Opinion
CIV-21-610-R
02-16-2022
DAVANTE MILSAP, Petitioner, v. RICK WHITTEN, Warden, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. Petitioner is challenging his convictions of multiple crimes in the District Court of Oklahoma County. Respondent has responded to the Petition and filed the relevant state court records. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
I. Background
On May 3, 2019, Petitioner entered pleas of guilty pursuant to a plea deal on the following charges in seven separate cases: CF-2017-1372: Count 1, Robbery by Two or More Persons, Counts 6 and 7, Assault and Battery with a Dangerous Weapon, Count 8, Assault While Masked, Counts 9 and 10, Pointing a Firearm at Another, and Count 12, Possession of a Firearm After Juvenile Adjudication; CF-2017-2271: Count 1, Unauthorized Use of a Motor Vehicle, Count 2, Possession of a Firearm After Juvenile Adjudication, Count 3, Concealing Stolen Property, and Count 5, Obstructing an Officer; CF-2017-7599: Count 1, Accessory to a Felony (Use of a Vehicle to Facilitate the Discharge of a Firearm) and Count 3, Possession of a Firearm After Juvenile Adjudication; CF-2018-483: Count 1, Assault and Battery Likely to Cause Death; CF-2018-3085: Counts 1-3, Assault and Battery on a Detention Officer; CF-2018-3394: Count 1, Assault and Battery on a Detention Officer; CM-2018-3731: Count 1, Assault and Battery. Doc. No. 19-1 at 1-3.
On May 13, 2019, Petitioner filed a letter that the state court construed as a timely pro se motion to withdraw his guilty pleas. Doc. No. 19-2. Therein he raised one ground for relief - that his guilty pleas were not voluntarily and knowingly entered because his plea counsel had informed him that he could later withdraw his guilty pleas if he so chose. Id. The state court appointed conflict counsel and held a hearing on Petitioner's motion on June 13, 2019. Doc. No. 19-3. After hearing testimony, the state court denied Petitioner's motion. Id. at 48-52. Following said denial, the state court sentenced Petitioner to concurrent sentences on each of his convictions. Doc. No. 19-1 at 3.
Petitioner timely appealed his convictions to the Oklahoma Court of Criminal Appeals (“OCCA”). In his Petition in Error, Petitioner raised the following grounds for relief: (1) the trial court abused its discretion in not allowing Petitioner to withdraw his guilty pleas; (2) Petitioner's sentence on one of his convictions was excessive; (3) Petitioner's pleas were not knowingly and voluntarily entered and thus it was error to sentence Petitioner on such pleas or fail to allow him to withdraw the same; (4) the trial court's judgment and sentence and its order overruling Petitioner's application to withdraw his pleas denied Petitioner due process and equal protection of the law; and (5) any other errors that he may raise in an Amended Petition in Error. Doc. No. 19-2 at 3-4.
Petitioner did not file an Amended Petition in Error.
In the Brief in Support of his Petition in Error, Petitioner asserted three grounds for relief: (1) the state court erred in denying his motion to withdraw his guilty pleas based on his assertion that his plea counsel failed to inform him that he had to have a legal reason to withdraw them; (2) the state court erred in denying his motion to withdraw his plea agreements based on his assertion that he was incorrectly informed of the sentencing range for one of his convictions; and (3) he received ineffective assistance of counsel during the proceedings on his motion to withdraw. Doc. No. 19-3 at 11-20. On March 12, 2020, the OCCA affirmed the state court's ruling. Doc. No. 19-1.
Petitioner filed the current action seeking habeas relief on June 14, 2021. Doc. No. 1. He raises two grounds for relief. First, Petitioner argues that his guilty pleas were not knowingly and voluntarily entered because he was not informed that he had to have a legal reason to withdraw the same. Id. at 2-3, 7-9. Second, Petitioner contends the trial court abused its discretion in denying his request to withdraw his pleas because he was misinformed regarding the sentence range for one of his convictions. Id. In his Response, Respondent argues neither ground entitles Petitioner to habeas relief. Doc. No. 19.
Petitioner initially indicated in his Petition that he intended to raise a claim for ineffective assistance of counsel regarding his representation during his motion to withdraw hearing. Doc. No. 1 at 3. However, later in the Petition, he clarifies that he only intends to assert such a claim if his first ground for relief, i.e., that his pleas were not knowingly and voluntarily entered because he was not properly advised on how to withdraw his guilty pleas by plea counsel, is not preserved. Doc. No. 1 at 8 n.1. His first ground for relief was properly preserved and both the OCCA and the undersigned herein have considered that claim on the merits.
II. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “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). The AEDPA directs courts to “ensure a level of ‘deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if “a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of “clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
“[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004) (citations omitted). Consequently, federal habeas “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
III. Knowing and Voluntary
Petitioner contends that he did not knowingly and voluntarily enter his guilty pleas based on his assertion that his counsel informed him that he could withdraw the same for any reason within ten days. The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. Boykin, 395 U.S. at 242. “On review, a federal court may set aside a state court guilty plea only for failure to satisfy due process.” Cunningham v. Diesslin, 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) (quotations omitted). A guilty plea is constitutional “if the circumstances demonstrate that the defendant understood the nature and the consequences of the charges against him and . . . voluntarily chose to plead guilty.” Miles v. Dorsey, 61 F.3d 1459, 1466 (10th Cir. 1995); see also Boykin, 395 U.S. at 242-44 (same).
In rejecting this claim on certiorari appeal, the OCCA ruled as follows:
The record amply supports the trial court's denial of the motion to withdraw pleas. First, Petitioner's primary attorney testified Petitioner asked her prior to May 3, 2019, to seek a fifteen year plea agreement with the State. Second, Petitioner testified he asked the ADA for a plea offer on May 3, 2019. Third, plea counsel testified that on May 3, 2019, Petitioner asked the ADA if she would agree to a fifteen in and twenty out sentence. The ADA agreed and Petitioner entered his guilty pleas. At the withdrawal hearing, however, Petitioner stated he knew the State's offer would be its last offer, so he agreed to plead guilty in the ‘heat of the moment,' despite the fact that he was innocent and believed he could simply write a letter to his primary attorney stating he wanted to withdraw his pleas. This testimony is simply incredible. There was no exigency for him to plead guilty. He was in court simply to obtain a new trial date. Petitioner's claims of innocence are patently false and the record shows he knew exactly what he was doing when he entered his guilty pleas and that he got the plea agreement he requested. It was
only after he contemplated the reality of his sentence that he sought to withdraw his pleas. Disappointment with the sentence imposed does not afford grounds for withdrawal of a plea of guilty. Lozoya v. State, 1996 OK CR 55, ¶ 44, 932 P.2d 22, 34. The trial court did not abuse its discretion in denying Petitioner's motion to withdraw guilty pleas.Doc. No. 19-1 at 5-6.
“A defendant's guilty plea must be knowing, voluntary, and intelligent. To enter a plea that is knowing and voluntary, the defendant must have a full understanding of what the plea connotes and of its consequence.” United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002) (citations and quotations omitted). 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).
The “plea of guilty and summary of facts” forms reflect that Petitioner knew he was charged with each of the offenses to which he was pleading guilty, and the forms show the range of punishment for each crime. Original Record (“O.R.”) Vol. I at 136, 138; O.R. Vol. II at 251, 253, 366, 368; O.R. Vol. III at 445, 447, 525, 527, 586, 588; O.R. Vol. IV at 636. Petitioner signed the forms indicating that he (1) had read and understood the documents; (2) understood the nature and consequences of the proceeding; (3) had read and understood the charges; (4) had discussed the charges and any possible defenses with his attorney; (5) understood the range of punishment for the crimes charged; and (6) understood he would be required to serve 85% of this sentence for the charge of Robbery by Two or More Persons. O.R. Vol. I at 135-40; O.R. Vol. II at 250-55, 365-70; O.R. Vol. III at 444-49, 524-29, 585-90; O.R. Vol. IV at 636-37. Petitioner also indicated on the plea forms that he understood the court was not bound by any agreement or recommendation and that the court could sentence him within the range of punishment listed in the forms. O.R. Vol. I at 139; O.R. Vol. II at 254, 369; O.R. Vol. III at 448, 528, 589; O.R. Vol. IV. at 637.
The guilty plea forms informed Petitioner that if he went to trial (1) he had a right to counsel; (2) he was presumed innocent of the charges; (3) he had a right to remain silent; (4) he had the right to confront the witnesses against him; (5) he had a right to call witnesses and to present a defense; (6) the State was required to prove his guilt beyond a reasonable doubt; (7) a jury verdict would have to be unanimous; and (8) he could waive jury trial and be tried by a judge. O.R. Vol. I at 138; O.R. Vol. II at 253, 368; O.R. Vol. III at 447, 527, 588; O.R. Vol. IV at 637. Petitioner acknowledged that he understood these rights, that he had discussed these rights with counsel, that he understood he was waiving these rights by pleading guilty, and that he was pleading guilty of his own free will without coercion or compulsion of any kind. O.R. Vol. I at 138-40; O.R. Vol. II at 253-55, 368-70; O.R. Vol. III at 447-49, 527-29, 588-90; O.R. Vol. IV at 637. Petitioner indicated that he had not been forced to enter the pleas or promised anything by anyone to enter his pleas. O.R. Vol. I at 140; O.R. Vol. II at 255, 370; O.R. Vol. III at 449, 529, 590; O.R. Vol. IV at 637.
The factual bases for the pleas reflect the following statements:
On January 9, 2017[, ] in Oklahoma County, I took jewelry from A.V. and E.V. with others (D.W., K.K., J.L., & T.W.) by threatening them with force or fear. I pointed a firearm at AV and EV, was wearing a face covering while I did this, and struck AV and EV with a firearm. I have previous adjudications from juvenile court preventing me from possessing a firearm.O.R. Vol. I at 140.
On April 1, 2017[, ] in Oklahoma County, OK[, ] I drove a 2008 Lincoln without permission. I had a stolen firearm. I tried to avoid an officer in lawful pursuit, & then ran from him on foot.O.R. Vol. II at 255.
On Nov. 19, 2017[, ] in Oklahoma County, OK[, ] I had a gun that was used in a drive-by shooting and hid it in a bush.Id. at 370.
On Jan. 10, 2018[, ] in Oklahoma County, OK[, ] I struck & stomped N.O.O.R. Vol. III at 449.
On June 1, 2018[, ] in Oklahoma County, OK[, ] I threw Kool Aid on
three different detention officers.Id. at 529.
On June 6, 2018[, ] in Oklahoma County, OK[, ] I threw liquid on a Detention officer.Id. at 590.
Petitioner's signature on the guilty plea and summary of facts forms attest that his attorney completed the forms, he had gone over the forms with his attorney, he understood the contents of the forms and agreed with the answers contained therein, and the answers on the forms were true and correct. O.R. Vol. I at 140; O.R. Vol. II at 255, 370; O.R. Vol. III at 449, 529, 590.
As previously noted, Petitioner timely moved to withdraw his guilty pleas. Doc. No. 19-2. The court appointed counsel to Petitioner and held a hearing on Petitioner's motion on June 13, 2019. Doc. No. 19-3. Petitioner testified that on the day prior to his call docket, his attorney, Bonnie Blumert, informed him that the trial would not be going because she had another case in trial at that time. Id. at 7-8. She told him that someone else would represent him at the call docket to get a new trial date. Id. At the call docket, Ryan Sullivan represented Petitioner. Id. at 8. Petitioner testified that Mr. Sullivan told Petitioner that two co-defendants had turned on him and that the ADA was offering “15 in and 20 out, ” that Petitioner told Mr. Sullivan that he did not want to accept the deal, and that Mr. Sullivan told him this would be the last offer from the ADA. Id. at 8-9, 11. Mr. Sullivan recommended he take the deal. Id. at 10. Mr. Sullivan also told Petitioner that if he accepted the deal and entered a guilty plea, he could later “take it back.” Id. at 11, 12.
Petitioner further testified that he never went over the guilty plea forms with his attorney and that he never read the forms, even though he initialed statements therein and signed them. Id. at 13, 22-23. He simply signed the forms without having any idea what he was signing. Id. at 22-23.
Petitioner recalled entering guilty pleas to each of the charges addressed in the forms. Id. at 14, 20. He asserted that he did so based on his understanding that he could withdraw the pleas later. Id. at 14, 20, 23. Mr. Sullivan never explained to Petitioner that he had to have a legal basis to withdraw his guilty pleas. Id. at 15. Petitioner acknowledged that Mr. Sullivan explained to him that in order to appeal, Petitioner had to withdraw his pleas within ten days. Id. at 16.
