O'Kelley v. Stewart et al
MEMORANDUM OPINION ADOPTING and ACCEPTING the 13 Magistrate Judge's Report and Recommendation and OVERRULING Petitioner's 15 Objections. Signed by Judge Virginia Emerson Hopkins on 6/6/2018. (JLC)
2018 Jun-06 AM 09:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHARLES DAVID O’KELLEY,
CYNTHIA STEWART, Warden, et al., )
Case No. 3:15-cv-01189-VEH-SGC
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed
on behalf of Petitioner Charles David O'Kelley. (Doc. 1). On April 17, 2018, the
magistrate judge entered a report recommending Petitioner’s claims be denied and
dismissed with prejudice. (Doc. 13). On April 30, 2018, counsel for Petitioner filed
objections to the report and recommendation. (Doc. 15). As discussed below,
Petitioners objections are due to be overruled.
Petitioner's objections do not take issue with the magistrate judge's recitation
of the facts, which are reprised below. The petition concerns the breach of a 2001
plea agreement under which Petitioner pled guilty to reckless murder in the Franklin
County Circuit Court. In exchange for his guilty plea and promise to forego appeal,
the Franklin County District Attorney agreed to not oppose future parole
consideration. When Petitioner came up for parole consideration in 2008, the D.A.
mistakenly sent a letter to the Alabama Board of Pardons and Paroles ("Parole
Board") opposing parole. Prior to Petitioner's parole hearing, the D.A. realized his
mistake and sent a second letter to the Parole Board. The second letter: (1) stated the
plea agreement precluded the D.A. from taking a position regarding parole; and (2)
requested the removal of the mistakenly-sent letter from Petitioner's file. The Parole
Board denied parole in 2008 and again in 2014. Petitioner did not learn of the D.A.'s
withdrawn opposition to parole until 2014. Petitioner pursued a post-conviction
remedy in state court, which was denied by the sentencing court and affirmed by the
Alabama Court of Criminal Appeals; the Alabama Supreme Court denied certiorari
without opinion. (See Doc. 13 at 1-4).
The instant petition contends the denial of post-conviction relief in state court
was contrary to, or an unreasonable application of, Santobello v. New York, 404 U.S.
257 (1971). In his objections to the magistrate judge's report, Petitioner contends the
facts in this case are "almost identical" to those presented in Santobello. (Doc. 15 at
1). This contention is without merit. In Santobello, the prosecutor breached a plea
agreement—which prohibited the prosecution from making a sentencing
recommendation—by recommending the maximum sentence. The prosecutor never
corrected or withdrew his sentencing recommendation, even after defense counsel
objected on the basis of the plea agreement. Under these facts, the Supreme Court
found the defendant in Santobello was entitled to further proceedings to determine
whether he should be allowed to withdraw his guilty plea or should be sentenced by
a different judge. Id. at 262-63.
The facts of the instant case are distinguishable from those presented in
Santobello. First, unlike the prosecutor in Santobello, the D.A. here recognized his
mistake and sent a second letter to the Parole Board, withdrawing his previous
opposition to parole. Moreover, unlike the sentencing court in Santobello—which
was unquestionably exposed to the prosecution's erroneous sentencing
recommendation—there is no evidence here the Parole Board ever saw the D.A.'s
initial letter opposing parole. Under the governing standard, the Alabama Court of
Criminal Appeals' conclusion that Petitioner failed to demonstrate an actual breach
of the plea agreement was not unreasonable or contrary to federal law under 28
U.S.C. § 2254(d)(1). Even if the court disagreed with the Court of Criminal Appeals'
factual determination in this regard, it would be inappropriate to substitute the
undersigned's opinion for that of the state court, absent a showing that the state court's
conclusions were unreasonable or contrary to federal law. Wood v. Allen, 558 U.S.
290, 301 (2010); see 28 U.S.C. § 2254(d)(2). Simply put, the Alabama Court of
Criminal Appeals’ factual determinations were not unreasonable in light of the
evidence presented, and its decision was not contrary to Santobello or other clearly
established federal law.
