Hampton v. Miller

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Honorable David L. Russell on 7/18/11. (ns, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAVID D. HAMPTON,
Petitioner,
v.
JUSTIN JONES, DIRECTOR,
Respondent.

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Case No. CIV-10-362-R

ORDER
Petitioner filed this action pursuant to 28 U.S.C. § 2254, seeking a writ of habeas
corpus. Pursuant to 28 U.S.C. § 636(b)(1)( B), the matter was referred to United States
Magistrate Judge Valerie K. Couch for preliminary review. On May 27, 2011, Judge Couch
issued a Supplemental Report and Recommendation, wherein she recommended that the
claims not previously denied by the Court on September 21, 2010, be denied on the basis of
supplemental briefing submitted by the parties. The matter is currently before the Court on
Petitioner's objection to the Supplemental Report and Recommendation.
In Ground Five, Petitioner alleged that he received ineffective assistance of appellate
counsel because appellate counsel failed to raise the issue of ineffective assistance of trial
counsel on direct appeal. In Ground Seven Petitioner claimed he received ineffective
assistance of trial counsel because trial counsel failed to object to the jury instructions on
deferred sentencing. In Ground Eight Petitioner contends trial counsel was ineffective in
failing to object to the admission of Petitioner's prior deferred sentence into evidence for
purposes of sentence enhancement.

Respondent previously argued these claims were

unexhausted and procedurally barred, however the Court disagreed with the Respondent's
contentions. As a result, Respondent addressed the merits of the ineffective assistance of
counsel claims.
Petitioner's ineffective assistance of trial counsel claims stem from the enhancement
of his sentence in Case No. CF-2002-872, District Court of Oklahoma County, which was
enhanced based on a prior guilty plea to a charge of unlawful possession of cocaine in Case
No CF-1996-1503, District Court of Oklahoma County. Petitioner received a deferred
sentenced in Case No. CF-1996-1503, which was completed on September 27, 2000. The
crimes committed in Case No. CF-2002-872 were committed on February 5, 2004, after he
completed the deferred sentence. Evidence of the prior deferred sentenced was introduced
during the sentencing phase of Petitioner's trial, and the jury was instructed on enhancement
of a sentence based on a completed deferred sentence. Petitioner contends that a completed
deferred sentence is not a prior conviction and therefore his conviction in Case No. CF-19961503 could not be used to enhance his conviction in Case No. CF-2002-872.
Judge Couch noted that the trial court inappropriately instructed the jury with regard
to the treatment of Petitioner's prior deferred, but expired conviction. She concluded,
however, that at the time of Petitioner's trial, the treatment of Okla. Stat. Tit. 63 § 2-410 had
not been interpreted by the Oklahoma Court of Criminal Appeals. See Report and
Recommendation at p. 11-13, citing Platt v. State, 188 P.3d 196 (Okla.Crim.App. 2008).
Judge Couch concluded that because the legal issue that Petitioner contends counsel was
constitutionally ineffective for failing to raise had not been decided by the Oklahoma Court
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of Criminal Appeals prior to the time of Petitioner's direct appeal, that neither trial counsel
nor appellate counsel was constitutionally ineffective for failing to raise the issue. As noted
by Judge Couch, the trial judge made statements to the jury indicating that he believed that
a deferred sentence may be treated as prior convictions and used to enhance a sentence. Tr.
Vol. III, p. 15-16. In light of the unsettled state of the law at the time of trial counsel's
performance, Judge Couch concluded that Petitioner had failed to establish that trial counsel
was constitutionally ineffective for failing to challenge the use of his completed deferred
sentence to enhance Petitioner's sentence. Furthermore, it follows that because trial counsel
was not ineffective in failing to challenge the issue, appellate counsel was not
constitutionally ineffective in failing to challenge trial counsel's performance.
The Court has reviewed Petitioner's objection to the Report and Recommendation, and
concludes that Judge Couch's thorough and well-reasoned analysis with regard to Petitioner's
ineffective assistance of counsel claims, both trial and appellate, was entirely correct.
Petitioner has failed to establish that trial counsel's conduct was completely unreasonable in
light of the absence of contrary authority from the Oklahoma state courts on the issue and the
less-than clear wording of § 2-410. See Platt, 188 P.3d at 198-99 (noting that § 2-410 could
have been written more precisely). Petitioner has failed to establish that the Oklahoma
Court of Criminal Appeals's decision on his ineffective assistance of trial counsel and
ineffective assistance of appellate counsel claims was contrary to or an unreasonable
application of clearly established federal law, and as such, he is not entitled to habeas corpus
relief.

The Report and Recommendation is therefore ADOPTED IN ITS ENTIRETY.
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Additionally, having reviewed the merits of Petitioner's claims in both this order and the
Court's prior order of September 21, 2010, the Court concludes that Petitioner is not entitled
to a certificate of appealability because he has not made a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). Judgment shall be entered in favor of the
Respondent on the instant petition.
IT IS SO ORDERED this 18th day of July 2011.

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