Galbreath v. Wilkinson

Filing 14

OPINION AND ORDER by Judge Ronald A. White : Denying 9 Motion to Dismiss. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DONALD JAMES GALBREATH,

Petitioner,
v.
EDWARD EVANS,
DOC Interim Director,

Respondent.

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Case No. CIV 12-381-RAW-KEW

OPINION AND ORDER

This matter is before the court on the respondent's motion to dismiss petitioner's
petition for a writ ofhabeas corpus, which was filed pursuant to 28 U.S.C. § 2254. Petitioner,
an inmate currently incarcerated at Davis Correctional Facility in Holdenville, Oklahoma,
is challenging his conviction in Pontotoc County District Court Case Nos. CF-2007-255 for
Unlawful Possession of Marijuana, a Second or Subsequent Offense, and CF-2008-15 for
Unlawful Possession of Controlled Drug (Methamphetamine) (Count 1), Unlawful Delivery
of Controlled Drug (Methamphetamine) (Count 2), Unlawful Use of a Communication
Device to Facilitate a Felony (Count 3), and Maintaining a Place Resorted to by Users of
Controlled Drugs (Count 4). He raises the following grounds for relief:
I.

Trial counsel was ineffective in failing to file a timely motion to
withdraw petitioner's guilty plea.

II.

The trial court failed to follow the mandatory Drug Court Program
procedures designed to ensure the success of those entering the
program.

III.

The evidence was insufficient to terminate petitioner's participation in
the Drug Court program.

IV.

Petitioner's guilty plea was coerced.

V.

Ineffective assistance of trial counsel.

VI.

Petitioner's sentences were illegally enhanced by his prior convictions,
and his sentences are disproportionate to other sentences for the same

conduct as other defendants with the same criminal convictions.
VII.

Appellate counsel was ineffective in failing to raise Grounds V and VI
on direct appeal.

The respondent alleges petitioner has failed to exhaust the state court remedies for all
of his claims and has submitted the following records to the court in support of the motion:
A.

Petitioner's direct appeal brief.

B.

The State's brief in petitioner's direct appeal.

C.

Summary Opinion affirming the final order terminating petitioner from
the Drug Court Program and imposing sentence. Galbreath v. State,
No. F-2010-142 (Okla. Crim. App. Sept. 14, 2011).

"A threshold question that must be addressed in every habeas case is that of
exhaustion." Harris v. Champion, 15 F.3d 1538, 1554 (lOth Cir. 1994). The court must
dismiss a state prisoner's habeas petition if he has not exhausted the available state court
remedies as to his federal claims. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). In
federal habeas corpus actions, the petitioner bears the burden of showing he has exhausted
his state court remedies as required by 28 U.S.C. § 2254(b ). See Clonce v. Presley, 640 F .2d
271, 273 (lOth Cir. 1981); Bond v. Oklahoma, 546 F.2d 1369, 1377 (lOth Cir. 1976). To
satisfy the exhaustion requirement, a claim must be presented to the State's highest court
through a direct appeal or a post-conviction proceeding. Dever v. Kansas State Penitentiary,
36 F.3d 1531, 1534 (lOth Cir. 1994). Under the doctrine of comity, a federal court should
defer action on claims properly within its jurisdiction until a state court with concurrent
power has had an opportunity to consider the matter. Rose v. Lundy, 455 U.S. 509, 518-19
(1982).
The record shows that petitioner raised three claims on direct appeal to the Oklahoma
Court of Criminal Appeals (OCCA). He alleged on appeal that (1) his guilty pleas were not
entered knowingly and voluntarily, and trial counsel was ineffective in failing to file a motion
to withdraw pleas; (2) the trial court failed to follow proper statutory procedures in admitting
him to the Drug Court Program; and (3) his termination from the Drug Court Program was
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not supported by sufficient evidence. The OCCA found petitioner's first claim was not
properly presented, because it had not been presented in a petition for a writ of certiorari.

Galbreath v. State, No. F-2010-142, slip op. at 2-4 (Okla. Crim. App. Sept. 14, 2011). The
OCCA further found petitioner's second claim concerned non-jurisdictional issues, and the
claim could not "impugn the validity of the termination order" under review in the appeal.

!d. at 4.
Petitioner's third ground before the OCCA alleged the State failed to establish that he
was in possession of a controlled substance without a prescription. !d. The evidence,
however, showed petitioner had testified he took several different drugs for a mental
condition, but he had presented no proof of a prescription for the controlled drug seized from
his vehicle. !d. at 4-5. Instead, he offered "nothing more than speculation that he might have
had a prescription." !d. at 5 (footnote omitted).
This habeas petition raises a total of seven grounds for relief, the first four being
petitioner's claims before the OCCA. His other three habeas claims allege trial counsel
abandoned him in the courtroom, and he had no attorney representing him when he entered
his pleas (Ground V); unconstitutional enhancement of his sentences by prior convictions
(Ground VI), and ineffective assistance of appellate counsel (Ground VII).
The respondent alleges that only Ground III regarding the sufficiency of the evidence
has been exhausted. Habeas Grounds I, II, and IV were improperly raised in petitioner's
direct appeal and should have been presented in a certiorari appeal. To exhaust Grounds V,
VI, and VII petitioner must initially present these unexhausted claims to the trial court in an
application for post-conviction relief, pursuant to Okla. Stat. tit. 22, § 1080.

