United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE
Adelso Barnes, a state inmate appearing pro se,
brings this 28 U.S.C. § 2254 habeas corpus action to
challenge the constitutional validity of the judgment and
sentence entered against him in the District Court of Tulsa
County, No. CF-2009-5867. In that case, Petitioner pleaded
guilty to second degree felony murder, first degree burglary,
robbery with a dangerous weapon, and knowingly concealing or
receiving stolen property. In accordance with the negotiated
plea agreement, the trial court imposed prison terms of 35
years, 20 years, 35 years, and 5 years, with all sentences to
be served concurrently. Before the Court is Respondent's
motion (Doc. 7) to dismiss the petition as time-barred under
28 U.S.C. § 2244(d)(1)'s one-year statute of
limitations. Respondent filed a brief in support of the
motion (Doc. 8), and Petitioner filed a response (Doc. 9). On
consideration of the parties' briefs and the case
materials, the Court grants Respondent's motion and
dismisses the petition for writ of habeas corpus, with
prejudice, as time-barred.
February 28, 2011, in the District Court of Tulsa County, No.
CF-2009-5867, Petitioner, represented by counsel, entered
negotiated pleas of guilty to second degree felony murder, in
violation of Okla. Stat. tit. 21, § 701.8 (Count
first degree burglary, in violation of Okla. Stat. tit. 21,
§ 1431 (Count 3); robbery with a dangerous weapon, in
violation of Okla. Stat. tit. 21, § 801 (Count 4); and
knowingly concealing or receiving stolen property, in
violation of Okla. Stat. tit. 21, § 1713 (Count 5). Doc.
1, at 1-2; Doc. 1-1, at 93-100; Doc. 8-6, at 2. That same day,
the trial court accepted his pleas, adjudged him guilty, and,
in accordance with the plea agreement, imposed prison terms
of 35 years, 20 years, 35 years, and 5 years, with all
sentences to be served concurrently. Doc. 1-1, at 96-97; Doc.
8-6, at 2. The trial court advised Petitioner of his appeal
rights, and Petitioner indicated on his written plea form
that he understood those rights. Doc. 1-1, at 98; Doc. 8-6,
at 2, 4. Petitioner did not move to withdraw his pleas within
10 days of sentencing or otherwise pursue a timely certiorari
appeal with the Oklahoma Court of Criminal Appeals (OCCA).
Doc. 1, at 2; Doc. 8-6, at 2.
months after his sentencing, on December 29, 2011, Petitioner
filed a motion for judicial review, pursuant to Okla. Stat.
tit. 22, § 982a, asking the state district court to
reduce his sentence. Doc. 8-2, at 1-6. The court denied the
motion on January 6, 2012. Doc. 8-3, at 1.Petitioner filed a
motion for suspended sentence on May 9, 2013, pursuant to
Okla. Stat. tit. 22, § 994, citing his status as a
first-time offender and prison overcrowding and asking the
state district court to suspend his sentence. Doc. 8-4, at 1.
The court denied that motion on June 21, 2013. Doc. 8-5, at
over four years later, on July 13, 2017, Petitioner filed an
application for postconviction relief in state district
court, pursuant to Okla. Stat. tit. 22, § 1080, and
submitted several supporting documents and affidavits. Doc.
1-1, at 17-179. Petitioner styled his application as one
seeking: postconviction relief, an appeal out of time, to
withdraw his guilty pleas out of time, an evidentiary
hearing, a resentencing hearing, and “to strike
information CF-2009-5867 [as] a nullity.” Id.
at 18. By order filed October 24, 2017, the state district
court denied his application. Doc. 8-6, at 1-10. In doing so,
the court construed the application as raising five
I. Ineffective assistance of counsel resulted in an
unknowing, unintelligent, and so very not voluntary guilty
plea being entered.
II. Petitioner did not receive any attorney so that he could
make an “informed decision” about an appeal and
was uninformed about his appeal rights, and requests this
[c]ourt to withdraw his pleas of guilty out of time.
III. Newly discovered evidence shows that the factual basis
for Petitioner's pleas is insufficient.
IV. Petitioner deserves to demonstrate that he belongs in the
protected class of offenders who committed their crimes due
to transient immaturity and impetuosity because their brains
had not yet developed and therein are not as culpable as an
V. Petitioner makes motion to strike the Information as a
nullity (void on its face).
Doc. 8-6, at 2-3. The state district court treated
Petitioner's second proposition as a request for a
recommendation to file an appeal out of time and denied that
request. Id. at 3-4. The court found (1) the record
demonstrated Petitioner was advised of his appeal rights, (2)
the record contradicted Petitioner's “claim that he
had no access to an attorney to be able to file a motion to
withdraw his pleas of guilty had he indicated he wished to do
so, ” and (3) Petitioner “failed to allege any
specific facts that support that he attempted to communicate
with his attorney” regarding a desire to appeal. Doc.
8-6, at 4. Thus, the court concluded, Petitioner
“fail[ed] to provide a sufficient reason for his
failure to perfect an appeal.” Id. The court
further found that Petitioner was not entitled to
postconviction relief because his “propositions could
have been raised within a petition for writ of
certiorari following the denial of an application to
withdraw plea, and [were] thus waived.” Id. at
5. Alternatively, the court found that Petitioner's third
and fourth propositions lacked merit. Id. at 6-8. As
to the third proposition, the court found Petitioner
“failed to demonstrate how the factual basis for the
plea and the circumstances underlying the crime could not
have been discovered before trial with due diligence.”
Doc. 8-6, at 6-7. As to the fourth proposition, the court
found Petitioner was not entitled to relief because he was
“eighteen years of age when he committed [his] crimes,
and he was not sentenced to life without the possibility of
parole.” Id. at 7-8. Finally, the court denied
Petitioner's requests for counsel and an evidentiary
hearing. Id. at 8.
filed a timely postconviction appeal. Doc. 1-1, at 215-36. In
an order filed March 13, 2018, in No. PC-2017-1106, the OCCA
affirmed the order denying postconviction relief and denying
Petitioner's request for leave to file an appeal out of
time. Doc. 8-7, at 1-6. The OCCA found that Petitioner
“provid[ed] no facts or supporting evidence indicating
that he sought and was denied counsel, that he expressed an
interest in contacting counsel to facilitate an appeal and
the request was ignored, or that he expressed any desire,
prior to the filing of [his] request for post-conviction
relief, to withdraw his guilty plea.” Id. at
2. Like the state district court, the OCCA found
Petitioner's “claims of newly discovered evidence
and entitlement to treatment status in some category other
than an adult . . . to be without merit.” Id.
filed the instant federal habeas petition (Doc. 1) on
February 21, 2019,  along with supporting documents (Doc.
1-1). In the petition, he identifies two specific grounds for
federal habeas relief:
I. The information filed by the [S]tate violated the Double
Jeopardy Clause of the Sixth Amendment because it resulted in
multiple convictions and sentences for one single impulse and
II. The plea wasn't a knowing, intelligent, and
deliberate choice, and there isn't a factual basis and
understanding that makes the plea questioned and the verdict
Doc. 1, at 12, 14.
contends the habeas petition should be dismissed as
time-barred under 28 U.S.C. § 2244(d)(1)(A) because
Petitioner failed to file the petition within one year of the
date his conviction became final, even with the benefit
statutory tolling under 28 U.S.C. § 2244(d)(2), and
Petitioner has not demonstrated any ...