Opinion
CIV-20-677-PRW
02-12-2021
MARIO DONSHEAU CHERRY, Petitioner, v. RICK WHITTEN, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner Mario Donsheau Cherry, a state prisoner, 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. Whitten has filed his Response to Petition for Writ of Habeas Corpus (ECF No. 10) to which Petitioner has filed a Reply (ECF No. 19). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. PROCEDURAL BACKGROUND
On February 23, 2018, in Oklahoma County District Court, Petitioner entered a “blind” plea on six charges: (1) Count Two: first-degree manslaughter; (2) Count Three: causing an accident while driving without a license; (3) Count Five: leaving the scene of an accident; (4) Count Six: leaving the scene of a motor collision without stopping and providing required information; (5) Count Seven: resisting arrest; and (6) Count Nine: driving with a suspended license. (ECF Nos. 1:1; 10:19-20; 10-11:1-10). At the time of the plea, Mr. Cherry had previously been convicted of two or more felonies. (ECF No. 1011:7, 17). Judgment and Sentence were entered accordingly and the Court sentenced Petitioner to life imprisonment on Counts Two, Three, and Five, and one year incarceration on Counts Six, Seven, and Nine. (ECF No. 10:19-20; 10-11:17). The Court ordered Counts Three, Five, Six, Seven, and Nine to run concurrently with each other and consecutive to Count Two. (ECF No. 10-11:17).
On April 12, 2018, Petitioner filed an Application to Withdraw the Guilty Plea, arguing that the plea had not been entered into knowingly and voluntarily. (ECF No. 1011:22-24). The trial court denied the motion, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed. (ECF No. 10-1). On November 6, 2019, Mr. Cherry filed an Application for Post-Conviction Relief in the Oklahoma County District Court. (ECF No. 103). The district court denied relief and the OCCA affirmed the denial. See ECF Nos. 10-6 & 10-9.
See Transcript of Proceedings, State of Oklahoma v. Cherry, Case No. CF-2016-4278 (Okla. Co. Dist. Ct. May 4, 2018) (Hearing on Motion to Withdraw) 17; Criminal Appeal Original Record, State of Oklahoma v. Cherry, Case No. CF-2016-4278 (Okla. Co. Dist. Ct.) (O.R.) 171.
On July 13, 2020, Mr. Cherry filed the instant case and raised four grounds for relief:
1. The plea was not entered knowingly and voluntarily;
2. Ineffective assistance of trial counsel;
3. Excessive sentence; and
4. Ineffective assistance of appellate counsel.
(ECF No. 1:5-9).
II. STANDARD OF REVIEW UNDER THE AEDPA
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 v. Richter, 562 U.S. at 102-103 (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, 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, the 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 v. Richter, 562 U.S. at 101-102. 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).
III. GROUND ONE
In Ground One, Petitioner alleges that his plea was not knowing or voluntary because he was not informed that by entering a blind plea, he would not be able to appeal the sentence imposed. (ECF No. 1:5). The Court should deny habeas relief on Ground One.
A. Clearly Established Law
The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. See Boykn v. Alabama, 395 U.S. 238, 242 (1969). “On review, a federal court may set aside a state court guilty plea only for failure to satisfy due process.” Cunningham v. Diessln, 92 F.3d 1054, 1060 (10th Cir. 1996) (citation omitted). “The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Hill v. Lockhart, 474 U.S. 52, 56 (1985). A federal court will uphold a state court guilty plea if the circumstances demonstrate that the defendant understood the nature and the consequences of the charges against him and that the defendant voluntarily chose to plead guilty. Boykin, 395 U.S. at 242-244.
A plea is not voluntary unless the defendant knows the direct consequences of his decision, including the maximum penalty to which he will be exposed. Worthen v. Meachum, 842 F.2d 1179, 1182 (10th Cir. 1988) (stating that critical inquiry is whether defendant knows of maximum possible sentence), overruled on other grounds, Coleman v. Thompson, 501 U.S. 722 (1991). Furthermore, it is not necessary that the record reflect a detailed enumeration and waiver of rights as a result of the guilty plea; rather the issue is simply whether the record affirmatively shows that the guilty plea was intelligent and voluntary. Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973). Although a petitioner's statements made at the guilty plea hearing “are subject to challenge under appropriate circumstances,” they constitute “a formidable barrier in any subsequent collateral proceeding.” United States v. Maranzino, 860 F.2d 981, 985 (10th Cir. 1988) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)); see also Romero v. Tansy, 46 F.3d 1024, 1033 (10th Cir. 1995).