If the

application is denied by the trial court, he may appeal to the OCCA. If the trial court's denial
is affirmed by the OCCA, petitioner then may present the claims for federal habeas corpus
review.
A district court has two options when faced with a "mixed" petition containing both
exhausted and unexhausted claims. One option is to require the petitioner to exhaust all his
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claims in state court before bringing the petition. See Rose v. Lundy, 455 U.S. 509, 510
(1982) (instructing a district court to dismiss without prejudice and to allow the petitioner to
refile once the claims are exhausted); See also Rhines v. Weber, 544 U.S. 269, 277 (2005)
(if a court is concerned about the prisoner's meeting AEDPA's one-year filing requirement,
and if"there was good cause for the petitioner's failure to exhaust his claims first in state
court," the court can decline to dismiss the matter and issue a stay and abeyance of the
petition, while the petitioner exhausts his state court remedies.). The second option it to deny
the entire petition on the merits, notwithstanding failure to exhaust, if the court is convinced
the unexhausted claim is without merit, or that the issue is easily resolvable against the
petitioner. See 28 U.S.C. § 2254(b)(2).
Petitioner acknowledges in his response to the motion to dismiss that if the court were
to dismiss this action as a mixed petition, the one-year statute of limitations imposed by 28
U.S.C. § 2244(d) would prohibit a second habeas action from proceeding. See Duncan v.

Walker, 533 U.S. 167, 181-82 (2001). He also asserts a state remedy is not available,
because his claims would be procedurally barred by the OCCA.
While"[ a]ll claims which could have previously been raised but were not are waived,"

Kingv. State, 29 P.3d 1089, 1090 (Okla. Crim. App. 2001) (citing Okla. Stat. tit. 22 § 1086),
petitioner's claim of ineffective assistance of appellate counsel was not an issue when the
direct appeal was filed. Therefore, petitioner may raise the claim in an application for postconviction relief in the trial court. Neither party has advised this court of any pending state
court proceedings, but a review of the dockets for Pontotoc County District Court Case Nos.
CF-2007-255 and CF-2008-15, indicates there are post-conviction and possibly other
proceedings pending in both cases.
Here, the court is not convinced that petitioner's claim in Ground VII, ineffective
assistance of appellate counsel, is without merit with respect to petitioner's ineffective
assistance of trial counsel claim in Ground V. He alleges in Ground V that on the first day
of his plea proceedings, he was very ill with pneumonia, "deathly sick [and] fading in and
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out of consciousness." (Docket No. 1 at 20). When trial counsel entered the courtroom,
petitioner desperately attempted to speak with him and explain that he needed to go to the
hospital, but counsel allegedly just ignored him. !d. Petitioner continues:
The pretrial hearing started and shortly thereafter, a bar conversation
commenced between the judge and trial counsel. After several minutes of
talking, trial counsel became agitated and stormed out of the courtroom.
Petitioner was seated about 30 feet away, but could not hear [the]
conversation. Again, petitioner trial [sic] to stop trial counsel, but it was to no
avail. Trial counsel simply ignored him and stormed out of the courtroom.
After trial counsel left the scene, the court adjourned until after lunch. When
the deputy started to escort petitioner back to the county jail, petitioner asked
the judge if he could speak to him, who [sic] said okay. [A]t that time,
petitioner explained to him that he was critically ill and needed to be in the
hospital and that if he did not get emergency medical attention, he would die.
Petitioner asked for an O.R. Bond, but was denied. However, the judge did
agree to accept petitioner's confession to a guilty plea in exchange for an 0 .R.
Bond, so that petitioner could go to the hospital. Petitioner was then instructed
to get his things, 0 .R. and then return for afternoon court session to be
sentenced. At no time was trial counsel present when he plead [sic] guilty
and/or was he present when petitioner entered a confession to charged alleged
offenses. ...

!d. at 20-21 (emphasis added). 1
"[A]n accused is entitled to be represented by counsel at all stages in a criminal
proceeding." !go v. United States, 303 F.2d 317 (lOth Cir. 1962) (citing Von Moltke v.

Gillies, 332 U.S. 708 (1948)). Petitioner clearly is alleging his attorney abandoned him and
new counsel was not appointed for his plea proceedings. Therefore, the court finds it should
deny the respondent's motion and issue a stay and abeyance of the petition, while the
petitioner exhausts the state court remedies for his unexhaustedclaims. See Rhines, 544 U.S.
at 277.

ACCORDINGLY, the respondent's motion to dismiss (Docket No.9) is DENIED,
and the respondent is directed to advise the court within fourteen ( 14) days of the status of
any post-conviction or other proceedings in Pontotoc County District Court Case Nos. CF1

According to petitioner's direct appeal brief, after he entered his plea, he was taken
to the hospital by ambulance and remained there for approximately 20 days. (Docket No. 9-1
at 8).

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2007-255 and CF-2008-15.

/JJ
IT IS SO ORDERED this __/._:......:...__day of September 2013.

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~·~.=z/k

RONALD A. WHITE
UNITED STATES DISTRICT JUDGE

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