Opinion
CIV-21-599-PRW
06-15-2023
NICHOLAS ALLAN DANIEL, Petitioner, v. RICK WHITTEN, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Nicholas Allan Daniel (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Respondent filed a response (Doc. 10), along with portions of the record, including the blind plea transcript (B.P. Tr.), the sentencing transcript (S. Tr.), and the motion to withdraw plea of guilty transcript (W. Tr.). (Doc. 12).Respondent also filed the criminal appeal original record (O.R.). (Id.) Petitioner filed a reply brief. (Doc. 13). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DENIED.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Facts and Procedural History
On November 5, 2017, Oklahoma City police officers responded to a Wal-Mart at 2200 W. Memorial Road in Oklahoma City, Oklahoma County. (O.R., at 1). There, they discovered Kendall Neal in the Wal-Mart parking lot next to his black pickup truck. (Id.) Neal had sustained a gunshot wound, and he later died from his injuries. (Id.) A search of Neal's truck revealed a cell phone belonging to Neal, and a review of the cell phone uncovered text messages between Neal and an unknown phone number which was later determined to belong to Petitioner. (Id. at 1-2). The text messages arranged for Petitioner to meet Neal in the Wal-Mart parking lot. (Id.)
On November 6, 2017, police arrested and interviewed Petitioner. (Id. at 8). During the interview, Petitioner admitted to meeting Neal at Wal-Mart and shooting Neal. (Id.) Petitioner detailed the interaction with investigators, describing a disagreement between himself and Neal regarding a drug transaction. (Id. at 8, 116-17). Petitioner admitted to shooting Neal in the armpit and taking an ounce of marijuana. (Id. at 8, 116). Petitioner later sold the ounce of marijuana for approximately $200. (Id. at 8). Petitioner “attempted to assert self-defense by claiming Kendall Neal pulled a gun on him first[,]” however, “[t]he nature of the entry wound, and the trajectory, strongly suggest that Neal was positioned with his right arm raised in a defensive posture when shot.” (Id. at 117).
The state charged Petitioner in Oklahoma County District Court, Case No. CF-2017-6968,with one count of felony murder in the first degree with an underlying felony of distribution of a controlled dangerous substance (“Count 1”) and one count of robbery with a firearm (“Count 2”). (O.R., at 5). Petitioner was, at all relevant times before the state district court, represented by attorney Joi Miskel. (B.P. Tr., at 2, S. Tr., at 2, W. Tr., at 2).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2017-6968&cmid=3598485 (Docket Sheet) (last visited June 15, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. 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).
On November 14, 2018, Petitioner entered a blind plea of guilty to Counts 1 and 2. (B.P. Tr., at 3-4; O.R., at 107-115). At the hearing, Petitioner indicated his understanding of the blind plea:
MR. POND: Do you understand that the 85 percent rule applies to both Count
1 and Count 2?
[PETITIONER]: Yes.
MR. POND: And you understand that this plea is - your blind plea is at least in part an exchange for the State's agreement not to seek life without the possibility of parole?
[PETITIONER]: Yes.
[. . .]
MR. POND: Do you know what a blind plea is?
[PETITIONER]: Yes.
MR. POND: To you what does a blind plea mean?
[PETITIONER]: Basically it's going in front of a judge and he's giving me my sentence.(B.P. Tr., at 4-5). Petitioner also acknowledged in writing that he understood the nature and consequences of the proceeding and that he would have to serve 85% of any sentence he received before becoming eligible for parole. (O.R., at 108-09). He also indicated that he had talked over the charges with his lawyer, that his lawyer had effectively assisted him in the case, and that he understood the potential range of punishment for his crimes. (Id. at 111). Finally, Petitioner asserted the factual basis for his plea as follows:
On November 5, 2017 in Oklahoma County I shot Kendall Neal inflicting death while distributing CDS and took property (drugs) from him by threatening him with a firearm.(Id. at 113).
On December 18, 2018, Petitioner was sentenced by the Oklahoma County District Court to life imprisonment for Count 1 and a suspended sentence of life imprisonment for Count 2, to be served concurrently. (S. Tr., at 3, 52; O.R., at 137-39). Petitioner again indicated he understood the possible punishment resulting from his blind plea and that he understood the proceedings. (S. Tr., at 3-6). After sentencing, counsel for Petitioner, Joi Miskel, indicated to the district court that Petitioner intended to appeal the conviction and to file a motion to withdraw Petitioner's guilty plea. (Id. at 53).
On December 21, 2018, Petitioner filed a Motion to Withdraw Plea of Guilty before the Oklahoma County District Court. (O.R., at 130-32). The motion argued that (1) “[c]ounsel for [Petitioner] was given less than a twenty-four-hour notice and inadequate time to respond” to the State's Bench Brief Regarding Sentencing on Behalf of the State of Oklahoma (the “State's Bench Brief”); (2) “[Petitioner] was not fully prepared to combat” the State's Bench Brief “and respond with proper mitigation;” and (3) the court wrongly admitted certain evidence objected to by Petitioner resulting in further bias. (Id. at 130; see also id. at 116-21 (State's Bench Brief)).
At the hearing on the motion, Ms. Miskel alleged that the State's Bench Brief was “provided to the Court and provided to counsel the morning of sentencing,” and that it was “one-sided” and “brought in irrelevant facts and issues with [Petitioner] that . . . had nothing to do with this case.” (W. Tr., at 4). Specifically, Ms. Miskel argued that the district court wrongly considered Petitioner's failure to fully cooperate as a witness in another murder case and failed to take into account Neal's known history as a drug dealer. (Id. at 5-6). Regarding her own performance, Ms. Miskel admitted that “my client may even go so far as to say that I didn't properly prepare him” and “if that's the case, then I completely understand that as well.” (Id. at 6). Additionally, Ms. Miskel stated that Petitioner “told [her] he didn't feel that he was adequately prepared for sentencing” and “[t]hat he possibly wasn't adequately advised when he entered a blind plea.” (Id. at 7). Ms. Miskel inquired into the need for conflict counsel. (Id.) Ms. Miskel then questioned Petitioner:
MS. MISKEL: Okay. When you entered the - when we went over the plea paperwork, did you understand the plea paperwork?
[PETITIONER]: Yes.
MS. MISKEL: Okay. Did you understand what it was to enter into a blind plea?
[PETITIONER]: Yes.
[. . .]
MS. MISKEL: Okay. Do you feel that you were fully advised on that? [PETITIONER]: No.
MS. MISKEL: No. Okay. What question would you have about that? [PETITIONER]: I don't know.
MS. MISKEL: Okay. Were you - did you understand that your range of punishment could be up to life imprisonment?
[PETITIONER]: Yes.
[. . .]
MS. MISKEL: Okay. Did you anticipate that the State would file a sentencing memorandum?
[PETITIONER]: Yes.
MS. MISKEL: You thought they would file one?
[PETITIONER]: Oh, no.
[. . .]
MS. MISKEL: Okay. Was there anything that happened on sentencing that you didn't expect to happen?
[PETITIONER]: Yes.
MS. MISKEL: What?
[PETITIONER]: Him bringing up all evidence from other cases, something that it didn't belong to happen in this case really. Him saying what he said, all the negative things, and not bringing up what the victim did and just blaming everything on me.
MS. MISKEL: Okay. So I just want to make sure I understand this. That you didn't anticipate that other - your other crimes or accusations could be brought against you, is that what you're saying?
[PETITIONER]: Yes.(Id. at 7-10). Ms. Miskel advised the district court that, had she received the State's Bench Brief earlier, she “would have responded to it” and “provided more mitigation and arguments toward what the State provided.” (Id. at 10). She further stated:
MS. MISKEL: I certainly feel like I could have done a better job of representing Mr. Daniel had I been given the opportunity to respond in kind. And I'm not saying that the Court would reach any other decision, but I felt like I could have done a better job.
THE COURT: You informed him of what the ramifications were on his plea, the blind plea, right?
MS. MISKEL: I did, yes, Your Honor.
THE COURT: And he understood that -
MS. MISKEL: I think to the best -
THE COURT: - the possibility would be life imprisonment.
MS. MISKEL: Yes. Yes, Your Honor. But given his age and education, I'm not sure that he could fully understand the whole gambit of the consequences.
In all honesty I think he understood it as best as he could.(Id. at 11).
The Oklahoma County District Court denied Petitioner's Motion to Withdraw Plea of Guilty. (Id. at 19-20). Petitioner filed a Petition for Writ of Certiorari with the Oklahoma Court of Criminal Appeals (“OCCA”) appealing the denial. (See Doc. 10, at Ex. 2).The OCCA granted Petitioner's Writ of Certiorari and modified the judgment on Count 1 to reflect a conviction for felony murder in the first degree with an underlying felony of robbery with a firearm. (Doc. 10, at Ex. 1, at 19-20). Additionally, Petitioner's Count 2 conviction was reversed and remanded with instructions to dismiss. (Id.)
See also Oklahoma Court of Criminal Appeals, Case No. C-2019-15. https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=C-2019-15 (Docket Sheet) (last visited June 15, 2022).
On June 10, 2021, Petitioner filed the instant Petition. (Doc. 1). Respondent filed a response asking that relief be denied (Doc. 10), and Petitioner filed a reply (Doc. 13).
II. Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep'tof Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “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 statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “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.” 28 U.S.C. § 2254(d). “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) (internal quotation marks omitted). This standard “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, 562 U.S. at 102-03 (internal quotation marks omitted).
Petitioner argues that the OCCA's decision should not be reviewed with the deference typically afforded under the AEDPA because the OCCA's decision “represents an extreme malfunction in the criminal justice system.” (Doc. 1, at 13). Petitioner asserts that deference is proper only when the “federal claim was adjudicated on the merits in State Court.” (Id. (citing Johnson v. Williams, 568 U.S. 289 (2013)). However, Petitioner does not allege that the state court failed to address the merits of any of the claims presented in the instant Petition. Petitioner correctly states that the AEDPA permits de novo review when the State court decides a federal claim “contrary to” clearly established Supreme Court precedent, (id.), but Petitioner fails to point to clearly established precedent that is contrary to the OCCA's determinations. Finally, Petitioner highlights that the claims were debatable among the bench, however, he fails to cite any law that would entitle Petitioner to de novo review on this basis. (Id.) The court rejects Petitioner's contention that de novo review is necessary and will apply the typical deference afforded by the AEDPA.
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks 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.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (internal quotation marks 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.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
This 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, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)). This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
III. Analysis
Petitioner raises three claims for relief, alleging:
• (Ground One) “Petitioner was denied the effective assistance of conflict free counsel at his plea withdraw[al] hearing, in violation of the Sixth and Fourteenth Amendments to the United States Constitution;”
• (Ground Two) “Petitioner's plea of guilty was not knowing and voluntary, as it lacked an adequate factual basis and the OCCA's determination of this claim should not be afforded deference;” and
• (Ground Three) “Petitioner was denied a right to the effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendment.”(Doc. 1, at 14, 22, 30). Respondent contends Grounds One, Two, and Three, should be denied on the merits. (Doc. 10, at 12).
As set forth fully below, Petitioner is not entitled to relief on any of his claims.
A. Ground One: Petitioner Is Not Entitled to Relief Because the OCCA Reasonably Applied Clearly Established Law Regarding Effective Assistance of Conflict-Free Counsel.
In Ground One, Petitioner argues that he is entitled to relief on his claim that he was denied effective assistance of conflict-free counsel at his plea withdrawal hearing, violating his Sixth and Fourteenth Amendment rights. (Doc. 1, at 14). Specifically, he contends an actual conflict existed at the plea withdrawal hearing because:
(1) counsel's interest in protecting her professional conduct was at odds with her client's interest, (2) counsel failed to claim she was ineffective for inadequately responding to the State's Bench Brief, (4)counsel failed to claim she was ineffective for neglecting to argue that the plea lacked an insufficient [sic] factual basis, and (5) counsel failed to claim she was ineffective for filing an inadequate motion, as it did not challenge jurisdiction or whether the plea was knowingly or voluntarily entered.(Id. at 18). Petitioner highlights that Ms. Miskel questioned whether conflict counsel was needed but the issue was not addressed by the state district court. (Id. at 16). Petitioner alleges that the knowing and voluntariness of the plea centered around Ms. Miskel's ineffective assistance of counsel, and as such, Ms. Miskel should have been called to testify at the hearing. (Id. at 18-19).
Petitioner's list omits number 3.
For the reasons stated below, the undersigned recommends that Petitioner be denied habeas relief on this ground.
1. The OCCA's Ruling
On direct appeal, the OCCA rejected Petitioner's assertion, holding:
[Petitioner] argues in his first proposition of error, along with his related ineffective assistance of counsel claim in Proposition IV, that an actual conflict existed between himself and plea counsel at the hearing on his motion to withdraw. He thus contends the District Court's failure to appoint conflict-free counsel resulted in [Petitioner] receiving ineffective assistance of counsel. A criminal defendant is entitled to effective assistance of counsel at a hearing on a motion to withdraw. Carey v. State, 1995 OK CR 55, ¶ 5, 902 P.2d 1116, 1117; Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d 314, 316. The right to effective assistance of counsel includes the correlative right to representation that is free from conflicts of interest. Carey, 1995 OK CR 55, ¶ 8, 902 P.2d at 1118 (citing Wood v. Georgia, 450 U.S. 261, 271 (1981)).
To prevail on an ineffective assistance of counsel claim based on a conflict of interest, a defendant who raised no objections
5 Notably, while defense counsel during argument questioned whether conflict counsel should be appointed, the record shows she essentially abandoned her inquiry into this issue. Moreover, [Petitioner] did not directly challenge counsel's representation or request for new counsel.
This Court does not have a rule that plea counsel and withdrawal counsel cannot be the same attorney. Indeed, this is hardly an uncommon phenomenon. Here, there was no actual conflict between [Petitioner] and his plea counsel going into the hearing on his motion to withdraw guilty plea. While defense counsel contemplated during the withdrawal hearing whether her performance was deficient and informally inquired whether conflict counsel should be appointed, her remarks merely implied the possibility of a conflict. The record clearly shows [Petitioner's] dissatisfaction was not with plea counsel but instead was with the State and the evidence it presented at sentencing, as well as the sentence imposed by the court. Moreover, as addressed more fully in Proposition II below, the record shows [Petitioner's] plea was knowingly and voluntarily entered.
[Petitioner] shows, at best, the mere appearance or possibility of a conflict of interest existed that warranted the appointment of conflict counsel. This is wholly insufficient to warrant relief. Under the total circumstances presented here, there was no error from the trial court's failure to appoint conflict counsel. Rutan, 2009 OK CR 3, ¶ 67, 202 P.3d at 853. Counsel was not ineffective based on the existence of an actual conflict of interest.(Doc. 10, at Ex. 1, at 3-6).
2. Cuyler v. Sullivan is the Clearly Established Law Regarding the Right to Conflict-Free Counsel in the Absence of an Objection During Trial.
The Sixth Amendment to the United States Constitution entitles a defendant in a criminal case to the effective assistance of counsel. Powell v. Alabama, 287 U.S. 45 (1932). A defendant's right to the effective assistance of counsel includes a right to “‘representation that is free from conflicts of interest.'” United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)). This right to conflict-free representation “‘extends to any situation in which a defendant's counsel owes conflicting duties to that defendant and some other third person.'” Id. (quoting United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988)).
Typically, the court applies the two-prong test in Strickland v. Washington, 466 U.S. 668 (1984), in determining whether a conflict of interest exists that deprived the defendant of effective assistance of counsel. However, when a defendant fails to raise an objection of ineffective assistance before the trial court, an alternative standard applies; the defendant “must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). When a defendant “shows that a conflict of interest actually affected the adequacy of his representation,” the defendant “need not demonstrate prejudice in order to obtain relief.” Id. at 349-350.
“An actual conflict of interest results if counsel was forced to make choices advancing other interests to the detriment of his client.” United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998). “[T]o demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest an impairment or compromise of his interests for the benefit of another party.” Id. (internal quotation omitted). A mere possibility or suggestion of a conflict is not sufficient. Cuyler, 446 U.S. at 350.
3. The OCCA Reasonably Determined That Counsel Was Not Ineffective Based on an Actual Conflict of Interest.
The OCCA found that Petitioner showed only “the mere appearance or possibility of a conflict of interest,” and that “this is wholly insufficient to warrant relief.” (Doc. 10, at Ex. 1, at 5). The OCCA's determination was not contrary to or an unreasonable application of clearly established federal law.
Petitioner's claims of conflict center around Ms. Miskel's alleged ineffective performance and her desire to protect her own professional reputation. (Doc. 1, at 18). Petitioner highlights counsel's comments during the plea withdrawal hearing that she “could have done a better job,” and that she “would have done things differently.” (Id. at 19 (citing W. Tr., at 6, 11). However, these comments suggest that Ms. Miskel was not in conflict between defending her professional conduct and representing her client's interests, as she openly expressed her concerns regarding her performance. (W. Tr., at 10-11). The comments certainly do not show by clear and convincing evidence that an actual conflict existed. Davis, 576 U.S. at 271.
Petitioner also focuses on Ms. Miskel's comment that she was not sure Petitioner understood “the whole gambit of the consequences,” alleging that Ms. Miskel failed to pursue this line of questioning with Petitioner as it would have exposed the conflict. (Doc. 1, at 19 (citing W. Tr., at 11)). The court is not persuaded by this allegation. Counsel states that she believed Petitioner to understand the proceedings to the best of his ability. (W. Tr., at 11). Ms. Miskel specifically asked her client whether he felt advised in making a blind plea, and when Petitioner responded he did not, inquired into why Petitioner felt that way. (Id. at 7-10). Petitioner did not state any reason for feeling not appropriately advised other than the fact that evidence was presented by the State at sentencing that he did not anticipate or want. (Id.) This does not demonstrate that Ms. Miskel's own interest conflicted with Petitioner's interest. Allen, 874 P.2d at 63; see also Alvarez, 137 F.3d at 1252.
Petitioner also believes a conflict exists because Ms. Miskel did not claim she was ineffective during her representation. (Doc. 1, at 17-18). Because the undersigned finds that Ms. Miskel was not ineffective, see below Section III(C), this argument is without merit.
The undersigned finds the OCCA reasonably determined that no actual conflict of interest existed, and Ground One should be denied.
B. Ground Two: Petitioner is Not Entitled to Relief Because the OCCA Reasonably Applied Clearly Established Law Regarding the Knowing and Voluntary Nature of the Plea.
In Ground Two, Petitioner alleges that his plea was not knowing or voluntary because it lacked a factual basis. (Doc. 1, at 22). Petitioner states “[his] decision-making process would have been different if he were only facing one count of Murder in the First Degree, Felony Murder (Robbery) because Petitioner would not have been sentenced to two counts concurrently or consecutively.” (Id. at 23).
1. The OCCA's Ruling
Petitioner's Ground Two encompasses portions of Propositions II (plea was not made knowingly or intelligently) and III (the factual basis was insufficient to support conviction) from his direct appeal before the OCCA. (See Doc. 10, at Ex. 2, at 18-28). In considering Proposition II, the OCCA held in relevant part:
Certiorari review is limited to whether the plea was entered voluntarily and intelligently before a court of competent jurisdiction. Lewis v. State, 2009 OK CR 30, ¶ 4, 220 P.3d 1140, 1142. This Court reviews the denial of a motion to withdraw a plea for an abuse of discretion. Lewis, 2009 OK CR 30, ¶ 5, 220 P.3d at 1142; Carpenter v. State, 1996 OK CR 56, ¶ 40, 929 P.2d 988, 998. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the
issue; a clearly erroneous conclusion and judgement, clearly against the logic and effect of the facts. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. The burden is on the petitioner to show a defect in the plea process that entitles him to withdraw the plea. See Elmore v. State, 1981 OK CR 8, ¶ 8, 624 P.2d 78, 80. We examine the entire record before us on appeal to determine the knowing and voluntary nature of the plea. Fields v. State, 1996 OK CR 35, ¶ 28, 923 P.2d 624, 630.
The standard for determining the validity of a plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970); Hopkins v. State, 1988 OK CR 257, ¶ 2, 764 P.2d 215, 216. When a defendant claims that his or her plea was entered through inadvertence, ignorance, influence or without deliberation, he has the burden of showing that the plea was entered as a result of one of these reasons and that there is a defense that should be presented to the jury. Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380, 1383.
* * *
[Petitioner] argues he was misinformed as to what would transpire during the sentencing hearing. [Petitioner's] testimony at the withdrawal hearing spoke to his dissatisfaction with his sentence and does not support his claim here that he did not sufficiently understand what would transpire at the sentencing hearing. [Petitioner] specifically acknowledged on direct examination that he understood when he plead that the State would get to present evidence, including victim impact evidence, at his sentencing hearing. He simply was unhappy with the evidence presented and the sentence imposed. The record shows [Petitioner's] plea was knowingly and voluntarily entered despite the fact that he entered it in hopes of receiving more favorable sentences. See Fields, 1996 OK CR 35, ¶ 44, 923 P.2d at 632 (plea was knowing and voluntary even though it was entered with the hopeful expectation of a lesser sentence).
* * *
It is clear from the record that [Petitioner] is simply suffering from buyer's remorse, which in and of itself does not render a guilty plea involuntary. See Fields, 1996 OK CR 35, ¶ 53, 923 P.2d at 634 (plea was knowingly and voluntarily entered despite the Petitioner's unhappiness with his sentence). This is not a case where [Petitioner] entered his plea through inadvertence, ignorance or without deliberation. [Petitioner's] guilty plea was a strategic choice, made in the hopes of receiving more favorable
sentences, after fully considering the option at hand. See Id., 1996 OK CR 35, ¶ 44, 923 P.2d at 632. The trial court's finding that [Petitioner's] plea was entered knowingly and voluntarily was not an abuse of the court's discretion. Proposition II is denied.(Doc. 10, at Ex. 1, at 6-10) (internal footnotes omitted). In considering Proposition III, the OCCA stated that:
[Petitioner] complains the factual basis provided for his pleas was insufficient to support his Count 1 felony murder conviction. [Petitioner] provided the following factual basis:
On November 5, 2017 in Oklahoma County I shot Kendall Neal inflicting death while distributing CDS & took property [sic] (drugs) from him by threatening him with a firearm.”(Doc. 10, at Ex. 1, at 10-11 (citing O.R., at 113)). The OCCA found that “the record shows that [Petitioner] was meeting with the victim to purchase marijuana, not to sell the drug” and “[Petitioner] thus correctly argues that the record lacks a sufficient factual basis to establish he killed the victim while he was in the commission of unlawfully distributing a controlled dangerous substance.” (Id. at 11-12) (internal citation omitted). However, the OCCA also found:
[Petitioner] would undoubtedly have pled guilty to one count of felony murder with the underlying felony being robbery with a firearm-a delineated basis for felony murder (21 O.S.Supp.2012, § 701.7(B)) that is factually supported by the record and is consistent with the crimes to which [Petitioner] actually pled guilty. [Petitioner] admitted in his plea that he fatally shot the victim as well as threatened the victim with his firearm to take drugs from him. Moreover, nothing in the record impeaches or suggests that [Petitioner's] admission were untrue. See Brady v. United States, 397 U.S. 742, 758 (1970) (courts should “satisfy themselves that pleas of guilty are voluntary and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged.”).(Id. at 13). The OCCA thus found it appropriate to “cure the plea error by conforming [Petitioner's] Count 1 felony murder conviction to the record evidence and in consequence, abrogate his Count 2 robbery with a firearm conviction” and granted certiorari on this issue. (Id. at 14-15) (citation omitted). The OCCA then addressed Petitioner's argument that this decision invalidates his guilty plea:
In anticipation of this resolution, [Petitioner] argues that the error calls into question the knowing and voluntary nature of his plea as his “decision making process would have been different if he were only facing one count of Murder in the First Degree, Felony Murder (Robbery) because [he] would not have been able to be sentenced to two counts concurrently or consecutively.” [Petitioner's] argument is specious and ignores that his plea was a tactical decision to avoid a potential sentence of life without the possibility of parole. See Anderson v. State, 2018 OK CR 13, ¶ 13, 422 P.3d 765, 770 (“The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant.”). [Petitioner's] plea was undoubtedly also influenced by the strength of the State's evidence, including [Petitioner's] confession to the murder and robbery during a “Miranda interview” (O.R. 1-2). The Court's remediation of this issue is consistent with, and supported by, these driving factors behind [Petitioner's] plea.
The record shows [Petitioner's] plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. Hopkins, 1988 OK CR 257, ¶ 2 764 P.2d at 216.(Id. at 14-15).
2. North Carolina v. Alford is the Clearly Established Law Regarding the Knowing and Voluntary Nature of a Plea.
“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.'” United States v. Carr, 80 F.3d 413, 416 (10th Cir. 1996) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A plea's voluntariness can only be determined “by considering all of the relevant circumstances surrounding it.” Brady v. United States, 397 U.S. 742, 749 (1970). Further, “solemn declarations made in open court carry a strong presumption of verity.” United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir. 2014) (quoting Tovar Mendoza v. Hatch, 620 F.3d 1261, 1269 (10th Cir. 2010)).
3. The OCCA Reasonably Applied Alford.
Petitioner argues that because he pled guilty to two crimes - felony murder with the underlying felony of distribution of a CDS and robbery with a firearm - when the factual basis only supported one crime, the plea was not voluntarily made. (Doc. 1, at 23). Petitioner alleges that his decision to plead guilty would have been different had he only been facing one count of felony murder with an underlying felony of robbery with a firearm. (Id.) The undersigned finds that the OCCA reasonably applied Alford in determining that Petitioner's plea was knowing and voluntary.
Petitioner made the decision to plead guilty to the charges in exchange for the State's agreement to not seek life without parole. (B.P. Tr., at 4). Petitioner chose to continue with his guilty plea even after knowing the State had moved to amend the information. (See O.R., at 100-02). This choice was likely made based on the State's evidence against the Petitioner, including Petitioner's admission to shooting the victim. (O.R., at 8). The amended charge is factually supported by the record and is consistent to what Petitioner pled to. (Id. at 113). Petitioner specifically pled guilty to the crime that is the basis for his present felony murder conviction, felony robbery with a firearm. (Id.)
The OCCA properly applied Alford, and its conclusion was not unreasonable. Accordingly, the court recommends denying Petitioner habeas relief on Ground Two.
C. Ground Three: Petitioner is Not Entitled to Relief Because the OCCA Reasonably Applied Clearly Established Law Regarding Ineffective Assistance of Counsel.
In Ground Three, Petitioner argues that his counsel was ineffective for allowing him to plead guilty to an offense that had no factual basis. (Doc. 1, at 32).
1. The OCCA's Ruling
In considering this argument, the OCCA held:
This is the first opportunity in which this claim could be raised so it is properly before the Court. See Carey v. State, 1995 OK CR 55, ¶ 5, 902 P.2d 1116, 1117 (“A criminal defendant is entitled to effective assistance of counsel at a hearing on a motion to withdraw guilty plea.”). To prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). See also Harrington v. Richter, 562 U.S. 86, 104-05 (2011) (summarizing Strickland two-part test); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (applying two-part Strickland test to guilty pleas). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional conduct. Strickland, 466 U.S. at 689.
* * *
[I]n Proposition III, we addressed and cured the underlying basis for [Petitioner's] sixth and final ineffectiveness claim - attacking counsel's failure to challenge the factual basis for his Count 1 plea to felony murder. The Court's resolution of [Petitioner's] correlative Proposition III claim renders this claim moot.
We have addressed on the merits and rejected or cured each of [Petitioner's] claims challenging the knowing and voluntary nature of his plea, along with his corresponding claims of ineffective assistance of counsel. [Petitioner's] final proposition of error is denied.(Doc. 10, at Ex. 1, at 19).
2. Strickland v. Washington is the Clearly Established Law on Ineffective Assistance of Counsel.
In order to succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy the standards of Strickland v. Washington, 466 U.S. 668 (1984), and show that his attorney's performance was both deficient and prejudicial. Id. at 687. An attorney's performance is “deficient” when it falls “outside the wide range of professionally competent assistance.” Id. at 690. The performance is prejudicial when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable,” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. The court must use a “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted).
3. The OCCA's Application of Strickland was Not Unreasonable.
Petitioner challenges the OCCA's decision on his sixth proposition, that Ms. Miskel was ineffective for failing to challenge the factual basis for his Count 1 plea to felony murder. (Doc. 1, at 32). Petitioner alleges that Ms. Miskel was ineffective for allowing Petitioner to plead guilty to a crime for which there was no factual basis. (Id.) The question for this court is whether the OCCA's application of Strickland was unreasonable, which in turn requires us to consider whether the OCCA's remedy for the lack of factual basis was unreasonable. The undersigned finds that the OCCA's ruling and remedy was not unreasonable.
The OCCA properly concluded that there was no factual basis for a charge of felony murder with the underlying felony of distribution of a CDS, as Petitioner was the buyer in the transaction, a fact that was acknowledged throughout the proceedings by the State. (Doc. 10, at Ex. 1, at 11-12). Accordingly, the OCCA modified Petitioner's Count 1 judgment to reflect the factual basis of the plea, to first degree felony murder with the underlying felony of robbery with a firearm, and it reversed with instructions to dismiss his Count 2 conviction for robbery with a firearm. (Id. at 19-20). And a review of the record shows that Petitioner specifically pled to the facts of the crime he is presently sentenced for: felony murder with the underlying felony of robbery. (See, e.g., O.R., at 113) (“I shot Kendall Neal inflicting death while distributing CDS and took property (drugs) from him by threatening him with a firearm.”) (emphasis added). The undersigned finds that any prejudice suffered by Petitioner from pleading to a crime without a sufficient factual basis is rendered moot and cured by the remedy the OCCA applied. Since Petitioner suffered no actual prejudice, the OCCA did not improperly apply Strickland, and its conclusion was not unreasonable. Accordingly, the undersigned recommends denying Petitioner habeas relief on Ground Three.
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Petition for Writ of Habeas Corpus (Doc. 1) be DENIED on all grounds.
The court advises the parties of their right to object to this Report and Recommendation by June 29, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.