Petitioner's objections also take issue with the report and recommendation's
reliance on the decisions in Puckett, Diaz-Jimenez, Arnett, and Hunter. (Doc. 15 at
2-6). The magistrate judge cited those cases for the proposition that breaches of plea
agreements can be cured in certain circumstances; a review of these decisions reveals
the appropriateness of the magistrate judge’s conclusion. (See Doc. 13 at 10-13). In
Puckett v. United States, 556 U.S. 129, 140 (2009), the Supreme Court unequivocally
stated "some breaches may be curable upon timely objection—for example, where the
prosecution simply forgot its commitment and is willing to adhere to the agreement."
This was precisely the situation the Alabama Court of Criminal Appeals addressed
here, and its decision was not contrary to Puckett or Santobello in that regard. In
Puckett, the Supreme Court expressly rejected the notion that every governmental
breach of a plea agreement requires remand. Id. at 139. This supports the magistrate
In Diaz-Jimenez, 622 F.3d 692 (7th Cir. 2010), as in Santobello, the
prosecution breached the plea agreement at the sentencing stage, and the Seventh
Circuit remanded the matter back to the trial court for re-sentencing. However, the
court rejected the notion that Santobello "excludes the concept of immaterial breach,"
and expressly recognized that "subsequent actions by the prosecution can justify an
inference that the error was indeed harmless." Id. at 696.1 This language supports the
magistrate judge’s finding that the Alabama Court of Criminal Appeals' decision was
not unreasonable or contrary to federal law.
Petitioner is correct that In re Arnett, 804 F.2d 1200 (11th Cir. 1986), is
factually distinguishable from the instant case. However, the magistrate judge cited
Arnett solely for the Eleventh Circuit's unambiguous statement that it was appropriate
to allow the prosecution to cure the breach of the plea agreement. (Doc. 13 at 12-13).
As with Diaz-Jimenez, this language in Arnett further supports the magistrate judge’s
conclusion that some breaches of plea agreements are curable and that the Court of
Criminal Appeals did not misapply or run afoul of Santobello.
Finally, Petitioner challenges the magistrate judge’s reliance on United States
v. Hunter, 835 F.3d 1320 (11th Cir. 2016), citing language in that opinion stating
"automatic reversal is warranted" where a plea agreement is breached. (Doc. 15 at
6). However, in Hunter, the breach occurred at the sentencing stage, and the
government did nothing to cure its breach. 835 F.3d at 1322. Under those
circumstances, the Eleventh Circuit recognized that "the court can neither moot nor
The court in Diaz-Jimenez referred hypothetically to a prosecutor’s "corrective statement" as being
"analogous to a contract party’s curing his breach before it did any harm to the other party." 622
F.3d at 696. The court also intimated the prosecutor’s breach could have been curable had he made
an "unequivocal retraction."
cure the government’s breach" and therefore remanded the matter for re-sentencing.
835 F.3d at 1330. Nonetheless, in a corresponding footnote citing Puckett and DiazJimenez, the court in Hunter also recognized that the government can sometimes cure
its own breach. Id. at n.5.2 There, the government waived the argument. In this case,
Hunter supports the proposition that certain breaches of plea agreements can be cured
and demonstrates the Court of Criminal Appeals' decision was not objectively
unreasonable or contrary to clearly established federal law.
For the foregoing reasons, Petitioner's objections are OVERRULED. (Doc.
15). After careful consideration of the record in this case, including the magistrate
judge’s report and the objections thereto, the court ADOPTS the report of the
magistrate judge and ACCEPTS her recommendation. (Doc. 13). In accordance
with the recommendation, the court finds Petitioner's claims are due to be denied and
dismissed with prejudice. A certificate of appealability is due to be denied.
A separate order will be entered.
DONE and ORDERED this the 6th day of June, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
This further illustrates the distinction between Santobello and the present case. In Santobello, the
Supreme Court held the trial court could not cure the government’s breach. However, the
subsequent opinions cited in the report and recommendation clarify that the government can, under
certain circumstances, cure its own breach.
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