Kostich v. Rudek
Filing
57
OPINION AND ORDER by Judge Claire V Eagan ; denying certificate of appealability; finding as moot 50 Motion for Hearing; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
WALTER EDWARD KOSTICH, JR.,
Petitioner,
v.
TRACY MCCOLLUM, Warden,
Respondent.
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Case No. 12-CV-0065-CVE-PJC
OPINION AND ORDER
Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by Petitioner,
Walter Edward Kostich Jr., a state prisoner appearing pro se. Petitioner also separately filed several
exhibits in support of his petition (Dkt. ## 2, 28). Respondent filed a response to the petition (Dkt.
# 12), and provided the state court record necessary for resolution of Petitioner’s claims (Dkt. # 13).
Petitioner filed a reply (Dkt. # 27). Petitioner has also filed a motion for a “due process hearing,”
and a brief in support. (Dkt. ## 50, 51). In that motion, Petitioner argues that this Court’s denial
of his previous “motion for bail release or bail hearing on the merits” (Dkt. # 42) was a “vague and
capricious unreasionable [sic] application of clearly established fed[eral] law.” See Dkt. # 51 at 1.
Petitioner again requests a “due process [bail] hearing on the merits.” Id. For the reasons discussed
below, the petition for writ of habeas corpus shall be denied. Therefore, Petitioner’s motion for a
hearing on bail release is declared moot.
BACKGROUND
On January 12, 2005, between 2:00 and 2:30 a.m., Petitioner set fire to the home of Corbin
and Katherine Gilstrap. See Dkt # 28-2 at 64; Dkt. # 13-11, O.R. Vol. II at 307-10. At the time of
the fire, multiple people were present in the home, including Corbin and Katherine Gilstrap, their
small child, and Katherine’s mother. See Dkt. # 13-8, Tr. Sent. Hr’g at 5-6; Dkt. # 13-11, O.R. Vol.
II at 307. The Gilstraps were able to escape the home without substantial physical injury; however,
their home was seriously damaged. See Dkt. # 13-8, Tr. Sent. Hr’g at 35. A surveillance video
camera captured images of Petitioner placing the incendiary device, a container of gasoline with a
fuse attached, on the front doorstep of the Gilstrap home and lighting the fuse. See Dkt. # 13-11,
O.R. Vol. II at 308. Petitioner’s actions resulted from a disagreement relating to Mr. Gilstrap’s
repair of, or alleged failure to repair, Petitioner’s personal computer(s). See Dkt. # 28-2 at 64; Dkt.
# 13-11, O.R. Vol. II at 308-10.
A federal indictment, filed February 8, 2005 in the United States District Court for the
Northern District of Oklahoma, Case Number 05-CR-00013-TCK, charged Petitioner with Unlawful
Possession of a Destructive Device (Count One) and Unlawful Manufacture of an Unregistered
Destructive Device (Count Two).1 See Dkt. # 28 at 7-8. Petitioner pled guilty to Count Two and
was convicted of Count One at jury trial. See id. at 15. On September 30, 2005, the federal district
judge sentenced Petitioner to a term of sixty-three (63) months imprisonment on both Count One
and Count Two, with the sentences to run concurrently. See id. at 15-16.
On February 3, 2005, the state of Oklahoma charged Petitioner with Arson - First Degree in
Tulsa County District Court, Case Number CF-2005-0514. See id. at 20-21. The case was
subsequently dismissed, by request of the State, on March 17, 2005. See id. at 25. On March 16,
2007, approximately eighteen (18) months after Petitioner’s federal sentencing, the state of
1
A superceding indictment filed May 4, 2005 added two counts: Malicious Damage and
Destruction, by Means of Fire and an Explosive, Real Property Used in Any Activity
Affecting Interstate Commerce (Count Three) and Use of Fire and Explosive to Commit a
Felony Which May be Prosecuted in a Court of the United States (Count Four). See Dkt. #
28 at 10-13. However, at jury trial, Petitioner was acquitted of both these additional counts.
See id. at 15.
2
Oklahoma recharged the Petitioner with Arson - First Degree in Tulsa County District Court, Case
Number CF-2007-1480. See id. at 44-47.
On April 2, 2009, Petitioner entered a blind plea of guilty in CF-2007-1480 to the sole charge
of Arson - First Degree. See Dkt. # 13-7, Tr. Blind Plea Hr’g at 3. On June 30, 2009, based on the
plea, the trial judge sentenced Petitioner to twenty (20) years imprisonment. See Dkt. # 13-8, Tr.
Sent. Hr’g at 53. The judge ordered that Petitioner be credited with time served, including time
served in federal custody on related charges, and that his sentence in CF-2007-1480 run concurrently
with the remainder of his federal sentence in 05-CR-00013-TCK. Id. During the plea and
sentencing proceedings, Petitioner was represented by attorney Ashley Webb. See Dkt. # 13-7, Tr.
Blind Plea Hr’g; Dkt. # 13-8, Tr. Sent. Hr’g.
On July 10, 2009, Petitioner filed a motion to withdraw his guilty plea.2 See Dkt. # 13-11,
O.R. Vol. II at 324-37, 328-30. On September 28, 2009, a hearing was held on Petitioner’s motion
to withdraw his plea. See Dkt. # 13-9, Tr. Mot. Withdraw Plea Hr’g. The district court denied the
motion. Id. at 49. Petitioner was represented by attorney Brian Martin at the hearing on the motion
to withdraw his plea. Id. at 1.
Represented by attorney Ricki J. Walterscheid, Petitioner filed a petition for writ of certiorari
in the Oklahoma Court of Criminal Appeals (OCCA). See Dkt. # 12-1. He raised the following sole
proposition of error:
Proposition I:
2
The plea of Mr. Kostich was not intelligently, knowingly, and
voluntarily entered, as such the District Court abused its discretion in
disallowing him to withdraw the plea.
Petitioner filed a pro se motion to withdraw his plea on July 10, 2009. See Dkt. # 13-11,
O.R. Vol. II at 324-37. On the same day, his attorney Ashley Webb also filed a motion to
withdraw Petitioner’s plea. See id. at 328-30.
3
Id. at 6. In an unpublished opinion, filed June 18, 2010, in Case No. C-2009-892, the OCCA denied
the petition for writ of certiorari. See Dkt. # 12-2.
On August 23, 2011, Petitioner filed an application for post-conviction relief. See Dkt. # 28
at 75. Petitioner raised four (4) propositions, as follows:
Proposition I:
Ineffective assistance of Appellate Counsel.
Proposition II:
Double Jeopardy.
Proposition III:
Ineffective counsel prejudiced the outcome of the preliminary hearing
and deprived Petitioner of his wright [sic] to Constitutional
protections under the U.S. Constitution 5th, 6th and 14th Amend.
Proposition IV:
Ineffective assistance of court appointed counsel depraved [sic]
Petition of his wright [sic] to constitutional protections under the U.S.
Constitution 5th, 6th and 14th Amend.
(Dkt. # 2 at 28). The trial court denied the application. Id. at 26-35. On January 27, 2012, in Case
No. PC-2011-1076, the OCCA affirmed the trial court’s denial of post-conviction relief (Dkt. # 123).
On February 14, 2012, Petitioner commenced this federal action by filing his pro se petition
for writ of habeas corpus (Dkt. # 1). Petitioner raises six (6) grounds of error, as follows:
Ground I:
Ineffective counsel coorced [sic] a blind plea of Guilty that was not
knowing or intelligent and petitioner should have been allowed to
withdraw said blind plea.
Ground II:
Ineffective assistance of appellate counsel provided by Okla indigent
defence [sic] system.
Ground III:
Double Jeopardy.
Ground IV:
Ineffective assistance of counsel at preliminary hearing.
Ground V:
Ineffective trial counsel.
4
Ground VI:
The Post Conviction Procedure Act of OS 22 § 1080 et sec is badly
broken and failes [sic] the test of legislative intent.
(Dkt. # 1). Respondent argues that the OCCA’s adjudication of Grounds I and II was not
unreasonable or contrary to federal law, that Grounds III-V are procedurally barred, and that Ground
VI is a matter of state law not cognizable on federal habeas review. See Dkt. # 12.
ANALYSIS
A.
Exhaustion/Evidentiary Hearing
As a preliminary matter, the Court must determine whether Petitioner meets the exhaustion
requirement of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner
raised Grounds I-V on either certiorari or post-conviction appeal and he has exhausted state
remedies as to those claims. However, Petitioner has not raised Ground VI in the state courts and
that claim is unexhausted. In light of the procedural posture of this case, it would be futile to require
Petitioner to return to state court to exhaust Ground VI. Thus, there is an absence of available State
corrective process for that claim, see 28 U.S.C. § 2254(b)(1)(B), and it is not barred by the
exhaustion requirement. In part D below, the claim raised in Ground VI is denied on the merits
under 28 U.S.C. § 2254(b)(2).
The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Williams
v. Taylor, 529 U.S. 420 (2000).
B.
Claims adjudicated by the OCCA
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be
applied by federal courts reviewing constitutional claims brought by prisoners challenging state
convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain
federal habeas relief only if the state court decision “was contrary to, or involved an unreasonable
5
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S.
362, 386 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). “Clearly established
Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citations omitted).
When a state court applies the correct federal law to deny relief, a federal habeas court may
consider only whether the state court applied the federal law in an objectively reasonable manner.
See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir.
2002). An unreasonable application by the state courts is “not merely wrong; even ‘clear error’ will
not suffice.” White, 134 S. Ct. at 1702 (citing Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). The
petitioner “‘must show that the state court’s ruling . . . was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786-87 (2011));
see also Metrish v. Lancaster, 133 S. Ct. 1781, 1787 (2013).
“When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85.
Section 2254(d) bars relitigation of claims adjudicated on the merits in state courts and federal
courts review these claims under the deferential standard of § 2254(d). Id. at 784; Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). Further, the “determination of a factual issue made by a State
6
court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
In this case, the OCCA adjudicated Ground I on certiorari appeal, and Ground II on postconviction appeal. See Dkt. ## 12-2, 12-3. Therefore, the § 2254(d) standard applies to this Court’s
analysis of those grounds.
1.
Challenge to Petitioner’s blind plea of guilty as involuntary (Ground I)
As his first ground of error, Petitioner claims, “[t]rial counsel Webb coerced Petitioner into
filing a blind plea that was not knowing or intelligent considering the alternatives available but not
known to Petitioner.” (Dkt. # 1 at 5-6). Additionally, Petitioner argues his guilty plea was not
intelligently, knowingly, and voluntarily entered because he was “under the influence of mind
altering anti depressants and stated in open court he felt tortured into a plea and had no other
choice.” Id. at 6. Finally, Petitioner asserts that “[t]he Court pressed for a blind plea and Petitioner
was denied due process of law by the Courts [sic] refusal to allow withdrawal of plea.” Id. In
rejecting this claim on certiorari appeal, the OCCA ruled as follows:
The record shows that several times during the plea hearing, the court made sure
Petitioner did not feel coerced into entering his plea. The record also supports the
district court’s finding that Petitioner was competent to understand the nature of the
plea proceedings. The record as a whole supports the court’s conclusion that
Petitioner’s blind plea was knowingly and voluntarily entered.
(Dkt. # 12-2 at 2). Respondent argues the OCCA’s ruling was not contrary to, or an unreasonable
application of, federal law as determined by the Supreme Court. See Dkt. # 12 at 6-14.
In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court held that a guilty plea must
be entered into “knowingly and voluntarily.” A plea is not voluntary unless the defendant knows
the direct consequences of his decision, including the maximum penalty to which he will be
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exposed. Worthen v. Meachum, 842 F.2d 1179, 1182 (10th Cir. 1988) (stating that critical inquiry
is whether defendant knows of maximum possible sentence), overruled on other grounds by
Coleman v. Thompson, 501 U.S. 722 (1991). Furthermore, it is not necessary that the record reflect
a detailed enumeration and waiver of rights as a result of the guilty plea; rather the issue is simply
whether the record affirmatively shows that the guilty plea was intelligent and voluntary. Stinson
v. Turner, 473 F.2d 913 (10th Cir. 1973). “Whether a plea is voluntary is a question of federal law,
but this legal conclusion rests on factual findings and inferences from those findings.” Fields v.
Gibson, 277 F.3d 1203, 1212 (10th Cir. 2002) (citing Boykin). The “determination of a factual issue
made by a State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Although a petitioner’s statements made at the guilty plea hearing “are subject to challenge
under appropriate circumstances,” they constitute “a formidable barrier in any subsequent collateral
proceeding.” United States v. Maranzino, 860 F.2d 981, 985 (10th Cir. 1988) (quoting Blackledge
v. Allison, 431 U.S. 63, 74 (1977)); see also Romero v. Tansy, 46 F.3d 1024, 1033 (10th Cir. 1995).
The Tenth Circuit emphasizes the importance of plea colloquies: “This colloquy between a judge
and a defendant before accepting a guilty plea is not pro forma and without legal significance.
Rather, it is an important safeguard that protects defendants from incompetent counsel or
misunderstandings.” Fields, 277 F.3d at 1214.
In this case, the record reflects that Petitioner’s guilty plea was knowing, intelligent, and
voluntary. The transcript of the plea hearing confirms that Petitioner understood the charge against
him, and that he was “thinking clearly” when he entered his plea of guilty. See Dkt. # 13-7, Tr.
Blind Plea Hr’g at 2. In addition, the trial judge explained the trial rights that Petitioner was waiving
8
by pleading guilty, and confirmed that Petitioner understood the meaning of entering a guilty plea.
See id. at 3. As the following dialogue from the blind plea hearing demonstrates, the trial judge
carefully questioned Petitioner to confirm no one was coercing him to enter a plea of guilty:
THE COURT: Sir, did you fill out this summary of facts form with the help of your
attorney?
THE DEFENDANT: Yes.
THE COURT: Did you go over it with Mr. Webb? Speak up, please, Sir.
THE DEFENDANT: He filled it out. I just answered the questions.
THE COURT: Okay. That’s what I needed to know. Did he force you to answer any
of the questions in a certain way?
THE DEFENDANT: No.
...
THE COURT: Anyone forcing you to make this choice, Mr. Kostich?
THE DEFENDANT: No.
Id. at 2-3. Petitioner’s attorney also informed the trial court of two questions on the “Plea of Guilty
– Summary of Facts” form that Petitioner struggled to answer.3 In response, the Court went over
those two questions with Petitioner on the record in great detail:
MR. WEBB: I circled the numbers of the two questions that he wasn’t quite
comfortable answering in the affirmative with me.
THE COURT: Okay. So we just need to go over those.
3
The two questions the trial court reviewed with Petitioner in detail were questions twentynine and thirty. See Dkt. # 13-7, Tr. Blind Plea Hr’g at 5-8. The Court notes that question
twenty-nine, which states “Have you been forced, abused, mistreated, or promised anything
by anyone to have you enter your plea(s)?,” was answered “Yes” on the plea form. See Dkt.
# 13-11, O.R. Vol. II at 318. However, the extensive colloquy between the trial court and
Petitioner clearly demonstrates that Petitioner’s intended answer to this question was “No.”
See Dkt. # 13-7, Tr. Blind Plea Hr’g at 5-6. Therefore, after review of the blind plea hearing
transcript, it appears that the unintended answer was circled by mistake.
9
MR. WEBB: Yes.
THE COURT: Sir, it says here, “Have you been forced, abused, mistreated or
promised anything by anyone to have entered your plea?” Can you explain to me if
you can answer that yes or no and why.
THE DEFENDANT: Your Honor, I would like to just say this has been a torture to
me, all that I’ve gone through, all that I’ve endured. I’ve had to endure the death of
my mother and my wife. I have to go through having cancer myself. I was just
coming out of . . .
THE COURT: You’re fine, Mr. Kostich. Take your time.
THE DEFENDANT: I was just coming out of major depression when I got hit with
all of this stuff all at once.
MR. WEBB: I think he’s referring to being recharged here in the State court.
THE COURT: Yes, sir.
THE DEFENDANT: Ever since then, it’s just been agonizing on a day-to-day basis.
You have no idea what I’ve gone through.
THE COURT: All right, sir. And I understand and I appreciate you giving me your
concerns. I guess the question is I understand how you feel about the State pursuing
charges against you, but the question, sir, is – this has to be your voluntary choice
to enter this plea.
THE DEFENDANT: Can I get a tissue?
THE COURT: Sure. I need to know that this is a voluntary choice for you to enter
this plea.
THE DEFENDANT: Yes.
THE COURT: All right. The other question, Mr. Kostich, is “Do you plead guilty
of your own free will and without any coercion or compulsion of any kind?” And
with the statements that you made earlier, I know that you feel like you’ve been
treated unfairly, that the State prosecuting you here is unfair and that it’s caused you
much trouble and hardship.
Again, I don’t mind having a trial for you next week, sir. That’s my job is to have
a jury up here for you to and make the decision. This question just needs to make
sure that you are making the choice to plead guilty without any influence from
anyone else. Is that true or false?
10
THE DEFENDANT: Just having to go through this a second time all over again, it’s
just been tortuous to me. But have I been coerced? I feel like I really don’t have a
choice.
THE COURT: Well, you don’t have a choice that you are charged here and you
don’t have a choice that you are having to face a decision, but you do have a
decision, Mr. Kostich. You can have a trial. And you know the outcome could be
not guilty, it could mitigate the sentence in some way, it could be a guilty and a lot
of years; or it can be that you are going to plea and go forward, which is what you’ve
decided so far here today. But that is your choice.
THE DEFENDANT: Yes.
THE COURT: Is anyone forcing you to make this choice to not have a trial? That’s
what I need to know.
THE DEFENDANT: No.
Id. at 5-8.
Petitioner’s allegations in proposition one are also belied by the “Plea of Guilty - Summary
of Facts” form filed in Petitioner’s state district court case. See Dkt. # 13-11, O.R. Vol. II at 316322. On the first page of the form, Petitioner affirmed that he could read and understand the form.
Id. at 316 ¶ 5. He identified Ashley Webb as his lawyer. Id. at 316 ¶ 2. Petitioner affirmed that he
understood the nature and consequences of the proceeding, understood the charges against him and
the range of punishment for each charge, had advised his lawyer regarding any available defenses,
and had his lawyer’s advice. Id. at 316-18 ¶¶ 9, 15, 16, 20, 21. Significantly, he answered “No” to
the question, “Are you currently taking any medications or substances which affect your ability to
understand these proceedings?” Id. at 316 ¶ 6. To confirm several of the questions on the plea form,
including the question regarding medications, Petitioner’s attorney requested that Petitioner put his
initials next to the circled answers. Additionally, as the dialogue above illustrates, the trial judge
reviewed in great detail questions relating to coercion. See id. at 318 ¶¶ 29, 30. Finally, Petitioner
11
swore under oath that he had reviewed the form with his attorney, understood its contents, that his
answers were true and correct, and that he understood he could be prosecuted for perjury if he had
made false statements to the court. Id. at 318-19 ¶ 32.
While Petitioner claims he was coerced into pleading guilty, nothing in the record
demonstrates that the actions of his attorney, the trial judge, or any other person rendered
Petitioner’s plea of guilty involuntary. Petitioner’s attorney testified at the hearing on Petitioner’s
motion to withdraw his plea that while he knew Petitioner had various medical issues, including
possible treatment by a “psychiatrist or a counselor” while in federal custody, he believed Petitioner
was competent and understood what he was doing. See Dkt. # 13-9, Tr. Mot. Withdraw Plea Hr’g
at 30, 35-38. Petitioner’s attorney also testified that he “was not aware that [Petitioner] was taking
anything to affect his cognitive ability.” Id. at 40-41. At the hearing on Petitioner’s motion to
withdraw his plea, the trial judge stated that she recalled the Petitioner’s guilty plea “very well,” and
that she “made sure that when [she] went through the plea form that [she] thought that he understood
and was thinking clearly.” Id. at 49. The trial judge then made a finding of fact that the court “[did
not] hear anything from Mr. Kostich that he has had mental health treatment that would incur him
to not be able to knowingly and voluntarily enter a plea.” Id. Under 28 U.S.C. § 2254(e)(1), that
finding is presumed correct unless Petitioner rebuts the presumption of correctness afforded to the
trial court by clear and convincing evidence. Petitioner has not presented clear and convincing
evidence sufficient to demonstrate that he was impaired by medication at the time of his plea and
that the medication rendered his plea unknowing or involuntary. As a result, he has failed to rebut
the presumption of correctness afforded to the state court’s finding of fact that Petitioner’s plea of
guilty was knowingly and voluntarily entered. See Dkt. # 13-11, O.R. Vol. II at 319 ¶ 36.
12
In his habeas petition, Petitioner specifically alleges that his attorney provided ineffective
assistance by coercing him to enter the blind plea of guilty. On certiorari appeal, Petitioner did not
use the term “ineffective assistance of counsel,” nor did he cite to Strickland v. Washington, 466
U.S. 668 (1984). He did, however, argue that his plea was coerced and that counsel misadvised him
with regard to the range of punishment he faced upon entry of a blind plea. The OCCA considered
these claims in resolving Petitioner’s claim that his blind plea was not entered voluntarily. That
resolution is entitled to deference under 28 U.S.C. § 2254(d), even though the OCCA did not
specifically cite Strickland in its analysis. See Harrington, 562 U.S. 86, 131 S. Ct. at 784. In
response to the petition, Respondent analyzes Petitioner’s ineffective assistance of counsel
argument, applying the Strickland standard, and argues Petitioner is not entitled to relief. See Dkt.
# 12 at 7-8. For the reasons discussed below, the Court agrees with Respondent and finds that
Petitioner is not entitled to habeas relief on his claim of ineffective assistance of counsel. See 28
U.S.C. § 2254(d).
Under Strickland, a defendant must show that his counsel’s performance was deficient and
that the deficient performance was prejudicial. Strickland, 466 U.S. at 687; see also Osborn v.
Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993). A defendant can establish the first prong by
showing that counsel performed below the level expected from a reasonably competent attorney in
criminal cases. Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance.” Id. at 689. In making this
determination, a court must “judge . . . [a] counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.” Id. at 690. Moreover, review of counsel’s
performance must be highly deferential. “[I]t is all too easy for a court, examining counsel’s defense
13
after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689; see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (noting that
a habeas court must take a “highly deferential” look at counsel’s performance under Strickland and
through the “deferential lens” of § 2254(d)).
To establish the second prong, a defendant must show that this deficient performance
prejudiced the defense, to the extent that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; see also
Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th
Cir. 1999). If Petitioner is unable to show either “deficient performance” or “sufficient prejudice,”
his claim of ineffective assistance fails. See Strickland, 466 U.S. at 700. Thus, it is not always
necessary to address both Strickland prongs.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court set out the applicable standard
for reviewing ineffective assistance of counsel claims in the context of guilty pleas. In accord with
Strickland, 466 U.S. at 687, a defendant challenging the effective assistance of counsel during the
guilty plea process must show that counsel’s performance was deficient and that such deficient
performance prejudiced him. Id. at 57-58. As the Court explained in Hill,
[I]n the context of guilty pleas, the first half of the Strickland v. Washington test is
nothing more than a restatement of the standard of attorney competence . . . . The
second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.
In other words, in order to satisfy the ‘prejudice’ requirement, 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.
14
Id. at 58-59. However, “a petitioner’s ‘mere allegation’ that he would have insisted on trial but for
his counsel’s errors, although necessary, is ultimately insufficient to entitle him to relief.” Miller
v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (quoting Hill, 474 U.S. at 59). Rather, the Court
“look[s] to the factual circumstances surrounding the plea to determine whether the petitioner would
have proceeded to trial.” Id.
Petitioner claims his counsel, Ashley Webb, “coerced Petitioner into filing a blind plea that
was not knowing or intelligent considering the alternatives available but not known to Petitioner.”
(Dkt. # 1 at 5-6). To explain the alleged coercion by his attorney, Petitioner asserts that counsel
“coorced [sic] Kostich under threat that if Kostich took [the case] to trial he would be convicted
[and] the court would impose the maximum sentence of 35 years.” Id. at 21. Additionally,
Petitioner alleges “counsel informed Kostich of another Arson case he had before the same judge
who received a 5 year probation [sentence] without a former conviction. Counsel expressed
resonable [sic] expections [sic] of a 10 year probation [sentence], if he cooperated with a blind plea.”
Id. Petitioner also argues that his attorney was deficient because “counsel knew of [Petitioner’s]
drug use and instructed [Petitioner] to deceive [sic] the court [to allow the blind plea],” and failed
to call witnesses or present mitigation evidence at the sentencing on his blind plea of guilty. Id. at
21-22.
The record refutes Petitioner’s claims that his attorney provided ineffective assistance during
either the entry of his blind plea of guilty or sentencing. First, the record demonstrates that counsel
and the trial judge discussed the applicable sentencing range and the potential outcomes of a blind
plea and a jury trial with Petitioner. At the hearing on Petitioner’s motion to withdraw his plea,
counsel testified that he explained the strengths and weaknesses of the case and what could happen
15
if the case were to proceed to trial. See Dkt. # 13-9, Tr. Mot. Withdraw Plea Hr’g at 32. Counsel
advised Petitioner that “in light of all of our options available, if we went to trial there [was] a good
possibility [Petitioner] was going to get the max [punishment] from a jury in Tulsa County.” Id.
Counsel also testified that he discussed with Petitioner the applicable range of punishment, and that
while he would argue for probation at Petitioner’s sentencing, nothing was guaranteed. See id. at
33. Counsel acknowledged he informed Petitioner of a different case, involving a previous client
charged with a “similar type crime,” where the client received “either five or ten years probation.”
Id. at 41. However, counsel stated he did not believe “anybody ever represented to [Petitioner] at
any time . . . that the State would ever consider the possibility of probation.” Id. at 41-42.
Significantly, at the change of plea hearing, Petitioner testified that he filled out the plea form with
the help of his attorney. See Dkt. # 13-7, Tr. Blind Plea Hr’g at 2. The plea form clearly stated the
range of punishment and that no plea agreement had been reached. See Dkt. 13-11, O.R. Vol. II at
317-318 ¶¶ 16, 23, 25. In addition, the plea form, and Petitioner’s answers in the affirmative,
confirmed that Petitioner had “talked over the charge(s) with [his] lawyer,” discussed possible
defenses, and received his lawyer’s advice. See id. at 318 ¶ 20. At the blind plea hearing, Petitioner
also testified that he was not being forced to enter a blind plea and that he understood he could
proceed to trial instead. See Dkt. # 13-7, Tr. Blind Plea Hr’g at 3. Additionally, as discussed in
more detail above, the Court took considerable time to confirm that Petitioner was making the
decision to enter a blind plea freely, and that he understood the consequences of that decision.
Finally, while Petitioner argues in his petition that his counsel did not inform him of “available
alternatives,” he does not explain what these unknown alternatives were or how they would have
impacted his decision to plead guilty.
16
Second, Petitioner’s assertion that “counsel knew of [Petitioner’s] drug use and instructed
[Petitioner] to deceive the court,” is not supported by the record. At the hearing on Petitioner’s
motion to withdraw his plea, counsel acknowledged that while he knew Petitioner had “been in
contact with a psychiatrist [while in federal custody],” the question relating to past or current mental
illness treatment included on the plea form was answered “No.”4 See Dkt. # 13-9, Tr. Mot.
Withdraw Plea Hr’g at 44; Dkt. # 13-11, O.R. Vol. II at 316 ¶ 8. However, counsel clearly testified
that he “was not aware that [Petitioner] was taking anything to affect his cognitive ability” at the
time of the blind plea hearing. See Dkt. # 13-9, Tr. Mot. Withdraw Plea Hr’g at 41. Petitioner also
put his initials on the plea form confirming his answer of “No” to the question “Are you currently
taking any medications or substances which affect your ability to understand these proceedings?”
See Dkt. # 13-11, O.R. Vol. II at 316 ¶ 6. While Petitioner testified at the hearing to withdraw his
blind plea that he was under the influence of anti-depression medication at the time of his plea, the
trial judge determined at the conclusion of the hearing, that she “did not hear anything from Mr.
Kostich that he has mental health treatment that would incur him to not be able to knowingly and
voluntarily enter a plea.” See Dkt. # 13-9, Tr. Mot. Withdraw Plea Hr’g at 49. Nothing in the
record, or submitted by Petitioner in this habeas action, demonstrates that counsel instructed
Petitioner to deceive the court regarding his medications.
Finally, Petitioner’s allegation that counsel failed to present any mitigating evidence at his
sentencing hearing is contradicted by the record. At Petitioner’s sentencing hearing, counsel
4
While counsel could not recall who physically circled the answers on the plea form, he
testified that he went over the plea form with Petitioner and they answered the questions
together. See Dkt. # 13-9, Tr. Blind Plea Hr’g at 37-38. Additionally, he often requested
that Petitioner put his initials next to certain questions to confirm the answer. See Dkt. # 1311, O.R. Vol. I at 316-321.
17
submitted several exhibits to the trial court. See Dkt. # 13-8, Tr. Sent. Hr’g at 15-18. These exhibits
included letters of recommendation and/or support, certificates of achievement and completion from
several courses Petitioner completed while in custody, pictures of his residence before and after
incarceration, and medical information explaining the absence of testimony from his common law
wife/girlfriend Marilyn Crowdus.5 See id. In total, counsel submitted fifty-one exhibits of
mitigating evidence on behalf of Petitioner at the sentencing hearing. See id. at 18. After admission
of these exhibits, the trial court recessed to review the mitigating evidence presented by counsel.
See id. at 20. In addition to the exhibits presented, Petitioner made a statement and counsel made
a lengthy argument in mitigation. See Dkt. # 13-8, Tr. Sent. Hr’g at 21-24, 37-45. Petitioner’s
counsel in the related federal criminal case also prepared a thorough sentencing memorandum, see
Dkt. # 28-2 at 63-86, and presented separate oral argument at Petitioner’s sentencing hearing. See
Dkt. # 13-8, Tr. Sent. Hr’g at 31-37.
Without more, Petitioner has failed to prove that counsel’s performance was constitutionally
deficient. See Strickland, 466 U.S. at 696-97 (explaining that defendants must overcome the “strong
presumption” that particular decisions by counsel can be characterized as sound trial strategy).
Counsel’s strategic decision to recommend that Petitioner enter a blind plea of guilty was well
within the range of reasonable professional assistance.
Therefore, Petitioner has failed to
demonstrate that the OCCA’s adjudication was contrary to, or an unreasonable application of
5
Petitioner argues counsel was ineffective because he “faild [sic] to obtain a statement from
Marilyn Crowdus who played a big part in [Petitioner’s] federal acquittal, who had died of
cancer during the process.” Dkt. # 1 at 22. However, Petitioner fails to explain what
mitigating evidence Ms. Crowdus would have offered in addition to the evidence presented,
or how this additional evidence would have impacted his sentencing in state court.
18
Strickland, and he is not entitled to habeas corpus relief on his claim that counsel provided
ineffective assistance in coercing his blind plea of guilty. 28 U.S.C. § 2254(d).
2.
Ineffective assistance of appellate counsel (Ground II)
In Ground II, Petitioner states that appellate counsel failed to “apply the legislative
prohibitions against successive prosicutions [sic] that required dismissal of the charge.” (Dkt. # 1
at 7). Petitioner further claims he requested that appellate counsel “develope [sic] a double jeopardy
ineffective counsel defence [sic] and she refused to do so prejiducing [sic] the outcome.” Id.
Petitioner presented this claim to the state courts in his application for post-conviction relief. In its
opinion affirming the trial court’s denial of post-conviction relief, the OCCA stated that:
Petitioner also claims his attorneys both at the trial court level and on appeal were
ineffective for failing to raise or adequately assert [the double jeopardy argument].
However, as the District Court found, the doctrine of dual sovereignty holds that a
federal prosecution does not bar a subsequent state prosecution of a defendant who
violates laws of each jurisdiction by the same acts. Mack v. State, 2008 OK CR 23
¶¶ 5-7, 188 P.3d 1284, 1287-88. Thus, Petitioner has established neither that his
counsel was ineffective nor sufficient reason to allow his claims to be the basis of
this post-conviction application. 22 O.S.2001 § 1086; Fowler, supra.
(Dkt. # 12-3 at 2). Respondent argues Petitioner has failed “to show [that] the decision of the OCCA
was contrary to, or an unreasonable application of Strickland.” (Dkt. # 12 at 19).
To be entitled to habeas corpus relief on his claim of ineffective assistance of counsel,
Petitioner must demonstrate that the OCCA’s adjudication was an unreasonable application of
Strickland, 466 U.S. 668 (1984). As detailed above in Section 1, under Strickland, a defendant must
show that his counsel’s performance was deficient and that the deficient performance was
prejudicial. See Strickland, 466 U.S. at 687.
After review, the Court finds that Petitioner has failed to show that the OCCA’s adjudication
of his claim was contrary to, or an unreasonable application of, Strickland. See 28 U.S.C. § 2254(d).
19
The OCCA held that Petitioner failed to show his appellate counsel was ineffective for failing to
raise the double jeopardy claim, because the court determined the omitted claim was meritless. See
Dkt. # 12-3 at 2. The Tenth Circuit has consistently held that “[w]hile counsel should not omit
‘plainly meritorious’ claims, counsel need not raise meritless issues.” Smith v. Workman, 550 F.3d
1258 (10th Cir. 2008) (quoting Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004)). To prevail,
a petitioner must “show an ‘objectively unreasonable’ decision by the appellate counsel as well as
a ‘reasonable probability that the omitted claim would have resulted in relief.’” Id. (quoting Neill
v. Gibson, 278 F.3d 1044, 1057 & n. 5 (10th Cir. 2001)).
After careful review, this Court finds that Petitioner has failed to make the necessary
showing. As stated above, Petitioner claims his appellate counsel was ineffective for failing to argue
that his state criminal conviction was prohibited by the double jeopardy clause. The record
demonstrates that while Petitioner’s appellate counsel researched and considered the double
jeopardy claim, counsel eventually determined the claim was meritless. See Dkt. # 28-3 at 5-6.
The double jeopardy clause protects against multiple punishments for the same offense.
North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794 (1989). However, the Supreme Court has held that “[w]hen a defendant in a
single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has
committed two distinct ‘offences.’” Heath v. Alabama, 474 U.S. 82, 88 (quoting United States v.
Lana, 260 U.S. 377, 382 (1922)). Therefore, when a defendant is charged and prosecuted by two
separate sovereigns, “it cannot be truly averred that the offender has been twice punished for the
same offence; but only that by one act he has committed two offences, for each of which he is justly
punishable.” Id. (quoting Moore v. Illinois, 14 How. 13, 19, 14 L. Ed. 306 (1852)). This rule is
20
commonly referred to as the “dual sovereignty doctrine.” See id. Entities are “separate sovereigns”
if they “draw their authority to punish the offender from distinct sources of power.” Id. “‘A classic
application of the dual sovereignty doctrine is the case of successive prosecutions by a state and the
federal government.’” United States v. Barrett, 496 F.3d 1079, 1118 (10th Cir. 2007) (quoting
United States v. Long, 324 F.3d 475, 478 (7th Cir. 2003)). The dual sovereignty doctrine has been
recognized and applied by the Tenth Circuit. See, e.g., Barrett, 496 F.3d 1079; United States v.
Raymer, 941 F.2d 1031 (10th Cir. 1991); United States v. Gourley, 835 F.2d 249 (10th Cir. 1987).
Petitioner bases the majority of his double jeopardy argument on OKLA. STAT. tit. 22, § 130
(2014), and State ex rel. Cobb v. Mills, 163 P.2d 558 (Okla. Crim. App. 1945).6 See Dkt. # 1 at 19,
56-57. Petitioner argues that OKLA. STAT. tit. 22, § 130 and Cobb demonstrate that the dual
sovereignty doctrine has no application in Oklahoma. In Cobb, the OCCA determined the “question
of double punishment” was governed by a different statute, OKLA. STAT. tit. 21, § 25 (1941). See
Cobb, 163 P.2d at 571. At the time, OKLA. STAT. tit. 21, § 25 stated as follows:
Whenever it appears upon the trial that the accused has already been acquitted or
convicted upon any criminal prosecution under the laws of another state, government
or country, founded upon the act or omission in respect to which he is upon trial, this
is a sufficient defense.
Cobb, 163 P.2d at 571. The OCCA concluded that OKLA. STAT. tit. 21, § 25 was “susceptible of but
one construction. And [that] a conviction in a federal court for the same act as charged in a
prosecution in a state court is a conviction under the laws of a different ‘government’ within the
meaning of the statute.” Id. While the OCCA cited to other Oklahoma statutes in the Cobb opinion,
6
The Court notes Petitioner also mentions several other Oklahoma statutes in his petition,
including OKLA. STAT. tit. 22, §§ 11, 14, 522. See Dkt. # 1 at 19. However, each of these
statutes either refers to successive prosecutions by the State of Oklahoma, or the general
double jeopardy rule.
21
including OKLA. STAT. tit. 22, § 130, the court clearly stated that its holding in Cobb relied solely
upon the use of the word “government” in OKLA. STAT. tit. 21, § 25:
It will thus be noted that this court has taken cognizance of the use of the word
‘government’ in this statute, and that by reason of the use of the same an exception
was made to the general rule announced by other states which had no such statute.
Id. OKLA. STAT. tit. 21, § 25 has since been repealed, see OKLA. STAT. tit. 21, § 25, repealed by
Laws 1986, c. 178, § 1, and OKLA. STAT. tit. 22, § 130 does not include the word “government.”7
As the OCCA’s decision in Cobb relied solely upon OKLA. STAT. tit. 21, § 25 and its use of the word
“government,” Petitioner’s reliance upon OKLA. STAT. tit. 22, § 130 is unpersuasive. In addition,
and most significantly, the OCCA has since recognized the dual sovereignty doctrine in Mack v.
State, 188 P.3d 1284 (Okla. Crim. App. 2008). For these reasons, the Court agrees with the OCCA’s
conclusion that the dual sovereignty doctrine applies to Petitioner’s case, and the omitted double
jeopardy claim is meritless. While it is true that both the federal and state charges were based on
the same acts of Petitioner, the federal government and the state of Oklahoma are separate
sovereigns. Therefore, when Petitioner committed the acts charged, he committed two separate and
distinct offenses, and no double jeopardy violation resulted from both sovereigns prosecuting the
defendant for the offenses committed.
Petitioner has failed to show both that his appellate counsel was ineffective for making an
“objectively unreasonable” decision to omit the double jeopardy claim, and that there is a
“reasonable probability that the omitted claim would have resulted in relief.” See Smith, 550 F.3d
at 1268. Therefore, Petitioner has failed to demonstrate that the OCCA’s adjudication of this claim
7
OKLA. STAT. tit. 22, § 130 states, “When an act charged as a public offense is within the
jurisdiction of another territory, county or state, as well as this state, a conviction or acquittal
thereof in the former is a bar to a prosecution therefor in this state.”
22
was contrary to, or an unreasonable application of Strickland, and his request for habeas corpus
relief on Ground II shall be denied. See 28 U.S.C. § 2254(d).
C.
Procedural Bar (Grounds III, IV and V)
In Ground III, Petitioner alleges that his conviction for Arson in Oklahoma state court
violates the double jeopardy clause because he had previously been convicted of federal crimes
based on the same acts. See Dkt. # 1 at 8-9. In Grounds IV and V, Petitioner claims both his trial
and preliminary hearing counsel were ineffective for failing to raise and effectively argue “the
legislative prohibitions [related to double jeopardy] that would have brought [Petitioner’s state] case
to a swift end.” See Dkt. # 1 at 11. The OCCA, in its opinion affirming the trial court’s denial of
post-conviction relief, determined Petitioner had “not established any sufficient reason to allow his
current issues to be the basis of this application for post-conviction relief.” (Dkt. # 12-3 at 2). The
OCCA further explained its analysis of Petitioner’s claims:
The issues Petitioner raises either were or could have been raised prior to his plea of
guilty, in his motion to withdraw plea, or in his direct appeal to this Court. All issues
that were previously raised and ruled upon are barred as res judicata, and all issues
that could have been raised in previous proceedings but were not are waived, and
may not be the basis of a post-conviction application. 22 O.S. 2001, § 1086; Fowler
v. State, 1995 OK CR 29, ¶2, 896 P.2d 566, 569. Petitioner has not established any
sufficient reason to allow his current issues to be the basis of this application for
post-conviction relief. Id. Petitioner claims the State prosecution in this case was
barred, and the District Court lacked jurisdiction, due to double jeopardy principles
because his federal prosecution was based upon the same acts and transactions used
to prosecute this case. Petitioner also claims his attorneys both at the trial court level
and on appeal were ineffective for failing to raise or adequately assert this issue.
However, as the District Court found, the doctrine of dual sovereignty holds that a
federal prosecution does not bar a subsequent state prosecution of a defendant who
violates laws of each jurisdiction by the same acts. Mack v. State, 2008 OK CR 23,
¶¶ 5-7, 188 P.3d 1284, 1287-88. Thus, Petitioner has established neither that his
counsel was ineffective nor sufficient reason to allow his claims to be the basis of
this post-conviction application. 22 O.S.2001 § 1086; Fowler, supra.
23
Id. Respondent argues the OCCA’s holding that Petitioner waived these claims by failing to raise
them on certiorari appeal “was based on an adequate ground,” and the OCCA correctly cited to
“independent state law” supporting the procedural bar. See Dkt. # 12 at 16. Based on this
determination, Respondent asserts that Petitioner’s failure to raise his double jeopardy claim on
certiorari appeal to the OCCA “operates as a procedural bar to any federal habeas relief if the issue
can be decided solely from the trial court record.”8 Id. at 17.
As a preliminary matter, while the OCCA cited to authority relating to procedural bar, the
OCCA also briefly discussed the merits of Petitioner’s double jeopardy claim. See Dkt. # 12-3 at
2. However, it appears the OCCA only reached the merits of Petitioner’s double jeopardy claim to
evaluate Petitioner’s ineffective assistance of appellate counsel claim (Ground II). Additionally,
because Petitioner argues his preliminary hearing, trial, and appellate counsel were all ineffective
for failing to properly raise double jeopardy concerns, it could be argued the OCCA reached the
merits of Petitioner’s ineffective trial and preliminary counsel claims while addressing Petitioner’s
ineffective appellate counsel claim. Upon review of the record, the Court finds that the OCCA’s
primary basis for rejecting Grounds III, IV, and V was that they had been waived. Therefore, this
Court is required to “acknowledge and apply the OCCA’s procedural bar ruling, even though the
OCCA, on an alternative basis, briefly addressed and rejected the merits of [the habeas petitioner’s]
claim.” Cole v. Trammell, 755 F.3d 1142, 1158 (10th Cir. 2014) (quoting Thacker v. Workman, 678
F.3d 820, 834 n. 5 (10th Cir. 2012)).
8
In his response, Respondent addressed Petitioner’s double jeopardy claim (Ground III) along
with Petitioner’s ineffective assistance claims (Grounds IV and V) and appears to have
applied the rule found in English v. Cody, 146 F.3d 1257 (10th Cir. 1998) to all three claims.
The Court notes the specific rule stated in English relates only to claims of ineffective
assistance of counsel first raised in an application for post-conviction relief.
24
The doctrine of procedural bar prohibits a federal court from considering a specific habeas
claim that was resolved on an independent and adequate state procedural ground, unless the
petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also
Maes v. Thomas, 46 F.3d 979, 985 (10th Cir. 1995). “A state court finding of procedural default
is independent if it is separate and distinct from federal law.” Maes, 46 F.3d at 985. A finding of
procedural default is an adequate state ground if it has been applied evenhandedly in the “vast
majority” of cases. Id. at 986 (citing Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir. 1991)).
Applying the principles of procedural default to these facts, the Court concludes that
Petitioner’s Grounds III, IV and V are procedurally barred from this Court’s review. The state
court’s procedural bar as applied to these claims was an independent ground because Petitioner’s
failure to comply with state procedural rules was “the exclusive basis for the state court’s holding.”
See Maes, 46 F.3d at 985. In addition, as to the double jeopardy claim raised in Ground III, the
Tenth Circuit has held that Oklahoma courts have consistently “applied the procedural bar of Okla.
Stat. Ann. Tit. 22 § 1086 to untimely double jeopardy claims.” Steele v. Young, 11 F.3d 1518 (10th
Cir. 1993). “Furthermore, it has been stated clearly that section 1086 ‘strictly’ prohibits raising
issues that could have been raised before, even issues involving fundamental, constitutional rights.”
Id. (citing Johnson v. State, 823 P.2d 370, 372 (Okla. Crim. App. 1991)). Therefore, the procedural
bar imposed by the OCCA on the claim raised in Ground III was based on independent state law
grounds adequate to preclude federal review.
25
As to Grounds IV and V, when the underlying claim is ineffective assistance of counsel, the
Tenth Circuit has recognized that countervailing concerns justify an exception to the general rule
of procedural default. Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir. 1994) (citing
Kimmelman v. Morrison, 477 U.S. 365 (1986)). The unique concerns are “dictated by the interplay
of two factors: the need for additional fact-finding, along with the need to permit the petitioner to
consult with separate counsel on appeal in order to obtain an objective assessment as to trial
counsel’s performance.” Id. at 1364 (citing Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir.
1988)). The Tenth Circuit explicitly narrowed the circumstances requiring imposition of a
procedural bar on ineffective assistance of counsel claims first raised collaterally in English v. Cody,
146 F.3d 1257 (10th Cir. 1998). In English, the court concluded that:
Kimmelman, Osborn, and Brecheen indicate that the Oklahoma bar will apply in
those limited cases meeting the following two conditions: trial and appellate counsel
differ; and the ineffectiveness claim can be resolved upon the trial record alone. All
other ineffectiveness claims are procedurally barred only if Oklahoma’s special
appellate remand rule for ineffectiveness claims is adequately and evenhandedly
applied.
Id. at 1264 (citation omitted).
The record confirms that Petitioner’s ineffective assistance of counsel claims detailed in
Grounds IV and V were first raised in Petitioner’s application for post-conviction relief. See Dkt.
# 2 at 28. Petitioner was represented during the preliminary hearing by attorney Marney Hill. See
Dkt. # 13-1, Tr. Prelim. Hr’g. Before and after the preliminary hearing, including at Petitioner’s
blind plea and sentencing hearings, he was represented by attorney Ashley Webb. See Dkt. # 1 at
7, 10-11. On appeal, Petitioner was represented by attorney Ricki Walterscheid. See Dkt. # 12-1
at 1. For purposes of the first requirement identified in English, the Court finds that Petitioner had
the opportunity to confer with separate counsel on appeal. The second English factor requires that
26
the claim could have been resolved either “upon the trial record alone” or after adequately
developing a factual record through some other procedural mechanism. See English, 146 F.3d at
1263-64. In Grounds IV and V Petitioner alleges that both counsel “fail[ed] to raise the legislative
prohibitions [relating to double jeopardy] that required dismissal of the case.” See Dkt. # 1 at 10.
These claims can be resolved upon the trial record alone. The trial record contains several
references to Petitioner’s federal criminal case and evaluation of potential double jeopardy
concerns.9 Therefore, Petitioner’s Grounds IV and V are procedurally barred. See English, 146 F.3d
at 1264.
Because of the procedural default of the identified claims in state court, this Court may not
consider the claims unless Petitioner is able to show cause and prejudice for the default, or
demonstrate that a fundamental miscarriage of justice would result if his claims are not considered.
See Coleman, 501 U.S. at 750. “‘Cause’ must be ‘something external to the petitioner, something
that cannot fairly be attributed to him . . . .” Steele, 11 F.3d at 1522 (quoting Coleman, 501 U.S. at
753). Examples of such external factors include the discovery of new evidence, a change in the law,
and interference by state officials. See Murray v. Carrier, 477 U.S. 478, 488 (1986). As for
prejudice, a petitioner must show “‘actual prejudice’ resulting from the errors of which he
9
Petitioner’s preliminary hearing and trial counsel both raised the “legislative prohibitions”
against successive prosecution and double punishment that Petitioner alleges in his petition.
Before the preliminary hearing, attorney Webb filed a motion to dismiss alleging double
jeopardy concerns. See Dkt. # 13-10, O.R. Vol. I at 44-51. The motion included exhibits
related to Petitioner’s federal criminal case. At the preliminary hearing, attorney Hill orally
argued the written motion. See Dkt. # 13-1, Tr. Prelim Hr’g at 3. In addition, once
Petitioner’s case reached the district judge, attorney Webb again filed a motion to dismiss,
arguing that the doctrine of dual sovereignty did not apply in Petitioner’s case. See Dkt. #
13-10, O.R. Vol. I at 132-94. This motion also included various exhibits related to
Petitioner’s federal criminal case.
27
complains.” United States v. Frady, 456 U.S. 152, 168 (1982). The “fundamental miscarriage of
justice exception” instead requires a petitioner to demonstrate that he is “actually innocent” of the
crime of which he was convicted. McCleskey v. Zant, 499 U.S. 467, 494 (1991); see also Steele,
11 F.3d at 1522.
After review, the Court finds that Petitioner has not shown cause and prejudice for his state
default. Petitioner has failed to show that “some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 753. Further,
as the Court has addressed and rejected Petitioner’s claim of ineffective assistance of appellate
counsel in Part B.2 above, ineffective assistance of appellate counsel cannot serve as cause to
overcome the procedural bar. Also, Petitioner has also failed to demonstrate that federal habeas
review is required under the fundamental miscarriage of justice exception. Nowhere in his petition
does Petitioner claim to be actually innocent of the crimes of which he was convicted. Therefore,
Petitioner does not fall within the narrow “fundamental miscarriage of justice” exception.
Accordingly, because Petitioner has not demonstrated “cause and prejudice” or that a
“fundamental miscarriage of justice” will result if his defaulted claims are not considered, the Court
concludes that Grounds III, IV, and V are procedurally barred. See Coleman, 501 U.S. at 724. For
that reason, Petitioner’s request for habeas corpus relief on Grounds III, IV, and V shall be denied.
D.
Challenge to Oklahoma’s Post Conviction Procedure Act (Ground VI)
In Ground VI, Petitioner argues the “Post Conviction Procedure Act of 22 § 1080 et sec [sic]
is badly broken and failes [sic] the test of legislative intent.” (Dkt. # 1 at 11). Additionally,
Petitioner alleges “[t]he Courts of Oklahoma failed to live up to the legislative intent [of the Post
Conviction Procedure Act] and grant Petitioner [the] relief he was entitled to by law.” Id. at 12.
28
As a preliminary matter, as discussed in more detail above in Part A, while Petitioner failed
to present this claim to the OCCA, in light of the procedural posture of this case it would be futile
to require Petitioner to return to state court to exhaust this claim. See 28 U.S.C. § 2254(b)(1)(B).
As discussed below, the claim is not cognizable on habeas corpus review and, for that reason, is
denied. See 28 U.S.C. § 2254(b)(2).
The Tenth Circuit Court of Appeals has consistently ruled that challenges to state postconviction procedures do not rise to the level of federal constitutional claims cognizable on habeas
corpus review. See Phillips v. Ferguson, 182 F.3d 769, 773-74 (10th Cir. 1999); Sellers v. Ward,
135 F.3d 1333, 1339 (10th Cir. 1998) (when petitioner asserts no constitutional trial error, but only
error in the state post-conviction procedure, no relief can be granted in federal habeas corpus); Steele
v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993); Sawyer v. Smith, 497 U.S. 227 (1990). As a result,
to the extent Petitioner challenges state post-conviction procedures, his claim raised in Ground VI
is not cognizable in this federal habeas corpus action and shall be denied.
E.
Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right,” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
29
In addition, when the Court’s ruling is based on procedural grounds, Petitioner must demonstrate
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 the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484.
In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Tenth Circuit would find that this Court’s application of AEDPA standards to the
decision by the OCCA is debatable among jurists of reason. See Dockins v. Hines, 374 F.3d 935,
938 (10th Cir. 2004). As to those claims denied on a procedural basis, Petitioner has failed to satisfy
the second prong of the required showing, i.e., that the Court’s ruling resulting in the denial of the
petition on procedural grounds is debatable or incorrect. The record is devoid of any authority
suggesting that the Tenth Circuit Court of Appeals would resolve the issues in this case differently.
A certificate of appealability shall be denied.
CONCLUSION
After careful review of the record in this case, the Court concludes that Petitioner has not
established that he is in custody in violation of the Constitution or laws of the United States.
Therefore, his petition for writ of habeas corpus shall be denied.
30
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
The petition for writ of habeas corpus (Dkt. # 1) is denied.
2.
Petitioner’s motion for bail release hearing (Dkt. # 50) is declared moot.
3.
A separate judgment in favor of Respondent shall be entered in this matter.
4.
A certificate of appealability is denied.
DATED this 5th day of January, 2015.
31
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