Selman v. Harvanek

Filing 29

OPINION AND ORDER by District Judge James H. Payne : Denying 1 Petition for Writ of Habeas Corpus (2241) and denying certificate of appealability (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RICK A. SELMAN,
Petitioner,
v.
KAMERON HARVANEK, Warden,
Respondent.

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Case No. CIV 17-080-JHP-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 state prisoner in the custody of the
Oklahoma Department of Corrections who currently is incarcerated at Mack Alford
Correctional Center in Stringtown, Oklahoma. He is challenging the execution of his life
sentence for First Degree Murder in Payne County District Court Case No. CRF-89-111,
alleging he is being denied his liberty interest in being discharged from custody upon
expiration of his sentence. Respondent has filed an answer to the petition, alleging Petitioner
has not completed his life sentence (Dkt. 9).
The record shows that on December 22, 1989, Petitioner was sentenced to life in
prison, and he was received into the Department of Corrections on January 5, 1990, to serve
his sentence (Dkt. 1-2 at 1, Dkt. 9-1). On July 12, 2016, Petitioner was denied postconviction relief in the Payne County District Court, where he argued his life sentence had
been discharged (Dkt. 1-5). The Oklahoma Court of Criminal Appeals (OCCA) affirmed the

denial of post-conviction relief:
In an order filed in the District Court July 12, 2016, the Honorable Phillip
Corley, District Judge, denied Petitioner’s post-conviction application. Judge
Corley noted that Petitioner’s claim was based on a jury instruction’s
explanation of a Life sentence. Judge Corley held Petitioner failed to present
evidence establishing he was entitled to discharge the sentence entered in this
case. We agree. Petitioner also fails to provide legal authority supporting his
claims. Petitioner must support his allegations of error with argument and
citations of authority. See Rule 3.5, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2016).
Selman v. State, No. PC-2016-694, slip op. at 2 (Okla. Crim. App. Sept. 14, 2016) (Dkt. 1-8).
This Court finds Petitioner is relying on a misinterpretation of a jury instruction to
support his argument. The instruction, however, clearly explains that the “calculation for
eligibility of parole is based upon a term of forty-five (45) years . . . .” Oklahoma Uniform
Jury Instruction 10-13B (emphasis added). Petitioner erroneously interprets this language
to mean the “calculation” requires that he not be held in excess of forty-five (45) years, and
his life sentence equals forty-five (45) years. That, however, is not what the instruction says.
In response to Petitioner’s supplemental authority consisting of unpublished opinions
by state district courts and the OCCA which concern life sentences (Dkts. 12, 14, 15),
Respondent has submitted as supplemental authority the published case of Lee v. State, 422
P.3d 782, (Okla. Crim. App. 2018) (Dkt. 17 at 3). The Lee case held as follows:
“Telling the jury that a life sentence is forty-five (45) years in prison is a
misstatement of the law. See Anderson v. State, 130 P.3d 273, 282-83 (Okla.
Crim. App. 2006) (a defendant can be considered for parole eligibility after
serving 85% of 45 years).
Lee, 422 P.3d at 785 (emphasis in original). The OCCA further explained:

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Lawyers continue to confuse the punishment set out in our statutes with the
administrative rules of the Pardon and Parole Board. Under our penal statutes,
a life sentence means the natural life of the offender. The fact that the Pardon
and Parole Board has arbitrarily set forty-five (45) years as the number the
Board will use to comply with the “Forgotten Man Act,” Okla. Stat. tit. 57, §
332.7 (2013), does not affect the actual sentence; the number affects only
when the Board will consider the inmate for purposes of parole.
Lee, 422 P.3d at 785 n.1
Based on this recent explanation by the OCCA of the meaning of a life sentence in
Oklahoma, the Court finds Petitioner has failed to state a claim for 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 should 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.
IT IS SO ORDERED this 13th day of August 2019.

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