Roppolo v. Evans

Filing 21

OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; denying certificate of appealability; adding party Janet Dowling terminating party Tracy McCollum ; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
PAUL TROY ROPPOLO,
Petitioner,
vs.
JANET DOWLING, Warden,1
Respondent.

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Case No. 13-CV-775-JED-TLW

OPINION AND ORDER
Before the Court is Petitioner’s 28 U.S.C. § 2254 habeas corpus petition (Doc. 1). Petitioner
is a state inmate and appears pro se. Respondent filed a response (Doc. 7) to the petition and
provided the state court record (Docs. 7, 8) for resolution of the claims raised in the petition.
Petitioner filed a reply to the response (Doc. 12). For the reasons discussed below, the petition for
writ of habeas corpus is denied.
BACKGROUND
In the fall of 2010, Petitioner Paul Troy Roppolo and Cornelia “Connie” Decker were
involved in an intimate relationship. On December 1, 2010, Decker met Petitioner at a restaurant
in Tulsa, Oklahoma, for the purpose of ending the relationship. According to Decker, Petitioner
began to act strangely at the restaurant. Petitioner was armed with a ten-inch long dagger and
threatened to stab Decker because she would not drink margaritas. Petitioner forced Decker out of
the restaurant, holding the point of the knife against her back. They got in Decker’s car and

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Petitioner is housed at Dick Conner Correctional Center (DCCC). The state officer having
current custody of Petitioner is Janet Dowling, Warden at DCCC. Therefore, Janet Dowling,
Warden, is the proper party respondent, see Rule 2(a), Rules Governing Section 2254 Cases, and is
hereby substituted in place of Tracy McCollum, Warden. The Clerk of Court shall note the
substitution on the record.

Petitioner told her to drive to his home located in Grove, Oklahoma. As Decker drove, Petitioner
told her, “[y]ou can’t treat me like that . . . nobody rejects me.” During the drive, Petitioner
threatened to stab Decker and held the knife to her neck. He spit on her and threatened to kill her.
Before they arrived in Grove, Decker sustained a stab wound in her arm. Once they arrived at
Petitioner’s home in Grove, Petitioner wrapped t-shirts around Decker’s arm to slow the bleeding
from the stab wound. Petitioner eventually agreed to drive Decker back to Tulsa. When they
arrived at the restaurant parking lot, Petitioner got in his own car and followed Decker as she drove
to a hospital in Broken Arrow, Oklahoma. He again threatened to kill her and her family if she told
anyone what had happened. Decker was treated at the hospital and released.
As a result of those events, Petitioner was charged in Tulsa County District Court, Case No.
CF-2010-4733, with Kidnapping (Count 1), and Assault and Battery With a Dangerous Weapon
(Count 2), both After Former Conviction of Two or More Felonies. Petitioner was tried by a jury
and testified in his own behalf. He admitted he stabbed Decker, but claimed it was accidental. At
the conclusion of trial, a jury found Petitioner guilty as charged. On November 17, 2011, the trial
judge sentenced Petitioner in accordance with the jury’s recommendation to four (4) years
imprisonment on Count 1, and twenty (20) years imprisonment on Count 2, and ordered the
sentences to be served consecutively. During trial proceedings, Petitioner was represented by
attorneys Adam Haselgren and Matt Tarvin from the Tulsa County Public Defender’s Office.
Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA).
On direct appeal, Petitioner, represented by attorney Stuart W. Southerland from the Tulsa County
Public Defender’s Office, initially raised four (4) propositions of error, as follows:
Proposition 1: The jury was improperly instructed that Appellant had three prior felony
offenses for enhancement purposes, when in fact all three convictions were
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transactional pursuant to 21 O.S.Supp.2002, § 51.1(B). The jury should have
only been instructed that Appellant had a single prior for enhancement.
Defense counsel’s failure to investigate the transactional nature of
Appellant’s priors amounted to ineffective assistance of counsel pursuant to
the Sixth and Fourteenth Amendments to the United States Constitution as
well as Article II, § 20 of the Oklahoma Constitution.
Proposition 2: It was reversible error to refuse defense counsel’s request to instruct the jury
on lesser-included offenses in Count Two: Assault and Battery with a
Dangerous Weapon. Appellant was denied the right to have the jury
instructed upon his theory of defense in violation of the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution and Article II §§
7, 20 of the Oklahoma Constitution.
Proposition 3: Appellant was punished twice for the same act. The kidnapping in Count
One was facilitated by the use of the knife in Count Two, in violation of 21
O.S.2001, § 11.
Proposition 4: The court committed plain error by failing to properly instruct the
deadlocked jury, violating Appellant’s right to a unanimous verdict free from
coercion in violation of the Sixth and Fourteenth Amendments to the United
States Constitution and Article II, §§ 7, 19, 20 of the Oklahoma Constitution.
Count One must be reversed.
(Doc. 7-1). Petitioner also filed a motion to remand for evidentiary hearing (Doc. 7-2) as to the
claim of ineffective assistance of counsel raised in the first proposition of error. On January 22,
2013, appellate counsel moved to withdraw propositions 2, 3, and 4. See Doc. 7-4 at 2 n.1. On
April 25, 2013, in an unpublished summary opinion filed in Case No. F-2011-1061, the OCCA
granted appellate counsel’s request to withdraw propositions 2, 3, and 4, rejected Petitioner’s sole
remaining claim, and affirmed the Judgment and Sentence of the trial court. Id. at 2-3. The OCCA
also denied Petitioner’s request to remand for an evidentiary hearing. Id. at 3. Petitioner did not file
a petition for writ of certiorari at the United States Supreme Court nor did he seek post-conviction
relief in the state courts.

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Petitioner filed a timely petition for writ of habeas corpus (Doc. 1). He identifies one (1)
ground of error, as follows:
Ground 1:

The jury was improperly instructed that Petitioner had 3 prior felony offenses
for enhancement purposes, when in fact all 3 convictions were transactional
pursuant to 21 O.S.Supp.2002, § 51.1(B). The jury should have only been
instructed that Petitioner had a single prior for enhancement. Defense
counsel’s failure to investigate the transactional nature of Petitioner’s priors
amounted to ineffective assistance of counsel under the U.S. const. Amends.
6 and 14, as well as Okla. Const. Art. II, § 20.

Id. at 5. Respondent filed a response (Doc. 7) to the petition and asserts that, under 28 U.S.C. §
2254(d), Petitioner is not entitled to habeas corpus relief.
ANALYSIS
A. Exhaustion/Evidentiary Hearing
Before addressing the claim raised in the petition, 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). Respondent concedes, see Doc. 7 at 2, ¶ 5, and the Court agrees, that Petitioner’s
claim of ineffective assistance of trial counsel was presented to the OCCA on direct appeal and is
exhausted.
The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Cullen v.
Pinholster, 563 U.S. 170, 184-85 (2011); Williams v. Taylor, 529 U.S. 420 (2000).
B. Claim 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

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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 (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 Richter, 562 U.S. at 103); 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, 562 U.S. at 99. 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 98; Schriro v. Landrigan, 550 U.S.
465, 474 (2007). Further, the “determination of a factual issue made by a State court shall be

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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).
Here, Petitioner presented his habeas claim to the OCCA on direct appeal. Because the
OCCA addressed Petitioner’s claim on the merits, the Court will review the claim under the
standards of § 2254(d).
Petitioner alleges that his sentences were improperly enhanced. See Doc. 1 at 5. On direct
appeal, Petitioner claimed that trial counsel provided ineffective assistance of counsel in failing to
investigate his prior felony convictions used to enhance his sentences and failed to determined that,
under state law, his three prior felony convictions were “transactional.” Id. With regard to
Petitioner’s claim that his three prior felony convictions were “transactional,” the OCCA found that:
[g]enerally, a defendant’s prior felony convictions can be used to enhance the
applicable sentence range for a new crime; and having two or more prior convictions,
as opposed to just one, can considerably alter the minimum sentence. See generally
21 O.S.Supp.2002, § 51.1. Multiple prior convictions should be counted as one if
they arose from “the same transaction or occurrence or series of events closely
related in time and location.” 21 O.S.Supp.2002, § 51.1(B), (C). Although we have
not developed an elaborate test for when prior convictions are “transactional” for this
purpose, we have repeatedly recognized that certain facts are not sufficient (e.g., that
the prior crimes were charged in the same or numerically consecutive cases, that the
crimes occurred on the same day, or that the defendant pled guilty to all charges on
the same day). Acknowledging this, Appellant has tendered (in his Motion to
Supplement) background information about his three prior convictions, including
court documents and an affidavit from Appellant himself. While this information
indicates that the three crimes were committed on the same day, it also indisputably
shows that Appellant repeatedly contacted three different people to communicate his
deadly threats. Appellant clearly intended to instill fear in three different people.
Under these circumstances, we do not believe the Legislature intended the crimes to
be treated as a single offense for sentence-enhancement purposes.
See Doc. 7-4 at 2-3 (citations omitted). In addition, upon review of the supplemental materials
provided by Petitioner, including state court documents and Petitioner’s affidavit, the OCCA
determined that, because Petitioner’s three prior felony convictions were not “transactional,” he had
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failed to demonstrate “a strong possibility that trial counsel was ineffective” sufficient to warrant
additional fact-finding on the issue. See id. at 3. Citing Rule 3.11, Rules of the Oklahoma Court of
Criminal Appeals, and Simpson v. State, 230 P.3d 888, 905-06 (Okla. Crim. App. 2010), the OCCA
denied Petitioner’s “sole proposition of error, and his request for an evidentiary hearing on his
ineffective-counsel claim.” Id. In Simpson, the OCCA discussed the showing required under Rule
3.11 for an evidentiary hearing on a claim of ineffective assistance of counsel and explained that:
[a]s the rules specifically allow [an a]ppellant to predicate his claim on allegations
“arising from the record or outside the record or a combination of both,” [Rule
3.11(B)(3)(b)], it is, of course, incumbent upon this Court, to thoroughly review and
consider [an a]ppellant’s application and affidavits along with other attached
non-record evidence to determine the merits of [an a]ppellant’s ineffective assistance
of counsel claim. Our rules require us to do so in order to evaluate whether [an
a]ppellant has provided sufficient information to show this Court by clear and
convincing evidence that there is a strong possibility trial counsel was ineffective for
failing to utilize or identify the evidence at issue. Rule 3.11(B)(3)(b), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). This standard
is intended to be less demanding than the test imposed by Strickland and we believe
that this intent is realized. Indeed, it is less of a burden to show, even by clear and
convincing evidence, merely a strong possibility that counsel was ineffective than
to show, by a preponderance of the evidence that counsel’s performance actually was
deficient and that but for the unprofessional errors, the result of the proceeding
would have been different as is required by Strickland. Thus, when we review and
grant a request for an evidentiary hearing on a claim of ineffective assistance under
the standard set forth in Rule 3.11, we do not make the adjudication that defense
counsel actually was ineffective. We merely find that Appellant has shown a strong
possibility that counsel was ineffective and should be afforded further opportunity
to present evidence in support of his claim. However, when we review and deny a
request for an evidentiary hearing on a claim of ineffective assistance under the
standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant
has not shown defense counsel to be ineffective under the more rigorous federal
standard set forth in Strickland.
Simpson, 230 P.3d at 905-06. Thus, in the instant case, the OCCA’s denial of Petitioner’s Rule 3.11
request for an evidentiary hearing on his claim of ineffective assistance of counsel was necessarily

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an adjudication that Petitioner had failed to satisfy the standard for ineffective assistance of counsel
set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner is not entitled to habeas relief on his claim that trial counsel provided ineffective
assistance with regard to enhancement of his sentences unless he demonstrates that the OCCA’s
adjudication of the claim was an unreasonable application of Strickland. 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; 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 688. 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.
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. Strickland, 466 U.S. at 700. Thus, it is not always

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necessary to address both Strickland prongs. This Court’s review of the OCCA’s decision on
ineffective assistance of counsel claims is “doubly deferential.” Pinholster, 563 U.S. at 190 (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)).
In his reply to Respondent’s response, Petitioner addressed the OCCA’s rejection of his
argument that his three prior convictions were “transactional” under state law. See Doc. 12 at 6.
Although he acknowledges that the OCCA “correctly determined that Petitioner on the same day
contacted three different people to communicate his threats,” Petitioner alleges that the OCCA erred
because its ruling failed to consider the following:
(1) Petitioner’s threats were made on the same day (March 4, 2009), and at the same
time (1254 hours), and although the threat was communicated to three different
people the threats were against only one person (Ms. Mercy Welcher); and (2)
Petitioner made no plan, scheme or program of action towards causing serious bodily
harm or death [of] the victim, Ms. Mercy Welcher (or to her children) (See, Doc. #1,
at exhibits #1-#5); and finally (3) the Court of Criminal Appeals clearly reflected its
contempt at Petitioner for filing a “Motion to Withdraw Propositions of Error from
Consideration by the Court.” (See, Doc. #7, at footnote #1, of exhibit #4).
Id. Those arguments fail to persuade this Court that the OCCA unreasonably determined that the
three prior felony convictions were not “transactional.” As to Petitioner’s first argument, the
validity of the OCCA’s finding that Petitioner “clearly intended to instill fear in three different
people” is not called into question even if the threats were made on the same day and at almost the
same time, as argued by Petitioner.2 As to Petitioner’s second argument, the record presented to the

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The fact that Petitioner communicated threats to three different people appears to have been
central to the OCCA’s finding that the three prior felony convictions were not “transactional.”
Where a defendant has been convicted of multiple crimes perpetrated on the same day against a
single victim, the OCCA has found that the resulting convictions are “transactional” and count as
only one conviction for purposes of sentence enhancement under Okla. Stat. tit. 21, § 51.1(B). See
Levering v. State, 315 P.3d 392, 395 (Okla. Crim. App. 2013).
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OCCA included the Information filed in Muskogee County District Court, Case No. CF-2009-196,
charging Petitioner with three (3) counts of Threatening to Perform an Act of Violence, a felony.
See Doc. 7-2 at 15. The Information contained quotations from the voice mails recorded on the cell
phones of Mercy Welcher’s children and reflected that Petitioner planned, as evidenced by his
threats, to kill Mercy Welcher “and everyone around her.” Id. Petitioner pled guilty to all three (3)
felony counts. Id. at 18-23. As to Petitioner’s third argument, nothing in footnote one of the
OCCA’s direct appeal opinion suggests “contempt” for Petitioner, as he now alleges. The OCCA
simply recited that appellate counsel had filed a motion to withdraw Propositions 2, 3, and 4, and
then granted the motion. See Doc. 7-4 at 2 n.1.
Petitioner fails to show that the OCCA unreasonably concluded that Petitioner’s prior felony
convictions were not “transactional.” As a result, Petitioner cannot demonstrate a reasonable
probability of a different outcome at trial had trial counsel objected to the three prior felony
convictions as “transactional.” Therefore, Petitioner fails to satisfy the prejudice prong of
Strickland. Under the facts of this case, this Court cannot find that the OCCA’s adjudication of
Petitioner’s habeas claim was contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court. Petitioner is not entitled to habeas corpus relief
under 28 U.S.C. § 2254(d).
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 or treaties of the United
States. His petition for writ of habeas corpus shall be denied.

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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.” 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.” 28 U.S.C. § 2253. A petitioner can satisfy
the 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) (citation omitted).
After considering the record in this case, the Court concludes that a certificate of
appealability should not issue. Nothing suggests that this Court’s application of AEDPA standards
to the OCCA’s decision is debatable amongst jurists of reason. See Dockins v. Hines, 374 F.3d 935,
937-38 (10th Cir. 2004). The Court denies a certificate of appealability.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The Clerk of Court shall note on the record the substitution of Janet Dowling, Warden, in
place of Tracy McCollum, Warden, as party Respondent.

2.

The petition for a writ of habeas corpus (Doc. 1) is denied.

3.

A certificate of appealability is denied.

4.

A separate Judgment shall be entered in this case.
ORDERED THIS 22nd day of November, 2016.

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