Clayton v. Allbaugh

Filing 69

OPINION AND ORDER by District Judge Ronald A. White: Petitioner's motion for specific findings of fact based on the statecourt record pursuant to Fed. R. Civ. P. 52(b) and to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) 52 is DENIED, and Petitioner is DENIED a certificate of appealability. (acg, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JAMES EDWARD CLAYTON,
Petitioner,
v.
SCOTT CROW, DOC Director,
Respondent.

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Case No. CIV 16-423-RAW-KEW

OPINION AND ORDER
On February 27, 2020, Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 was dismissed, and he was denied a certificate of appealability. (Dkt. 50).
Judgment was entered on the same day. (Dkt. 51). On March 25, 2020, Petitioner filed a
motion for additional findings and to amend the judgment. (Dkt. 52). He asks the Court to
(1) make specific findings of fact based on the state court record pursuant to Fed. R. Civ. P.
52(b), and (2) alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) to reflect that
relief should be granted and that Plaintiff should be released from his allegedly unlawful
confinement. Id. at 2.
Rule 52(b) Motion
Rule 52 provides in pertinent part:
(a) Findings and Conclusions.
(1) In General. In an action tried on the facts without a jury or with an
advisory jury, the court must find the facts specifically and state its
conclusions of law separately. . . .

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(b) Amended or Additional Findings. On a party’s motion filed no later than
28 days after the entry of judgment, the court may amend its findings--or make
additional findings--and may amend the judgment accordingly. The motion
may accompany a motion for new trial under Rule 59.
Fed. R. Civ. P. 52.
Rule 52(b) is not proper in a habeas corpus action, because it governs bench trials or
advisory jury trials. See Johnson v. Raemisch, No. 19-1044, 779 F. App’x 507, 518 n.10
(10th Cir. June 18, 2019) (“Rule 52 governs bench trials, not habeas proceedings . . . .”);
Winkel v. Heimgartner, No. 5:14-3214-JTM, 2015 WL 5820965 at *1 (D. Kan. Oct. 5, 2015)
(unpublished) (“Generally, this rule applies to findings of fact and conclusions of law entered
after a non-jury trial.”) (citing May v. Kansas, No. 13-3162-SAC, 2013 WL 6669093 (D.
Kan. Dec. 18, 2013) (unpublished)). Therefore, Petitioner’s request for relief under Rule
52(b) is DENIED.
Rule 59(e) Motion
Petitioner complains that neither the Oklahoma Court of Criminal Appeals (OCCA)
nor this Court appears to have reviewed certain documents, and the documents have not been
given the legal effect required with respect to his claim of ineffective assistance of counsel.
(Dkt. 52 at 3). Petitioner argues that these evidentiary items are in the record and never have
been rebutted, contested, or objected to by the State. Id. at 5. He further claims the
documents demonstrate that Petitioner was misadvised by Attorney Hoch before Petitioner
entered his plea. Id. The referenced documents are:
(1) Petitioner’s September 21, 2004, Letter to Attorney Al Hoch (Exhibit A-7) (Dkt.
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17-4 at 118-21). Written six days after the plea was entered in Petitioner’s criminal case,
Clayton expressed concern that Hoch had misrepresented the legal situation to him to secure
a guilty plea. The letter states, “Mr. Hoch, you know I would not have plea [sic] blindly to
the murder charge without your assurances I would be home with my family by Christmas
(2004) and that I would receive credit for time from 1982, with credit for good-time. We
discussed this several times!” (Dkt. 17-4 at 120) (emphasis in original). Plaintiff’s letter
further stated, “Mr. Hoch, if you have lied or misrepresented things to me and my family-contact the judge and court and withdraw my plea--to the murder charges.” Id. at 121.
(2) Clifford T. Brown’s July 15, 2006, Affidavit (Exhibit G-5) (Dkt. 17-6 at 25-27).
Brown was present on September 15, 2004, when Clayton met with Hoch prior to the plea.
Brown states that “[b]ut for the assurance and representations of Mr. Hoch, James [Clayton,
the petitioner] would not have entered a blind plea to the second degree murder charge and
would have insisted on going to trial.” (Dkt. 17-6 at 27).
(3) Rev. Jerry Seitz’s September 5, 2007, Affidavit (Exhibit G-2) (Dkt. 17-6 at 18-21).
Rev. Seitz also was present on September 15, 2004, when Clayton met with Hoch about the
plea. Id. at 19-20. Petitioner asserts that Rev. Seitz states he recalled that Hoch told Clayton
that if he entered his plea, he would be on the November docket for the Pardon and Parole
Board and would be “home for Christmas.” (Dkt. 52 at 4). Rev. Seitz allegedly also stated
that Clayton would not have accepted the plea agreement unless he would have been out of
jail by Christmas. Id. Respondent, however, notes that Rev. Seitz’s affidavit does not

