Reeves v. Farris

Filing 12

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

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
RODNEY RAY REEVES,
Petitioner,
v.
JIM FARRIS, Warden,
Respondent.

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Case No. 14-CV-055-JED-TLW

OPINION AND ORDER
Before the Court is a 28 U.S.C. § 2254 habeas corpus petition (Doc. 1) filed by Petitioner,
a state prisoner appearing pro se. Respondent filed a response to the petition (Doc. 9), and provided
the state court record necessary for resolution of Petitioner’s claims (Docs. 9, 10). Petitioner filed
a reply (Doc. 11). For the reasons discussed below, the petition is denied.
BACKGROUND
Petitioner challenges his convictions and sentences entered in Osage County District Court,
Case Nos. CF-2011-67 and CF-2011-139. The record demonstrates that Petitioner was charged in
Case No. CF-2011-67, with ten (10) counts of First Degree Rape. The victim in Case No. CF-201167 was Petitioner’s daughter.1 In addition, in Case No. CF-2011-139, Petitioner was charged with
First Degree Rape of a Victim Under Age Fourteen (Count 1) and Forcible Sodomy (Count 2). The

1

At Petitioner’s formal sentencing, the prosecutor highlighted the findings of the presentence
investigation report and argued that the findings supported sentences of life imprisonment. See Doc.
9-16, Tr. Sent. at 3-7. Those findings included that Petitioner began sexually abusing his daughter
when she was eight (8) years old and continued until she was fifteen (15) years old. See id. at 4.
The abuse included vaginal intercourse that took place on a weekly basis. Id.

victim in Case No. CF-2011-139 was Petitioner’s granddaughter.2 On October 13, 2011, five days
before trial, Petitioner entered blind pleas of guilty to all counts in both cases. See Doc. 9-15. The
trial judge found Petitioner to be competent and that Petitioner’s pleas of guilty were knowingly and
voluntarily entered. Id. at 9. The trial judge accepted the pleas and found Petitioner guilty as
charged. Id. On December 9, 2011, Petitioner received sentences of twenty-five (25) years
imprisonment on each of the ten counts in Case No. CF-2011-67, to be served concurrently, and
twenty-five (25) years imprisonment and twenty (20) years imprisonment on Counts 1 and 2,
respectively, in Case No. CF-2011-139, to be served concurrently with each other, but consecutive
to the sentence in Case No. CF-2011-67. See Docs. 9-1, 9-2. At the time of his blind plea,
Petitioner was represented by attorney Glenn Davis. See Doc. 9-15 at 1.
On December 16, 2011, Petitioner filed timely motions to withdraw his blind pleas. See
Docs. 9-3, 9-4. He alleged that “the sentence rendered by the Court is excessive since he is a first
offender with severe health problems having Stage III Parkinson’s disease.” Id. On December 30,
2011, the trial judge held a hearing and denied the motions. See Docs. 9-5, 9-6.
Represented by attorney Lisbeth L. McCarty, Petitioner filed a petition for writ of certiorari
in the Oklahoma Court of Criminal Appeals (OCCA). See Doc. 9-7. He raised the following
propositions of error:
Proposition I:

Petitioner was misadvised as to the full range and consequences of
punishments for the charged crimes; thus, the plea was not knowing
and voluntary and due process dictates that the plea be allowed to be
withdrawn.

2

The presentence investigation report included findings that Petitioner began sexually abusing
his granddaughter when she was seven (7) years old. See Doc. 9-16, Tr. Sent. at 5. The abuse
included both vaginal and anal sex. Id.
2

Proposition II:

The trial judge abused his discretion by failing to give Mr. Reeves
credit for time served.

Proposition III:

The trial judged failed to make a full and complete inquiry into
Petitioner’s competence to enter the plea.

Id. at 2. In an unpublished Summary Opinion, filed September 12, 2012, in Case No. C-2012-14
(Doc. 9-8), the OCCA denied the petition and affirmed the Judgment and Sentence of the district
court.
On November 5, 2012, Petitioner filed an application for post-conviction relief. See Doc.
9-10. In an Order filed in both cases on April 18, 2013, the trial judge denied the requested relief.
See Doc. 9-11, 9-12. Petitioner appealed, raising three propositions of error, as follows:
Proposition I:

The petitioner was never advised by trial counsel or the court that he
would have to serve eighty-five (85%) percent of his fifty (50) yr.
sentence (day for day) before he would be eligible for parole and
before he could receive earned credits and good time credits to
reduce the length of his sentence and the amount of time he would
have to serve in the Oklahoma Department of Corrections.

Proposition II:

The petitioner was denied the right to have effective assistance of
counsel at trial which is guaranteed under the Sixth Amendment of
the United States Constitution. Trial counsel failed to ever advise
Petitioner about 21 O.S. § 13.1, which would require him to serve
(85%) of his entire sentence (day for day) before he would become
eligible for parole or be allowed to receive earned credits to reduce
the length of his sentence.

Proposition III:

The court imposed excessive punishment on the petitioner who is a
“first time” offender which subjected him to “cruel and unusual
punishment,” in violation to [sic] his 8th Amendment rights
guaranteed by the United States Constitution.

See Doc. 9-13. By Order filed October 21, 2013, the OCCA denied Petitioner’s request for a stay
and affirmed the denial of post-conviction relief. See Doc. 9-14.

3

Petitioner commenced this federal action by filing a pro se petition for writ of habeas corpus
(Doc. 1). In his supporting brief (Doc. 2), Petitioner raises eight (8) grounds of error, as follows:
Ground 1:

The petitioner’s plea of guilty was not knowingly, intelligently, or voluntarily
entered because he was not advised of the actual minimum and maximum
range of punishment before he entered his plea.

Ground 2:

The petitioner was denied the right to have effective assistance of counsel at
trial guaranteed by Sixth Amendment of the United States Constitution.

Ground 3:

The court imposed excessive punishment for the petitioner as he is a first
time offender, who is sixty three years of age, with serious medical and
health problems, in violation of his Eighth Amendment rights.

Ground 4:

The petitioner was denied due process of law when the District Court of
Osage County denied his motion for summary judgment after the State of
Oklahoma (prosecution) failed to timely respond to the petitioner’s
application for post-conviction relief and thereby clearly defaulted.

Ground 5:

The petitioner’s right to due process of law were [sic] violated when the
Oklahoma Court of Criminal Appeals denied his motion to stay and did not
remand Petitioner’s case back to the state district court because the
prosecution failed to ever provide the petitioner with a copy of it’s [sic]
response to his application for post-conviction relief, before the court ruled
on it and denied relief.

Ground 6:

Petitioner was misadvised as to the full range and consequences of
punishments for the charged crimes; thus, the plea was not knowing and
voluntary and due process dictates that the plea be allowed to be withdrawn.

Ground 7:

The trial judge abused his discretion by failing to give Mr. Reeves credit for
time served.

Ground 8:

The trial judge failed to make a full and complete inquirey [sic] into
petitioner’s competency to enter the plea.

Id. In response to the petition, Respondent argues that Petitioner is not entitled to habeas corpus
relief. See Doc. 9.

4

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). Respondent
concedes, see Doc. 9 at 2 ¶ 5, and the Court agrees, that Petitioner fairly presented the substance of
Grounds 1, 2, 3, 7, and 8 to the OCCA on either certiorari or post-conviction appeal. Therefore, the
Court finds that Petitioner exhausted state remedies for those claims as required by 28 U.S.C. §
2254(b). Grounds 4, 5, and 6 have not been presented to the OCCA and are unexhausted. However,
as discussed below, those grounds for relief lack merit and can be denied under 28 U.S.C. §
2254(b)(2) despite being unexhausted.
In addition, the Court 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.

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
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

5

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, 103 (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, 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
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 Petitioner’s Grounds 3, 7, and 8 on either certiorari or
post-conviction appeal. Insofar as Petitioner claims violations of the United States Constitution, his
claims will be reviewed pursuant to § 2254(d). To the extent Petitioner also claims violations of the

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Oklahoma Constitution or Oklahoma statutory law, those claims are denied because they are not
cognizable on federal habeas corpus review. 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, 6768 (1991) (emphasizing that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions). Instead, 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 (citing 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 (1975)).
1.

Adequacy of competency evaluation (Ground 8)

As his eighth ground of error, Petitioner claims that the trial judge failed to inquire
adequately concerning his competency to plead guilty. See Doc. 2 at 9-10. Petitioner presented this
claim to the OCCA on certiorari appeal. See Doc. 9-7 at 8. The OCCA denied relief, finding as
follows:
this issue is waived as it was not raised in the motion to withdraw plea. Reeves has
made no showing of plain error by a showing that he was incompetent at the time he
entered his plea, thus the failure to do a more thorough inquiry into Reeves’s
competency did not affect the determination that Reeves’s plea was knowing and
voluntary. Cox v. State, 2006 OK CR 51, ¶ 4, 152 P.3d 244, 247, also see Fields v.
State, 1996 OK CR 35, ¶ 38, 923 P.2d 624, 631-32.
See Doc. 9-8 at 3.
In McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001), the Tenth Circuit Court of Appeals
summarized federal law governing competency as follows:
It is well-settled that the “criminal trial of an incompetent defendant violates
due process.” Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120 L. Ed.
2d 353 (1992). This “prohibition is fundamental to an adversary system of justice.”
Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). The
rule, rooted in the common law, is likely a “by-product of the ban against trials in
absentia; the mentally incompetent defendant, though physically present in the
courtroom, is in reality afforded no opportunity to defend himself.” Id. at 171, 95 S.
7

Ct. 896 (quoting Foote, A Comment on Pre Trial Commitment of Criminal
Defendants, 108 U. Pa. L. Rev. 832, 834 (1960)).
The test for determining competency to stand trial is well-established. The
trier of fact must consider “whether [defendant] has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding – and
whether he has a rational as well as factual understanding of the proceedings against
him.” Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824
(1960). “That defendant can recite the charges against [him], list witnesses, and use
legal terminology are insufficient” to demonstrate that he had a rational, as well as
factual, understanding of the proceedings. United States v. Williams, 113 F.3d 1155,
1159 (10th Cir. 1997).
“[C]ompetency claims can raise issues of both substantive and procedural due
process.” Walker v. Att’y Gen., 167 F.3d 1339, 1343 (10th Cir. 1999). A procedural
competency claim is based upon a trial court’s alleged failure to hold a competency
hearing, or an adequate competency hearing, while a substantive competency claim
is founded on the allegation that an individual was tried and convicted while, in fact,
incompetent. Id. at 1343-44. Accordingly, an individual raising a procedural
competency claim is held to a lower burden of proof than one raising a substantive
competency claim. See id. at 1344.
Id. at 951-52 (footnote omitted). To make out a procedural competency claim, a defendant “must
raise a bona fide doubt regarding his competency to stand trial . . . .” Id. at 952. This requires a
demonstration that “a reasonable judge should have doubted” the defendant’s competency. Id. at
954. It does not require proof of actual incompetency. Id. A substantive competency claim, on the
other hand, requires the higher standard of proof of incompetency by a preponderance of the
evidence. Cooper v. Oklahoma, 517 U.S. 348, 368-69 (1996); Walker, 167 F.3d at 1344.
A strong presumption of reliability is accorded a defendant’s in-court statements made when
the plea was entered concerning the voluntariness of the plea and his satisfaction with his attorney’s
performance. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). “Solemn declarations in open court
carry a strong presumption of verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the
record are wholly incredible.” Id. at 74.

8

In Ground 8 of his habeas petition, Petitioner raises a procedural competency claim, arguing
that “the trial judge made no inquiries into Petitioner’s competency, as such, the trial judge fell far
short of fulfilling the requirements to determine competency of the Petitioner before accepting his
blind plea.” See Doc. 2 at 10. In evaluating this claim, the Court must “examine the totality of the
circumstances: all evidence should be considered together, no single factor ‘stand[s] alone.’”
McGregor, 248 F.3d at 955 (quoting Drope, 420 U.S. at 180 (quotation omitted)). The Court must
examine “whether the trial court ‘fail[ed] to give proper weight to the information suggesting
incompetence which came to light during trial.’” Id. (quoting Drope, 420 U.S. at 179).
In support of this claim, Petitioner states the following:
[w]hen Mr. Reeves was being introduced to the lead investigator on the case, Mr.
Reeves stated, “I raped her man, I’m sick.” According to the videotaped interview,
Petitioner repeatedly stated that he was “sick” and a “sick son of a bitch.” At
sentencing, the prosecutor described Mr. Reeves as “a sick, twisted human being[.]”
Petitioner was not taking his medications, and he had a history of being in poor
health.
See Doc. 2 at 9-10. In reply to the response, Petitioner also points to information contained in the
pre-sentence investigation report, including a record demonstrating that he had been hospitalized
in California in 1968-69, or more than forty (40) years before entering his guilty pleas, following
a suicide attempt. See Doc. 11 at 10. The problem with Petitioner’s argument is that he identifies
nothing that raises a bona fide doubt regarding his competence at the time of the change of plea
hearing. Nothing in the record suggests that, at the time of the plea hearing, a reasonable judge
should have doubted Petitioner’s competence. Furthermore, on the “Plea of Guilty Summary of
Facts” forms completed for each of the criminal cases, Petitioner denied that he had been prescribed
any medication that he should be, but was not taking. See Docs. 9-17 at 1, 9-18 at 1. He also denied
having ever been treated by a doctor or health professional for mental illness or having been
9

confined in a hospital for mental illness. See Docs. 9-17 at 2, 9-18 at 2. In addition, Petitioner
averred that he understood the nature and consequences of entering pleas of guilty. See Docs. 9-17
at 2, 9-18 at 2.
In light of the record discussed above, the Court finds nothing that should have caused a
reasonable judge to have doubted Petitioner’s competency. As a result, Petitioner has failed to
demonstrate that the OCCA’s adjudication of this claim was not 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 on Ground 8.
2.

Failure to grant credit for time served (Ground 7)

In Ground 7, Petitioner claims that he was deprived of “due process of law” when the trial
judge failed to grant credit for time served in jail prior to sentencing. See Doc. 2 at 9. On certiorari
appeal, Petitioner argued that he had spent “at least 156 days” in jail prior to being sentenced. See
Doc. 9-7 at 7. In support of his claim that the trial judge had abused his discretion in refusing to
grant credit for jail time, Petitioner cited Holloway v. State, 182 P.3d 845, 848 (Okla. Crim. App.
2008) (“We hold that the Equal Protection Clause mandates [the defendant] be given appropriate
credit for the time he was confined in jail awaiting trial and financially unable to make bond.”). Id.
Without analyzing the possible equal protection claim, the OCCA denied relief, finding that “this
issue was waived, and no plain error occurred, as the trial court did not abuse its discretion in
sentencing without credit for time served.” See Doc. 9-8 at 3.
In this habeas action, Petitioner does not argue that the OCCA’s adjudication of this claim
was contrary to, or an unreasonable application of, clearly established federal law as determined by
the Supreme Court. See Doc. 2 at 9. In Oklahoma, sentencing judges have discretion in deciding

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whether to allow a defendant credit for time served in jail before sentencing. See, e.g., Shepard v.
State, 756 P.2d 597, 602 (Okla. Crim. App. 1988). However, “when the aggregate imprisonment
exceeds the maximum period fixed by the statute and results directly from an involuntary
nonpayment of fine or court costs [or, as in this case, an inability to make bail] we are confronted
with an impermissible discrimination that rests on ability to pay” in violation of the Equal Protection
Clause. Williams v. Illinois, 399 U.S. 235, 240-41 (1970); see also Hall v. Furlong, 77 F.3d 361,
364 (10th Cir. 1996); Brotherton v. U.S., 420 F.2d 1357, 1357 (10th Cir. 1970) (acknowledging that
federal district court had discretion to deny credit where total of sentence time and prior custody was
within permissible term).
Here, Petitioner stated on certiorari appeal that he spent “at least 156 days” in jail prior to
being sentenced. He faced a maximum of eleven (11) life sentences for each First Degree Rape
conviction, see Okla. Stat. tit. 21, § 1115, and a maximum of twenty (20) years imprisonment for
the Forcible Sodomy conviction, see Okla. Stat. tit. 21, § 888. He received a total sentence of fifty
(50) years in custody: twenty-five (25) year sentences for each rape conviction, with all but two to
be served concurrently, and twenty (20) years for the Forcible Sodomy conviction, to be served
concurrently with one of the twenty-five year sentences. Those sentences are far below the statutory
maximum sentences. Thus, the denial of credit for Petitioner’s 156 days of jail time did not result
in an aggregate term of imprisonment in excess of the maximum period fixed by statute and the trial
judge’s denial of credit for time served did not result in impermissible discrimination in violation
of the Equal Protection Clause. Williams, 399 U.S. at 241.
Petitioner points to no other basis for habeas corpus relief. The Court concludes that the
OCCA’s adjudication of this claim was not contrary to, or an unreasonable application of, clearly

11

established federal law as determined by the Supreme Court. For that reason, Petitioner is not
entitled to habeas corpus relief on Ground 7.
3.

Excessive sentence (Ground 3)

In Ground 3, Petitioner claims that his sentences are excessive in violation of the Eighth
Amendment because he is a first time offender and he suffers from poor health. See Doc. 2 at 4.
This claim was first presented to the OCCA on post-conviction appeal. The OCCA found that “[t]he
excessive sentence claim was addressed in Reeves’s certiorari appeal, making this issue res
judicata.” See Doc. 9-14 at 3. In adjudicating Petitioner’s claim on certiorari appeal that he had
been misadvised as to the full range and consequences of punishments for the crimes charged, the
OCCA ruled that:
Reeves’ main complaint is excessive sentence. We hold that the punishment
provisions were sufficiently explained to Reeves so that he could make a knowing
and voluntary plea. Lewis v. State, 2009 OK CR 20, ¶ 5, 220 P.3d 1140, 1142. We
further find that the sentences are not excessive, so that they shock this Court’s
conscience. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.
See Doc. 9-8 at 3.
A habeas court affords “wide discretion to the state trial court’s sentencing decision, and
challenges to the decision are not generally constitutionally cognizable, unless it is shown that the
sentence imposed is outside the statutory limits or unauthorized by law.” Dennis v. Poppel, 222
F.3d 1245, 1258 (10th Cir. 2000). Federal habeas review generally ends “once we determine the
sentence is within the limitation set by statute.” Id. In this case, Petitioner’s sentences were all
within the sentencing ranges for the crimes charged, as established under Oklahoma law. There is
no basis for habeas relief based on the length of sentences received by Petitioner. Habeas corpus
relief on Ground 3 is denied.

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C. Advisement of 85% Rule (Grounds 1 and 2)
In Grounds 1 and 2, Petitioner alleges that his blind pleas of guilty were not knowingly,
intelligently, or voluntarily entered because he was not advised by either the trial judge or his trial
counsel of the ramifications of the 85% Rule. See Doc. 2 at 2-3. Petitioner first raised these claims
on post-conviction appeal.3 The OCCA cited state law and found that the claim of ineffective
assistance of counsel “could have been raised on direct appeal, but was not, and is therefore
waived.” See Doc. 9-14 at 3. The OCCA further found that any excessive sentence claim “was
addressed in Reeves’s certiorari appeal, making this issue res judicata.” Id.
In response to the petition, Respondent acknowledges that the OCCA imposed a procedural
bar on Petitioner’s allegations that he was not sufficiently advised of the ramifications of the 85%
Rule on service of his sentences. See Doc. 9 at 12. However, Respondent argues that this Court
need not review the OCCA’s imposition of a procedural bar because Petitioner’s claims fail on the
merits. The Court agrees with Respondent. See Smith v. Mullin, 379 F.3d 919, 927 (10th Cir. 2004)
(“We need not determine the level of deference owed the OCCA's conclusions as to these various
misconduct claims or which [claims] are barred on independent and adequate state grounds. Where
an issue may be more easily and succinctly affirmed on the merits, judicial economy counsels in
favor of such a disposition.”) (internal quotations and citation omitted); Cannon v. Mullin, 383 F.3d
1152, 1159 (10th Cir. 2004) ( “When questions of procedural bar are problematic, however, and the
substantive claim can be disposed of readily, a federal court may exercise its discretion to bypass
the procedural issues and reject a habeas claim on the merits.”).

3

Although the title of Petitioner’s Ground 1 habeas corpus claim corresponds to his first
proposition of error as raised on certiorari appeal, the substance of the argument presented in
Ground 1 corresponds to the first and second propositions of error raised on post-conviction appeal.
13

“It is beyond dispute that a guilty plea must be both knowing and voluntary. The standard
was and remains whether the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Parke v. Raley, 506 U.S. 20, 28-29 (1992) (internal
quotation marks and citations omitted). In considering a habeas petition, or after the judgment of
conviction upon a guilty plea has become final, “the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary.” U.S. v. Broce, 488 U.S. 563, 569 (1989). A
strong presumption of reliability is accorded a defendant’s in-court statements made when the plea
was entered concerning the voluntariness of the plea and his satisfaction with his attorney’s
performance. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). “Solemn declarations in open court
carry a strong presumption of verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the
record are wholly incredible.” Id. at 74.
In addition, to establish ineffective assistance of counsel, a defendant must show that his
counsel’s performance was deficient and that the deficient performance was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see also Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th
Cir. 1993). In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the Supreme Court held that Strickland
applies to challenges to guilty pleas based on ineffective assistance of counsel. In accord with
Strickland, a defendant challenging the effective assistance of counsel during the guilty plea process
must show counsel’s performance was deficient and that such deficient performance prejudiced him.
Id. at 57-58. As the Court explained in Hill,
in 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.
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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.
Id. at 58-59.
Here, Petitioner’s blind pleas of guilty were both counseled and voluntary. Contrary to
Petitioner’s allegations, the record reflects that, during Petitioner’s change of plea hearing, the trial
judge told Petitioner that the 85% Rule would apply to the service of his sentences.4 See Doc. 9-15
at 5. The trial judge explained that Petitioner would serve at least 85% of his sentence. Id.
Moreover, that record defeats any claim of ineffective assistance of counsel because Petitioner
repeatedly acknowledged that he understood application of the 85% Rule Id. Thus, even if trial
counsel and Petitioner did not discuss the 85% Rule, Petitioner cannot demonstrate prejudice as
required under the second prong of Strickland. Petitioner fails to demonstrate a reasonable
probability that, but for counsel’s alleged failure to explain the 85% Rule, he would not have
pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59. Based on the
record, the Court finds that Petitioner’s blind pleas were counseled and voluntary and that trial
counsel did not provide ineffective assistance. Grounds 1 and 2 lack merit and Petitioner is not
entitled to habeas corpus relief on those grounds.
D. Unexhausted claims lack merit (Grounds 4, 5, and 6)
Petitioner presents three claims, Grounds 4, 5, and 6, that have never been presented to the
OCCA and are unexhausted. However, for the reasons discussed below, the claims lack merit and
are denied under 28 U.S.C. § 2254(b)(2).

4

The trial judge also told Petitioner at his sentencing hearing that the 85% Rule applied to the
service of Petitioner’s sentences. See Doc. 9-16 at 11.
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1.

Ineffective assistance of appellate counsel (Ground 6)

As his sixth ground of error, Petitioner claims that appellate counsel provided ineffective
assistance in failing to argue that “Petitioner was never advised that he would be required to serve
eighty-five (85%) percent of his sentence, (day for day), before he would be eligible for parole
consideration, or be eligible to receive earned credits and good time, to reduce the length of his
sentence.”5 See Doc. 2 at 8. Petitioner never presented a claim of ineffective assistance of appellate
counsel to the OCCA. However, this Court may deny relief when an unexhausted claim lacks merit.
See 28 U.S.C. § 2254(b)(2). That is the case here.
When assessing claims of ineffective assistance of appellate counsel, this Court applies the
Strickland two-pronged standard used for general claims of ineffective assistance of trial counsel.
See Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466 U.S. 668). 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). In Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003), the Tenth
Circuit directed that:
If 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.

5

Although the title of Petitioner’s Ground 6 claim does not allege ineffective assistance of
appellate counsel, that is in fact the argument presented in the text of the claim as raised in the
supporting brief (Doc. 2 at 8).
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Id. at 1202 (citation and footnote omitted); see also Parker v. Champion, 148 F.3d 1219, 1221 (10th
Cir. 1998).
As discussed in Part C, above, the record belies Petitioner’s claim that he was not advised
that the 85% Rule would apply to the service of his sentences. As a result, the omitted claim lacks
merit and appellate counsel did not provide ineffective assistance in failing to raise the claim.
Cargle, 317 F.3d at 1202. Habeas corpus relief is denied on Ground 6.
2.

Challenges to post-conviction procedures (Grounds 4 and 5)

In Grounds 4 and 5 of his brief in support of his petition for writ of habeas corpus, Petitioner
complains that he was deprived of due process as a result of procedural errors during his postconviction proceeding. See Doc. 2 at 5-7. Petitioner has never presented these claims to the OCCA.
However, as stated above, this Court may deny relief when an unexhausted claim lacks merit. 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). Therefore,
because Petitioner seeks relief based on alleged post-conviction procedural errors, his claims raised
in Grounds 4 and 5 are not cognizable in this federal habeas corpus action. For that reason, habeas
corpus relief is denied on Grounds 4 and 5.

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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)).
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
decisions by the OCCA is debatable among jurists of reason. See Dockins v. Hines, 374 F.3d 935,
938 (10th Cir. 2004). Furthermore, nothing suggests that the claims denied on the merits deserve
further proceedings. 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. ACCORDINGLY, the petition
for writ of habeas corpus (Doc. 1) is denied, a separate judgment in favor of Respondent shall be
entered in this matter, and a certificate of appealability is denied.
ORDERED THIS 26th day of January, 2017.

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