Opinion
No. CIV-18-1223-R
03-12-2019
DENTON WILLIAM GAGE, Petitioner, v. LONNIE LAWSON, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus alleging a violation of his rights under 28 U.S.C. § 2254. (ECF Nos. 1 & 8). United States District Court Judge David L. Russell has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned has examined the Petition and taken judicial notice of various state court records. After review, the undersigned recommends that the Court DISMISS the Petition on screening.
On December 12, 2018, Petitioner filed a document titled "Writ of Habeas Corpus." (ECF No. 1). Viewing the pleading as a § 2254 habeas petition, the undersigned entered an Order advising Mr. Gage that the document submitted was not on the proper form and that he had failed to name a proper respondent. (ECF No. 4). Subsequently, Petitioner filed a habeas Petition using the proper form (ECF No. 8), which the Court treated as a Supplement to ECF No. 1. See ECF No. 16. Approximately two weeks after filing the Supplement, Mr. Gage filed a "Request to Convert Habeas Corpus Claims Into Civil Rights Action," with an attached proposed Civil Rights Complaint (ECF Nos. 12 & 12-1). The Court denied the request, and ordered Petitioner to advise the Court if he wished to proceed with the habeas action, explaining to Mr. Gage that if he did not respond to the Court's order, the Court would make additional findings upon further review of the Petition and Supplement as set forth in ECF Nos. 1 & 8. (ECF No. 16). Mr. Gage did not respond to the Court's Order, and the habeas Petition and Supplement are now at issue.
See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion "to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand") (citation omitted).
I. PROCEDURAL BACKGROUND
On September 22, 2017, in Payne County District Court Case No. CF-2017-492, Petitioner plead guilty to assault and battery with a dangerous weapon. (ECF No. 1:2). Mr. Gage did not file a motion to withdraw the plea, and his conviction became final ten days later, on October 2, 2017. See OCCA Rule 4.2. Mr. Gage sought Post-Conviction Relief in the Payne County District Court, but that Court dismissed/denied the application. Mr. Gage challenged the District Court's decision by filing an appeal in the OCCA, which that court dismissed as untimely. On December 12, 2018 and January 7, 2019 respectively, Mr. Gage filed a Petition for Writ of Habeas Corpus and a Supplement to the Petition, challenging the Payne County conviction. See ECF Nos. 1:1; 8:1; supra, n.1.
The title of the District Court's pleading is "Order Denying Post Conviction Relief," but in the body of the Order, the Court stated that the Application for Post-Conviction Relief was dismissed. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=payne&number=CF-2017-492&cmid=342824.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2018-1090.
II. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to "summarily dismiss [a] petition without ordering a responsive pleading," Mayle v. Felix, 545 U.S. 644, 656 (2005), "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct. III.
III. PETITIONER'S GROUNDS FOR RELIEF
In the Supplement, Mr. Turner outlines four grounds for relief:
1. Ineffective assistance of trial counsel;(ECF No. 8:5-9).
2. Improper placement on "suicide detainment;"
3. He was prejudiced owing to negligence by employees of the Department of Veterans Affairs; and
4. He was "inappropriately treated" in a state court case arising out of Tulsa County, CF-2013-6202.
IV. PROCEDURAL CONSIDERATIONS
A federal court cannot grant habeas relief unless the habeas petition satisfies the procedural prerequisites of § 2254(b), including the requirement that the petitioner exhausted his or her state-court remedies by presenting substantially the same federal claim or claims to the state's highest court. See 28 U.S.C. § 2254(b)(1)(A); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(b), (c)). To properly exhaust, a petitioner "must 'fairly present' his claim in each appropriate state court . . . , thereby alerting that court to the federal nature of the claim" and giving the State the first "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). The petitioner bears the burden of proving either that he or she properly exhausted the federal claim(s) or that there were no "available" state court remedies for the petitioner to exhaust. Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011); see 28 U.S.C. § 2254(b)(1)(A), (B).