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contain language asserting that Petitioner would not have accepted the plea agreement unless
Petitioner would have been home from prison by Christmas. (Dkt. 63 at 2 n.1).
(4) Petitioner’s Affidavit dated April 18, 2013 (Exhibit G-1) (Dkt. 17-6 at 3-17).
Petitioner alleges the affidavit states: “Attorney Hoch told me I would be out on parole in
December 2004 if I entered a blind plea to the charge of Murder, Second Degree. But for
the representations of attorney Hoch to me, my wife, brother-in-law and Minister Seitz, on
September 15, 2004, I would not have plead [sic] guilty to the blind plea and would exercised
[sic] my right to a jury trial.” (Dkt. 52 at 5).
Respondent points out that the affidavit designated as Exhibit G-1 actually was
executed on September 5, 2007, and the quoted language is not in the document. (Dkt. 63
at 2 n.1). The document designated as G-1, however, does include similar language. (Dkt.
17-6 at 6-7).
Respondent also asserts in his supplemental response to Plaintiff’s motion that
Respondent previously erroneously alleged that Petitioner’s referenced documents in his
motion were not part of the record when the OCCA ruled on Petitioner’s claims. (Dkt. 63
at 2-3 n.1 & n.2). Further review, however, determined that most of the records referenced
in the motion, with the possible exception of Petitioner’s affidavit, were before the OCCA
as part of Petitioner’s certiorari appeal. Id.
“[A] motion will be considered under Rule 59(e), when it involves reconsideration of
matters properly encompassed in a decision on the merits.” Phelps v. Hamilton, 122 F.3d

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1309, 1323-24 (10th Cir. 1997) (citations and internal quotations omitted). The court may
reconsider a final decision if the moving party shows “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear
error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citation omitted). The Court “is vested with considerable discretion” in
determining whether to grant or deny such a motion. Brown v. Presbyterian Healthcare
Servs., 101 F.3d 1324, 1332 (10th Cir. 1996). Rule 59(e), however, does not permit a losing
party to rehash arguments previously addressed or to present new legal theories or facts that
could have been raised earlier. Servants of the Paraclete, 204 F.3d at 1012. Granting a
motion to alter or amend is “an extraordinary remedy which is used sparingly,” in recognition
of the interests in finality and the conservation of judicial resources. Torre v. Federated Mut.
Ins. Co., 906 F. Supp. 616, 619 (D. Colo. 1995), aff’d, 124 F.3d 218 (10th Cir. 1997).
Petitioner alleges this Court erroneously applied AEDPA deference standards to the
OCCA’s opinion, because the OCCA applied the wrong legal standard in its analysis of
Petitioner’s post-conviction appeal. He maintains the OCCA’s application of Hill v.
Lockhart, 474 U.S. 52 (1985), was unreasonable, because the OCCA held that Petitioner
would not have pleaded guilty absent counsel’s errors. Petitioner maintains that under Hill,
he only had to show a reasonable probability that he would not have pleaded guilty.
A review of the OCCA’s opinion in Petitioner’s certiorari appeal shows the Hill
standard was correctly stated and applied:

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In Hill v. Lockhart [474 U.S. 52, 56 (1985)], the Supreme Court held
that the deficient performance/prejudice test of Strickland v. Washington, 466
U.S. 668 (1984), applies to challenges of guilty pleas based on ineffective
assistance of counsel. The Court further stated that to prove Strickland
prejudice, “the defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial. Hill, 474 U.S. at 59.
Clayton v. State, No. C-2014-720, slip op. at 4 (Okla. Crim. App. July 8, 2015 (Dkt. 16-7).
It is apparent that the OCCA was aware of and utilized the correct legal standard.
Therefore, this Court gave the proper deference to the OCCA’s determination of this claim.
This Court clearly considered Petitioner’s claim of ineffective assistance of counsel under
the standards of Strickland and Hill.
Petitioner’s habeas petition alleged that his blind plea of guilty was not knowingly and
voluntarily entered because of the ineffective assistance of counsel. As set forth in this
Court’s Opinion and Order, the OCCA denied Petitioner’s petition for a writ of certiorari as
follows:
Petitioner and plea counsel testified at the evidentiary hearing
concerning counsel’s advice before the plea. The trial court concluded that
Petitioner was properly advised that the range of punishment was 20 years to
life imprisonment. There is no credible evidence that Petitioner pleaded guilty
because of counsel’s prediction or promise that he would be paroled, or that
he would eventually “discharge” his life sentence. The trial court’s
determination that the plea was knowing and voluntary is supported by the
evidence, and denial of Petitioner’s motion to withdraw the plea on this ground
was not an abuse of discretion. [This claim] is denied.
(Dkt. 50 at 7) (quoting Clayton v. State, No. C-2014-720, slip op. at 5 (Okla. Crim. App. July
8, 2015) (Dkt. 16-7 at 5).

