Kluth v. McCollum et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 22 of Magistrate Judge Gary Purcell...the court denies the petition for writ of habeas corpus and also denies a certificate of appealability as it funds petitioner has not made "a substantial showing of the denial of a constitutional right." Signed by Honorable Joe Heaton on 05/11/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN EDWARD KLUTH,
Petitioner,
vs.
TRACY MCCOLLUM, Warden,
Respondent.

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NO. CIV-15-0758-HE

ORDER
Petitioner John Edward Kluth, proceeding pro se, filed this action seeking habeas
relief pursuant to 28 U.S.C. § 2254. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter
was referred for initial proceedings to Magistrate Judge Gary M. Purcell. He has issued a
Supplemental Report and Recommendation, recommending that the petition be denied and
petitioner has filed an objection.
A jury in the District Court of Canadian County convicted petitioner of three counts
of child abuse and two counts of child neglect.

In accordance with the jury’s

recommendation, the trial court sentenced petitioner to ten year terms of imprisonment on
each count. He ordered the sentences in counts one and two to be served consecutively to
each other, and the sentences in counts three through five to be served concurrently with
counts one and two. Petitioner’s convictions and sentences were affirmed on appeal by the
Oklahoma Court of Criminal Appeals (“OCCA”). Petitioner raised eight grounds for relief
in his direct appeal, which the OCCA reviewed and rejected in a summary opinion.
Petitioner then filed a post-conviction application, in which he raised ineffective assistance

of trial and appellate counsel and two new claims. The trial court determined petitioner had
failed to support his allegation of ineffective assistance of appellate counsel and procedurally
defaulted the other claims. The OCCA affirmed that decision.
In his habeas petition, petitioner lists ten grounds for relief – the same claims he raised
on direct appeal and in his post-conviction application.1 The magistrate judge concluded
none warranted habeas relief.
In his objection petitioner initially contends that the magistrate judge misread his
habeas petition. He argues that he is only attacking his sentence, not his convictions, and that
he did not assert eleven grounds for relief in his habeas petition, but “purposely winnowed
out ‘eight’ of his habeas claims and raised only three (3) grounds of error for relief to this
Court.” Doc. #25, pp. 1-2. While the winnowing is not obvious from a review of the
petition,2 it is irrelevant, as the magistrate judge and the court have given due consideration
to the three claims petitioner lists in his objection. They are: that his sentence is excessive
(ground six), that he was denied his state and federal constitutional rights when the trial judge
determined whether his sentences were to be served concurrently or consecutively (ground
nine) and that he was denied due process when he was not afforded a fair opportunity to
dispute the findings in the presentence investigation report (ground ten).

1

The magistrate judge liberally construed the petition to include an eleventh claim for
ineffective assistance of appellate counsel. See Doc. #22, p. 5 n.1.
2

In his brief filed in support of his petition, Doc. #21, submitted after respondent addressed
in his response all the grounds for relief listed in the habeas petition, see Doc. #13, petitioner only
discusses three grounds. However, the bases for the writ are stated in the petition, not a brief.
2

Of these three claims, the only one petitioner discusses in his objection is his claim
that the jury, not the judge, should have determined whether his sentences would run
concurrently or consecutively. Petitioner has therefore failed to show that the magistrate
judge erred in concluding that he is not entitled to habeas relief on the grounds that his
sentence was excessive or that he was denied due process in conjunction with the findings
in the presentence investigation report. Habeas relief will be denied on the basis of grounds
six and ten of the habeas petition.
The court agrees with the magistrate judge that petitioner also is not entitle to relief
as a result of the trial court’s imposition of consecutive sentences. In Oregon v. Ice, 555 U.S.
160 (2009), the Supreme Court considered whether a defendant had “a Sixth Amendment
right to have the jury, not the sentencing judge, find the facts that permitted the imposition
of consecutive sentences.” Id. at 166. State courts were split over whether the rule of
Apprendi3 governed consecutive sentencing decisions. The Court held in Ice that states
could continue the common-law tradition of “entrust[ing] to judges' unfettered discretion the
decision whether sentences for discrete offenses shall be served consecutively or
concurrently.” Id. at 163. It concluded that the twin considerations of historical practice4
and respect for state sovereignty “counseled against extending Apprendi's rule to the
imposition of sentences for discrete crimes.” Id. at 168.
3

Apprendi v. New Jersey, 530 U.S. 466 (2000).

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“The historical record demonstrates that the jury played no role in the decision to impose
sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge.” Ice,
555 U.S. at 168.
3

Oklahoma law provides that a sentencing judge has the discretion to order that
sentences be served concurrently or consecutively. See 22 Okla. § 976. In light of that
statutory authority and the Supreme Court’s decision in Ice finding that a state court judge’s
imposition of consecutive sentences does not violate the Sixth Amendment, the court
concludes petitioner is not entitled to habeas relief based on the trial judge’s decision to
impose consecutive sentences (ground nine of the petition).
Petitioner did not object to the magistrate judge’s findings and conclusions with
respect to the other grounds listed in the petition – grounds one-five, seven, eight, and eleven.
Failure to object constitutes a waiver of the right to appellate review of the factual and legal
issues addressed. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010); see 28 U.S.C.
§636(b)(1)(C). However, as noted previously, petitioner states in his objection that he is not
asserting those grounds in support of his habeas petition. To the extent he was at one time,
the court considers them to have been waived or abandoned.
Accordingly, having conducted the required de novo review, the court ADOPTS
Magistrate Judge Purcell’s Report and Recommendation and DENIES the petition for writ
of habeas corpus. The court also DENIES a certificate of appealability as it finds petitioner
has not made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).
IT IS SO ORDERED.
Dated this 11th day of May, 2016.

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