The court also questioned Petitioner regarding the proceeding wherein Petitioner entered his guilty pleas. Id. at 18-23. Although Petitioner testified that he did not recall several of the questions the court asked him when he entered his pleas, the court noted the judge's initials on each question on the form indicating the court asked Petitioner and that he responded appropriately for entering said pleas. Id. For example, the following exchange occurred:
Q. (By the Court) And you also remember me asking you if you had been forced, abused, threatened or promised anything to get you to enter those guilty pleas?
A. (No response).
Q. Do you remember me asking you that question?
A. No, sir.
The Court: I would refer the record to page 6, question 29. And again, defendant responded “no”, he had not been forced, abused, mistreated or promised anything.
And once again my initials appear there so there is no doubt that I asked that question and that the defendant responded “no”.
Q. (By the Court) Do you also, then, remember me asking you the follow-up question, “Are you pleading guilty of your own free will without any coercion or compulsion of any kind.” Do you remember me asking you that question?
A. No, sir. I don't remember a lot of stuff - -
Q. Okay.
A. - - when it comes to a lot of questions that were asked one time.
The Court: Okay. Well, I'll refer the record to question 30 in which it again indicates in my initials that I did indeed ask him that question and I initialed it and he responded “yes”, that he was doing it without any coercion or compulsion of any kind.Id. at 20-21.
Mr. Sullivan's testimony differed from that of Petitioner. He testified that Petitioner was the first to suggest “15 in/20 out” and asked Mr. Sullivan to convey that to the ADA. Id. at 25-26, 38. Mr. Sullivan thought Petitioner understood the charges and evidence against him, and that it was Petitioner's choice to enter into the plea agreements. Id. at 26. Mr. Sullivan also explained to Petitioner that the nature of two of his crimes required he serve at least 85 percent of the sentences for those crimes, though Petitioner appeared to already understand that before Mr. Sullivan explained it. Id. at 27. Mr. Sullivan also explained to Petitioner that if he wanted to withdraw his pleas, Petitioner would need a legal reason to do so, and the court would hold a hearing on the same. Id. at 28-29, 33-35. Mr. Sullivan also stated that Petitioner requested they not complete sentencing that day because “he had some things he wanted to take care of here before he was sentenced and went to DOC and I didn't pry. I figured it had to do with contacting family or something around here.” Id. at 37-38.
The trial court denied Petitioner's application. Id. at 48-52. In relevant part, the court explained:
I [] remember specifically Mr. Sullivan being here as he is confirmed in his testimony. And I remember some back and forth because Mr. Sullivan initially indicated to me that he believed he was going to ask for the fall trial date.
And then what I recall very shortly thereafter coming up and telling the Court that there was some negotiations going on and to leave Mr. Milsap in the courtroom rather than send him back upstairs at that particular moment.
I remember some back and forth occurring. I don't remember specifically what was said by Mr. Milsap, but I remember specifically him saying something from the wall directed in the direction of the ADA loud enough that I could tell he was verbalizing something, what appeared to me to be to Ms. Nobel.
Mr. Sullivan somewhat corroborates that today when he testified that Mr. Sullivan himself spoke up and directed his counteroffer, or his
offer to the state himself in the court.
. . . .
Mr. Milsap had admitted today, for the most part, his recollection of me asking those questions. I initial the answers [on the guilty plea form] for a specific reason so that there can be no doubt in my mind whether I am reviewing this paperwork 30 days later or 30 years later as to what questions I specifically asked and what answers were specifically given.
. . . .
So there is not any doubt in this Court's mind that he told this Court that he was not forced, abused, mistreated or promised anything by anyone to enter his pleas in any of these cases and that he was doing it of his own free will without any coercion or compulsion of any kind.
. . . .
And [] [Petitioner] acknowledged today that the initials to the right of the paragraph in which he states that he pointed a firearm at the victims while wearing a face covering and that he did this and that he struck the victims with the firearm and so on. He acknowledged today under oath that the initials to the right of that paragraph were indeed his.
. . . .
. . . I will make the following findings based on the totality of the record as presented including the argument:
That the defendant is mentally competent to understand the nature, purpose and consequences of this proceeding.
That the defendant was mentally competent to understand the nature, purpose and consequences of his guilty pleas at the time they were entered on May 3rd of 2019.
That the defendant entered his pleas of guilty in each case on each count with a full and complete understanding of his rights, and
that the pleas in each case, each count were free and voluntarily entered into and that the pleas in each case, each count should not be withdrawn.
The Court will further order that the application to withdraw his guilty pleas in each case, each count will be denied.Id. at 48-52.
In reviewing the record as a whole, the undersigned finds Petitioner understood the nature and consequences of his pleas. Petitioner signed the guilty plea and summary of facts forms, stated repeatedly both in the forms and during the plea hearing that he understood his rights and that he was waiving those rights, and that he understood the charges against him, as well as his potential sentences. Petitioner answered no to the question regarding whether he was forced, abused, mistreated or promised anything by anyone to enter his pleas and indicated that he was doing it of his own free will without any coercion or compulsion of any kind.
In determining the trial judge did not abuse his discretion in denying Petitioner's motion to withdraw, the OCCA applied the correct legal standard in analyzing Petitioner's pleas. Moreover, the OCCA's factual conclusions are supported by the record. The Court finds Petitioner has not presented clear and convincing evidence to rebut the presumption of correctness afforded the trial court and the OCCA's factual determinations. 28 U.S.C. § 2254(e)(1). Nor has Petitioner demonstrated that the OCCA's decision was an unreasonable application of Supreme Court law. 28 U.S.C. § 2254(d). For those reasons, habeas corpus relief should be denied as to this ground.
IV. Fully Advised on Sentencing Ranges
Petitioner also asserts a ground for relief based on his contention that he was not fully advised as to the sentencing range he would be facing prior to entering his guilty pleas. Doc. No. 1 at 8-9. Specifically, he contends that he was improperly informed of the sentencing range for Count 1 in Case No. CF-17-7599, Accessory to a Felony (Use of a Vehicle to Facilitate the Discharge of a Firearm). Id.
Petitioner did not raise this issue before the trial court when he attempted to withdraw his guilty pleas. He did raise it on direct appeal and the OCCA denied the claim as waived.
Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2020), provides pertinently, “the application to withdraw [the] plea[”] must set forth in detail “the grounds for withdrawal of the plea.” Petitioner's letter requesting that he be allowed to withdraw his pleas (which the court treated as a motion to withdraw pleas)[] did not include this issue, it was not contained in the petition for writ of certiorari, nor was it addressed at the hearing on the motion to withdraw pleas. Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2020), provides pertinently, “[n]o matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea.” “The filing of the petition for writ of certiorari is jurisdictional and failure to timely file constitutes waiver of right to appeal.” Rule 4.3(A), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2020). The petition for a writ of certiorari shall include “[t]he errors of law urged as having been committed during the proceedings in the trial court which were raised in the application to withdraw plea.” Rule [5.1](C)(5), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (2020).
Thus, a petitioner waives appellate review of an issue in a
certiorari appeal if: (1) the issue is not presented to the trial court in the motion to withdraw the guilty plea, or (2) the issue is not raised in the petition for writ of certiorari. Weeks v. State, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d 650, 657. In a certiorari appeal, with the exception of jurisdictional defects, this Court does not reach the merits of issues for which appellate review has been waived. Cox v. State, 2006 OK CR 51, ¶ 4, 152 P.3d 244, 247.
In the present case, Petitioner failed to preserve this claim for appellate review. He did not raise the claim in his application to withdraw plea, he did not raise it in his petition for writ of certiorari, nor was it raised at any point during the hearing on the motion to withdraw. Thus, this claim is waived.Doc. No. 19-1 at 7-8.
Generally, “a federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule.” Davila v. Davis, __ U.S. __, 137 S.Ct. 2058, 2064 (2017). A state procedural rule “is independent if it is separate and distinct from federal law, ” and “is adequate if it is ‘strictly or regularly followed' and applied ‘evenhandedly to all similar claims.'” Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)).
Because procedural default is an affirmative defense, the state bears the burden to assert it. Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999). When a petitioner argues that a state procedural rule is inadequate, the state “bears the burden of proving the adequacy of a state procedural bar.” Id. at 1217. However, even if the State makes this showing, a federal court may review a procedurally defaulted claim if “the prisoner can [1] demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or [2] demonstrate that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Whether a state procedural bar is “adequate” to bar federal habeas review “is a matter of federal law.” Johnson v. Lee, 136 S.Ct. 1802, 1805 (2016). “To qualify as an ‘adequate' procedural ground, a state rule must be ‘firmly established and regularly followed.'” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). “[A] discretionary [state procedural] rule can be ‘firmly established' and ‘regularly followed'-even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.” Kindler, 558 U.S. at 60. Thus, in determining whether a state procedural rule is “adequate” the appropriate question is whether the state court's “application of the particular procedural default rule [at issue] to all similar claims has been evenhanded in the vast majority of cases.” Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (quoting Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995)).
Respondent contends Rule 4.2(B), upon which the OCCA relied in denying Petitioner's claims, is both independent and adequate. Doc. No. 19 at 20-21. Petitioner does not argue that the OCCA's refusal to review his claim was not based on an adequate and independent state procedural rule. In the absence of any assertion or evidence of inadequacy, the OCCA's procedural rule is an adequate and independent state ground for the court's decision. See Hartness v. Bryant, No. 14- CV-0695-CVE-JFJ, 2018 WL 574936, at *8 (N.D. Okla. Jan. 26, 2018) (“Hartness does not argue, either in his petition or his reply, that the OCCA's refusal to review his ineffective-assistance-of-appellate-counsel claim was not based on an adequate and independent state procedural rule. Thus, Ground Four is procedurally defaulted.” (citation omitted)).
Nevertheless, the undersigned notes that in a recent decision in which the petitioner challenged the adequacy of Rule 4.2(B), this Court explained, in detail, that Rule 4.2(B) is an independent and adequate ground when applied in state court for purposes of precluding federal habeas review. Elam v. Dowling, No. CIV-19-223-R, 2019 WL 10852802, at *3 (W.D. Okla. July 22, 2019), report and recommendation adopted in full, 2020 WL 4015625 (W.D. Okla. July 26, 2019).
Petitioner's claim is therefore procedurally barred unless Petitioner can demonstrate cause and prejudice or that a miscarriage of justice will occur if the Court does not review them. Coleman, 501 U.S. at 750. Petitioner does not assert that he can overcome the procedural bar by demonstrating cause and prejudice.
As previously discussed, Petitioner does assert that if the argument that “his plea was not knowingly and voluntarily entered because Petitioner was not properly advised on how to withdraw his guilty plea by plea counsel” is not preserved, then he would assert an ineffective assistance of counsel claim. Doc. No. 1 at 8 n.1. However, that ground for relief was properly preserved and both the OCCA and the undersigned have considered that claim on the merits.
Additionally, Petitioner does not invoke the miscarriage-of-justice exception by alleging that he is factually innocent. Magar, 490 F.3d at 820. The fundamental miscarriage of justice exception to the procedural default rule “is a markedly narrow one, implicated only in extraordinary case[s] where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quotations omitted). See also Herrera v. Collins, 506 U.S. 390, 404 (1993) (“The fundamental miscarriage of justice exception is available only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” (quotations omitted)). “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar [or] . . . expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The Court's opinion in McQuiggin makes clear the limitations on its holding: “[T]enable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of [ ] new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Petitioner does not present new evidence indicating he was not the individual who committed the actions underlying his criminal charges and subsequent convictions. In both his state court proceedings and to a limited extent within the record herein, Petitioner simply asserts conclusory statements that he is innocent of the crimes for which he was convicted. This is not sufficient to demonstrate that a fundamental miscarriage of justice will occur if the Court does not review this ground for relief. West v. Jordan, No. 05-CV-0654-CVE-TLW, 2009 WL 523106, at *18 (N.D. Okla. March 2, 2009).
Petitioner does not present a basis in his Petition to overcome the procedural default regarding this ground for relief because he does not establish cause and prejudice or a miscarriage of justice. Accordingly, the undersigned finds this ground for relief should be dismissed as barred from habeas review.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by March 8 th, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.