Vaughn v. Klingler et al

Filing 29

OPIONION AND ORDER by Judge Ronald A. White : Petitioner's petition for a writ of habeas corpus 1 is DENIED, DENYING 23 Motion for Summary Judgment and DENYING 26 Motion for Default Judgment. Petitioner is DENIED a certificate of appealability. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

GREGORY DAVID VAUGHN,
Petitioner,
v.
KEN KLINGER, Warden,
Respondent.

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Case No. CIV 16-425-RAW-KEW

OPINION AND ORDER
This matter is before the Court on Petitioner’s petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241. Petitioner is a pro se prisoner in the custody of the
Oklahoma Department of Corrections (“DOC”) who is incarcerated at Union City
Community Corrections Center in Union City, Oklahoma. He is challenging the execution
of his sentences imposed in Stephens County District Court Case No. CF-2009-320, Stephens
County District Court Case No. CF-2011-106, and Grady County District Court Case No.
CF-2010-216.
Petitioner also claims he has suffered a violation of the prohibition against double
jeopardy, because his sentences have been amended multiple times, with the DOC starting
and stopping his sentences in Stephens County Case No. 2011-106 and Grady County Case
No. 2010-216 at least twice (Dkt. 1 at 4). He asserts that if the sentences had not stopped
running, he could have completed his sentences on or around December 4, 2015. Id.
Respondent has filed a response to the petition, alleging Petitioner’s sentences are

being properly administered, and there has been no violation of the Double Jeopardy Clause
(Dkt. 14). The record shows that Petitioner was received into the DOC on June 8, 2012, to
serve seven sentences of incarceration from Stephens and Grady Counties:
Stephens County
CF-2009-320, Count 1

15 years (Dkt. 14-4)

CF-2009-320, Count 2

5 years, concurrent with CF-2009-320, Count 1 (Dkt. 144)

CF-2010-35B

5 years, concurrent with CF-2009-320 and CF-2010-46
(Dkt. 14-5)

CF-2010-46

5 years, concurrent with CF-2009-320 and CF-2010-35B
(Dkt. 14-6)

CF-2011-106

10 years, consecutive to CF-2009-320, CF-2010-35B, and
CF-2010-46 (Dkt. 14-7)

Grady County
CF-2010-94

5 years, concurrent with Stephens County No. CF-2011106 and consecutive to Grady County No. CF-2010-216
(Dkt. 14-8).

CF-2010-216, Count 2

10 years, concurrent with Stephens County No. CF-2011106 and consecutive with Grady County No. CF-2010-94
(Dkt. 14-9).

Petitioner alleges his sentences have been unclear since sentencing (Dkt. 1 at 10). The
Judgment and Sentence (“J&S”) for Stephens County Case No. CF-2009-320 ordered the 5year sentence for Count 2 is to run concurrently with the 15-year sentence for Count 1 (Dkt.
1-2 at 1). He claims, however, that the Judgments and Sentences for Stephens County Case

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Nos. CF-2010-35B and CF-2010-46 ordered all Stephens County Cases to run concurrently
(Dkts. 1 at 10; 1-2 at 2-3). Petitioner maintains this sentencing ordered in Case Nos. CF2010-35B and CF-2010-46 equated to a 15-year sentence with all cases running concurrently
to the 15-year sentence imposed in Case No. CF-2009-320, Count 1. Id.
On November 15, 2012, Petitioner wrote a letter to Jim Rabon, DOC Sentence
Administrator, stating Petitioner believed he received sentences totaling 15 years’
imprisonment for the Stephens County convictions (Dkt. 14-10 at 1). Petitioner understood
that his Grady County sentences would run concurrently, meaning he would not serve any
time in addition to the 15 years. Id. When he arrived at DOC, however, Petitioner was
advised that although his sentencing was unclear, his total length of incarceration was
calculated as 30 years. Id. at 1-2. Petitioner supplemented the letter on November 26, 2012,
stating his Judgments and Sentences did not conform to his understanding of his plea
agreements. Id. at 3. Mr. Rabon responded to Petitioner’s letter on January 30, 2013:
You were received by the Department of Corrections on June 8, 2012, and
began serving concurrent sentences in CF2009-320, CF2010-35, and CF201046, Stephens County; to be followed by consecutive sentences in CF2011-106,
Stephens County, and concurrent case CF2010-94, Grady County; and a
consecutive sentence in CF2010-216, Grady County. . . . The judges in the
two counties were very specific about the sequencing of these sentences. The
Stephens County judge ordered that CF2009-320, CF2010-35, and CF2010-46
be served concurrent to each other and that CF2011-106 be served
consecutively. The Grady County judge determined the sequence of CF201094 and CF2010-216 by specifically ordering that the two cases be served
consecutive to each other, by ordering that they be served concurrent with
Stephens County case CF2011-106, but not ordering that they be served
concurrent with Stephens County cases in CF2009-320, CF2010-35, and
CF2010-46.
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You are currently serving CF2009-320, CF2010-35, and CF2010-46. When
you complete CF2009-320, the longest running sentence of this group of
concurrent sentences, you will rebill to CF2011-106 and CF2010-94. When
you complete CF2010-94 you will begin serving your final consecutive
sentence in CF2010-216. The court-ordered sequence of your sentences
requires you to serve a total of thirty years.
(Dkt. 14-11).
According to the Oklahoma State Courts Records website at www.oscn.net, on March
20, 2013, Petitioner filed a motion requesting an amended Judgment and Sentence in Grady
County District Court Case Nos. CF-2010-94 and CF-2010-216.1 On June 4, 2013, the
Grady County District Court entered an Order Nunc Pro Tunc in Case Nos. CF-2010-94 and
CF-2010-216, stating that it appeared the agreement between the parties as to the Judgment
and Sentence in these cases was “not factually clear” (Dkt. 14-12). Therefore, “the terms
imposed in the above styled cases are ordered to run concurrently with Stephens County
Case[s] CF-2009-320, CF-2010-46, CF-2010-35 and CF-2011-106.” Id.
On August 8, 2013, the Grady County District Court entered an Amended Order Nunc
Pro Tunc, stating that the agreement between the parties as to the Judgments and Sentences
in Case Nos. CF-2010-94 and CF-2010-216 was “not completely clear” (Dkt. 14-13). Upon
agreement of the parties, Petitioner’s sentences in Grady County District Court Case Nos.
CF-2010-94 and CF-2010-216 again were ordered to run concurrently with Stephen County
Case Nos. CF-2009-320, CF-2010-46, CF-2010-35, and CF-2011-106. Id. Petitioner also
1

The Court takes judicial notice of the public records of the Oklahoma State Courts Network
at http://www.oscn.net. See Pace v. Addison, No. CIV-14-0750-HE, 2014 WL 5780744, at *1 n.1
(W.D. Okla. Nov. 5, 2014).
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was given credit for the 196 days he spent in the Grady County Jail. Id.
On June 3, 2014, and June 23, 2014, Petitioner sent letters to the DOC Sentence
Administration Auditor, requesting another clarification of his sentence and claiming he was
entitled to immediate release (Dkt. 14-14). The response to Petitioner’s letters, dated June
25, 2014, stated:
Your controlling case is Stephens County CF 2009-320 Ct. 1 which is for 15
years which started . . . 06/08/2012. Upon completion of CF 2009-320 Ct. 1
you will start serving 20 years (10 years suspended) on your Stephens County
case CF 2011-106 which is consecutive to CF 2009-320 Ct. 1. This is a total
of 25 years to serve. . . .
You also have Stephens County cases CF 2009-320 Ct. 2 for 5 years, CF 201035 for 5 years and CF 2010-46 for 5 years that are running concurrently (at the
same time) to the 15 year Stephens County Case CF 2009-320 Ct. 1.
While you are serving the Stephens County sentences you also have Grady
County cases which are all running concurrently to your Stephens County
cases as follows: CF 2010-94 for 5 years started the date you were received
at LARC, 6/8/2012. Upon completion of CF 2010-94 you will start serving 10
years on your Grady County case CF 2010-216 Ct. 2 which is consecutive to
CF 2010-94. Upon completion of CF 2010-216 Ct. 2 you have a 5 year
suspended sentence, CF 2010-216 Ct. 1.
Because of the way the counties conducted their sentencing it was decided that
to keep track of your time it would be easier to keep two Consolidated Record
Cards (CRC’s) one with the Grady County cases and one with the Stephens
County cases.
As you can see you have a total of 25 years to serve and then 10 years
suspended on your Stephens County cases[,] and on your Grady County cases
you have 15 years to serve and then 5 years suspended but, as I have already
commented, the Grady County cases are running at the same time as the
Stephens County cases. This means that your Grady County cases will be
completed prior to your Stephens County cases. . . .

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I suggest if you have a problem with your sentencing that you contact your
attorney as your Records Officer and Sentence Administration have both
answered your question; you have 25 years to serve and then will have 10
years probation following that 25 year sentence. We cannot be any clearer
than that. . . .
(Dkt. 14-15).
The record shows that when Petitioner was received into DOC custody on June 8,
2012, he began serving his 15-year sentence for Stephens County CF-2009-320, Count 1.
According to the Oklahoma Department of Corrections website at https://www.ok.gov/doc,
the sentence for CF-2009-320, Count 1 was discharged on May 8, 2017, and the 10-year
consecutive sentence in Stephens County Case No. CF-2011-106 began on that same date.2
Petitioner’s 10-year sentence for Grady County Case No. 2010-216 started on December 7,
2014, and was discharged on June 10, 2017. The second letter from the DOC Sentence
Administrator explained the administration of Petitioner’s sentences (Dkt. 14-15), and
Petitioner has not produced any documentation of alterations to his sentences after that letter
was issued.
Respondent alleges there is no indication that Stephens County CF-2011-106 ever was
started and then stopped. This assertion is supported by Petitioner’s Consolidated Record
Card for his Stephens County convictions, which is the only official document that keeps a
record of Petitioner’s time for the Stephens County cases (Dkt. 14-2).

