Robinson v. Oklahoma State of

Filing 31

ORDER adopting Report and Recommendations re 27 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 11/8/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

JOHNNY LEE ROBINSON
Petitioner,
vs.

JAMES RUDEK,
Respondent.

)
)
)
)
)
)
)
)
)
)

NO. CIV-10-836-D

ORDER
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1)(B), the matter was referred to United
States Magistrate Judge Bana Roberts for initial proceedings. After receiving the response and
Petitioner’s reply, Judge Roberts filed a Report and Recommendation [Doc. No. 27] in which she
recommended that the petition be denied. Because Petitioner timely objected to the Report and
Recommendation, the matter is reviewed de novo.
Petitioner challenges his 2007 conviction of assault and battery with a dangerous weapon
after former convictions. He filed a direct appeal, asserting as grounds for relief: 1) the State
presented insufficient evidence; 2) the Petitioner was denied a fundamentally fair trial because
unduly prejudicial photographs were admitted; and 3) the trial court erred in bifurcating the trial.
The Oklahoma Court of Criminal Appeals affirmed the conviction.
Thereafter, Petitioner filed two applications for post-conviction relief.

In the first

application, he argued appellate counsel provided ineffective assistance by failing to argue that
Petitioner’s trial counsel was ineffective because he failed to object to the introduction of evidence

consisting of photographs and a bent knife. He also argued his counsel had a conflict of interest
because the same public defender’s office had represented the victim in another matter. This
application was denied by the trial court, and the denial was affirmed on appeal.
In his second post-conviction relief application, Petitioner asserted ineffective assistance
of both trial and appellate counsel based on their failure to argue that his enhanced sentence was
based on convictions more than ten years old, and his waivers of right to appeal in the former
convictions were not intelligent or voluntary. As a second basis for relief, Petitioner argued he was
prejudiced by his appellate counsel’s erroneous reference in the appeal brief to a conviction for
murder rather than assault and battery. This application was also denied by the trial court, and the
denial was affirmed.
In this action seeking habeas relief, Petitioner now argues that: 1) he was convicted while
he was mentally incompetent; 2) he was denied his right to appeal in the prior convictions utilized
to enhance his sentence; 3) his conviction was obtained in violation of the Double Jeopardy Clause;
4) his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment
because it was enhance by ten-year-old prior convictions; and 5) he was denied effective assistance
of appellate counsel because counsel erroneously referenced his conviction as one for first degree
murder rather than assault and battery.
In the Report and Recommendation, the Magistrate Judge addressed in detail each of
Petitioner’s grounds for habeas relief. Having fully examined the procedural history in the context
of the law governing § 2254 habeas relief, she concluded that the petition must be denied. With
respect to the second and fifth grounds for relief, she correctly concluded these are barred from
review because Petitioner failed to assert the claims on direct appeal or in his first post-conviction

2

relief application. To the extent the fourth ground for relief challenges the enhancement of his
sentence by application of stale convictions, it is also procedurally barred. With respect to the third
ground for relief and the Eighth Amendment claim asserted in the fourth ground for relief, the
Magistrate Judge correctly concluded that these are technically not yet exhausted. She further
concluded that, if Petitioner sought exhaustion of these claims, the state courts would apply the state
procedural default contained in Oklahoma’s Post-Conviction Procedure Act, Okla. Stat. tit. 22 §
1086. Accordingly, she also concluded these claims are procedurally barred. As she noted, the
Tenth Circuit Court of Appeals has held that an “anticipatory procedural bar” may be applied by this
Court to a technically unexhausted claim which would be barred under the Oklahoma statute.
Cummings v. Sirmons, 506 F. 3d 1211, 1223 (10th Cir. 2007). For the reasons fully explained at
pages 6 through 8 of the Report and Recommendation, the Court agrees that these claims are barred
from habeas review.
The Court also agrees with the Magistrate Judge that the first ground for habeas relief must
be denied. Although it has not been exhausted, the Magistrate Judge determined that the claim of
mental incompetency should be considered in this action. She fully explained the law governing
such claims, as well as the facts in the record and Petitioner’s arguments in support of this claim.
She further reviewed the trial testimony and concluded that nothing in the record showed Petitioner
lacked the mental competency to understand and participate in the proceeding. Further, she
concluded his attorney expressed no reason to believe that Petitioner was mentally incompetent. See
Report and Recommendation at pages 8 through 11.
Having fully reviewed the matter and having considered the governing law as applied to the
facts of this case, the Court agrees with the Magistrate Judge that Petitioner’s claim of mental

3

incompetency, set forth in the first ground for habeas relief, is without merit.
The Court has also reviewed Petitioner’s objections to the Report and Recommendation.
Those objections do not offer persuasive argument or authority supporting his claim for habeas
relief.
Accordingly, having fully review the matter de novo, the Court adopts the Report and
Recommendation [Doc. No. 27] as though fully set forth herein. The petition for habeas corpus
relief is DENIED. Judgment shall enter accordingly.
IT IS SO ORDERED this 7th day of November, 2011.

4