Opinion
CIV-20-240-J
02-11-2021
BRANDON CHRISTIAN, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
SHONT. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Brandon Christian, a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court conviction. (ECF Nos. 1 & 18). Mr. Crow has filed his Response to Petition for Writ of Habeas Corpus and Petitioner has filed a Reply (ECF Nos. 23 & 42). Petitioner has also filed a Motion for Evidentiary Hearing. (ECF No. 12). For the reasons set forth below, it is recommended that the Court DENY the Petition and the Motion for Evidentiary Hearing.
I. PROCEDURAL BACKGROUND
On January 12, 2015, in Garvin County District Court, Petitioner entered a plea of nolo contendere on a charge of second-degree murder for the death of his one-time girlfriend, Desiree Hill. Transcript of Proceedings, State of Oklahoma v. Christian, No. CF-2013-191 (Garvin Co. Dist. Ct. Jan. 12, 2015) (Plea Hearing); Original Record, State of Oklahoma v. Christian, No. CF-2013-191 (Garvin Co. Dist. Ct.) 262-269 (O.R.). At the plea hearing, Mr. Christian was represented by Arlan Bullard (“trial counsel”). See Plea Hearing.
On February 20, 2015, the parties appeared before the trial court on Petitioner's motion to withdraw his plea. (O.R. at 290). Attorney Larry Monard (“conflict counsel”) was appointed as Mr. Christian's attorney and filed a motion to withdraw on his behalf. (O.R. 311-312). On March 18, 2015, the trial court held a hearing and denied the motion. Transcript of Proceedings, State of Oklahoma v. Christian, No. CF-2013-191 (Garvin Co. Dist. Ct. Mar. 18, 2015) (Hearing on First Motion to Withdraw); (O.R. 396-397). At a hearing on March 30, 2015, the trial court sentenced Mr. Christian to life in prison. Transcript of Sentencing Proceedings, State of Oklahoma v. Christian, No. CF-2015-131 (Garvin Co. Dist. Ct. Mar. 30, 2015).
On April 6, 2015, Mr. Monard filed a second motion to withdraw the plea. (O.R. 391-392). On May 1, 2015, the trial court held a hearing, considered all evidence from the prior hearing, and denied the motion. Transcript of Proceedings, State of Oklahoma v. Christian, No. CF-2013-191 (Garvin Co. Dist. Ct. May 1, 2015) (Hearing on Second Motion to Withdraw). On May 11, 2015, the trial court entered Judgment and Sentence. (ECF No. 23-1).
On October 30, 2015, Petitioner filed a direct appeal. (ECF No. 23-2). On March 2, 2016, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. (ECF No. 23-4). On February 17, 2017, Petitioner filed an Application for Post-Conviction Relief in the Garvin County District Court. (ECF No. 23-5). The district court denied the application and Petitioner filed an appeal. (ECF No. 23-6). The OCCA remanded the matter back to the Garvin County District Court for entry of a proper order. (ECF No. 23-7). The district court complied and denied relief. (ECF No. 23-8). On appeal, the OCCA affirmed the district court's denial. (ECF No. 23-10).
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=garvinνmber=CF-2013-191; United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
In the habeas Petition and Supplement, Mr. Christian raises four grounds for relief:
1. The plea was not entered knowingly and voluntarily because the trial court failed to: (1) ensure that a sufficient factual basis existed for the plea and (2) advise Mr. Christian of the proper statutory range of punishment;
2. Mr. Bullard rendered ineffective assistance by allowing Petitioner to enter a plea when counsel was aware of underlying issues with Petitioner's mental health;
3. The trial court erred in failing to allow Petitioner to withdraw the plea; and
4. The trial court denied Petitioner the right to a competency hearing.(ECF Nos. 1:3, 4, 5; 18).
II. STANDARD OF REVIEW UNDER THE AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) governs this Court's power to grant habeas corpus relief. Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir. 2010) (citing Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007)). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
For claims adjudicated on the merits, “this [C]ourt may grant … habeas [relief] only if the [OCCA's] decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' ” Hanson v. Sherrod, 797 F.3d 810, 8214 (10th Cir. 2015) (citation omitted)). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be ‘difficult to meet.' ” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). The deference embodied in § 2254(d) “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. at 102-103 (citation omitted).
This Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson, 797 F.3d at 824. “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]” Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, the Court then considers whether the state court decision was contrary to or an unreasonable application of clearly established federal law. See Owens, 792 F.3d at 1242.
“A state court's decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.' ” Id. (citations omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Id. (citation omitted).
The “ ‘unreasonable application' prong requires [the petitioner to prove] that the state court ‘identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.' ” Id. (citations and internal brackets omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.' ” Id. (citations omitted, emphasis in original). So, to qualify for habeas relief on this prong, a petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1242-43 (citation omitted). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In sum, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported … the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. at 101-102. Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Id. at 102.
Finally, a federal habeas court must “accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' ” Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). In other words, when the state appellate court makes a factual finding, the Court presumes the determination to be correct; a petition can only rebut this presumption with clear and convincing evidence. See Id. at 2199-22; see also 28 U.S.C. § 2254(e)(1).
III. GROUND ONE
In Ground One, Petitioner alleges that he did not enter the plea knowingly and voluntarily because the trial court failed to: (1) ensure that a sufficient factual basis existed for the plea and (2) advise Mr. Christian regarding the proper statutory range of punishment. (ECF Nos. 1:3; 42:3-5). The OCCA rejected these claims on direct appeal, stating: “ample factual basis in the record supported Christian's plea, and he was correctly informed of the range of punishment under 21 O.S.2011, § 51.1(A)(2).” (ECF No. 23-4:2). The Court should conclude: (1) Petitioner's “factual basis” allegation does not present a cognizable claim for habeas relief and (2) the OCCA's determination on the range of punishment claim was not contrary to, nor involved an unreasonable application of, clearly established Federal law.
A. Petitioner's Factual Basis Claim
As stated, Petitioner entered a plea of nolo contendere to the charge of second-degree murder. (O.R. 262-269). On the “Plea of Nolo Contendere Summary of Facts” form, an offer of proof or factual basis for the plea was absent. See O.R. 262-269. However, “courts are constitutionally required to establish the factual basis of the plea only if the defendant claims factual innocence when he pleads guilty.” Washington v. Workman, 376 Fed.Appx. 823, 825 (10th Cir. 2010) (citing North Carolina v. Alford, 400 U.S. at 25, 37-38 (1970)). Petitioner did not proclaim his factual innocence when he entered his plea. See Plea Hearing. At the hearing, Mr. Christian stated that he understood he was charged with murder in the second degree, after a former felony conviction, and that the range of punishment was 20 years to a maximum of life in prison. (Plea Hearing at 13, 17-18, 22). Petitioner then unequivocally stated that he pled no contest to the charge. (Plea Hearing at 22). Again, at no time did Mr. Christian contend that he was factually innocent of the charge. See Plea Hearing. Thus, the Constitution did not require the district court to establish a factual basis for Petitioner's plea before entering a judgment of conviction. Simply put, this portion of Ground One “does not state a constitutional violation.” Washington v. Workman, 376 Fed.Appx. at 825; Green v. Koerner, 312 Fed.Appx. 105, 108 (10th Cir. 2009) (“Only when a defendant proclaims his innocence while pleading guilty have federal courts required a judicial finding of some factual basis for the plea as an essential part of the constitutionally required finding that the plea was voluntary.”) (citation omitted); Farley v. Miller, No. CIV-07-1036-C, 2009 WL 395206, at *10 (W.D. Okla. Feb. 17, 2009) (“[G]iven that Petitioner did not make a claim of factual innocence during his plea hearing, there is no federal constitutional issue concerning the factual basis of his guilty plea.”). As a result, the Court should conclude that Petitioner is not entitled to habeas relief on the allegations that the trial court failed to establish a factual basis for the plea.
B. Petitioner's Range of Punishment Claim
Prior to entering the plea, the trial court informed Petitioner that the statutory range of punishment for second-degree murder, after a former conviction, was 20 years to life imprisonment. (Plea Hearing 17-18). In a sub-part of Ground One, Mr. Christian alleges that the trial court did not inform Petitioner of the “proper statutory range of punishment.” (ECF Nos. 1:4; 42:5). The OCCA rejected this claim on direct appeal, and the Court should conclude that the OCCA's conclusion was reasonable.
(ECF No. 23-4:2).
Under Oklahoma law, “[a] person who is convicted of or pleads guilty or nolo contendere to murder in the second degree shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for not less than ten (10) years nor more than life.” 21 O.S. § 701.9(B). Oklahoma law also provides:
[E]very person who, having been convicted of any felony, commits any crime after such conviction, within ten (10) years of the date following the completion of the execution of the sentence, and against whom the district attorney seeks to enhance punishment pursuant to this section of law, is punishable therefor as follows:
If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the custody of the Department of Corrections for any term exceeding five (5) years, such person is punishable by imprisonment in the custody of the Department of Corrections for a term in the range of twice the minimum term for a first time offender to life imprisonment.21 O.S. § 51.1 (A)(2).
At the plea hearing, Petitioner acknowledged that the charge was second-degree murder and that he had been convicted of aggravated assault and battery in 2010. (Plea Hearing 13-14). Petitioner admits the prior felony conviction in his Reply Brief. See ECF No. 42:5. Because the second-degree murder fell within 10 years of the prior conviction, and the minimum punishment for a first-time, second-degree murder conviction exceeded five years, Mr. Christian was “punishable by imprisonment … for a term in the range of twice the minimum term for a first time offender to life imprisonment.” See supra, 21 O.S. § 51.1 (A)(2) (emphasis added). Thus, the trial court properly instructed Petitioner of the proper statutory range of punishment on the second-degree murder charge and the Court should conclude that Petitioner is not entitled to habeas relief on this claim.
IV. GROUND THREE
In Ground Three, Mr. Christian alleges that the trial court erred in failing to allow him to withdraw the plea based on a mental infirmity. (ECF Nos. 1:5; 42:11-12). The Court should conclude that habeas relief is not warranted on Ground Three.
A. Clearly Established Law
The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. See Boykin v. Alabama, 395 U.S. 238, 242 (1969). “On review, a federal court may set aside a state court guilty plea only for failure to satisfy due process.” Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996) (citation omitted). “The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citation omitted). A federal court will uphold a state court guilty plea if the circumstances demonstrate that the defendant understood the nature and the consequences of the charges against him and that the defendant voluntarily chose to plead guilty. See Boykin, 395 U.S. at 242-244.
B. No Habeas Relief on Ground Three
Petitioner alleges that the plea was constitutionally invalid because he “lacked the mental faculties to truly understand the questions and answers given for his plea … [and] had already been found incompetent in a prior proceeding.” (ECF No. 1:5). The OCCA rejected this claim as raised in Proposition II on direct appeal, stating:
We find in Proposition II that Christian's plea was knowing and voluntary, and the trial court had jurisdiction to accept it. Christian claims his mental health and cognitive abilities prevented him from knowingly and voluntarily entering his plea. Although there is some evidence in the record regarding his mental health and cognitive abilities, Christian relies on medical records regarding mental health treatment he submitted as Exhibit E of his application for evidentiary hearing. This Court will not consider those records as substantive evidence in support of this proposition. The record does not support Christian's claims that he did not understand the plea process and that he thought he was agreeing to a bench trial. The record confirms Christian's claims that he had been prescribed anxiety medication, but was not taking it, at the time of his plea; the record also shows that Christian had been previously treated at several state mental health facilities. However, none of that information supports a conclusion that Christian failed to understand what he was doing and could not enter a voluntary plea. Contrary to Christian's suggestion otherwise, Christian's performance on the stand would amply support any finding that he was perpetrating a fraud on the court, had such a finding been made.(ECF No. 23-4:3). The Court should conclude that the OCCA's determination was not contrary to, nor an unreasonable application of, Supreme Court precedent, and habeas relief is not warranted.
