Ladd v. Jones

Filing 7

OPINION AND ORDER by Judge Claire V Eagan - The Clerk shall note on the record the substitution of Joe M. Allbaugh, Interim Director, in place of Justin Jones, Director, as party respondent. ; denying certificate of appealability; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (RGG, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CHARLES DEON LADD,

)
)
Petitioner,
)
)
v.
)
)
JOE M. ALLBAUGH, Interim Director,1 )
)
Respondent.
)

Case No. 13-CV-0245-CVE-FHM

OPINION AND ORDER
Before the Court is the petition for habeas corpus (Dkt. # 1), filed by Petitioner Charles Ladd,
a state prisoner appearing pro se. Respondent filed a response (Dkt. # 6) and provided the state court
records (id.) necessary for adjudication of Petitioner’s claims. Petitioner did not file a reply to the
response. For the reasons discussed below, the petition for writ of habeas corpus shall be denied.
BACKGROUND
On October 24, 2009, Petitioner and Brian Moss were cooking methamphetamine in Tulsa,
Oklahoma, when the contents of a bottle exploded. Dkt. # 6-1 at 3-4. Petitioner was “burned from
his knees to his ankles and on his feet,” and Moss was burned on his “face, scalp, torso and arms .
. . amounting to 45% of his body.” Id. at 4 (citations omitted). Moss was taken to the hospital and
died from “respiratory failure and sepsis as a result of his burns.” Id. (citation omitted).
Petitioner was charged in Tulsa County District Court, Case No. CF-2010-874, with First
Degree Felony Murder by committing First Degree Arson (Count 1), First Degree Arson by

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Petitioner is in custody at Lawton Correctional Facility, a private prison located in Lawton,
Oklahoma. Pursuant to Rule 2(a), Rules Governing Habeas Corpus Cases, the proper party
respondent in this matter is Joe M. Allbaugh, Interim Director of the Oklahoma Department of
Corrections. Therefore, Joe M. Allbaugh, Interim Director, is substituted in place of Justin Jones,
Director, as party respondent. The Clerk of Court shall note the substitution on the record.

Manufacturing Methamphetamine (Count 2), and Manufacturing Methamphetamine (Count 3). Id.
at 1. The record reflects that, at the conclusion of trial, a jury convicted Petitioner of the lesser
included offense of Second Degree Felony Murder (Count 1).2 Dkt. # 6-3 at 1. The jury
recommended a sentence of thirty (30) years imprisonment, and the trial judge sentenced Petitioner
in accordance with the jury’s recommendation.3 Id. Attorneys Marny Hill and Chris Brecht
represented Petitioner at trial. Id. at 4.
Petitioner perfected a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA)
(Dkt. # 6-1). Represented by attorney Curtis Allen, Petitioner raised one (1) proposition of error,
as follows:
Proposition 1:

The range of punishment for Second Degree Murder with one
prior felony is ten (10) years to life. The court erroneously
instructed the jury that the range of punishment was twenty
(20) years to life.

(Id.). In an unpublished summary opinion, entered December 13, 2012, in Case No. F-2011-881,
the OCCA affirmed the trial court’s judgment and sentence (Dkt. # 6-3).
On April 29, 2013, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1).
Petitioner identifies two (2) grounds of error, as follows:
Ground 1:

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The range of punishment for second degree murder with one
prior felony is ten (10) years to life. The Court erroneously
instructed the jury that the range of punishment was (20)
years to life – violating my 5th/14th U.S. Amendment(s) of
equal/due process.

The jury acquitted Petitioner of Count 2, and the trial court dismissed Count 3. Dkt. # 6-3

at 1 n.1.
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Second Degree Felony Murder is an “eighty-five percent” crime under Oklahoma law,
meaning Petitioner must serve not less than eighty-five percent of the thirty year sentence prior to
becoming eligible to earn sentence credits or for parole. Okla. Stat. tit. 21, § 13.1(2).
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Ground 2:

Ineffective Appellate Counsel for failure to raise ineffective
trial counsel for not objecting to the faulty jury instruction
regarding proper sentencing range.
Violating the
defendant(s) 6th Amendment under the U.S. Constitution.

(Id.). In response to the petition, Respondent argues that Petitioner is not entitled to habeas corpus
relief (Dkt. # 6).
ANALYSIS
A.

Petition for Writ of Habeas Corpus
1.

Exhaustion/Evidentiary Hearing

As a preliminary matter, the Court must determine whether Petitioner meets the exhaustion
requirements of 28 U.S.C. § 2254(b), (c). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner
presented the claim raised in Ground 1 to the OCCA on direct appeal. Therefore, the exhaustion
requirement of 28 U.S.C. § 2254(b) is satisfied as to Ground 1. The claim raised in Ground 2 was
not presented to the OCCA and is unexhausted. Even so, the Court can deny the claim on the merits
and deny a writ of habeas corpus under 28 U.S.C. § 2254(b)(2).
In addition, the Court finds Petitioner is not entitled to an evidentiary hearing. See Williams
v. Taylor, 529 U.S. 420 (2000).
2.

Ground 1: Jury Instruction Error

As his first ground of error, Petitioner alleges that the trial judge improperly instructed the
jury on the range of punishment. The OCCA adjudicated this claim on direct appeal. As a result,
the Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard of review.
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

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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); Harrington v. Richter, 562 U.S.
86, 102-03 (2011); 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 (citation omitted). 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. (citation
and internal quotation marks omitted); see Metrish v. Lancaster, 133 S. Ct. 1781, 1787 (2013).
Generally, a federal habeas court has no authority to review a state court’s interpretation or
application of its own state laws. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (emphasizing that
it is not the province of a federal habeas court to reexamine state court determinations on state law
questions). When conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States. Id. at 68 (citations
omitted).

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In Ground 1, Petitioner alleges that the trial court violated his due process and equal
protection rights when it “erroneously instructed the jury that the range of punishment was (20)
years to life” instead of “ten (10) years to life.” Dkt. # 1 at 5. Petitioner argued on direct appeal that
his sentence for Second Degree Felony Murder, after a prior felony conviction, should have been
enhanced under Okla. Stat. tit. 21, § 51.1(A)(1) (providing for a minimum sentence of ten (10) years
imprisonment). Dkt. # 6-3 at 2. Instead, Petitioner’s sentence was enhanced under Okla. Stat. tit.
21, § 51.1(A)(2). Id. Under this section, the minimum sentence is “twice the minimum term for the
first time offender.” Okla. Stat. tit. 21, § 51.1(A)(2). Because Petitioner’s sentence was enhanced
under § 51.1(A)(2), the trial judge instructed the jury that the minimum sentence was twenty years
and not ten years. Dkt. # 6-3 at 2.
The OCCA noted that “the range of punishment for second degree murder is from ten years
to life imprisonment.” Dkt. # 6-3 at 1 (citing Okla. Stat. tit. 21, § 701.9(B) (2004)). While Section
51.1 “allows enhancement of this crime after one prior conviction under two separate subsections,”
the OCCA stated that Petitioner’s sentence “under section 51.1(A)(1) makes no sense as the range
of punishment under this enhancement provision is exactly the same as the range of punishment for
second degree murder without any prior convictions. It is, essentially, no enhancement at all.” Id.
The OCCA concluded that the “trial court instructed the jury on the correct range of punishment
under the correct enhancement provision” – § 51.1(A)(2) – because “[a]llowing enhancement under
a statutory provision [§ 51.1(A)(1)] which provides the same range of punishment as an unenhanced
sentence yields absurd consequences and cannot be permitted.” Id. at 3.
Petitioner argues in his habeas petition that, because both statutes were potentially applicable
to his case, he “shouldn’t be held liable for conflicting state/statute(s)/law” and the jury should have

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been instructed that the minimum sentence was ten years. Dkt. # 1 at 5. Petitioner’s claim is a
matter of state law and is not cognizable by this Court on habeas review.4 Estelle, 502 U.S. at
67–68. Sentence enhancement procedures are matters of state law. See Johnson v. Cowley, 40 F.3d
341, 345 (10th Cir. 1994). Questions of conflicts between state statutes are also matters of state law.
See Andrews v. Swartz, 156 U.S. 272, 275 (1895); Johnson v. Ward, 15 F. App’x 613, 614 (10th
Cir. 2001) (unpublished)5; Kopec v. Leyba, No. 08-CV-02655-BNB, 2009 WL 1064246, at *4 (D.
Colo. Apr. 17, 2009) (unpublished). “A state court’s interpretation of state law . . . binds a federal
court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations omitted).
Therefore, Petitioner’s claim is not within the purview of this habeas court, and habeas relief is
denied for Ground 1.
3.