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In addition,

See Triplet v. Franklin, 365 Fed. App’x 86, 92, 2010 WL 409333, at *6 n.8 (10th Cir. Feb.
5, 2010) (taking judicial notice of the Oklahoma DOC website pursuant to Fed. R. Evid. 201).
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Petitioner’s Consolidated Record Card for his Grady County convictions has no indication
that Grady County CF-2010-216 ever has started and stopped (Dkt. 14-3).
As for Petitioner’s double jeopardy claim, he alleges his sentences in Grady County
Case No. CF-2010-216 and Stephens County Case No. CF-2011-106 have been amended
multiple times, resulting in the sentences starting and stopping multiple times through no
fault of his own (Dkt. 1 at 4). He asserts these sentences should have run concurrently,
resulting in a total sentence of 15 years that would have been completed on or around
December 4, 2015. Id. at 10. The record shows these two sentences actually have been run
concurrently, however, Stephens County No. CF-2011-106 also was ordered to run
consecutively to Petitioner’s other Stephens County cases.
The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall
. . . be subject for the same offence to be twice put in jeopardy of life or limb[.]” In Warnick
v. Booher, 425 F.3d 847 (10th Cir. 2005), the Tenth Circuit Court of Appeals explained:
The Clause protects against (1) “a second prosecution for the same offense
after acquittal,” (2) “a second prosecution for the same offense after
conviction,” and (3) “multiple punishments for the same offense.” Jones v.
Thomas, 491 U.S. 376, 381 (1989) (internal quotation marks omitted). The
prohibition against multiple punishments, which is the prohibition at issue in
this case, itself includes two prohibitions: (1) against “greater punishment than
the legislature intended,” Jones, 491 U.S. at 381 (internal quotation marks
omitted); and (2) against sentence adjustments that upset a defendant’s
legitimate “expectation of finality in his sentence.” United States v.
DiFrancesco, 449 U.S. 117, 136 (1980).
Warnick, 425 F.3d at 847.
Petitioner makes no argument that his punishment exceeds what the legislature
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intended. Instead, he alleges his sentence adjustments have upset his legitimate expectation
of finality of his sentences.
As discussed above, the J&S for Stephens County Case No. CF-2009-320 ordered
Petitioner to serve a 15-year sentence for Count 1 (Dkt. 14-4). The J&S for Grady County
Case No. 2010-216 sentenced him to 10 years for Count 2, concurrent with Stephens County
Case No. CF-2011-106 (Dkt. 14-9). In Case No. CF-2011-106, Petitioner was sentenced to
10 years’ incarceration, consecutive to his other Stephens County sentences (Dkt. 14-7).
Pursuant to the Amended Order Nunc Pro Tunc entered by the Grady County District Court,
Petitioner’s two Grady County sentences were ordered to run concurrently with the Stephens
County cases (Dkt. 14-3). Contrary to Petitioner’s unsupported claim, there is no evidence
that the service of his sentences for Stephens County CF-2011-106 or Grady County CF2010-216 ever stopped and restarted.
Petitioner’s habeas corpus claims are premised on his belief that pursuant to his plea
agreements, he had a total of 15 years to serve in prison (Dkt. 1 at 10). The DOC, however,
must administer the sentences as set forth by the courts, not based on Petitioner’s
understanding of the plea agreements. The Grady County District Court reduced Petitioner’s
total length of incarceration by changing the two Grady County convictions from consecutive
5-year and 10-year sentences to concurrent sentences totaling 10 years (Dkt. 14-13). The 10year sentence for Stephens County Case No. 2011-106 always has been a 10-year sentence,
consecutive to Stephens County Case Nos. CF-2009-320, CF-2010-35B, and CF-2010-46

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(Dkt. 14-7). The record clearly shows that Petitioner was required to serve a total of 25
years’ incarceration. For the reasons set forth in this Opinion and Order, the Court finds
Petitioner is not entitled to federal habeas corpus relief.
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). In addition, he has
not “demonstrate[d] that reasonable jurists would find [this] court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Therefore, Petitioner must be DENIED a certificate of appealability.
ACCORDINGLY, Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is
DENIED, and Petitioner is DENIED a certificate of appealability. Petitioner’s motions for
summary disposition or summary judgment (Dkt. 23) and for default (Dkt. 26) are DENIED
as moot.
IT IS SO ORDERED this 12th day of February, 2018.
Dated this 12th day of February, 2018.

J4h4i0

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