In the Petition, Mr. Christian states that he did not raise this issue on direct appeal, but instead waited until post-conviction proceedings to do so. See ECF No. 1:5. The undersigned disagrees. On direct appeal, Petitioner stated that he should be allowed to withdraw the plea, because “[g]iven Mr. Christian's mental health and cognitive abilities, it would not have been possible for him to enter into his plea knowingly and voluntarily.” (ECF No. 23-2:21). Mr. Christian's post-conviction claims were limited to allegations that trial and appellate counsel had rendered ineffective assistance. See ECF Nos. 23-6; 23-8; 23-10.
The “conviction of an accused person while he is legally incompetent violates due process.” Pate v. Robinson, 383 U.S. 375, 378 (1966). “[T]he standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.” Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995) (citation omitted). “The presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to knowingly and voluntarily enter a plea as well as aid and assist in his own defense.” Id. “In a federal habeas proceeding stemming from a state court conviction, the burden is on the petitioner to prove, by a preponderance of the evidence, that he was incompetent in fact at the time of the plea.” Id. (citation omitted).
The “Plea of Nolo Contendere Summary of Facts” form asked if Mr. Christian had: (1) been prescribed medication that he should be taking, but was not, and for what purpose had the medication been prescribed and (2) ever been treated by a doctor or health professional for mental illness. (O.R. 263). To the first question, Petitioner circled “yes” and stated that he had been prescribed anxiety medication which he should be taking, but he was not taking it because it made him sick. (O.R. 263). Petitioner confirmed this at the plea hearing. (Plea Hearing 10). To the second question, Petitioner circled “yes” and stated that he had been treated by a medical professional for anxiety and insomnia. (O.R. 263).
At the plea hearing, the Court expounded on the two questions. First, the Court asked Mr. Christian if he was currently taking any medication which would affect his ability to understand the proceedings. (Plea Hearing 10). Petitioner answered, “No, Your Honor.” (Plea Hearing 10). The Court then acknowledged Petitioner's “anxiety issues” and the fact that he had not taken his anxiety medication, and then specifically asked whether Petitioner was able to concentrate and focus and understand the proceedings. (Plea Hearing 11). Twice Mr. Christian replied affirmatively. (Plea Hearing 11). Second, the Court acknowledged Petitioner's statement that had been treated by a medical professional for anxiety and insomnia, and again asked Mr. Christian whether he was “able to continue today with this plea, ” and if he “underst[ood] the nature and consequences of th[e] proceeding.” (Plea Hearing 12). To both questions, Petitioner replied, “Yes, Your Honor.” (Plea Hearing 12).
At the plea hearing, and on the Nolo Contendere Summary of Facts Form, Petitioner acknowledged:
1. he understood the nature of the charge and the range of punishment for the same;
2. he read and understood the form;
3. he had received a copy of the Information and read its allegations;
4. he understood the nature and consequences of the plea proceeding;
5. he understood and agreed that by entering a plea, he was giving up his rights to a trial;
6. he had not been forced, abused, mistreated, or promised anything by anyone to enter the plea;
7. he was satisfied with his attorney's representation in the case; and
8. he was not under the influence of medication or substances that might affect his competency.(Plea Hearing 9-25; O.R. 262-269).
At the March 18, 2015 motion to withdraw hearing, Petitioner testified that when he was involved with the victim, he had received mental health treatment at Taliaferro Mental Health Facility. (Hearing on First Motion to Withdraw 27).
Additionally, Petitioner's sister, Toni Goforth, testified that some point prior to 2010, Mr. Christian had been institutionalized at the Oklahoma Forensic Center in Vinita, Oklahoma for a “couple of months” and that he had received treatment at Griffin Memorial Hospital in Norman, Oklahoma, and at Taliaferro. (Hearing on First Motion to Withdraw 73-75). Ms. Goforth also stated that within the “last couple of years, ” Petitioner received outpatient treatment from Pauls Valley Mental Services. (Hearing on First Motion to Withdraw 75). The trial judge considered the evidence of Petitioner's mental health, made a finding that Petitioner failed to meet his burden of showing that he had not entered a knowing and voluntary plea, and denied the motion to withdraw. (Hearing on First Motion to Withdraw 108-110).
Based on Petitioner's statements, the trial court made factual determinations at the plea hearing and the March 18, 2015 hearing that Mr. Christian: (1) understood the nature, purpose and consequences of the proceeding, (2) was competent for purposes of the plea hearing, and (3) entered a knowing and voluntary plea. See Plea Hearing 28; Hearing on First Motion to Withdraw 108-109. As discussed above, those findings of fact are presumed correct in the absence of clear and convincing evidence otherwise. 28 U.S.C. § 2254(e)(1). Petitioner has attempted to meet this burden by arguing, after the fact, that he suffered from mental illness at the time of the plea. The OCCA rejected this argument and the Court should conclude that the OCCA's determination was reasonable and habeas relief is not warranted on Ground Three. See Payne v. Dowling, 790 Fed.Appx. 884, 889 (10th Cir. 2019) (rejecting habeas petitioner's allegations of mental incompetency at the plea hearing, stating that “no evidence exist[ed] other than Petitioner's after-the-fact assertion that his medication affected his competency to enter the plea, ” but noting “[t]hat assertion, however, is contradicted by Petitioner's own statements to the trial court and the trial court's and OCCA's factual findings.”).
V. GROUNDS TWO AND FOUR
In Ground Two, Mr. Christian alleges that Mr. Bullard rendered ineffective assistance by allowing Petitioner to enter a plea when counsel had “clearly been informed of Petitioners [sic] mental health history and his inability to even remotely assist in his defense[.]” (ECF No. 1:4). In Ground Four, Petitioner alleges a procedural due process violation based on the trial court's failure to hold a competency hearing. (ECF No. 18). The Court should conclude that: (1) Ground Two is procedurally barred and (2) Ground Four is subject to an anticipatory procedural bar.
A. Exhaustion as a Preliminary Consideration
The exhaustion doctrine, a matter of comity which has long been a part of habeas corpus jurisprudence, requires the court to consider in the first instance whether petitioner has presented his grounds for relief to the OCCA. “[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); see Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) (“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
“Exhaustion requires that the claim be ‘fairly presented' to the state court, which means that the petitioner has raised the ‘substance' of the federal claim in state court.” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (citation omitted). This means “a federal habeas petitioner [must] provide the state courts with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
The exhaustion doctrine is set forth in 28 U.S.C. § 2254(b). Section 2254(b)(1)(A) prohibits the court from granting habeas relief in the absence of exhaustion (although Section 2254(b)(1)(B) sets forth two limited exceptions to this rule), but Section 2254(b)(2) expressly authorizes the court to deny habeas relief “notwithstanding the failure of the applicant to exhaust the Remedies available in the courts of the State.”
B. Procedural Bar/Anticipatory Procedural Bar
Beyond the issue of exhaustion, the Court must also examine how the OCCA adjudicated each of a petitioner's grounds for relief, i.e., whether the OCCA addressed the merits of a petitioner's grounds or declined to consider them based on a state procedural rule. “It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.' ” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). “The doctrine applies to bar federal habeas [relief] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) (“When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them.”). “Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted).
C. Ground Two is Procedurally Barred
In Ground Two, Petitioner alleges that his trial counsel “was ineffective in the entirety of his plea proceedings.” (ECF No. 1:4). In support of this claim, Mr. Christian states:
Council [sic] had clearly been informed of Petitioners [sic] mental health history and his inability to even remotely assist in his defense, especially in regards to basic legal matters. Had this been taken into account, Petitioner, who thought he was pleading to a non-jury trial based off of his council's [sic] advice, should never had been allowed to plead no contest and in fact asserts that he would have taken his case to a jury trial had he known the alternative.(ECF No. 1:4). To fully grasp Petitioner's ineffective assistance of counsel claim, and to discern whether it is exhausted and/or procedurally barred, the Court must examine Mr. Christian's allegations of ineffective assistance of counsel as presented in state court.
On direct appeal, Petitioner alleged, in part, that Mr. Bullard rendered ineffective assistance of counsel by failing to investigate Petitioner's mental health prior to the plea hearing. (ECF No. 23-2:36-37). In connection with this claim, Petitioner filed an Application for an Evidentiary Hearing in an effort to present evidence of his mental incompetence. (ECF No. 23-3). The OCCA denied the substantive claim and denied the motion for evidentiary hearing. See ECF No. 23-4:3-6. In the Petition, Mr. Christian admits that Ground Two was not raised on direct appeal. See ECF No. 1:4. Instead, Petitioner states that he asserted the basis for Ground Two for the first time in his post-conviction proceedings. See ECF No. 1:4.
Mr. Christian also alleged: (1) trial counsel and conflict counsel failed to ask for the recusal of the trial judge prior to the plea hearing, based on an alleged judicial bias and (2) trial counsel failed to raise various objections during the plea proceeding. (ECF No. 23-2:37-39). But these allegations do not relate to Plaintiff's claim regarding trial counsel's knowledge of Petitioner's competency in relation to his ability to understand the plea, as presented in Ground Two.
In his Application for Post-Conviction Relief to the Garvin County District Court, Mr. Christian argued that “Mr. Bullard clearly had been informed of petitioners [sic] mental health history, and through proper channels would've had sufficient documentation as to petitioner [sic] inability to fully assist in his defense-even-remotely as to basic legal matters (a) layman could understand/comprehend.” (ECF No. 23-5:3). This statement closely resembles Petitioner's factual statement in support of Ground Two. See supra. Petitioner went on to state that counsel: (1) should have moved the court for a competency hearing and (2) “tricked the petitioner into thinking the (NO CONTEST) plea wasn't (a) guilty plea.” (ECF No. 23-5:3). In Ground Two, however, the Petition is silent regarding Mr. Christian's belief that trial counsel was ineffective for failing to seek a competency hearing or tricking him into entering a plea. See ECF No. 1:4.
In denying the Application for Post-Conviction Relief, the Garvin County District Court stated that the claim had already been ruled on by the OCCA in the summary opinion denying certiorari. See ECF No. 23-8:2. In his post-conviction appeal to the OCCA, however, Petitioner clarified that the propositions of error had not been previously raised, and that his claim regarding trial counsel's ineffectiveness, as it related to Petitioner's competency and as asserted in his post-conviction appeal, was that “trial counsel was ineffective for failing to move for (a) competency hearing.” (ECF No. 23-9:5). The OCCA affirmed the denial of post-conviction relief, stating:
Mr. Christian also stated that: (1) trial counsel was ineffective for failing to move for an expert witness to support a particular defense which would negate Petitioner's guilt and (2) based on an offer of proof from the Medical Examiner regarding the victim's cause of death, counsel was ineffective in failing to advise Petitioner to plead guilty. (ECF No. 23-9:5). But these allegations do not relate to Plaintiff's claim regarding trial counsel's knowledge of Petitioner's competency in relation to his ability to understand the plea, as presented in Ground Two.
Concerning the challenges to trial counsel's representation, we agree with the district court; these claims either were, or could have been, presented on direct appeal. As such, they will not be considered on post-conviction because they are either waived or res judicata.(ECF No. 23-10:2) (emphasis added).
A clear reading of the certiorari brief and the Application for Evidentiary Hearing on the issue indicates that Petitioner's ineffective assistance of counsel claim on direct appeal was his claim that Mr. Bullard failed to fully investigate and present evidence of Petitioner's incompetence at the plea hearing. See supra. Based on Petitioner's own statements in the habeas Petition and in the post-conviction appeal, Mr. Christian did not raise the substantive basis for Ground Two until post-conviction proceedings- i.e.-the ineffectiveness claim as raised on direct appeal was not the basis of Ground Two in the habeas Petition. See supra. Thus, the Court finds it incongruous that in his Reply Brief, Mr. Christian attempts to convince the court that habeas Ground Two concerns the “failure to investigate” issue as asserted on direct appeal. See ECF No. 5-11. For the foregoing reasons, the Court should conclude otherwise and find that the ineffectiveness claim in Ground Two was initially presented in post-conviction proceedings. The OCCA found the claim to be waived and the Tenth Circuit Court of Appeals has recognized the a finding of waiver to be an “independent and adequate ground” barring habeas review. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (finding Oklahoma's doctrine of waiver to be independent and adequate).
As stated, a petitioner may overcome a procedural bar if he can “demonstrate cause for the default and actual prejudice[.]” Coleman, 501 U.S. at 750. To show “cause, ” Mr. Christian must demonstrate that an “objective factor external to the defense” prevented him from complying with the state procedural rule. Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Mr. Christian alleges his mental incompetence as “cause” to excuse the procedural default. See ECF No. 42:13 (“[b]ecause of him being incompetent, his claim is exempt from the procedural bar rule.” (ECF No. 42:13). In support of his claim of incompetence, Petitioner points to evidence of:
Although Petitioner presents his “cause” argument in response to Mr. Crow's allegations of procedural default on Ground Four, the Court should also construe the argument for “cause” in relation to the procedural default on Ground Two as well.
• mental health treatment at Griffin Memorial Hospital in Norman, Oklahoma;
• mental health treatment at the Taliaferro Community Mental Health Center in Lawton, Oklahoma;
• records from the Department of Corrections which showed that Petitioner had been diagnosed with a depressive mood disorder and personality disorder; and
• medications which he claims he required but “was not receiving or taking” at the time he entered his plea.(ECF No. 42:8-9).
As discussed, supra, § V, in the “Plea of Nolo Contendere Summary of Facts” form, Mr. Christian stated that he had: (1) been prescribed anxiety medication which he should be taking, but he was not taking, because it made him sick and (2) he had been treated by a medical professional for anxiety and insomnia. (O.R. 263).
At the plea hearing, the Court acknowledged Petitioner's “anxiety issues” and the fact that he had not taken his anxiety medication, and then specifically asked whether Petitioner was able to concentrate and focus and understand the proceedings. (Plea Hearing 11). Twice Mr. Christian replied affirmatively. (Plea Hearing 11). Mr. Christian never stated that he was being treated, at that time, for any mental health issues. See Plea Hearing. When the Court acknowledged Petitioner's statement that had been treated for anxiety and insomnia, and again asked Mr. Christian whether he was “able to continue today with this plea, ” and if he “underst[ood] the nature and consequences of th[e] proceeding, ” Petitioner replied, “Yes, Your Honor” to both inquiries. (Plea Hearing 12).
Additionally, at the March 18, 2015 motion to withdraw hearing, Petitioner testified regarding mental health treatment at Taliaferro Mental Health Facility and the Court heard testimony from Petitioner's sister regarding Mr. Christian's mental health treatment at the Oklahoma Forensic Center in Vinita, Oklahoma; Griffin Memorial Hospital in Norman, Oklahoma; and Pauls Valley Mental Services in Pauls Valley, Oklahoma.
Based on this evidence, the trial court made factual determinations at the plea hearing and the March 18, 2015 hearing that Mr. Christian was competent for purposes of the plea hearing. See Plea Hearing 28; Hearing on First Motion to Withdraw 108-109. These findings of fact are presumed correct in the absence of clear and convincing evidence otherwise. 28 U.S.C. § 2254(e)(1). As discussed, Petitioner attempted to overcome the trial court's findings by arguing, after the fact, that he suffered from mental illness at the time of the plea-the same argument he presents in his Reply Brief as “cause” to excuse the procedural default. But for the same reasons the Court should deny habeas relief on Ground Three, the Court should conclude that Petitioner's allegations of incompetence at the time of the plea, are insufficient to constitute “cause” to overcome the procedural default. Because Petitioner has not shown “cause, ” the Court need not address the issue of prejudice. See Rodriguez v. Maynard, 948 F.2d 684, 688 (10th Cir. 1991).
Because Mr. Christian offers no basis for cause and prejudice to overcome the procedural default on Ground Two, he can only overcome the procedural bar if he is able to demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. To do so, Petitioner must make a “ ‘credible' showing of actual innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). That is, he must “ ‘support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.' ” Id. at 1232 (citation omitted). “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (citation omitted). But Mr. Christian offers no argument which would support a claim that a fundamental miscarriage of justice had occurred. See ECF Nos. 1 & 42.
Because Petitioner has neither argued “cause and prejudice” to overcome the procedural default, nor made a credible showing that a fundamental miscarriage of justice had occurred, the Court should conclude that Ground Two is procedurally barred from habeas review. See Richie v. Sirmons, 563 F.Supp.2d 1250, 1313 (N.D. Okla. May 21, 2008) (finding that the district court was procedurally barred from considering the merits of a claim that had not been exhausted in state court when the petitioner offered neither “an argument for cause and prejudice, nor … a fundamental miscarriage of justice argument. ”).
D. Ground Four is Subject to an Anticipatory Procedural Bar
In Ground Four, Mr. Christian alleges a procedural due process violation based on the trial court's failure to hold a hearing on Petitioner's competency. (ECF No. 18). Mr. Christian did not present Ground Four to the OCCA in either his direct appeal or his post-conviction appeal. See ECF Nos. 23-2 & 23-6. To be sure, in his post-conviction appeal, Mr. Christian alleged that his trial counsel, Mr. Bullard, was ineffective for failing to request a competency hearing on behalf of Petitioner. See ECF No. 23-9:5. But a claim of ineffective assistance of counsel and a procedural due process competency claim present distinct issues, adjudicated under differing legal standards. See generally, Strickland v. Washington, 466 U.S. 668 (1984) (standard of review for claims alleging ineffective assistance of counsel); Drope v. Missouri, 420 U.S. 162 (1975) (standard of review for procedural due process competency claim). Thus, the Court should conclude that Ground Four is unexhausted.
To exhaust Ground Four, Petitioner would have to return to state court and file a second post-conviction application. However, if Petitioner did so, the OCCA would likely find that the claim was procedurally barred under a theory of waiver. See 22 O.S. § 1086 (“Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application[.]”). As stated, waiver is considered an “independent and adequate ground” barring habeas review. See supra, Thacker v. Workman. And in circumstances similar to the instant case, the Tenth Circuit Court of Appeals has applied an anticipatory procedural bar to prevent habeas review. See Grant v. Royal, 886 F.3d 874, 893 (10th Cir. 2018) (applying anticipatory procedural bar to procedural competency claim, stating: “if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal.”).
As stated, Mr. Christian can overcome the anticipatory procedural bar upon a showing of “cause and prejudice” or a “fundamental miscarriage of justice.” See supra. As “cause, ” Petitioner argues: (1) his incompetence and (2) the State's failure to provide him with post-conviction counsel. (ECF No. 42:13). As discussed, Mr. Christian's allegations of his incompetence as “cause” to overcome the procedural default are insufficient. See supra. