession of a firearm and (2) domestic abuse assault and battery.[5] In Case No. CF-2016-8283, Mr. Hooks was charged with: (1) two counts of assault and battery upon a police officer; (2) possession of a controlled dangerous substance with intent to distribute-cocaine; and (3) possession of a controlled dangerous substance within 2, 000 feet of a park-cocaine.[6]

         On December 30, 2016, the Oklahoma County District Court held a preliminary hearing in Case No. CF-2016-6800. Transcript of Preliminary Hearing, State of Oklahoma v. Hooks, Case No. CF-2016-6800 (Okla. Co. Dist. Ct. Dec. 30, 2016) (Preliminary Hearing in CF-2016-6800). On May 10, 2017, the Oklahoma County District Court held preliminary hearings in Case Nos. CF-2016-2632 and CF-2016-8283. Transcript of Preliminary Hearing had on the 10th day of May, 2017 before the Honorable Larry D. Shaw Special Judge, State of Oklahoma v. Hooks, Case No. CF-2016-2632 (Okla. Co. Dist. Ct. May 10, 2017) (Preliminary Hearing in CF-2016-2632); Transcript of Preliminary Hearing had on the 10th day of May, 2017 before the Honorable Larry D. Shaw Special Judge, State of Oklahoma v. Hooks, Case No. CF-2016-8283 (Okla. Co. Dist. Ct. May 10, 2017) (Preliminary Hearing in CF-2016-8283).

         On August 11, 2017, the Oklahoma County District Court held a hearing on the State's Application to Revoke. Transcript of Proceedings had on the 11th day of August, 2017 before the Honorable Timothy R. Henderson District Judge, State of Oklahoma v. Hooks, Case No. RE-2017-850 (Okla. Co. Dist. Ct. Aug. 11, 2017) (Revocation Hearing). At the hearing, the District Court found that the State had proven by a preponderance of the evidence that Petitioner had committed the crimes of:

• domestic abuse by strangulation and kidnapping in Case No. CF-2016-6800;
• felon in possession of a firearm in Case No. CF-2016-2632; and
• two counts of assault and battery upon a police officer; possession of a controlled dangerous substance with intent to distribute-cocaine; and possession of a controlled dangerous substance within 2, 000 feet of a park-cocaine in Case No. CF-2016-8283.

         Revocation Hearing 35-36.[7] Accordingly, the District Court revoked Mr. Hooks' 13-year suspended sentence in full. Revocation Hearing 36.

         On March 14, 2018, Petitioner appealed the revocation in the Oklahoma Court of Criminal Appeals (OCCA). (ECF No. 23-1). In the appeal, Mr. Hooks raised a single proposition, alleging that the revocation hearing he received did not meet the minimum Due Process requirements as set forth in Gagnon v. Scarpelli, [8] because the entire hearing was based on hearsay. (ECF No. 23-1:10). On October 25, 2018, the OCCA affirmed the revocation. (ECF No. 23-3).

         On January 3, 2019, Mr. Hooks filed the instant habeas petition and asserts the Gagnon issue which he had presented on appeal. (ECF No. 1).[9] Respondent has filed his Response to Petition for Writ of Habeas Corpus and Petitioner has filed a Reply. (ECF Nos. 23 & 28).[10]

         II. STANDARD OF REVIEW

         Because this case is properly construed under 28 U.S.C. § 2241, [11] this Court's standard of review is de novo. See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007). “Because the proper review is de novo, Petitioner can only obtain habeas relief if he shows a constitutional violation by a preponderance of the evidence.” Mason v. Thornburgh, No. CIV-15-1169-M, 2016 WL 7228899, at *3 (W.D. Okla. Oct. 24, 2016), report and recommendation adopted, No. CIV-15-1169-M, 2016 WL 7223461 (W.D. Okla. Dec. 13, 2016).

         III. PETITIONER'S CLAIMS/ISSUES BEFORE THE COURT

         In Mr. Hooks' appellate brief, and as support for his habeas claim, he argues that during his revocation hearing, he was denied the minimum Due Process requirements as outlined in Morrissey v. Brewer, [12] and Gagnon v. Scarpelli. (ECF No. 23-1:5-13). Specifically, Petitioner alleges:

1. the preliminary hearing transcripts which were used as evidence at the revocation hearing were offered ex parte to the Court; and
2. a violation of Due Process based on the absence of live witnesses at the hearing and the State's use of only documentary evidence to support the Application to Revoke.

(ECF Nos. 23 & 28).

         In his Reply, Mr. Hooks argues the sufficiency of the evidence used to ...


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