Anderson v. Brandon
Filing
13
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying certificate of appealability; granting 9 Motion to Dismiss; dismissing 1 Petition for Writ of Habeas Corpus (2241/2254) (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ANTONIO ANDERSON,
Petitioner,
vs.
PHILIP BRANDON,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 12-CV-665-GKF-TLW
OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Before the Court is Respondent’s motion
to dismiss for failure to exhaust state remedies (Dkt. # 9). Petitioner, a state inmate appearing pro
se, filed a response to the motion (Dkt. # 11). For the reasons discussed below, Respondent’s motion
to dismiss shall be granted and the petition shall be dismissed without prejudice for failure to
exhaust state remedies.
BACKGROUND
On August 4, 2011, Petitioner entered pleas of guilty, pursuant to a plea agreement, to
Manufacturing a Controlled Dangerous Substance (Methamphetamine) (Count I), and Possession
of a Controlled Dangerous Substance (Marijuana), Misdemeanor (Count II), in Washington County
District Court, Case No. CF-2011-108. The trial court sentenced Petitioner to twenty (20) years
imprisonment, with all but the first ten (10) years suspended, and a fine of $50,000 on Count I, and
to one (1) year in the county jail on Count II. The sentences were ordered to be served concurrently.
Petitioner was represented at trial by attorney Mark Kane.
Petitioner filed a timely motion to withdraw pleas. After conducting a hearing on the motion
to withdraw pleas, the trial judge denied the motion by order filed November 14, 2011. Petitioner
filed a timely certiorari appeal to the Oklahoma Court of Criminal Appeals (OCCA). Represented
by attorney Thomas Purcell, Petitioner raised the following two (2) propositions of error:
Proposition 1: The trial court failed to establish a factual basis for Mr. Anderson’s pleas.
Proposition 2: Petitioner’s pleas of guilty were entered as a result of coercion, and therefore
the pleas were not voluntary.
(Dkt. # 10, Ex. 1). By summary opinion filed October 4, 2012, the OCCA denied Petitioner’s
petition for writ of certiorari. Petitioner did not seek post-conviction relief in the state courts.
Petitioner filed the instant petition for writ of habeas corpus on December 6, 2012 (Dkt. #
1). Petitioner asserts four propositions of error, as follows:
Ground one: The trial court failed to establish a factual basis for Mr. Anderson’s pleas.
Ground two: Mr. Anderson’s pleas of guilty were entered as a result of coercion, and
therefore the pleas were not voluntary.
Ground three: Conviction obtained by use of evidence obtained pursuant to an unlawful
search and seizure.
Ground four: Denial of effective assistance of counsel. (Regarding Mr. Mark Kane).
(Dkt. # 1). Petitioner acknowledges that grounds three and four were not presented to the OCCA as
part of his certiorari appeal and attributes the omission to ineffective assistance of counsel. In the
brief in support of the motion to dismiss, Respondent asserts that Petitioner has failed to exhaust
state remedies as to grounds three and four and that, as a result, the petition is a “mixed petition” and
should be dismissed. See Dkt. # 10. In his response, Petitioner argues that the motion to dismiss
should be denied because it would be futile to require him to return to state court to file an
application for post-conviction relief. See Dkt. # 11.
2
ANALYSIS
To obtain federal habeas relief, a state prisoner must “exhaust[ ] the remedies available in
the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Cone v. Bell, 556 U.S. 449, 465 (2009)
(acknowledging “the longstanding requirement that habeas petitioners must exhaust available state
remedies before seeking relief in federal court”). In order to exhaust a claim, the applicant “must
‘fairly present’ his claim in each appropriate state court . . . , thereby alerting that court to the federal
nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S.
364, 365-66 (1995) (per curiam)); see O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (explaining
that the exhaustion requirement dictates that a § 2254 petitioner “must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process,” including discretionary review by the State’s highest court);
Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009) (en banc) (“The allegations and
supporting evidence must offer the state courts a fair opportunity to apply controlling legal
principles to the facts bearing upon his constitutional claim.” (citation and internal quotation marks
omitted)).
“The exhaustion requirement is satisfied if the issues have been properly presented to the
highest state court, either by direct review of the conviction or in a postconviction attack.” Brown
v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (internal quotation marks omitted). The burden of
proving exhaustion rests with the prisoner. See Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993).
