Opinion
Case No. CIV-20-246-SLP
06-18-2020
GARY DON TRIPP, Petitioner, v. RICK WHITTEN, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). Respondent has filed his Response to Petition for Writ of Habeas Corpus (ECF No. 11). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. PROCEDURAL BACKGROUND
On February 14, 2005, while represented by attorney Tracy Schumacher, Petitioner entered a blind plea of guilty to four charges in Cleveland County District Court. (ECF No. 11-3). Mr. Tripp was sentenced on July 16, 2005, and did not perfect an appeal by seeking to withdraw the plea within ten days thereafter. See ECF Nos. 11-1; 1:2; Okla. R. Crim. App. 4.2(A) (allowing ten days following entry of judgment of sentence for defendant to file a motion to withdraw the plea). On March 20, 2006, Petitioner filed an Application for Post-Conviction Relief seeking an Appeal Out of Time in the Cleveland County District Court based on allegations that his trial counsel had been ineffective in failing to file a motion to withdraw the plea. (ECF No. 11-6). On August 24, 2006, the district court denied relief, and Petitioner did not appeal the denial with the Oklahoma Court of Criminal Appeals (OCCA). See ECF No. 11-7; 11-8; Okla. R. Crim. App. 5.2 (requirements for filing an appeal to the OCCA from district court's denial of application for post-conviction relief).
On December 14, 2006, Petitioner filed a second Application for Post-Conviction Relief in the Cleveland County District Court, alleging three instances of ineffective assistance of trial counsel. (ECF No. 11-9). The parties agree that the Cleveland County District Court never ruled on this pleading and the state court docket sheet confirms this fact. See ECF Nos. 1:4; 11:3, 11-8.
On August 5, 2019, Mr. Tripp filed a third Application for Post-Conviction Relief in the Cleveland County District Court, alleging a lack of jurisdiction in the trial court due to insufficient evidence to support the charging Information. (ECF No. 11-13). The district court denied relief, finding that the issue had been waived due to Mr. Tripp's failure to assert it in a prior Application for Post-Conviction Relief. (ECF No. 11-15). Mr. Tripp filed an appeal and the OCCA affirmed. (ECF Nos. 11-16; 11-17).
On March 17, 2020, Mr. Trip filed the instant habeas petition, alleging: (1) a lack of jurisdiction in the trial court based on insufficient evidence to support the charging Information and (2) ineffective assistance of counsel for failing to raise the jurisdictional issue on direct appeal. (ECF No. 1:5-7).
II. STANDARD OF REVIEW
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. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 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, 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).
III. DENIAL OF GROUNDS ONE AND TWO
In Ground One, Mr. Tripp alleges that the trial court lacked jurisdiction over the plea because the charging Information lacked sufficient evidence. (ECF No. 1:5). In Ground Two, Mr. Tripp alleges that Ms. Schumacher was ineffective for failing to assert the jurisdictional claim as a basis to withdraw the plea. (ECF No. 1:6-7). The Court should find both Grounds procedurally barred from federal habeas review.
A. Ground One
Petitioner raised Ground One in his third Application for Post-Conviction Relief. (ECF No. 11-13). The Cleveland County District Court denied relief, finding that the issue had been waived due to Mr. Tripp's failure to assert it in a prior Application for Post-Conviction Relief. (ECF No. 11-15). On appeal, the OCCA affirmed the finding of waiver. (ECF Nos. 11-16; 11-17).
The Tenth Circuit 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). Therefore, the Court should not address Ground One unless Petitioner shows either: (1) cause and prejudice to excuse the procedural default, or (2) a fundamental miscarriage of justice.
1. Cause and Prejudice
A petitioner may overcome a procedural bar if he can "demonstrate cause for the default and actual prejudice[.]" Coleman, 501 U.S. at 750. As "cause" to excuse the procedural default, Mr. Tripp contends that Ms. Schumacher was ineffective by failing to raise the issue on direct appeal as a basis to withdraw his plea. (ECF No. 1:5).
Ineffective assistance of appellate counsel may constitute cause for state procedural default where counsel's performance falls below the minimum standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Murray v. Carrier, 477 U.S. 478, 488-489 (1986). A Strickland claim will be sustained only when: (1) "counsel made errors so serious that counsel was not functioning as 'counsel' " and (2) "the deficient performance prejudiced the defense." Strickland, at 687. If a petitioner is unable to show either "deficient performance" or "sufficient prejudice," his claim of ineffective assistance fails. Id. at 700. However, before ineffective assistance of appellate counsel can be considered "cause" to excuse a procedural default, the ineffective assistance of counsel claim itself must have been fairly presented to the state court as an independent claim. Murray, 477 U.S. at 489; Edwards v. Carpenter, 529 U.S. 446 (2000).
In his third Application for Post-Conviction Relief filed in the Cleveland County District Court, Mr. Tripp raised the issue of appellate counsel's ineffectiveness as "cause" to excuse the procedural default on Ground One. (ECF No. 11-13:3). Even so, Petitioner failed to raise the issue on appeal to the OCCA. See ECF No. 11-16. Furthermore, nowhere in any of his post-conviction applications has Mr. Tripp ever alleged an independent substantive claim contending that Ms. Schumacher was ineffective for failing to raise the jurisdictional issue as a basis to withdraw the plea. See ECF Nos. 11-6, 11-9, 11-16. As a result, Mr. Tripp cannot now rely on Ms. Schumacher's alleged ineffectiveness as "cause" to excuse the procedural default with respect to Ground One. See supra, Edwards. Because Mr. Tripp cannot establish the required "cause" element, the Court need not address the "prejudice" factor. See Steele v. Young, 11 F.3d 1518, 1522 n.7 (10th Cir. 1993) (discussing petitioner's defaulted claims under the procedural bar analysis, stating: "As Steele [has] not shown cause, we need not discuss whether he has been actually prejudiced.").
2. Fundamental Miscarriage of Justice
Because he failed to show "cause" and "prejudice," Mr. Tripp can only overcome the procedural bar if he is able to demonstrate a fundamental miscarriage of justice. See Coleman, 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) (citation omitted). 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). Here, however, Petitioner offers no argument regarding a fundamental miscarriage of justice or his actual innocence. See ECF No. 1.
3. Summary
Because Mr. Tripp has failed to: (1) establish "cause and prejudice" to overcome the procedural default, or (2) make a credible showing that a fundamental miscarriage of justice has occurred, the Court should conclude that Ground One is procedurally barred from habeas review.
B. Ground Two
In Ground Two, Mr. Tripp alleges ineffective assistance of counsel based on Ms. Schumacher's failure to assert the jurisdictional issue as a basis to withdraw his plea. (ECF No. 1:6-7). But Mr. Tripp's failure to raise Ground Two as an independent claim in state court renders it unexhausted. See ECF Nos. 11-6, 11-9, 11-16. To exhaust Ground Two, Petitioner would have to return to state court and file a fourth post-conviction application. However, if Petitioner did so, the OCCA would likely find that the claim was procedurally barred under a theory of waiver, just as it had when Petitioner asserted Ground One in his third Application for Post-Conviction Relief. See supra; see also Cummings v. Sirmon, 506 F.3d 1211, 1222-1223 (10th Cir. 2007) ("readily" concluding that ineffective assistance of trial counsel claim, raised for the first time in habeas petition and, therefore, unexhausted, was procedurally barred: "[a]lthough the claim is technically unexhausted, it is beyond dispute that, were Cummings to attempt to now present the claim to the Oklahoma state courts in a second application for post-conviction relief, it would be deemed procedurally barred") (citing Okla. Stat. tit. 22, §§ 1086, 1089(D)(2)).
Mr. Tripp 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. As a result, the Court should find that Ground Two is procedurally barred. See Richie v. Sirmons, 563 F.Supp.2d 1250, 1313 (N.D. Okla. 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.").
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition (ECF No. 1) be DENIED.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by July 6, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is 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).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on June 18, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE