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rejecting petitioner's claim that failing to apply an amended state statute retroactively would result in a violation of equal protection
Summary of this case from Davis v. RickardOpinion
No. CIV-16-795-R
07-26-2017
LELAND JAMES DODD, Petitioner, v. TRACY McCOLLUM, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner Leland Dodd, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court conviction. (ECF No. 1). Mr. McCollum has filed his Response to Petition for Writ of Habeas Corpus. (ECF No. 23). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. BACKGROUND
On February 8, 1991, Petitioner was convicted of two drug-related offenses in Oklahoma County District Court, Case No. CF-1990-3070. (ECF No. 1:1). On Count One, Petitioner was sentenced to life in prison and life without parole, on Counts One and Two, respectively. On July 29, 1994, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions. On June 6, 1995, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court. The district court denied the post-conviction application and the OCCA affirmed the district court's denial. On December 3, 2015, Mr. Dodd filed a second post-conviction application, arguing that the state statute which governed his sentence had been amended on November 1, 2015, and the amendment should be retroactively applied to him. (ECF No. 14-5). The district court denied Petitioner's second post-conviction application, and the OCCA affirmed the district court's denial. (ECF Nos. 14-6 & 14-8). On July 13, 2016, Mr. Dodd filed the instant habeas petition. (ECF No. 1).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1990-3070
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-1991-708&cmid=27073
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1990-3070
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1990-3070; https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-1995-872&cmid=32538
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") governs this Court's power to grant habeas corpus relief. Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir. 2010) (citing Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007)). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 98 (2011).
For claims adjudicated on the merits, "this [C]ourt may grant . . . habeas [relief] only if the [OCCA's] decision 'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Hanson v. Sherrod, 797 F.3d 810, 8214 (10th Cir. 2015) (citation omitted)). "It is the petitioner's burden to make this showing and it is a burden intentionally designed to be 'difficult to meet.'" Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). The deference embodied in § 2254(d) "reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington, at 102-03 (citation omitted).
This Court first determines "whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions." Hanson v. Sherrod, 797 F.3d at 824. "A legal principle is 'clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]" Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of clearly established federal law. See Owens, 792 F.3d at 1242.
"A state court's decision is 'contrary to' clearly established federal law 'if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.'" Id. (citations omitted). Notably, "[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be 'diametrically different' and 'mutually opposed' to the Supreme Court decision itself." Id. (citation omitted).
The "'unreasonable application' prong requires [the petitioner to prove] that the state court 'identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.'" Id. (citations and internal brackets omitted). On this point, "the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was 'objectively unreasonable.'" Id. (citations omitted, emphasis in original). So, to qualify for habeas relief on this prong, a petitioner must show "there was no reasonable basis for the state court's determination." Id. at 1242-43 (citation omitted). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In sum, "[u]nder § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Harrington, 562 U.S. at 101-02. Relief is warranted only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Id. at 102.
Finally, a federal habeas court must "accept a state-court [factual] finding unless it was based on 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). In other words, when the state appellate court makes a factual finding, the Court presumes the determination to be correct; a petition can only rebut this presumption with clear and convincing evidence. See id. at 2199-22; see also 28 U.S.C. § 2254(e)(1).
If the state appellate court has not addressed the merits of a claim, the Court exercises its independent judgment. See Littlejohn v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013) ("For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our 'independent judgment[.]'" (citation omitted)). But "[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by 'clear and convincing evidence.'" Hooks v. Workman, 689 F.3d 1148, 1164 (10th Cir. 2012) (emphasis added) (quoting 28 U.S.C. § 2254(e)(1) (1996)).
III. PETITIONER'S CLAIMS
On November 1, 2015, the Oklahoma State legislature amended 63 O.S. § 2-415(D)(3) to require a mandatory sentence of life without parole on a conviction for drug trafficking only if the offender had been previously convicted of two or more drug trafficking violations. 63 O.S. § 2-415(D)(3) (eff. Nov. 1, 2015). Under the amended statute, if the offender had been previously convicted of two or more felony drug convictions, the sentence range was 20 years to life or life without parole. Id. But under the version of the statute which governed Mr. Dodd's conviction, a sentence of life without parole was mandatory for someone who had previously been convicted of two or more drug-related felonies. 63 O.S. § 2-415(D)(3) (eff. Nov. 1, 1989). At the time of Mr. Dodd's convictions in Case No. CF-1990-3070, he had been previously convicted of two or more drug-related felonies. (ECF No. 14-5:11). As a result, § 2-415(D)(3) mandated a sentence of life without parole. (ECF No. 1:1).