B. Petitioner is not Entitled to Habeas Relief on Ground One
As stated, Mr. Cherry contends that his plea was not “knowing” and “voluntary” because he “was not advised that he would be giving up his right to appeal ... [his sentence] when he entered a blind plea.” See ECF No. 1:5; see also ECF No. 19:2. On certiorari review, the OCCA denied this claim, stating:
Here, Petitioner has not been denied his statutory right to appeal. The procedure for appealing a guilty plea is set out in Rule 4.2, et. Seq. Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). On appeal, our primary concern in evaluating the validity of a guilty plea is whether the plea was entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d. 274 (1969) Ocampo v. State, 1989 OK CR 38, ¶ 3, 778 P.2d 920, 921. The defendant must be advised of all constitutional rights he relinquishes with his plea. King v. State, 1976 OK CR 103, ¶11, 553 P.2d 529, 534-35. He must also be advised of “[t]he nature and consequences of such plea, including the minimum and maximum punishment provided by law for the crime of which he stands charged.” Id. The defendant has the burden of showing that the plea was entered unadvisedly, through ignorance, inadvertence, influence, or without deliberation, and that there is a defense to present to the jury. Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1382. We review the entire record in examining the voluntariness of the plea. Fields v. State, 1996 OK CR 35, ¶ 28, 923 P.2d 624, 630.
The requirements of King do not include a nuanced understanding of the appeal process. King only requires a knowing and voluntary plea, Petitioner indicated he understood this was a blind plea and that a blind plea meant the judge determined the sentence. Petitioner indicated that no one forced, coerced, or threatened him into pleading guilty. Petitioner informed the Court that his rights to a jury trial had been explained to him and that he was waiving those rights. He indicated that he understood the range of punishment for each offense. These steps were reviewed by the trial court with Petitioner at sentencing, Petitioner affirmed he was entering
a voluntary plea. Petitioner indicated he understood his rights to appeal as explained to him.
Based upon the record before us, we find the trial court did not abuse it[s] discretion in denying the motion to withdraw as a knowing and voluntary plea was clearly entered.
(ECF No. 10-2:4-6). The Court should conclude that the OCCA's determination was reasonable and not contrary to clearly established Supreme Court precedent.
Concurrent with the hearing on the blind plea, Petitioner completed a “Plea of Guilty Summary of Facts” form. 10-11:1-10). In the form, Petitioner acknowledged:
1. he understood the nature of the charges and the range of punishment for each charge;
2. he read and understood the form;
3. he understood that he was entering a “blind” plea and there was no specific plea agreement;
4. no one had done anything by force, abuse, mistreatment, threats or promises to coerce the plea;
5. he understood that the decision to plead guilty was his alone;
6. he was satisfied with his attorneys' representation in the case; and
7. he was not under the influence of medication or substances that might affect his competency.
(ECF No. 10-11:1-10). At the guilty plea hearing, the charges were read and the trial court confirmed with Mr. Cherry that he was voluntarily entering a guilty plea, that no one had forced him to make that decision, and that he was waiving his right to a jury trial. Plea Proceedings, State of Oklahoma v. Cherry, Case No. CF-2016-4278 (Okla. Co. Dist. Ct. Feb. 23, 2018) 6-7 (Plea Hearing).
At the sentencing hearing, the trial judge again confirmed with Mr. Cherry that he:
• had read and understood the “Plea of Guilty Summary of Facts” form;
• was not currently taking any medications or substances which would affect his ability to understand the proceedings; and
• understood the nature of the charges against him and the range of punishment for each charge.
Sentencing Proceedings, State of Oklahoma v. Cherry, Case No. CF-2016-4278 (Okla. Co. Dist. Ct. Apr. 5, 2018) 6-7 (Sentencing Hearing). The trial court also informed Petitioner that he had the right to appeal the plea by filing a written application to withdraw plea of guilty within ten days. (Sentencing Hearing 42). In addition to the verbal colloquy at sentencing, Petitioner completed and signed a “Sentencing After Previous Plea of Guilty” form. On that form, Petitioner again affirmed that:
• he read and understood the form;
• he was not taking any medications or substances which would affect the proceedings;
• at the plea hearing, he had been advised of the nature of the charges and the potential range of punishment for each charge.