Ground 2: Ineffective Assistance of Counsel

In Ground 2, Petitioner alleges that his appellate counsel was ineffective “for fail[ing] to
raise ineffective trial counsel for not objecting to the faulty jury instruction regarding proper
sentencing range.” Dkt. # 1 at 6. This claim was not presented to the OCCA and is unexhausted.
Even so, this Court can deny the claim on the merits under 28 U.S.C. § 2254(b)(2).
To be entitled to habeas corpus relief on this claim of ineffective assistance of counsel,
Petitioner must satisfy the two-pronged standard announced in Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, a defendant must show that (1) his counsel’s performance was
deficient and that (2) the deficient performance was prejudicial. Strickland, 466 U.S. at 687.

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While Petitioner claims that the trial judge’s enhancement instruction also violated his
rights to due process and equal protection, he makes no argument in support of these claims.
5

This and other unpublished court decisions herein are not precedential but are cited as
persuasive authority. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
6

When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance
by failing to raise an issue on direct appeal, the Court first examines the merits of the omitted issue.
Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999). As stated above, the Tenth Circuit
directed that:
[i]f the omitted issue is so plainly meritorious that it would have been
unreasonable to winnow it out even from an otherwise strong appeal, its omission
may directly establish deficient performance; if the omitted issue has merit but is not
so compelling, the case for deficient performance is more complicated, requiring an
assessment of the issue relative to the rest of the appeal, and deferential consideration
must be given to any professional judgment involved in its omission; of course, if the
issue is meritless, its omission will not constitute deficient performance.
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citations and footnote omitted); see Parker
v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998). In addition,
to satisfy Strickland’s deficient performance element, a habeas petitioner “must . .
. show that his [appellate] counsel was objectively unreasonable in failing to find
arguable issues to appeal – that is, that counsel unreasonably failed to discover
nonfrivolous issues and to file a merits brief raising them.” To satisfy Strickland’s
prejudice element, a petitioner must establish “a reasonable probability that, but for
his counsel’s unreasonable failure to [raise an issue], he would have prevailed on his
appeal.”
Kidwell v. Martin, 480 F. App’x 929, 933 (10th Cir. 2012) (unpublished) (citations omitted). 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, 1268 (10th Cir.
2008) (citation omitted). 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. (citation omitted).
To state a claim of ineffective assistance of trial counsel, a petitioner must show that counsel
performed below the level expected from a reasonably competent attorney in a criminal case.

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Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 689 (citation omitted). 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 after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Id. at 689 (citation omitted).
To establish the second prong, a defendant must show that the deficient performance
prejudiced the defense, to the extent “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
Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th
Cir. 1999); Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (stating that a petitioner must
show that counsel’s errors rendered the results of the trial unreliable). “The likelihood of a different
result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.
Petitioner claims that his appellate counsel was ineffective for failing to raise a claim of
ineffective assistance of trial counsel on direct appeal based on trial counsel’s failure to object to
the enhancement of Petitioner’s sentence under Okla. Stat. tit. 21, § 51.1(A)(2). Dkt. # 1 at 6. As
discussed above in section A.2.b., the OCCA found that Petitioner’s sentence was enhanced under
the proper statute. Because there was no error, Petitioner cannot show that his trial counsel was
ineffective for failing to object to enhancement under Okla. Stat. tit. 21, § 51.1(A)(2). Additionally,

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because trial counsel was not ineffective, Petitioner’s claim of ineffective assistance of appellate
counsel is meritless. Therefore, Ground 2 is denied on the merits under 28 U.S.C. § 2254(b)(2).
B.

Certificate of Appealability
Pursuant to Rule 11, Rules Governing Section 2254 Cases in the United States District

Courts, “[t]he district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Under 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 “indicate[s] which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, a court
could resolve the issues differently, or the questions deserve further proceedings. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000) (citation omitted).
After considering the record in this case, the Court concludes that a certificate of
appealability should not issue. Nothing suggests the Tenth Circuit would conclude that this Court’s
application of AEDPA standards to the decision by the OCCA was debatable amongst jurists of
reason. See Dockins v. Hines, 374 F.3d 935, 937-38 (10th Cir. 2004). The record is devoid of any
authority suggesting the Tenth Circuit Court of Appeals would resolve the issues in this case
differently. The Court will deny a certificate of appealability.
CONCLUSION
After careful review of the record, 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, the petition
for writ of habeas corpus shall be denied.

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ACCORDINGLY, IT IS HEREBY ORDERED that,
1.

The Clerk shall note on the record the substitution of Joe M. Allbaugh, Interim Director, in
place of Justin Jones, Director, as party respondent.

2.

The petition for writ of habeas corpus (Dkt. # 1) is denied.

3.

A certificate of appealability is denied.

4.

A separate judgment shall be entered in this matter.

DATED this 18th day of May, 2016.

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