Because the amended version of § 2-415(D)(3) reduced the minimum penalty for offenders like Mr. Dodd, in the habeas Petition he argues that amended statute must be applied retroactively to him and failing to do so would result in a violation of Equal Protection. (ECF No. 1:5). Petitioner states:
On Nov. 1, 2015 a change to OS 63 (1989) 2-415(D)(3) occurred reducing the minimum penalty. This law must be applied in a retroactive manner to prevent the creation of 2 groups of people. which would be a violation of U.S. Constitution 14th Amendment Protections and would be discriminatory if only aplyed [sic] to one group.(ECF No. 1:5). The Court should conclude: (1) Petitioner's claim regarding retroactive application of the amended state statute fails to provide a basis for habeas relief and (2) Mr. Dodd's Equal Protection claim lacks merit.
A. Retroactivity of the Amended Statute
In Burleson v. Saffle, 278 F.3d 1136 (10th Cir. 2002), the Tenth Circuit Court of Appeals addressed a challenge similar to the one now raised by Petitioner—that a change in state law which occurred after the finality of the underlying conviction should be retroactively applied. The Court ultimately concluded that the claim failed to provide a basis for habeas relief and this Court should reach the same conclusion.
In Burleson, the petitioner was convicted on two counts of violating Oklahoma's "drive-by shooting" statute, Okla. Stat. tit. 21, § 652(B), and was sentenced to two consecutive twenty-year terms of imprisonment. Id. at 1138. He appealed the convictions to the OCCA, alleging that he had been subjected to Double Jeopardy by being twice punished for the single offense of using a vehicle to facilitate the discharge of a weapon. Id. at 1138. The OCCA rejected the claim and affirmed the conviction. Id. One day after the petitioner's convictions became final, the OCCA issued an opinion which held that "where a vehicle is used to facilitate the intentional discharge of a weapon during one single transaction or 'shooting event' only one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm would be appropriate." Id. The petitioner filed an application for post-conviction relief, arguing that failing to apply the new decision retroactively to his case would violate Double Jeopardy. Id. at 1138-1139. The district court denied relief, stating that "absent directions from the Court of Criminal Appeals," it would decline to apply the new case retroactively to the petitioner. Id. at 1139. The OCCA, in turn, refused to give such instructions and on nonretroactivity grounds alone affirmed the denial of post-conviction relief. Id.
The inmate then filed a habeas petition, again alleging that the new case should be retroactively applied to him to avoid Double Jeopardy. Id. The district court refused to grant habeas relief on the grounds that Teague v. Lane barred the retroactive application of the new case to the petitioner. Id. at 1140. In Teague, the United States Supreme Court held that as a general matter, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S. 288, 310 (1989).
489 U.S. 288 (1989).
But the Tenth Circuit explained that "the nonretroactivity principle of Teague has no bearing on this case," rather the plain language of the AEDPA precluded federal habeas relief. Id. The Court explained:
It is not the Supreme Court's decision in Teague that bars the retroactive application of Locke to [the petitioner's] case. Rather, it is the standard of review imposed upon federal habeas courts by the [AEDPA]. Pursuant to AEDPA, we may not grant an application for a writ of habeas corpus with respect to any claim adjudicated on the merits by a state court unless that state court decision
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Id., citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (affirming that "federal habeas corpus relief does not lie for errors of state law") (internal citation and quotation marks omitted). Burleson v. Saffle is controlling.
28 U.S.C. § 2254(d).
To the extent that [the petitioner] asks us to grant him habeas relief by applying the "new rule" of Locke to his already final case, we have only one question to consider: Was the OCCA's decision not to apply Locke retroactively to [the petitioner's] case contrary to or an unreasonable application of federal law? The answer to that question is clearly no, because whether or not a new rule of state law may be applied retroactively is a pure state law question.
The general rule of [Oklahoma] law, according to the OCCA, is that new rules or intervening changes in the law should only be applied prospectively from their effective date, especially on collateral review, unless they are specifically declared to have retroactive effect. This state law ruling provides no grounds for the granting of habeas relief, and we do not consider it in our habeas analysis.
