DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

ORDER

Petitioner James Draper, a state prisoner appearing pro se, filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his state convictions. Doc. No. 18. In accordance with 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States Magistrate Judge Gary M. Purcell. On October 16, 2019, Judge Purcell issued his Third Supplemental Report and Recommendation. Doc. No. 38. Therein, Judge Purcell recommends that the Amended Petition for a Writ of Habeas Corpus be denied. The matter is currently before the Court on Petitioner's timely objection to the Third Supplemental Report and Recommendation, Doc. No. 41, which gives rise to the Court's obligation to undertake a de novo review of those portions of the Report and Recommendation to which Petitioner makes specific objection. See 28 U.S.C. § 636(b)(1)(C). Cognizant of its obligation and granting Petitioner's filing the liberal construction mandated by Haines v. Kerner, 404 U.S. 519 (1972), the Court finds as follows.

Petitioner raises four grounds for habeas relief. First, he asserts that his convictions for Burglary in the First Degree (Count 1) and Conjoint Robbery with a Firearm (Count 2) constituted a violation of the prohibition against double jeopardy. Second, he argues that he was actually innocent of the charges of various sex crimes and the subsequent conviction based on inconclusive DNA evidence. Third, he contends that he was deprived of effective counsel because his trial counsel did not argue that he was actually innocent of the conviction for rape based on the DNA evidence. Fourth, he claims his guilty plea was coerced by his trial counsel as demonstrated by the typewritten guilty-plea statement that he read but did not write himself.

As to Petitioner's first and fourth grounds for relief—double jeopardy and coercion—Judge Purcell concludes that the Oklahoma Court of Criminal Appeals (OCCA) either did apply or should have applied a procedural bar because the claims were raised for the first time in Petitioner's fourth application for post-conviction relief, and thus waived on direct appeal. See Doc. No. 38, p. 6-7, 12-13. Judge Purcell submits that the procedural bar is an adequate and independent state ground, prohibiting the Court from reviewing Petitioner's claims. Id. at 4-5. He further cites to Coleman v. Thompson, 501 U.S. 722, 750 (1991) which provides that a petitioner may overcome a procedural bar by demonstrating cause for the default and actual prejudice or by showing that a fundamental miscarriage of justice will occur if the Court does not review the claims on the merits. Id. at 5. Ultimately, Judge Purcell recommends that both claims be denied as procedurally barred because Petitioner has failed to show cause, actual prejudice, or a fundamental miscarriage of justice. Id. at 6-9, 12-13.

In his objection, Petitioner attempts to demonstrate cause and prejudice, and a fundamental miscarriage of justice. As to ground one, he argues that his double jeopardy claim should not be subject to a procedural bar because the Attorney General made false statements concerning exhaustion, and because the state court ordered Petitioner to "file in the state courts a frivolous term to exhaust claim [sic]." Doc. No. 41, p. 2. As to ground two, Petitioner simply re-asserts that his trial counsel coerced his guilty plea. Id. The Court need not address either of these objections.

Upon careful review of the record, it appears that in Petitioner's fourth post-conviction appeal, the OCCA did not apply a procedural bar, based on waiver, to either Petitioner's double jeopardy or coercion claims. Instead, the OCCA denied the claims under the doctrine of res judicata because it believed the claims were already addressed on direct appeal. Doc. No. 20, p. 4. The Petitioner is therefore under no obligation to demonstrate cause for his default on grounds one or four, actual prejudice, or a fundamental miscarriage of justice. Under normal circumstances, the Court would review the merits of the OCCA decision on direct appeal. See Cone v. Bell, 556 U.S. 449, 467 (2009) (noting that claims rejected by res judicata are not procedurally barred, but ripe for federal adjudication); see also 28 U.S.C. § 2254(d)(1) (describing the deference provided to state courts on habeas review). Here, however, the double jeopardy and coercion claims raised in Petitioner's fourth post-conviction appeal, and subsequently in this habeas action, are factually distinct from the claims raised on direct appeal. Compare Doc. No. 34-14, pp. 25-27 with Doc. No. 34-17, p. 3 and Doc. No. 18, p. 5. Consequently, the OCCA decision on direct appeal does not address the merits of Petitioner's new double jeopardy and coercion claims raised in the habeas petition now before the Court.

According to the Tenth Circuit, "if the state court did not decide a claim on the merits, and the claim is not otherwise procedurally barred, we address the issue de novo and the § 2254(d)(1) deference requirement does not apply." Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004); see also LeBere v. Abbott, 732 F.3d 1224, 1234 n.12 (10th Cir. 2013). As mentioned above, the OCCA did not address the merits of the double jeopardy or coercion claims that Petitioner raises in this amended habeas petition. Nor did the OCCA apply a procedural bar to either claim. Therefore, the matter is recommitted to Judge Purcell to address the claims de novo, without the deference described in § 2254(d).

As to Petitioner's second ground for relief—that he was actually innocent—Judge Purcell recommends denial on the basis that such a claim cannot, by itself, support the granting of a writ of habeas corpus. Doc. No. 38, p. 10 (citing LaFevers v. Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001)). Petitioner does not make a proper objection to Judge Purcell's legal conclusion. Instead, he merely re-asserts that he was actually innocent. Doc. No. 41. What's more, the Court concurs with Judge Purcell's analysis and legal conclusion.

As to Petitioner's third ground for relief—that he was deprived of effective assistance of counsel—Judge Purcell also recommends denial. He finds that the OCCA applied a procedural bar, the basis of which was Petitioner's waiver on direct appeal. Doc. No. 38, p. 10—12. Further, he concludes that Petitioner fails to demonstrate cause and actual prejudice or a fundamental miscarriage of justice to overcome the procedural bar. Id. Petitioner again fails to make a proper objection. He does not attack Judge Purcell's legal or factual determinations, but instead simply re-asserts that his counsel made multiple errors at trial. Doc. No. 41, p. 2. As above, the Court concurs with Judge Purcell's conclusions, both on the law and as to the OCCA's application of a procedural bar.

For the foregoing reasons, the Court declines to adopt the Report and Recommendation as to Petitioner's double jeopardy and coercion claims. The Court, however, adopts the remainder of the Report and Recommendation. Petitioner's claims of actual innocence and ineffective assistance of counsel raised in his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 are hereby denied. In accordance with 28 U.S.C. § 636(b)(1)(C), the matter is recommitted to Judge Purcell for additional proceedings regarding Petitioner's double jeopardy and coercion claims.

IT IS SO ORDERED this 24^th day of February 2020.

/s/ _________

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE