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Barnes v. Dowling

United States District Court, N.D. Oklahoma

November 4, 2019

ADELSO BARNES, Petitioner,
v.
JANET DOWLING, Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, CHIEF JUDGE

         Petitioner 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.

         I.

         On 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 2);[1] 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.[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.

         Ten 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.[3]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 1.

         Just 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 propositions:

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 adult.
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.

         Petitioner 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. at 4-5.

         Petitioner filed the instant federal habeas petition (Doc. 1) on February 21, 2019, [4] 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 crime.
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 suspect.

Doc. 1, at 12, 14.[5]

         Respondent 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 ...


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