Mr. Gage states that he has exhausted Ground One by presenting it in his Application for Post-Conviction Relief filed in the Payne County District Court. (ECF No. 8:6). A comparison however, of Ground One as set forth in the habeas Supplement and the Application for Post-Conviction Relief filed in the Payne County District Court proves otherwise. Mr. Gage admits that he has not exhausted Grounds Two, Three, or Four. See ECF No. 8:6-8, 10.
Compare ECF Nos. 1 & 8:5 with Petitioner's Application for Post-Conviction Relief, dated May 18, 2018, filed in the Payne County District Court, found at https://www.oscn.net/dockets/GetCaseInformation.aspx?db=payne&number=CF-2017 492&cmid=342824.
Because the claims have not been exhausted, a related barrier to federal habeas review—procedural default—arises. Procedural default occurs when a petitioner's claim was raised but not considered, or was not raised and would not now be considered, by the state courts because the claim is barred by a qualifying state procedural rule. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) ("Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion [because] there are no state remedies any longer 'available' to him." (quoting 28 U.S.C. § 2254(b)); see also Walker v. Martin, 562 U.S. 307, 315-16 (2011). The Tenth Circuit recognizes two species of procedural default: actual and anticipatory. See, e.g., Anderson v. Sirmons, 476 F.3d 1131, 1139-40 (10th Cir. 2007). The former occurs when the state court "clearly and unequivocally" applied an "independent" and "adequate" procedural bar in declining to consider the merits of an otherwise fairly presented federal claim. Id. at 1140. The latter "occurs when the federal courts apply" a qualifying state procedural rule in declining to consider the merits of a habeas "claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it." Id. at 1139 n.7; see also Williams v. Trammell, 782 F.3d 1184, 1212-13 (10th Cir. 2015) (holding that a federal court may apply an independent and adequate state procedural rule to bar consideration of a habeas claim raised for the first time in federal court "if, looking to the state's treatment of its procedural bar, the likelihood of default in the petitioner's case is beyond debate or dispute").
A state procedural rule "is 'independent' if it relies on state law, rather than federal law," and "is 'adequate' if it is firmly established and regularly followed" in similar cases. Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008); see also Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) ("For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims.") (internal quotation marks omitted).
In the instant case, Petitioner has not exhausted his four grounds for habeas relief in state court. See supra. But rather than discuss the issues of actual and/or anticipatory procedural default if Mr. Gage were to return to state court in an attempt to exhaust the claims, the Court may address the claims on the merits, de novo. See 28 U.S.C. § 2254(b)(2); Snow v. Sirmons, 474 F.3d 693, 717 (10th Cir. 2007) ("We can avoid deciding procedural bar questions where claims can readily be dismissed on the merits."); Littlejohn v. Trammell, 704 F.3d 817, 855 (10th Cir. 2013) ("because we have at our disposal no merits adjudication of the claim, our standard of review is de novo."). In doing so, the Court should summarily dismiss the Petition because Mr. Gage has failed to state a claim for habeas relief. See Whitmore v. Parker, 484 F. App'x 227, 232 (10th Cir. 2012) (stating that "it is well established that [the] district court [may] dismiss summarily [a] petition on the merits when no claim for relief is stated.") (alterations in original; internal citations omitted).
V. GROUND ONE
The Court should summarily dismiss ground one—Petitioner's claim for ineffective assistance of trial counsel.
A. Standard of Review—Ineffective Assistance of Trial Counsel
It is undisputed that federal law clearly establishes the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684, 686 (1984) (recognizing that "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial" and that the "right to counsel is the right to effective assistance of counsel" (citation and internal quotations omitted)). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. To prevail on a claim of ineffective assistance of counsel, a petitioner must show both that his counsel provided deficient assistance and that the deficiencies prejudiced his defense. Id. at 687.
First, to show that his counsel was deficient, a petitioner must demonstrate that the errors were so serious that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Furthermore, the Court strongly presumes that "an attorney acted in an objectively reasonable manner and that an attorney's challenged conduct might have been part of a sound trial strategy." Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002) (emphasis in original); see also Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011). The Court must "judge the reasonableness of counsel's challenged conduct" on the specific facts of the case "viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690.
Second, to show that the outcome of his trial was prejudiced by counsel's error, the defendant must show that those "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. To establish prejudice, he must demonstrate "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. A reasonable probability "is a probability sufficient to undermine confidence in the outcome." Id. at 694. If confidence in either the conviction or the sentence is undermined, prejudice has been established and relief should be granted. Id. at 694-95.
B. Summary Dismissal of Ground One
In Ground One, Petitioner alleges that his trial attorney, Virginia Banks, was ineffective because she "operat[ed] in a conspiratorial manner" with the United States Department of Veteran's Affairs. (ECF No. 8:5). In support, Mr. Gage states that Ms. Banks "act[ed] in accordance with Title 43A O.S. § 2-206" with the United States Department of Veteran's Affairs and the State of Oklahoma to "suppress[] the petitioners rights to due process." (ECF No. 1:7); see also ECF No. 1:9. Title 43A O.S. § 2-206 allows for the Oklahoma Department of Mental Health to provide legal services to represent "the Commissioner, the Board of Mental Health and Substance Abuse Services, administrative supervisors of facilities and Department personnel in administrative hearings and other legal actions and proceedings." Title 43A O.S. § 2-206. Thus, a plain reading of the statute demonstrates that it would not apply to Ms. Banks' appointment in this case. Indeed, the record reflects that Ms. Banks, acting as a representative of the Oklahoma Indigent Defense System, was appointed by the Payne County District Judge to represent Mr. Gage, who had been deemed indigent.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=payne&number=CF-2017 492&cmid=342824.
Petitioner has not made any allegations: (1) regarding how Ms. Banks' representation of him had "suppressed [his] rights to due process" or (2) that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695. Simply put, Mr. Gage has made no allegations that Ms. Banks' representation of Petitioner resulted in prejudice to him. Accordingly, the Court should conclude that confidence in either the conviction or the sentence has not been undermined, and Petitioner is not entitled to habeas relief on Ground One.
VI. GROUND TWO
In Ground Two, Petitioner states that he was "involuntarily placed on suicide detainment" from July 14, 2017 through October 1, 2017. (ECF Nos. 1:1-2; 8:6). As a result, he alleges that a "restriction of available administrative remedies" existed in the form of another inmate having to "slide [Petitioner] a pen and paper . . . just to try to contact his attorney to withdraw his plea." (ECF No. 8:6-7). But Mr. Gage does not state that his placement in "suicide detainment" had somehow implicated the validity of his conviction or sentence, which is the cornerstone of relief under 28 U.S.C. § 2254. See ECF Nos. 1 & 8. Accordingly, the Court should conclude that Petitioner is not entitled to relief on Ground Two.
VII. GROUNDS THREE AND FOUR
In Ground Three, Mr. Gage states that he was "a victim of a prejudicial situation due to negligence on behalf of Veteran's Affairs Employees." (ECF No. 8:8). In support, Petitioner argues that his "Veteran's Treatment Team" committed negligence and medical malpractice by failing to provide him with financial and employment assistance in his attempt to reintegrate into society following a period of incarceration for a conviction in Tulsa County District Court Case No. CF-2013-6202, which caused him to attempt to commit suicide. See ECF No. 1:4-19. In Ground Four, Petitioner alleges that he was "inappropriately treated in CF-2013-6202," in the same manner which formed the basis for Ground Three. See ECF No. 1:5. But allegations of medical malpractice and negligence implicate Oklahoma state law and are not cognizable in a habeas petition. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) ("claims of state law violations are not cognizable in a federal habeas action.") (citing 28 U.S.C. §§ 2241(c)(3), 2254(a)). Thus, the Court should conclude that Mr. Gage is not entitled to habeas relief on Grounds Three and Four.
(ECF No. 8:9).
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be dismissed on screening as it plainly appears that Mr. Gage is not entitled to habeas relief on any of the grounds presented.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by March 29, 2019 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).
IX. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED on March 12, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE