Kunis v. Allbaugh

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION for 29 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 2/5/19. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
GREGORY S. KUNIS,
a/k/a DARRYL G. TOLER
Petitioner,
v.
JOE M. ALLBAUGH, Director,
Department of Corrections,
Respondent.

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Case No. CIV-18-130-R

ORDER
Petitioner challenges his state conviction following a guilty plea in the District Court
of Beckham County, Oklahoma on a charge of Lewd or Indecent Proposals to a Child
Under 16.1 Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States
Magistrate Judge Gary M. Purcell for preliminary review. On September 6, 2018, Judge
Purcell issued a Second Supplemental Report and Recommendation wherein he
recommended that the Petition be denied. The matter is currently before the Court on
Petitioner’s timely objection to the Report and Recommendation, giving rise to the Court’s
obligation to undertake a de novo review of those portions of the Report and
Recommendation to which Petitioner makes specific objection. Having conducted this de
novo review the Court finds as follows.2
1

Petitioner objects to Judge Purcell’s use of the entire title of the statute under which he was convicted, Okla. Stat.
tit. 21 § 1123(A)(1), “Lewd or Indecent Proposals or Acts to Child Under 16.” Petitioner is correct that his conviction
was based on alleged lewd or indecent proposals, not acts. However, it is not error for Judge Purcell to use the entire
title of the relevant statute in the Report and Recommendation.
2
Throughout his filings Petitioner attempts to incorporate by reference filings in a prior filing in this Court and in
filings before the Oklahoma Court of Criminal Appeals. The State requested that the Court not consider those crossreferences and incorporations. (Doc.No. 24, p. 1. n. 1). The Supplemental Report and Recommendation does not

Petitioner pled guilty to a single count of violating Okla. Stat. tit. 21 § 1123(A)(I),
making a lewd or indecent proposal to a child under 16 and was sentenced to twenty-five
years imprisonment.3 After his June 4, 2014 sentencing, Petitioner sought to withdraw his
guilty plea. Counsel raised a single issue in the Motion to Withdraw, that he was unaware
until the day of sentencing that he would be ineligible for a suspended sentence.4 The
District Court of Beckham County denied his request to withdraw the plea but purported
to modify his sentence from twenty-five years imprisonment to twenty-five years
imprisonment with all but the first ten suspended. Thereafter Petitioner sought a writ of
certiorari, the procedure for appealing from a guilty plea, from the Oklahoma Court of
Criminal Appeals, which denied his request for relief on July 31, 2015. He raised three
issues, that the trial court erred in not allowing him to withdraw his plea, which was not
knowing and voluntary because the facts pled in the information did not constitute a crime
under Okla. Stat. tit. 21 § 1123(A)(1), that he was denied the effective assistance of counsel
at the plea withdrawal hearing because counsel failed to include the issue regarding the
insufficient factual basis for the plea. The final issue on direct appeal was modification of
the judgment and sentence, which Petitioner argued should be done to reflect the July 10,

indicate whether such filings were considered by Magistrate Judge Purcell in crafting his recommendation. The
undersigned has considered the cross-references. The Court refers to the pages of Petitioner’s filings using his
numbering system, uncertain whether Petitioner has a copy bearing the Court’s internal page numbering system.
3
The plea was entered after a jury was empaneled and sworn, but apparently before any testimony was offered by
the State. Although the document executed by Petitioner and the State indicates it is a plea agreement, the court, in
accepting the plea, made Petitioner aware that because he waited until after the jury was empaneled to change his plea,
that it was a “blind” plea. Transcript of Guilty Plea, p. 3. A “blind” plea “is a plea in which there is no binding
agreement on sentencing, and punishment is left to the judge's discretion.” Medlock v. State, 887 P.2d 1333, 1337 n.2
(Okla. Crim. App. 1994).
4
Defendant pled guilty using someone else’s name and at the time of his plea the State was unaware that he had prior
convictions impacting his ability to obtain a suspended sentence.

2

2014 sentence, which suspended all but the first ten years of the twenty-five-year sentence.
The Oklahoma Court of Criminal Appeals denied the Petition for Writ of Certiorari
concluding that, because Petitioner had not raised the first issue regarding the factual basis
for his plea, he waived the issue from appellate review. The Oklahoma Court of Criminal
Appeals further concluded that Petitioner was not denied the effective assistance of counsel
at the motion to withdraw. Finally, the Oklahoma Court of Criminal Appeals ruled that the
original twenty-five-year sentence stood because the District Court of Beckham County
lacked jurisdiction to modify the sentence, as it was not void.
Petitioner thereafter sought post-conviction relief from the District Court of
Beckham County. He attempted to appeal that court’s denial of his application for postconviction relief, but his attempt was dismissed as untimely. He sought an appeal out of
time from the District Court of Beckham County, which was denied; the Oklahoma Court
of Criminal Appeals affirmed that denial on March 12, 2018.5 Petitioner thereafter filed
this action seeking habeas relief and raising four grounds: (1) that the State failed to charge
a criminal offense in the indictment to which Petitioner pled guilty; (2) that he was denied
the effective assistance of counsel at his plea, sentencing, and on appeal; (3) that his plea
was not knowing and voluntary because he mistakenly believed he would be able to
withdraw his plea if the District Court of Beckham County did not abide by the State’s
recommendation that part of his sentence be suspended; and (4) that his due process rights
were violated by the Oklahoma Court of Criminal Appeals’ Deputy Court Clerk because

5

The Petition in this case was filed on February 9, 2018, while Petitioner was awaiting a decision from the Oklahoma
Court of Criminal Appeals regarding his request for leave to appeal out of time.

3

she was unable to locate his in forma pauperis affidavit and failed to timely advise him that
its absence precluded the filing of his post-conviction appeal. As a result, his postconviction appeal was untimely.
In the Second Supplemental Report and Recommendation, Judge Purcell
recommends that certain of Petitioner’s claims be dismissed as procedurally barred,
because either the Oklahoma Court of Criminal Appeals concluded Petitioner had waived
the claim or the claim was not presented to the Oklahoma Court of Criminal Appeals on
either direct appeal or in a timely filed appeal from the denial of post-conviction relief.
Judge Purcell concluded that Petitioner cannot overcome the procedural bar with regard to
any such claims. As to any claims addressed on the merits by the Oklahoma Court of
Criminal Appeals, Judge Purcell concluded that its decision was not contrary to or an
unreasonable application of clearly established federal law. The Court notes at the outset
that Petitioner makes no objection regarding Judge Purcell’s recommendation that Ground
Four be denied. Accordingly, the Report and Recommendation is adopted in its entirety as
to Petitioner’s Ground Four. Although the Petition contained four grounds for relief, the
Brief in Support included a lengthy conclusion whereby Petitioner identified admittedly
unexhausted claims that he wished to pursue. He requested that the Court stay this action
pending attempts to exhaust.6 Thereafter he identifies several issues he wishes to pursue
herein. The specific issues were not addressed in the Report and Recommendation, as noted

6

Petitioner filed the Brief in Support before the Oklahoma Court of Criminal Appeals had affirmed the District Court
of Beckham County’s decision denying him leave to appeal out of time. Accordingly, his request in the first paragraph
of the conclusion is moot, the Oklahoma Court of Criminal Appeals having now concluded that Petitioner failed to
establish that he was denied an appeal through no fault of his own.

4

by Petitioner in his Objection, likely because of how Petitioner attempts to raise the claims,
as will be discussed herein. See Doc.No. 2, p. 29, Doc.No. 30, p. 15.
Judge Purcell recommended that Petitioner’s Ground One be construed as two
claims, one challenging the Information and the other asserting that because of the
defective Information, the trial court lacked subject matter jurisdiction over his criminal
proceedings. The first of these issues was raised on direct appeal, that is, when Petitioner
sought certiorari from the denial of his Motion to Withdraw Plea. The Oklahoma Court of
Criminal Appeals concluded that claim was procedurally barred because Petitioner had not
included the issue in his Motion to Withdraw. See Rule 4.2(B), Rules of the Oklahoma
Court of Criminal Appeals, tit. 22, Ch. 18, App. (2018) (“No matter may be raised in the
petition for a writ of certiorari unless the same has been raised in the application to
withdraw the plea ....”); Walker v. State, 953 P.2d 354, 355 (Okla. Crim. App. 1998) (noting
that under Rule 4.2(B) an appellant waives an issue by failing to raise it in his motion to
withdraw a guilty plea). As a result, in the Report and Recommendation Judge Purcell
concluded that Petitioner procedurally defaulted on this portion of Ground One.
On habeas review, this Court will not review a claim that has been defaulted in state
court on an independent and adequate state procedural ground, unless Petitioner
demonstrates either cause for the default and actual prejudice, or that a fundamental
miscarriage of justice will occur if the Court does not consider the claim. Bousley v. United
States, 523 U.S. 614, 622 (1998); Sawyer v. Whitley, 505 U.S. 333, 338–339 (1992);
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Hickman v. Spears, 160 F.3d 1269, 1271
(10th Cir.1998). “‘A state procedural ground is independent if it relies on state law, rather
5

than federal law, as the basis for the decision.’ And the ground is adequate if it has been
‘applied evenhandedly in the vast majority of cases.’” Quintana v. Hansen, 733 F. App'x
439, 443 (10th Cir. 2018) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)).
Judge Purcell concluded that Rule 4.2 is an independent and adequate state
procedural ground for denial of his claim, and Petitioner does not object to this conclusion.
Accordingly, this portion of Ground One is barred unless Petitioner can demonstrate either
cause and prejudice or that a miscarriage of justice will occur if the Court does not review
this issue. Coleman v. Thompson, 501 U.S. 722 (1991). Judge Purcell concluded that
Petitioner could not establish either, a conclusion Petitioner challenges.
To show a miscarriage of justice, Petitioner must establish that the alleged error
probably resulted in the conviction of an innocent person. Bousley v. United States, 523
U.S. 614, 623 (1998). Although Judge Purcell concluded that Petitioner was not arguing
actual innocence, (Report and Recommendation, p. 13), Petitioner disputes this
characterization.
Petitioner asserts that he is not guilty of the crime he was convicted
of, and for the record he is “actually,” “factually,” and “legally” 100%
innocent of any comments being made to A.J.W. that were made in a sexual
context as alleged by the State. . . .
Doc.No. 30, p. 2. Despite Petitioner’s contention that he is arguing factual
innocence, he is actually relying on an argument of legal innocence, specifically that the
facts he conceded during his plea did not constitute the crime of lewd proposals to a minor.
See Wood v. Lawson, No. CIV-18-851-SLP, 2018 WL 6576418 (W.D. Okla. Oct. 17,
2018)(citing Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (noting that actual
6

innocence means factual innocence and that the petitioner's claim his guilty plea was
involuntary did not assert actual innocence of the crime to which he pled guilty). Legal
innocence, however, is not a basis for the miscarriage of justice exception.
Furthermore, even if the Court were to consider his claim to be one of factual
innocence, he could not prevail. First, to establish a credible claim of actual innocence, a
petitioner must support his claim with “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” Schlup v. Delo, 513 U.S. 298 (1995). This burden does not
change where a Petitioner pled guilty. See Bousley, 523 U.S. at 623-24. Furthermore, a
habeas petitioner must demonstrate his actual innocence with respect to dismissed charges
as well as any charge of conviction. Id. at 624 (holding, in § 2255 case, that “where the
Government has forgone more serious charges in the course of plea bargaining, petitioner's
showing of actual innocence must also extend to those charges”); see also Johnson v.
Pinchak, 392 F.3d 551, 564–65 (3d Cir.2004) (§ 2254 application). Under this standard
Petitioner’s claim of actual innocence falls short.
First, Petitioner is required to identify new evidence relevant to his plea, which
Petitioner does not do. New evidence is “‘relevant evidence that was either excluded or
unavailable’” at the time of conviction. Johnson v. Medina, 547 F. App'x 880, 885 (10th
Cir.2013)(quoting Schlup, 513 U.S. at 327–28). Petitioner offers no discussion regarding
the admissible evidence against him at the time of his conviction, and he presents no new
evidence relevant to his conviction. Bousley, 523 U.S. at 623–24; Schlup, 513 U.S. at 327–
28. Additionally, the State agreed to dismiss a count of lewd molestation in exchange for
7

Petitioner’s plea of guilty. The Petition, however, does not address that claim or the
evidence that existed in support of such claim. Thus, Petitioner has failed to establish a
claim of actual innocence with regard to Ground One of the instant Petition.
Judge Purcell further concluded that Petitioner could not establish cause and
prejudice so as to avoid the Oklahoma Court of Criminal Appeals’ conclusion that he had
defaulted on Ground One, specifically rejecting Petitioner’s contention that counsel who
represented him during sentencing and during plea withdrawal proceedings was
constitutionally ineffective. For either standalone ineffective-assistance-of-counsel claims
or in an effort to avoid a procedural default or bar, the relevant law is Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must demonstrate both
that counsel’s performance fell below an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice to his defense. Id. at 687. To
overcome the strong presumption that counsel’s performance was reasonable, the
defendant must show that the alleged error was not sound strategy under the circumstances.
Id. at 689. And under the prejudice prong, the defendant must establish “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.
The Oklahoma Court of Criminal Appeals addressed Petitioner’s ineffective
assistance of counsel claim as it related to sentencing/withdrawal counsel and the failure
to challenge the factual basis for his plea on the merits on direct appeal, citing Strickland.
See Doc.No. 24-2, p. 4. The court concluded Petitioner failed to establish that counsel’s
8

performance was deficient or that he was prejudiced. Where, as here, the state court has
ruled on the merits of an ineffective-assistance claim, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. 86, 101 (2011). “[A] state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103. This Petitioner cannot do.
First, the Oklahoma Court of Criminal Appeals applied the correct legal standard,
that is, Strickland, and noted that counsel unsuccessfully raised the issue twice, both times
during pre-trial proceedings before the magistrate and the state district judge. “Considering
the district court’s previous rejection of this claim, Petitioner fails to show that his plea
withdrawal counsel was ineffective in failing to re-urge this same claim in his motion to
withdraw.” (Doc.No. 24-2, p. 7). Second, the Oklahoma Court of Criminal Appeals
assessed the merits of the issue, considering whether the facts were sufficient to find a
violation of the statute, an issue entirely within its purview.
We must defer to the Oklahoma state courts on their interpretation of
Oklahoma’s law. See Burleson v. Saffle, 278 F.3d 1136, 1144 (10th Cir.
2002); accord Anderson-Bey v. Zavaras, 641 F.3d 445, 448 (10th Cir. 2011)
(“Even if we believe that the state courts misinterpreted state law in
upholding a defendant’s convictions, it is not the province of a federal habeas
court to reexamine state-court determinations on state law questions.”
(internal quotation marks omitted)). This rule applies with equal force to
interpretations of state law “announced on direct appeal of the challenged
conviction.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163
L.Ed.2d 407 (2005).
9

Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013). Accordingly, Petitioner has not
established that sentencing/withdrawal counsel was constitutionally ineffective by failing
to raise the issue in the Motion to Withdraw Plea, and Petitioner cannot rely on ineffective
assistance of counsel to avoid application of the procedural bar with regard to Ground One.
Judge Purcell and the State also construed Ground One as attacking the subject
matter jurisdiction of the trial court, premised on the allegedly deficient allegations in the
Information. Respondent argued that Petitioner did not raise this argument on direct appeal
or in post-conviction filings, and as a result, the claim is unexhausted. Petitioner contends
he raised the issue in appealing the denial of his Motion to Withdraw. The Court notes that
the brief referenced by Petitioner does not directly assert that because of deficiencies in the
information the state court lacked subject matter jurisdiction.7 To the extent Petitioner is
merely relying on the argument set forth above, that is. that he is only asserting Proposition
I from his direct appeal as addressed above, he is not entitled to relief for the reasons set
forth above. If Petitioner is attempting to raise a new issue, his briefs to the state court did
not fairly present this issue. See Simpson v. Carpenter, 912 F.3d 542, 565 (10th Cir.
2018)(Fair presentation for purposes of exhaustion requires that the substance of the federal
claim was raised in state court).
Thus, his Petition contains a mix of exhausted and unexhausted claims, which
ordinarily requires that this Court “either (1) dismiss the entire petition without prejudice

7

In his Application for Post-Conviction Relief Petitioner quoted Okla. Stat. tit. 21 § 8, “[t]he punishment by this
chapter can be inflicted only upon a legal conviction in a court having jurisdiction.” (Doc.No. 24-3, p. 6)(emphasis
in original). To the extent Petitioner believes an October 28, 2016 Motion for Relief from Judgment filed in the District
Court of Beckham County addressed the issue, that motion addresses the 85% rule in Okla. Stat. tit. 21 § 13.1 and
whether the crime was properly charged as to carry such punishment.

10

in order to permit exhaustion of state remedies, or (2) deny the entire petition on the
merits.” Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016) (internal quotation
marks omitted). However, an exception exists:
If a federal court that is faced with a mixed petition determines that the
petitioner’s unexhausted claims would now be procedurally barred in state
court, “there is a procedural default for purposes of federal habeas[.]”
Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115
L.Ed.2d 640 (1991). Therefore, instead of dismissing the entire petition, the
court can deem the unexhausted claims procedurally barred and address the
properly exhausted claims.
Harris v. Champion, 48 F.3d 1127, 1131 n.3 (10th Cir. 1995). Judge Purcell concluded that
the state court would apply a procedural bar if Petitioner now attempted to exhaust his
contention that the District Court of Beckham County lacked subject matter jurisdiction
over his claim, and thus applied an anticipatory procedural bar. Petitioner does not offer a
specific objection to this conclusion. Rather, he states:
Clearly, the reasons for the Petitioner being unable to exhaust his State court
remedies have already been set forth in Petitioner’s argument presented in
(but not limited to) this Honorable Court, whether in Petitioner’s Reply or
not. Thus the Petitioner (again) refuses to [waste] this Court[ꞌ]s time by
argument already raised, with request of Judicial Notice being made to this
Court already as well. However, above and beyond any of the Petitioner’s
argument concerning [subject matter] jurisdiction in any given Instrument
throughout his appellate process, the Petitioner will now bring another issue
to light concerning the same topic using the provision[s] of U.S. v. Cotton,
535 U.S. 625, 630 (2002) to do so.
Doc.No. 30, p. 7.8 Thereafter Petitioner addresses whether he was properly sentenced
pursuant to Oklahoma’s 85 % rule.9 To the extent Petitioner is attempting to expand the

8

The Court presumes Petitioner is referring to his untimely attempt to appeal the denial of his application for postconviction relief, which he blames on the Oklahoma Court of Criminal Appeals Clerk’s office.
9
In the Order Denying Petition for Writ of Certiorari, Doc. No. 24-2 at 2, the Oklahoma Court of Criminal Appeals
included the following footnote:

11

scope of his § 2254 Petition, he cannot do so via the objection to the Report and
Recommendation.10 The Court declines Petitioner’s request to consider the 85% percent
rule in the context of his subject matter jurisdiction claim.11 The only issue currently before
the Court regarding Petitioner’s contention that the state court lacked subject matter
jurisdiction is whether he can overcome the anticipatory procedural bar. He does not argue
that the bar is not independent or that it is inadequate.
As with the defaulted claim, Petitioner could avoid the anticipatory procedural bar
by showing either cause and prejudice or a fundamental miscarriage of justice. For the
reasons set forth above, Petitioner cannot rely on the fundamental miscarriage of justice
exception. Petitioner does not argue that counsel, either trial/plea, or sentencing/
withdrawal, was constitutionally ineffective for failing to challenge the state court’s subject
matter jurisdiction, nor does he argue that appellate counsel was ineffective for raising the
issue. Additionally, the Oklahoma Court of Criminal Appeals’ conclusion on direct appeal
that sentencing/withdrawal counsel was not constitutionally ineffective as set forth above
would apply equally to this portion of Ground One. Accordingly, the Petition is denied as
to both issues raised in Ground One.
Ground Two of the Petition challenges the constitutional effectiveness of counsel,
addressing trial/plea, sentencing/withdrawal, and appellate counsel. Petitioner asserts he

Making Lewd or Indecent Proposals to a Child in violation of 21 O.S. 2011, § 1123(A)(1) is a crime
subject to the 85% limit on parole eligibility set out in 21 O.S.2011 § 13.1. Petitioner acknowledged
this facts during his plea proceedings. (3/12/2014) Plea Tr. 5-6; O.R. 183).
10
Petitioner raises an issue related to the 85% provision of Oklahoma law in an ineffective assistance of counsel
claim, which shall be addressed herein.
11
In support of his arguments in the Objection, Petitioner often cites to documents filed in State court. The Petition
herein forms the basis for the Court’s consideration of Petitioner’s claims, and thus Petitioner might have raised an
issue at one point before a state court, but did not bring that issue before this Court.

12

was denied the effective assistance of counsel during plea proceedings because counsel
Albert Hoch, Jr., created a theoretical division of loyalties by stating to the court that the
crime to which Petitioner was entering a plea of guilty was governed by the 85% rule set
forth in Okla. Stat. tit. 21 § 13.1. He also contends that sentencing/withdrawal counsel was
ineffective because he lacked adequate time to prepare a defense and because he failed to
raise the 85% rule in either the Motion to Withdraw or at the hearing on that motion. With
regard to appellate counsel, Petitioner argues that she failed to raise that trial/plea counsel
operated under a conflict of interest and that she failed to investigate § 13.1, the 85% rule
and its inapplicability to his sentence.12
Petitioner raised a claim of ineffective assistance of sentencing/withdrawal counsel
on direct appeal and the Oklahoma Court of Criminal Appeals denied the claim as set forth
above. The remaining ineffective assistance of counsel claims were raised for the first time
in the application for post-conviction relief before the District Court of Beckham County.
As noted by the Report and Recommendation, that court’s decision does not indicate that
it considered any ineffective assistance of counsel issue. The Report and Recommendation
anticipated the ineffective assistance of counsel claims directed to trial/plea and
sentencing/withdrawal counsel would be procedurally barred, because Petitioner knew or

12

In the Supplemental Report and Recommendation Judge Purcell noted, “. . . Petitioner did raise ineffective assistance
of appellate counsel in his post-conviction application but did not complain that his counsel failed to raise these
particular arguments.” (Doc.No. 29, p. 27). The undersigned finds although his presentation was inartful, Petitioner
did challenge appellate counsel as being ineffective for failing to raise trial counsel’s conflict of interest. His brief
included the following:
“Additionally, see: Hammon v. Ward, 466 F.3d 919, 927-31 (10th Cir. 2006) states as follows
“Appellate counsel’s failure to assert that trial counsel operated under “Prejudicial Conflict of
Interest” (See Ptr. Pg. #5. Lines 21-25 and pg. #6, lines 1-9) was ineffective assistance because the
issue was obvious and would have resulted in reversal on appeal.[“]
Doc.No. 24-3, p. 18 (emphasis in original).

13

should have known about the ineffective assistance of trial/plea counsel and
sentencing/withdrawal counsel at the time of his direct appeal, and the failure to include
the claims on direct appeal would result in waiver thereof and applied an anticipatory
procedural bar.
The undersigned concludes that those ineffective assistance of counsel claims
included in the Petitioner’s post-conviction application were procedurally defaulted.
Although Petitioner attempted to appeal the denial of his application for post-conviction
relief, the court dismissed the appeal as untimely under Rule 5.2(C) of the Oklahoma Rules
of the Court of Criminal Appeals. In the Order Declining Jurisdiction and dismissing the
appeal, the OCCA advised Petitioner that if he felt he had been denied a post-conviction
appeal through no fault of his own, he could seek relief with the District Court under Rule
2.1(E)(3). Petitioner sought leave to appeal out of time, arguing that clerk at the Oklahoma
Court of Criminal Appeals failed to mail him a letter regarding his filing deficiencies until
after his deadline expired.13 (Doc.No. 24-9). Nonetheless, the district court of Beckham
County rejected his arguments and denied Petitioner leave to file an untimely appeal; the
Oklahoma Court of Criminal Appeals affirmed the decision.
In Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.1998), the court determined that
Rule 5.2(C) is an independent and adequate state ground sufficient to bar habeas relief,

13

The Oklahoma Court of Criminal Appeals dismissed the appeal because Petitioner allegedly failed to include with
his appeal either the required filing fee or a completed affidavit to proceed in forma pauperis. See Okla. Stat. tit. 22,
Ch. 18, App. Rule 5.2(C)(2) (“If the post conviction appeal arises from a ... regular felony conviction, [it] must be
filed within thirty (30) days from the date [of] the final order of the District Court ....”); see also Okla. Stat. tit. 22,
Ch. 18, App. Rule 1.11 (“A pleading shall not be considered filed ... until such time as the filing fee is paid or an
‘Affidavit in Forma Pauperis' is properly filed.”). Petitioner asserts he did include the form. (The time limit set forth
in Okla. Stat. tit. 22, Supp. 2018, Ch. 18, App. Rule 5.2(C)(2) was amended effective February 5, 2018, and thus is
not applicable to Petitioner’s appeal.)

14

absent a showing of cause and prejudice or, alternatively, a miscarriage of justice. Again,
the miscarriage of justice exception does not apply for the reasons set forth above, leaving
Petitioner’s fate to the cause and prejudice standard.
Construing Petitioner’s claims liberally, his contention that the Deputy Clerk of the
Oklahoma Court of Criminal Appeals failed to alert him that his filings were deficient
could be perceived as an effort to allege cause. The Oklahoma Court of Criminal Appeals’
records indicate it received a copy of Petitioner’s Petition in Error on February 28, 2017,
and a letter bearing that same date informs Petitioner of his deficiencies. He contends,
however, that Cynde Robertson, Deputy Clerk, did not mail the letter explaining the
deficiencies until after his filing deadline had expired.14 The cause standard requires a
petitioner to “show that some objective factor external to the defense impeded ... efforts to
comply with the State's procedural rule[s].” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Examples of such external factors include interference by state officials. Id.
Despite Petitioner’s contentions, the Court finds that he cannot establish cause for
his default. In denying the request for appeal out of time the District Court of Beckham
County held:
Defendant Kunis claims in his application that, “the issues (in) which caused
his filing deadline to expire were no fault of his own, as it was three (3) weeks
and two (2) days before the O.C.C.A.- Court Clerk put a letter in the mail to
the Petition- as to why he had not received a stamp “filed” copy of his
submittal (sp) to the above stated court, causing the Petitioner’s Filing
Deadline to expire by thirteen (13) days.”
It was defendant’s obligation to correctly file his appeal. This court
cannot say that the failure to timely file an appeal was at no fault of the
defendant.
14

He also asserts that he submitted the affidavit.

15

(Doc.No. 24-11, p. 2). The Oklahoma Court of Criminal Appeals affirmed the denial,
stating “Petitioner has not established either that the District Court erred or abused its
discretion, or that he was denied a post-conviction appeal through no fault of his own.”
(Doc.No. 24-13, p 2). The state court’s determination regarding the fault for Petitioner’s
untimely appeal is entitled to a presumption of correctness, overcome only by a clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1); Webster v. Attorney General of State of
Oklahoma, 213 F. App’x 664, 668 (10th Cir. Jan. 12, 2007). Although Judge Purcell did
not make a conclusion in this regard, and thus the objection does not address the issue, the
undersigned has reviewed the Petition, Brief in Support, and Reply, and concludes that
Petitioner cannot overcome this presumption. As with the defaulted claim above, Petitioner
would be precluded from exhausting the unexhausted ineffective assistance of counsel
claim if he attempted to do so in state court. Therefore, Petitioner is not entitled to habeas
relief on Ground Two.
In Ground Three Petitioner argues that his guilty plea was not knowingly and
voluntarily entered because be erroneously believed he could withdraw his plea if the trial
court did not accept the State’s recommended sentence. Although Petitioner raised this
issue before the trial court in his Motion to Withdraw Plea, he did not include the issue on
direct appeal. He raised the issue in his post-conviction proceedings, but as noted above,
did not complete those proceedings because his appeal was deemed untimely. Accordingly,
in order to proceed in this Court Petitioner would need to establish either cause and
prejudice or a fundamental miscarriage of justice. Petitioner cannot do either, for the
16

reasons set forth above, and accordingly, he cannot prevail on Ground Three.
Finally, the Court considers those issues not addressed in the Report and
Recommendation, as set forth in the “Conclusion” of Petitioner’s Brief in Support. (Doc.
No. 2, p. 40). See Doc.No. 30, p, 15 (stating that Report and Recommendation inadvertently
overlooked the argument regarding the entry of two judgments in the underlying criminal
case). Therein Petitioner “informs this Court that he is unwilling to forfeit ‘certain’
issues/claims that have been submitted to (or attempted to be submitted) [to] the state courts
in instruments supporting his Appeal.” Thereafter he lists six filings from Petitioner’s prior
mandamus action, Case No. CIV-17-567-R that he wishes to pursue, after first exhausting
the claims in state court.
First, the Court declines to stay and abate these proceedings despite Petitioner’s
request. Mr. Kunis does not attempt to establish in either his Brief in Support or his
Traverse that the claims would not be procedurally barred if he attempted to seek relief at
this time.15 In fact, of the six filings Petitioner cites, three are from his unsuccessful attempt
to appeal denial of his application for post-conviction relief. (See Doc.No. 2, p. 29, items
4, 5 and 6). Item No. 2 cited on the list is the Application for Post-Conviction Relief.
Petitioner failed to timely appeal and in these proceedings fails to overcome the procedural
default of those claims. The Court declines to consider this portion of the Brief in Support
or the objection as it relates thereto. Federal Rule of Civil Procedure 10(c) permits

15

In support of this section of his brief Petitioner does not set forth his arguments. Rather, he cites the Court to various
documents filed with his earlier mandamus action. Petitioner cannot incorporate by reference various documents
without addressing the claims in the context of a petition for habeas relief under 28 U.S.C. § 2254. Many of the filings
are exhibits rather than arguments.

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incorporation by reference under limited circumstances. Specifically, “[a] statement in a
pleading may be adopted by reference elsewhere in the same pleading or in any other
pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.” Here, however, Petitioner requests that the Court consider
arguments set forth in an entirely separate action that he filed by culling through the various
state court filings he appended to his Petition for Mandamus. The Court had adhered to the
requirements of Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and construed
Petitioner’s filings more liberally than it would those of an attorney. However, the Court
will not extract arguments for Plaintiff from his various filings.
Under Rule 11 of the Rules Governing Section 2254, the Court must issue or deny
a certificate of appealability when it enters a final order adverse to a petitioner. A court
may issue a certificate of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner meets
this standard by showing “that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). For the reasons stated above, the Court finds that petitioner has not satisfied this
standard. The Court denies a certificate of appealability as to its ruling on petitioner’s
Section 2254 petition. For the reasons set forth herein, the Report and Recommendation is
ADOPTED to the extent it is consistent with the above, and the Petition for Writ of Habeas
Corpus is DENIED.

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IT IS SO ORDERED this 5th day of February 2019.

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