In denying Mr. Dodd's retroactivity challenge on appeal, the OCCA stated: "The language of the amend[ed] [statute] did not indicate or state that this change was retroactive in any way" and "absent an express indication that the legislature intended the amendment to be applied retroactively, Petitioner is subject to an application of the law in effect at the time he committed the crime." (ECF No. 14-8:3). Thus, like in Burleson, the OCCA's decision here would provide no basis for federal habeas relief, as the issue involves only state law and the OCCA has expressly stated that the amended statute should not be applied retroactively.
Mr. Dodd argues that the United States Supreme Court's decisions in Teague v. Lane and Montgomery v. Louisiana dictate that "a change in law in this case must and will be applied in a retroactive manner[.]" (ECF No. 24:2). The Court should conclude that neither case applies.
489 U.S. 288 (1989).
136 S.Ct. 718 (2016).
As stated, under Teague, generally, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 289, 310 (1989). However, Teague and Montgomery recognize an exception to this rule if the law is considered "substantive." See Teague, 489 U.S. at 311; Montgomery, 136 S.Ct. at 729. According to Mr. Dodd, because the amendment to § 2-415(D(3) altered the range of punishment, "it is a substantive change in law, and must be applied in a retrospective manner." (ECF No. 24:2). Indeed, "a rule is considered substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro v. Summerlin, 542 U.S. 348, 353 (2002). However, Teague and Montgomery concerned new rules of constitutional law, not amendments to state statutes. See Teague, 489 U.S. at 310 ("Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced); Montgomery, 136 S.Ct. at 729 ("when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.") (emphasis added).
Because the amendment to 63 O.S. § 2-415 involves purely a matter of state law, neither Teague nor Montgomery would apply and the Court should conclude that Mr. Dodd's retroactivity challenge provides no basis for habeas relief.
B. Equal Protection
On de novo review, the Court should likewise reject Petitioner's claim that failing to apply the amended state statute retroactively would result in a violation of Equal Protection. In Coggin v. Champion, 188 F.3d 518, 1999 WL 614700 (10th Cir. 1999), the Tenth Circuit Court of Appeals reached this conclusion under similar circumstances. In Coggin, a jury convicted the petitioner of first degree felony murder, and the state trial court sentenced him to a minimum of life in prison with the possibility of parole. Coggin, 1999 WL 614700, at *1. On direct appeal, the OCCA affirmed the conviction and sentence. Id. The inmate then filed a habeas petition, arguing that his sentence must be retroactively modified based on the Oklahoma Truth in Sentencing Act, which had become effective after the petitioner's conviction, and which established a new minimum sentence of eighteen to sixty years in prison for first-degree felony murder. Id. According to the petitioner, failure to apply the new law retroactively would violate Equal Protection rights because he would have been treated differently (in terms of a minimum sentence) than those prisoners who received shorter sentences under the new law. Id.
The OCCA did not address Mr. Dodd's Equal Protection claim, so the Court may exercise its independent review. See ECF No. 14-8; Littlejohn v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013) ("For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our 'independent judgment[.]'" (citation omitted)). --------
The district court rejected the petitioner's Equal Protection argument, concluding that he "was not similarly situated to those individuals committing the same crime after the effective date of the Act." Id. at 2. For the same reasons, the Tenth Circuit affirmed. Id. Likewise, the Court should conclude that Mr. Dodd was not "similarly situated to those individuals committing the same crime after the effective date of the [amendment to 63 O.S. § 2-415]." Id.; see Brown v. McKune, 618 Fed. App'x 398, 401 (10th Cir. 2015) (affirming the denial of habeas petitioner's claim that a failure to retroactively apply a change in law which reduced the felony level for the petitioner's offense violated the Equal Protection clause, noting that the Court had found no authority "that the Fourteenth Amendment requires state legislatures that lower the sentence for a particular crime to make that change retroactive."). Accordingly, the Court should reject Mr. Dodd's Equal Protection claim as grounds for habeas relief.
IV. RECOMMENDATION
It is recommended that Mr. Dodd's Petition for Writ of Habeas Corpus be DENIED.
V. NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August, 14, 2017, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on July 26, 2017.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE