Wilson v. Allbaugh

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION for 19 Report and Recommendation; DENYING 15 MOTION for Leave to file an Amended Petition filed by Tashwan R Wilson; ORDERING that Petitioner may, within 21 days of this Order, submit a new motion for leave to file an amended petition along with a proposed pleading addressing the deficiencies identified by Magistrate Judge Jones; and RE-REFERRING this matter to Magistrate Judge Jones so that he may conduct further proceedings once Petitioner has filed his amended petition. Signed by Honorable Charles Goodwin on 12/19/2018. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TASHWAN R. WILSON,1
Petitioner,
v.
JOE ALLBAUGH, DIRECTOR,
Respondent.

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Case No. CIV-18-383-G

ORDER
This matter comes before the Court on Respondent Joe Allbaugh’s Objection to the
September 4, 2018 Second Report and Recommendation of United States Magistrate
Judge Bernard M. Jones. See Resp’t’s Obj. (Doc. No. 22).
BACKGROUND
1. State Court Proceedings
Petitioner Tashwan R. Wilson was charged by Information filed on April 4, 2006,
in the District Court of Oklahoma County, Oklahoma, with one count of Manufacturing a
Controlled Dangerous Substance (Cocaine Base) (Count 1), three counts of Trafficking a
Controlled Dangerous Substance (Cocaine) (Counts 2, 3, 4), one count of Possession of
Proceeds Derived from a Violation of the Uniform Controlled Dangerous Substance Act

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In the Petition for Writ of Habeas Corpus (“Petition”), counsel identified the petitioner
as Tashwan R. Wilson and Tashawn R. Wilson. Compare Petition (Doc. No. 1) at 1 with
id. at 25. The verification attached to the Petition bears the signature "Ta’Shawn Wilson."
See id. at 26. The state court records refer to petitioner as Tashwan R. Wilson, Tashawn
Wilson, and Ta’Shawn Wilson. The Court uses the spelling of Wilson’s first name as
provided in the style of the Petition.

(Count 5), one count of Possession of a Controlled Dangerous Substance with Intent to
Distribute (Marijuana) (Count 6), one count of Possession of an Offensive Weapon While
Committing a Felony (Count 7), and one count of Possession of Drug Paraphernalia
(Count 8). See State v. Wilson, No. CF-2006-2201 (Okla. Cty. Dist. Ct.).
Immediately thereafter, on May 8, 2006, Petitioner was charged in a second
Information filed in the same district court with the following crimes: four counts of
Trafficking a Controlled Dangerous Substance (Cocaine Base/Cocaine) (Counts 1, 2, 3,
4) and one count of Distribution of a Controlled Dangerous Substance (Cocaine) (Count
5). See State v. Wilson, No. CF-2006-2979 (Okla. Cty. Dist. Ct.).
On April 2, 2008, Petitioner, assisted by counsel, entered pleas of guilty to Counts
1, 2, 3, 5, 6, and 8 in Case No. CF-2006-22012 and to the five counts in Case No. CF2006-2979. See Pet. at 7.3 On September 17, 2008, the state district court continued
Petitioner’s sentencing in both cases for five years, subject to certain terms and conditions.
Id. at 8.
On April 7, 2010, Petitioner was charged in the District Court of Oklahoma County,
Oklahoma, with one count of Unlawful Cultivation of a Controlled Dangerous Substance
(Count 1), one count of Manufacturing a Controlled Dangerous Substance (Count 2), one
count of Possession of a Firearm After Former Conviction of a Felony (Count 3), and one
count of Possession of Proceeds in Violation of the Uniform Controlled Dangerous

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Counts 4 and 7 were dismissed by the State of Oklahoma that same date.

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Citations to documents filed electronically in this Court use the CM/ECF pagination.
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Substance Act (Count 4). See Pet. at 9; State v. Wilson, No. CF-2010-2370 (Okla. Cty.
Dist. Ct.).
That same date, the State of Oklahoma moved to accelerate Petitioner’s deferred
sentences in Case No. CF-2006-2201 and Case No. CF-2006-2979, alleging that Petitioner
had violated the terms and conditions of his probation by committing the drug and firearm
offenses charged in Case No. CF-2010-2370. Pet. at 9. On June 29, 2010, the state district
court granted the State’s requests to accelerate in the two cases and sentenced Petitioner
in Case No. CF-2006-2201 to terms of life imprisonment on Counts 1, 2, 3, and 6, to a
term of imprisonment of five years on Count 5, and to a term of imprisonment of one year
on Count 8. That court also sentenced Petitioner to a term of life imprisonment on each
of the five counts in Case No. CF-2006-2979. The state court ordered the sentences of
each case to run concurrently but the sentences of Case No. CF-2006-2979 to run
consecutively to the sentences imposed in Case No. CF-2006-2201. Pet. at 9.
Petitioner appealed from the acceleration of his deferred judgments and sentencing,
arguing that the “accelerated sentences of consecutive terms of life imprisonment were
grossly excessive.” OCCA Summ. Op. (Doc. No. 12-5) at 3. The Oklahoma Court of
Criminal Appeals (“OCCA”) affirmed in an unpublished summary opinion issued on June
13, 2011, finding that Petitioner “ha[d] not properly preserved his proposition of error on
appeal.” Id.; see Wilson v. State, No. F-2010-662 (Okla. Crim. App.).
While that appeal was pending, Petitioner filed an Application for Modification of
Sentence in each case pursuant to title 22, section 982a of the Oklahoma Statutes. After
the OCCA had issued its opinion, the state district court—on June 27, 2011—modified
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Petitioner’s terms of imprisonment on five of the six relevant counts in Case No. CF-200622014 and on all five counts in Case No. CF-2006-2979.5 Pet. at 10. The state district
court further ordered that all sentences were to be served concurrently with each other and
with each case. Id.; see Doc. Nos. 12-6, 12-7.
Petitioner thereafter unsuccessfully sought postconviction relief in state court. See,
e.g., Wilson v. State, No. PC-2012-1090 (Okla. Crim. App.); Wilson v. State, No. PC2013-954 (Okla. Crim. App.); Wilson v. State, No. PC-2014-1042 (Okla. Crim. App.);
Wilson v. State, No. PC-2018-126 (Okla. Crim. App.); see also Wilson v. State, No. MA2013-796 (Okla. Crim. App.).
In his last state-court postconviction appeal, which was filed on February 5, 2018,
see Wilson v. State, No. PC-2018-126, Petitioner asserted one proposition of error:
The district court abused its discretion denying the petitioner’s fourth
application for post-conviction relief as the court lacked jurisdiction to
impose another sentence violating the contractual agreement depriving the
petitioner of due process.
Pet. at 14.

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The one-year term of imprisonment ordered on Count 8 was not modified.

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Judge Elliott modified Petitioner’s terms of imprisonment as follows:
No. CF-2006-2201

No. CF-2006-2979

Count 1: 45 years

Count 1: 45 years

Count 2: 45 years

Count 2: 45 years

Count 3: 45 years

Count 3: 45 years

Count 5: 10 years

Count 4: 45 years

Count 6: 45 years

Count 5: 45 years
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On March 13, 2018, the OCCA affirmed the state district court’s denial of postconviction relief. In its Order, the state appellate court wrote:
This is . . . Petitioner’s fourth application for post-conviction relief that
has been denied in the District Court. The denials of [his] . . . first and second
post-conviction applications were not timely appealed . . . . The denial of
[his] . . . third post-conviction application was appealed . . . and affirmed in
an Order issued on January 29, 2015. These same issues were raised in
Petitioner’s . . . third application and are now barred by the doctrine of res
judicata. Petitioner’s application fails to articulate sufficient reason
explaining his failure to timely withdraw his pleas of guilty or to timely
appeal or adequately raise these issues in his previous post-conviction
applications.
OCCA Order Aff’g Denial of Fourth Appl. Postconviction Relief (Doc. No. 1-1) at 3-4;
see Wilson v. State, No. PC-2018-126.
2. Federal Habeas Proceedings
Appearing through counsel, Petitioner commenced the instant action on April 23,
2018, and in his Petition for Writ of Habeas Corpus (“Petition”) filed pursuant to title 28,
section 2254 of the United States Code, he challenged only the procedural bar applied by
the OCCA. Petitioner asserted as his sole ground for relief:
The state court made an unreasonable determination that [his] . . . claims were
procedurally barred as the violation of federal law resulted in prejudice thus
resulting in an unreasonable determination of Coleman v. Thompson, 501 U.S.
722, 750 (1991), where the law is clearly established by the Supreme Court
of the United States by Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969), and
Santobello v. New York, 404 U.S. 257, 262 (1971).
Pet. at 19 (parallel citations omitted).
The matter was referred to Magistrate Judge Bernard M. Jones. See 28 U.S.C. §
636(b)(1)(B), (C).

Respondent Allbaugh, who is the Director of the Oklahoma

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Department of Corrections, filed a Motion to Dismiss challenging the timeliness of
Petitioner’s Petition. See Resp’t’s Mot. to Dismiss (Doc. No. 11).
On August 7, 2018, Magistrate Judge Jones issued a Report and Recommendation
and recommended that Respondent’s Motion to Dismiss be denied and that Petitioner’s
Petition instead be summarily dismissed for failure to state a cognizable habeas claim.
See R. & R. (Doc. No. 14). Petitioner was advised of his right to object, see id. at 4, and
the matter came before the Honorable Lee R. West, the then-assigned District Judge, on
Petitioner’s Objection to the Report and Recommendation, see Doc. No. 16, and his
Motion for Leave to File an Amended Petition pursuant to Federal Rule of Civil Procedure
15, see Doc. 15.
After de novo review, Judge West concurred with Magistrate Judge Jones’ finding
that Respondent’s request for dismissal based on the timeliness of the Petition lacked
merit. As Magistrate Judge Jones had explained, Petitioner “could not have known the
factual predicate for . . . [his] claim,” R. & R. at 3; see 28 U.S.C. § 2244(d)(1)(D)—“that
the OCCA unreasonably found that the claims raised in his fourth application for postconviction relief were procedurally barred,” R. & R. at 3—“until the OCCA issued the
relevant order on March 13, 2018.” Id.
Judge West likewise agreed with Magistrate Judge Jones’ determination that
Petitioner’s claim, as set forth in his Petition and which challenged only the procedural
bar applied by the OCCA and thus “focuse[d] only on the State’s post-conviction remedy
and not the judgment which provides the basis for his incarceration,” “state[d] no

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cognizable federal habeas claim.” Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998);
accord Blackwell v. Hansen, 722 F. App’x 826, 831 (10th Cir. 2018).
Accordingly, on August 22, 2018, the Court adopted the Report and
Recommendation and denied Respondent’s Motion to Dismiss. See Order of Aug. 22,
2018 (Doc. No. 18) (West, J.). In accord with Magistrate Judge Jones’ findings, Judge
West also determined that even though the claim asserted in the Petition was timely, “‘it
plainly appears from th[at] . . . [pleading, see Doc. 1,] and [the] . . . attached exhibit[, see
Doc. 1-1,] that . . . [Wilson] is not entitled to relief,’ Rule 4, Rules Governing Section
2254 Cases in the United States District Court,” and dismissed the Petition. Id. at 6
(alterations and omissions in original). Judge West further found, however, that the matter
should be re-referred to Magistrate Judge Jones so that he could consider Petitioner’s
Motion for Leave to File an Amended Petition and Respondent’s Objection to that motion
(Doc. No. 17).6 See id.
DISCUSSION
On September 4, 2018, Magistrate Judge Jones issued a Second Report and
Recommendation that addressed Petitioner’s request to amend. See Second R. & R. (Doc.
No. 19). Petitioner and Respondent were advised of the right to object to Magistrate Judge
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In his Objection to the Report and Recommendation, Petitioner argued that amendment
as he had proposed will “cure the framing of the proposition and clearly set forth what
was attempted to be set forth in the [o]riginal Petition.” Pet’r’s Obj. to R. & R. at 2.
Magistrate Judge Jones had noted in the Report and Recommendation that Petitioner had
“argue[d], generally, the merits of his post-conviction claims,” R. & R. at 2 n.3, and that
Respondent himself had focused on those claims in his Motion to Dismiss, see id. at 3;
Magistrate Judge Jones determined, however, that Petitioner had “not actually raise[d]
those claims as independent grounds for habeas relief.” Id. at 2 n.3.
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Jones’ findings and recommendation, see id. at 5, and the matter now comes before the
Court on Respondent’s Objection to the Second Report and Recommendation. See
Resp’t’s Obj. (Doc. No. 22).
Magistrate Judge Jones has recommended that the Court deny Petitioner’s Motion
for Leave to File an Amended Petition to the extent Petitioner has sought permission to
file the amended pleading attached thereto. He determined that it would be futile for
Petitioner to file the pleading as drafted. See Second R. & R. at 3-5; Doc. No. 15-1. Upon
de novo review, the Court concurs.
Magistrate Judge Jones, however, has also recommended that Petitioner be granted
one final opportunity to amend. Despite Respondent’s objection, the Court agrees.
Federal Rule of Civil Procedure 15(a)(2) requires that leave to amend be “freely give[n] .
. . when justice so requires.” See also Fed. R. Civ. P. 81(a)(4). Because the Court finds
that such “mandate [should] . . . be heeded,” Foman v. Davis, 371 U.S. 178, 182 (1962),
in this instance, the Court:
(1) ADOPTS the Second Report and Recommendation (Doc. No. 19) filed on
September 4, 2018;
(2) DENIES Petitioner’s Motion for Leave to File an Amended Petition (Doc. No.
15);
(3) ORDERS that Petitioner may, within 21 days of this Order, submit a new
motion for leave to file an amended petition along with a proposed pleading addressing
the deficiencies identified by Magistrate Judge Jones; and

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(4) RE-REFERS this matter to Magistrate Judge Jones so that he may conduct
further proceedings once Petitioner has filed his amended petition.
IT IS SO ORDERED this 19th day of December, 2018.

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