(ECF No. 10-11:11-13). And on the section titled “Notice of Right to Appeal,” Petitioner initialed the circled portions of the section which specifically outlined that he had 10 days to file a motion to withdraw the plea, and that he could thereafter appeal to the OCCA. (ECF No. 10-11:15). And in his Reply brief, Mr. Cherry openly admits that “he was advised that he could withdraw his guilty plea through a motion process and appeal that determination if necessary.” (ECF No. 19:2) (emphasis in original).
Being dissatisfied with the outcome at the sentencing hearing, Petitioner filed an Application to Withdraw Plea of Guilty. (ECF No. 10-11:22-24). In the Motion, Mr. Cherry argued that the plea was not knowing or voluntary, but also conceded that “[t]here was no agreement between the parties as to sentence.” (ECF No. 10-11:22). At the hearing on the Motion to Withdraw, Mr. Cherry testified that he had previously entered a “blind” plea of guilty and that at the time of the plea, he “thought” he knew what that meant. (Hearing on Motion to Withdraw at 3-4). When asked to elaborate, Petitioner stated that he and his counsel “thought there was a chance” that the sentences imposed on the multiple charges might run concurrently. Id. at 5. Petitioner also testified that his attorney had informed him that the range of punishment was “between 25 and life.” Id. at 7. When the trial court asked Mr. Cherry if his attorney had told him that the trial judge could impose a life sentence, Mr. Cherry replied that indeed, the attorney had “said it's a possibility.” Id. And on cross-examination, Petitioner confirmed that when he entered the plea, he did so without knowing what sentence the judge would impose. Id. at 10.
However, when discussing whether Petitioner had been informed of his appeal rights, Mr. Cherry stated that “it wasn't explained to [him] that [he] wouldn't ever be able to appeal [his] time.” Id. at. 8. The Court clarified that the crux of Mr. Cherry's claim in the motion to withdraw was that he had not understood that he would be unable to appeal the actual sentence imposed. Id. According to Mr. Cherry, if he had known that he would not be able to appeal his actual sentence, he would have gone to trial. Id. at 9.
As stated, Due Process is not violated if the circumstances demonstrate that the defendant understood the nature and the consequences of the charges against him and that the defendant voluntarily chose to plead guilty. Boykin, 395 U.S. at 242-244. Here, the evidence indicates Petitioner clearly understood the nature and the consequences of entering a blind plea. In the Plea of Guilty/Summary of Facts form, Petitioner was informed of the range of punishment on each charge and stated that he understood that he was entering a blind plea. The Tenth Circuit Court of Appeals has held that such a form is “sufficient to communicate to [petitioner] the consequences of his guilty plea.” Hoffman v. Young, 23 Fed.Appx. 885, 888, (10th Cir. 2001). And at the hearing on the Motion to Withdraw, Petitioner affirmed that his understanding of a blind plea was that he did not know what sentence the judge would impose prior to the actual sentence being rendered. This too, has been held sufficient to render a blind plea “knowing” and “voluntary.” See Parker v. Evans, 2013 WL 6800138, at *7 (N.D. Okla. Dec. 20, 2013) (rejecting habeas petitioner's claim that blind plea had not been knowingly and voluntarily entered based, in part, on petitioner's testimony that he knew that a blind plea meant that it was “up to the judge to sentence [him]” and petitioner was aware of the possible maximum punishment).
Petitioner argues that he unknowingly entered the blind plea because he was not aware that he would not be able to appeal whatever sentence was ultimately imposed. (ECF No. 1:5). But as noted by the OCCA, “Petitioner has not been denied his statutory right to appeal ... [as] set out in Rule 4.2, et. Seq. Rules of the Oklahoma Court of Criminal Appeals.” (ECF No. 10-2:4); see ECF Nos. 10-11:22-24; 10-2; 10-1. Simply because Mr. Cherry was unhappy with the sentence that was ultimately imposed does not render the plea involuntary or unknowing. See Payne v. Dowling, 790 Fed.Appx. 884, 887-888 (10th Cir. 2019) (affirming district court's rejection of habeas petitioner's claim that blind plea was not knowing or voluntary simply because petitioner believed he would receive a sentence different than what was actually imposed). As a result, the Court should conclude that the OCCA's decision in rejecting this claim was not contrary to, nor an unreasonable application of, Supreme Court precedent, and habeas relief is not warranted.
IV. GROUNDS TWO AND THREE
In Ground Two, Mr. Cherry argues that his trial counsel rendered ineffective assistance by failing to explain to Petitioner that he would not be able to appeal whatever sentence was imposed following the blind plea. (ECF No. 1:6-7). In Ground Three, Mr. Cherry argues that his sentence was excessive. (ECF No. 1:8). The Court should conclude that: (1) Grounds Two and one sub-part of Ground Three are procedurally barred; and (2) one sub-part of Ground Three is subject to an anticipatory procedural bar.
A. Exhaustion as a Preliminary Consideration
The exhaustion doctrine, a matter of comity which has long been a part of habeas corpus jurisprudence, requires the court to consider in the first instance whether petitioner has presented his grounds for relief to the OCCA. "[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); see Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) ("A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
“Exhaustion requires that the claim be 'fairly presented' to the state court, which means that the petitioner has raised the 'substance' of the federal claim in state court.” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (citation omitted). This means “a federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
The exhaustion doctrine is set forth in 28 U.S.C. § 2254(b). Section 2254(b)(1)(A) prohibits the court from granting habeas relief in the absence of exhaustion (although Section 2254(b)(1)(B) sets forth two limited exceptions to this rule), but Section 2254(b)(2) expressly authorizes the court to deny habeas relief "notwithstanding the failure of the applicant to exhaust the Remedies available in the courts of the State.”
B. Procedural Bar/Anticipatory Procedural Bar
Beyond the issue of exhaustion, the Court must also examine how the OCCA adjudicated each of a petitioner's grounds for relief, i.e., whether the OCCA addressed the merits of a petitioner's grounds or declined to consider them based on a state procedural rule. "It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.' ” Cone v. Beil, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. at 729). "The doctrine applies to bar federal habeas [relief] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. at 729-30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) ("When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them.”). “Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted).
C. Ground Two
As stated, in Ground Two, Mr. Cherry alleges that his plea counsel was ineffective for failing to explain to Petitioner that he would not be able to appeal the sentence imposed following the blind plea. (ECF No. 1:6-7). The OCCA deemed the claim procedurally barred, stating:
Petitioner did not raise a claim of ineffective assistance of counsel in his Application to Withdraw Plea or in the Petition for Writ of Certiorari. Therefore, the claim has been waived for our appellate review. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Weeks v. State, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d 650, 657.
(ECF No. 10-2:6). Because Mr. Cherry did not raise Ground Two in the Motion to Withdraw or the Petition for Certiorari, the OCCA was correct in concluding that the issue had been waived.
See ECF No. 10-11:22-24.
Mr. Cherry's attorney raised the issue in his certiorari brief, see ECF No. 10-1:9-12, but the issue was not preserved by including it in the actual Petition for Certiorari. See Petition for Writ of Certiorari, Cherry v. State of Oklahoma, Case No. C-2018-489 (Okla. Ct. Crim. App. July 30, 2018).
The Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground” barring habeas review. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (finding Oklahoma's doctrine of waiver to be independent and adequate). As stated, a petitioner may overcome a procedural bar if he can “demonstrate cause for the default and actual prejudice[.]” Coleman v. Thompson, 501 U.S. at 750. As a basis for cause and prejudice to overcome the procedural default on Ground Two, Petitioner simply states that “any failures/incompetencies by any of the counsels are the responsibility of assigned counsel to bring it up. Petitioner should not be penalized because trained legal professionals fail to follow the rules/case law. (cause and prejudice).” ECF No. 19:3. But this argument is insufficient. While attorney error that constitutes ineffective assistance of counsel can constitute “cause,” “[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.' ”). Coleman, 501 U.S. 753-755. Here, the Court should conclude that Mr. Cherry's simple assertion that his attorneys “failed to follow the rules” is insufficient to constitute “cause” to overcome the procedural default.
As a result, Mr. Cherry can only overcome the procedural bar if he is able to demonstrate a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. at 750. To do so, Petitioner must make a “ 'credible' showing of actual innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). That is, he must" 'support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.' ” Id. at 1232 (citation omitted). "The gateway should open only when a petition presents 'evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (citation omitted). But Mr. Cherry offers no argument which would support a claim that a fundamental miscarriage of justice had occurred. See ECF Nos. 1 & 19.
Because Petitioner has neither argued "cause and prejudice” to overcome the procedural default, nor made a credible showing that a fundamental miscarriage of justice had occurred, the Court should conclude that Ground Two is procedurally barred from habeas review. See Richie v. Sirmons, 563 F.Supp.2d 1250, 1313 (N.D. Okla. May 21, 2008) (finding that the district court was procedurally barred from considering the merits of a claim that had not been exhausted in state court when the petitioner offered neither "an argument for cause and prejudice, nor ... a fundamental miscarriage of justice argument.”).
D. Ground Three
In Ground Three, Mr. Cherry argues that his sentence was excessive for two reasons. First, that his sentence was improperly enhanced using: (1) felonies that were stale, (2) felonies that had been reclassified to misdemeanor offenses; and (3) offenses committed by Petitioner as a juvenile subject to attack under Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). (ECF No. 1:8). Second, Petitioner argues that the trial court improperly ordered the sentence on Count Two to run consecutive to the sentences imposed on all the other counts because only one “criminal episode” occurred. (ECF No. 1:8).
In his Petition for Certiorari, Plaintiff argued that his sentence was excessive because it “shocked the conscience.” (ECF No. 10-2:2). But he did not argue the theory of improper enhancement that he now argues in Ground Three until he raised the issue in his Application for Post-Conviction Relief. See ECF No. 10-6:3, 10-9:2-3. As a result, the OCCA deemed the improper enhancement claim procedurally barred, stating:
In this matter, Petitioner's first proposition claims some of his sentences are excessive because they were improperly enhanced using former convictions that had been reclassified to misdemeanors, were stale for enhancement, and/or were committed as a juvenile.... The issues Petitioner raises in his first proposition either were or could have been raised prior to the entry of his guilty plea, or in his direct appeal proceedings. The issues are thus either waived and/or procedurally barred.
(ECF No. 10-2:6). Because Mr. Cherry did not raise the “improper enhancement” portion of Ground Three in the Petition for Certiorari, the OCCA was correct in concluding that the issue had been waived. As stated, waiver is an independent and adequate ground barring habeas review. See supra. Petitioner may overcome this bar upon a showing of “cause and prejudice” or a “fundamental miscarriage of justice.” See supra. But Mr. Cherry has offered no argument in support of either theory. See ECF Nos. 1 & 19. As a result, the Court should conclude that Petitioner's claim that the sentence was excessive because it was “improperly enhanced” is procedurally barred.
Petitioner offers a second theory in support of his excessive sentence claim-that the trial judge improperly ordered the sentence on Count Two (life in prison) to run consecutive to the sentences on the remaining Counts. (ECF No. 1:8). Mr. Cherry apparently believes that all the sentences should have been ordered to run concurrently because they were all part of one “criminal episode.” (ECF No. 1:8). But Petitioner did not present this argument to the OCCA in either his direct appeal or his post-conviction appeal. See ECF Nos. 10-1 & 10-7. Therefore, to exhaust this part of Ground Three, Petitioner would have to return to state court and file a second post-conviction application. However, if Petitioner did so, the OCCA would likely find that the claim was procedurally barred under a theory of waiver. See 22 O.S. § 1086 ("Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application[.]”). As stated, waiver is considered an "independent and adequate ground” barring habeas review. See supra, Thacker v. Workman. Under similar circumstances, the Tenth Circuit Court of Appeals has applied an anticipatory procedural bar to prevent habeas review. See Grant v. Royal, 886 F.3d 874, 893 (10th Cir. 2018) ("if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal.”).
Mr. Cherry can overcome the anticipatory procedural bar upon a showing of "cause and prejudice” or a "fundamental miscarriage of justice,” but he offers no argument in support of either theory. See ECF Nos. 1 & 19. As a result, the Court should find that this part of Ground Three is procedurally barred from consideration on habeas review. See Grant v. Royal, 886 F.3d at 902 ("Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim.”).
V. GROUND FOUR
In Ground Four, Petitioner argues that his appellate counsel rendered ineffective assistance in two ways: (1) that appellate counsel failed to argue, in the certiorari appeal, that trial counsel was ineffective for failing to argue, in the Motion to Withdraw, that the sentence was excessive because it had been improperly enhanced; and (2) that appellate counsel was ineffective, for failing to argue, in the certiorari appeal, that trial counsel was ineffective for failing to explain to Petitioner that he would not be able to appeal his sentence following the blind plea. (ECF No. 1:9). The Court should deny habeas relief on Ground Four, sub-part one, and conclude that Ground Four, sub-part two is subject to an anticipatory procedural bar.
A. Sub-part One
In Petitioner's Application for Post-Conviction Relief, Mr. Cherry presented the first sub-part of Ground Four regarding appellate counsel's failure to argue that trial counsel was ineffective for failing to include the “improper sentence enhancement” claim in the Motion to Withdraw. See ECF Nos. 10-7 & 10-9. The OCCA denied the claim on the merits, stating that Petitioner was unable to demonstrate that the result of his appeal would have been any different if appellate counsel, in the certiorari appeal, had raised trial counsel's alleged ineffectiveness in the Motion to Withdraw. (ECF No. 10-9:4).
Petitioner is not entitled to relief on this claim of ineffective assistance of appellate counsel unless he demonstrates that the OCCA unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner must demonstrate that his counsel's performance was deficient and that the deficient performance was prejudicial. Id. at 687. When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance by failing to raise an issue on direct appeal, the court first examines the merits of the omitted issue. Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999).
The omitted issue, and the underlying inquiry, is whether trial counsel had been ineffective in failing to argue, in the Motion to Withdraw, that Petitioner's sentence was excessive because it had been improperly enhanced. The Court should answer this question negatively.
1. Standard of Review for Claim of Excessive Sentence
The Eighth Amendment's prohibition against imposition of cruel and unusual punishment requires that the sentence cannot be disproportionate to the severity of the crime or involve unnecessary infliction of pain. Solem v. Helm, 463 U.S. 277, 284 (1983). The guiding rule is that the fixing of penalties for crimes is a legislative function, and the determination of what constitutes adequate punishment is left to the trial court's discretion; and if the sentence is within statutory limits, the appellate court will not regard it as cruel and unusual or excessive. United States v. O'Driscoll, 761 F.2d 589, 599 (10th Cir. 1985) (citations omitted). In order for a petitioner to be entitled to federal habeas relief based on an excessive sentence, he must show that “the sentence imposed is outside the statutory limits or unauthorized by law.” Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000) (citations omitted).
2. Relevant Oklahoma Law
In relevant part, Mr. Cherry was convicted of: (1) Count Two: first-degree manslaughter in violation of 21 O.S. § 711; (2) Count Three: causing an accident while driving without a license and resulting in great bodily injury in violation of 47 O.S. § 11-905(B); and (3) Count Five: leaving the scene of an accident involving personal injury in violation of 47 O.S. § 10-102. See supra. On all three Counts, Mr. Cherry was sentenced to life in prison. (ECF No. 10-11:17). The sentences were enhanced based on the fact that Mr. Cherry had two or more previous felony convictions. See ECF No. 10-11:17.
Although the Judgment and Sentence reflects a violation of 47 O.S. § 10-104 for Count Five, the Amended Information actually charged Petitioner with violating 47 O.S. § 10-102, for failing to stop at an accident which involved a personal injury and providing the necessary information as set forth in § 10-104. See O.R. 95. The duty to stop and provide information is set forth in § 10-104, while the actual crime for failing to perform this duty is set forth in 47 O.S. § 10-102.
The remaining Counts-Six, Seven, and Nine-were not enhanced based on prior felony convictions and are not part of the excessive sentence claim. See ECF No. 10-11:12.
In Oklahoma, the punishment for an inmate who has been found guilty of first-degree manslaughter is incarceration for no less than four years. See 21 O.S. § 715. However, if a defendant has been previously convicted of at least two felonies and within 10 years of the date he completed the latest prior felony sentence, and he is thereafter convicted of first-degree manslaughter, the sentence on the manslaughter conviction may be enhanced to a range from twenty years to life imprisonment. See 21 O.S. § 51.1(B); 57 O.S. § 571.
The punishment for causing an accident while driving without a license and resulting in great bodily injury is not more than five years and/or a fine of $3,000.00. See 47 O.S. § 11-905(B). However, if a defendant has been previously convicted of at least two felonies and within 10 years of the date he completed the latest prior felony sentence, and he is thereafter convicted of causing an accident while driving without a license and resulting in great bodily injury, the sentence on such conviction may be enhanced to a range from four years to life imprisonment. See 21 O.S. § 51.1(C); 47 O.S. § 11-905(B).
Finally, the punishment for leaving the scene of an accident involving personal injury is from 10 days to two years in prison and/or a fine between $50.00 and $1,000.00. See 47 O.S. § 10-102. However, if a defendant has been previously convicted of at least two felonies and within 10 years of the date he completed the latest prior felony sentence, he is thereafter convicted of leaving the scene of an accident involving personal injury, the sentence on such conviction may be enhanced to a range from 30 days to life imprisonment. See 21 O.S. § 51.1(C); 47 O.S. § 10-102.
If a period of ten years elapses between the completion of the sentence imposed on the former conviction, the former felony may not be used for enhancement purposes. See 21 O.S. § 51.2. Even so, a “stale” felony conviction (one which was completed more than 10 years prior to the commission of the current crime) may be “revived” for enhancement purposes if, within 10 years after the sentence completion, the defendant commits another felony, albeit it one separate from the current offense. See Mansfield v. Champion, 992 F.2d 1098, 1104 (10th Cir. 1993) (“if a person thereafter commits another felony within ten years of a current offense, that non-stale felony operate[s] to revitalize the two prior [stale] convictions[.]”) (internal quotation marks and citations omitted).
To understand the application of this somewhat confusing law, an example is in order. Consider a hypothetical defendant who was convicted of first-degree robbery on January 1, 1985, and was sentenced to five years imprisonment. The sentence was discharged on January 1, 1990. On January 1, 1991, the defendant was again convicted for first-degree robbery. The sentence imposed is 10 years and the defendant was discharged on January 1, 2001. Five years pass and the defendant is convicted of first-degree robbery for a third time on January 1, 2006. Although more than 10 years has elapsed between the discharge of the 1985 conviction (in 1990) and the current conviction (2006), the 1985 conviction, which is considered “stale” may be “revived” for enhancement purposes because 10 years had not elapsed between the discharge of the 1985 conviction (in 1990) and the commission of another felony in 1991. Under this reasoning, 10 years must pass from the discharge date of one felony to the conviction date of another felony in order for the first felony conviction to be considered “stale” and unusable for enhancement purposes.
3. No Improper Enhancement
As discussed, Petitioner's sentence was enhanced through the use of nine prior felony convictions. Petitioner argues that the sentence was improperly enhanced using: (1) felonies that were stale, (2) felonies that had been reclassified to misdemeanor offenses; and (3) offenses committed by Petitioner as a juvenile subject to attack. (ECF No. 1:8). But with the earliest conviction in 1993, none of the prior felonies were committed by Plaintiff as a juvenile, and Plaintiff has failed to argue which prior felonies have been “reclassified to misdemeanor offenses.” See ECF No. 1. What remains is Petitioner's attack on the use of the prior convictions as “stale”-i.e.-not having occurred within the past 10 years of the instant conviction. Through the use of “stale” convictions, Petitioner argues that his sentence was improperly enhanced, and therefore, excessive. See ECF No. 1:8. In turn, Petitioner argues that his appellate counsel was ineffective for failing to argue, on certiorari appeal, that trial counsel was ineffective, in the Motion to Withdraw, to challenge the improper enhancement. (ECF No. 1:9). The Court should find no merit to this claim.
See O.R. 100-101; Oklahoma County District Court Cases CF-1993-1740, CF-1992-6625, CF-1991-3834, CF-1999-5983, CF-2000-214, CF-2000-1866, CF-2006-3931.
At the plea hearing in 2018, Petitioner was 44 years old. See ECF No. 10-11:1.
As discussed, a felony conviction may be used for enhancement purposes if the current conviction occurred within 10 years of the discharge date of the prior conviction. See 21 O.S. § 51.1(B), (C); 57 O.S. § 571. And offenses which are considered “stale” due to the passing of 10 years between the stale offense and the current offense may be “revitalized” for enhancement purposes if, within 10 years of the stale conviction, the defendant commits another felony, albeit separate from the current offense. Mansfield v. Champion, 992 F.2d 1098, 1104 (10th Cir. 1993).
Thus, to determine whether the allegedly “stale” convictions were properly used to enhance Petitioner's sentence, the Court must examine the conviction and discharge dates of each crime.
County
Case No.
Crime
Conviction Date
Discharge Date
Oklahoma
CF-1993-1740
Possession of a weapon during commission of a felony
9/13/93
8/4/2000
Oklahoma
CF-1993-1740
Possession of a controlled dangerous substance
9/13/93
9/19/03
Oklahoma
CF-1992-6625
Possession of controlled dangerous substance with intent to distribute
1/24/94
4/7/97
Oklahoma
CF-1991-3834
Maintaining a place where a controlled dangerous substance is kept
9/20/93
3/10/94
Oklahoma
CF-1999-5983
Second-degree forgery
8/4/00
10/28/04
Oklahoma
CF-1999-5983
Second-degree forgery
8/4/00
10/28/04
Oklahoma
CF-2000-214
Possession of a firearm after a former felony conviction
7/25/00
9/22/04
Oklahoma
CF-2000-1866
Bail Jumping
7/25/00
9/22/04
Oklahoma
CF-2006-3931
Possession of a controlled dangerous substance with intent to distribute
8/24/07
11/25/12
Current Offense
Oklahoma
CF-2018-4278
First-Degree manslaughter
4/5/2018
TBD
The various convictions and discharge dates are reflected in Mr. Cherry's file which can be found https://okoffender.doc.ok.gov/; DOC #218624.
The 10-year enhancement window ran from the date of completion of the sentence prior to the date of the commission of the current offense for first-degree manslaughter. Mansfield, 992 F.2d at 1104, n. 10. Mr. Cherry discharged the conviction in Case No. CF-2006-3931 on November 25, 2012. Less than ten years passed between that discharge date and the conviction in the instant case on April 5, 2018. Thus, the conviction in CF-2006-3931 was sufficient to enhance Mr. Cherry's sentence for first-degree manslaughter. And the two convictions for second-degree forgery were also properly “revived” to enhance the first-degree manslaughter sentence because less than 10 years passed between the discharge dates of the forgery convictions (Oct. 28, 2004) and the conviction in CF-2006-3931 (Aug. 24, 2007). Because Petitioner's sentence was properly enhanced, trial counsel would not have prevailed in the Motion to Withdraw if he had argued otherwise. As a result, appellate counsel was not ineffective for failing to argue trial counsel's ineffectiveness in the Petition for Certiorari. The OCCA reached the same conclusion, and the Court should find that the OCCA's conclusion was reasonable and that habeas relief is not warranted on sub-part one of Ground Four.
The Court need not determine whether the remaining six prior convictions were used to properly enhance the sentence because the enhancement statute only required two former felony convictions. See supra.
(ECF No. 10-9:3-4).
B. Sub-Part Two
In sub-part two of Ground Four, Petitioner argues that appellate counsel was ineffective, for failing to argue, in the certiorari appeal, that trial counsel was ineffective for failing to explain to Petitioner that he would not be able to appeal his sentence following the blind plea. (ECF No. 1:9). Petitioner did not raise this issue in the Application for Post-Conviction Relief, which was his first opportunity to challenge appellate counsel's effectiveness. See ECF Nos. 10-7 & 10-8. As a result, the issue is unexhausted. See supra. If Petitioner were to go back to state court and exhaust the claim, the state court would likely find the claim barred under the theory of waiver. Thus, the Court should find that this claim is subject to an anticipatory procedural bar. See supra. And Mr. Cherry cannot overcome this bar because he has failed to argue any cause or prejudice to excuse the default, nor has he argued that a fundamental miscarriage of justice has occurred. See ECF Nos. 1 & 19; see supra (noting that "attorney ignorance” does not constitute cause to overcome a procedural default.).
VI. RECOMMENDATION
It is recommended that the Court DENY Mr. Cherry's Petition for Writ of Habeas Corpus.
VII. 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 March 1, 2021, 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).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.