An exception to the exhaustion doctrine exists if it is clear that the state courts would impose a
procedural bar on Petitioner’s claims. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). If an
applicant has failed to exhaust state remedies and state courts “would now find the claims
3
procedurally barred[,] the claims are considered exhausted and procedurally defaulted for purposes
of federal habeas relief.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (internal
quotation marks omitted); accord Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997); see also
Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (“In habeas, state-court remedies are described as
having been ‘exhausted’ when they are no longer available, regardless of the reason for their
unavailability . . . [I]f the petitioner procedurally defaulted those claims, the prisoner generally is
barred from asserting those claims in a federal habeas proceeding.”).
In the instant case, after reviewing the petition and the state court record, the Court agrees
with Respondent that Petitioner has not presented grounds three and four to the Oklahoma state
courts and that Petitioner has an available remedy for those claims, an application for postconviction relief. Unless an exception to the exhaustion doctrine applies, the petition should be
dismissed without prejudice as a mixed petition, containing both exhausted and unexhausted claims.
In response to the motion to dismiss, Petitioner argues that it would be futile to require him
to return to state court to file an application for post-conviction relief in Washington County District
Court because the omitted claims could have been raised on certiorari appeal. See Dkt. # 11. The
Court recognizes Petitioner’s argument that, pursuant to Okla. Stat. tit. 22, § 1086, the state courts
of Oklahoma routinely impose a procedural bar on claims that could have been but were not raised
in a prior proceeding, including on certiorari appeal. However, Petitioner fails to acknowledge that
the state courts may consider his claims if he is able to demonstrate “sufficient reason” for his failure
to raise the claims in a prior proceeding. See Okla. Stat. tit. 22, § 1086 (providing that “[a]ny
ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has
4
taken to secure relief may not be the basis for a subsequent application, unless the court finds a
ground for relief asserted which for sufficient reason was not asserted or was inadequately raised
in the prior application).
In his petition, Petitioner states that grounds three and four were not raised in state court
“[b]ecause appellant [sic] counsel did not raise these grounds like a reasonable attorney would have,
[and] it shows that Mr. Kane was ineffective in not raising the issue regarding the validity of search
warrant.” See Dkt. # 1 at 10-11. Before imposing a procedural bar on Petitioner’s omitted claims,
the state courts would consider whether Petitioner has demonstrated “sufficient reason” for failing
to raise his claims on certiorari appeal. Because Petitioner alleges that he received ineffective
assistance of appellate counsel as the reason for his failure to raise the omitted claims on certiorari
appeal, it may not be futile to require Petitioner to return to state court to present his constitutional
claims in an application for post-conviction relief filed in Washington County District Court, Case
No. CF-2011-108. However, Petitioner is advised that, to obtain habeas review of his defaulted
claims, any claim of ineffective assistance of appellate counsel for failing to raise omitted claims
on certiorari appeal must be raised as a separate constitutional claim in an application for postconviction relief. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (emphasizing that “a claim
of ineffective assistance . . . must be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default” (citation omitted)).
In summary, Petitioner’s claims are unexhausted and he has an available state remedy, an
application for post-conviction relief. Therefore, Respondent’s motion to dismiss for failure to
exhaust shall be granted and the petition for writ of habeas corpus shall be dismissed without
prejudice. Should Petitioner fail to obtain relief from the state courts, he may file a new federal
5
petition for writ of habeas corpus in this Court raising any claim he has fairly presented to the
OCCA. The Court emphasizes that Petitioner must file a new petition in this Court promptly after
the OCCA enters its ruling, within the time remaining in the one-year limitations period imposed
by 28 U.S.C. § 2244(d).1
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)).
In addition, when the Court’s ruling is based on procedural grounds, a 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, a certificate of appealability should not issue. Nothing suggests that the Court’s
procedural ruling resulting in the dismissal of this action is debatable or incorrect. The record is
1
Petitioner is advised that the one-year period has not been tolled, or suspended, during the
pendency of this federal habeas corpus action. See § 2244(d)(2); Duncan v. Walker, 533 U.S. 167
(2001) (holding that application for federal habeas corpus review is not “application for State
post-conviction or other collateral review,” within meaning of tolling provision of the Antiterrorism
and Effective Death Penalty Act (AEDPA)).
6
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.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Respondent’s motion to dismiss for failure to exhaust state remedies (Dkt. # 9) is granted.
2.
The petition for writ of habeas corpus (Dkt. # 1) is dismissed without prejudice for failure
to exhaust state remedies.
3.
A separate judgment shall be entered in this matter.
4.
A certificate of appealability is denied.
DATED THIS 1st day of May, 2013.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?