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The record shows that Petitioner’s plea counsel testified that he would not have
advised Petitioner that he would be released by Christmas, but he probably gave an estimate
about a promised date. Hoch further testified that Petitioner, when entering his plea, stated
he was not promised anything to enter the plea. (Dkt. 16-11 at 8-10, 13).
Further, as argued by Respondent in his response in opposition to the habeas petition:
. . . Petitioner entered his plea in this case blindly and stated under oath
that he was not forced, abused, mistreated, or promised anything by anyone to
enter his plea (Pet. Ex. p. 193, question 25). “[A] defendant’s statement on the
record, ‘as well as any finding made by the judge accepting the plea, constitute
a formidable barrier in any subsequent collateral proceeding.’” Romero [v.
Tansy, 46 F.3d 1024, 1033 10th Cir. 1995)] (quoting Blackledge [v. Allison,
431 U.S. 63, 74 (1977]). A blind plea of guilty under Oklahoma law has been
defined as a plea in which there is no binding agreement on sentencing and
punishment is left to the judge’s discretion. Medlock v. State, 887 P.2d 1333,
1337, n.2 (Okla. Crim. App. 1994). Petitioner answered on his plea form that
he knew there was no plea agreement (Pet. Ex. p. 194, question 19) and he
understood the court was not bound by any agreement or recommendation
(Pet. Ex. p. 194, questions 20 and 21).
(Dkt. 16 at 18).
After careful review, this Court finds that while Hoch’s testimony was inconsistent
with Petitioner’s affidavits, the affidavits also are inconsistent with Petitioner’s sworn
statements in his plea form. The OCCA’s decision was supported by credible evidence that
Petitioner’s decision to enter his blind plea of guilty was not due to erroneous legal advice.
Petitioner, therefore, has failed to overcome the “formidable barrier” in these proceedings.
In addition, Petitioner has failed to show a reasonable probability that, but for
counsel’s alleged errors, he would have insisted on going to trial. A petitioner’s mere

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allegation that he would have gone to trial is insufficient. Miller v. Champion, 262 F.3d
1066, 1072 (10th Cir. 2001).
Petitioner also argues that Lee v. United States, __ U.S. __, 137 S.Ct. 1958 (2017),
requires habeas relief. In Lee, during the plea process Mr. Lee, a noncitizen, repeatedly
asked his attorney whether there was any risk of deportation from a guilty plea, and his
counsel assured Lee that he would not be deported if he entered the plea. Id. at 1962.
Counsel’s advice was incorrect, and Lee was subject to mandatory deportation after the plea.
Id.
The Supreme Court found that the “particularly severe penalty” of deportation may
be of greater concern than “any potential jail sentence.” Id. at 1968. The Supreme Court
further found that “[i]n the unusual circumstances of this case, we conclude that Lee has
adequately demonstrated a reasonable probability that he would have rejected the plea had
he known that it would lead to mandatory deportation.” Id. at 1967. The Court also found
that “Lee’s claim that he would not have accepted a plea had he known it would lead to
deportation is backed by substantial and uncontroverted evidence.” Id. at 1969. The
Supreme Court thus found prejudice because of counsel’s incorrect advice.
In Petitioner’s case, this Court finds Petitioner’s circumstances were not “unusual,”
and evidence of incorrect advice is not “substantial and uncontroverted.” Although
Petitioner has presented evidence of his attorney’s alleged promise that Petitioner would be
home by Christmas, counsel denied making the statement. Therefore, habeas relief is not

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warranted.
After careful review, the Court again finds that the OCCA’s decision was not contrary
to, or an unreasonable application of clearly established Supreme Court law, see 28 U.S.C.
§ 2254(d)(1), and Petitioner has not shown he is entitled to relief under Fed. R. Civ. P. 59(e).
Certificate of Appealability
The Court further finds Petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). He also has not
shown “at least, that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether [this] court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Therefore, a certificate of appealability cannot be issued.
ACCORDINGLY, Petitioner’s motion for specific findings of fact based on the state
court record pursuant to Fed. R. Civ. P. 52(b) and to alter or amend the judgment pursuant
to Fed. R. Civ. P. 59(e) (Dkt. 52) is DENIED, and Petitioner is DENIED a certificate of
appealability.
IT IS SO ORDERED this 25th day of January 2021.

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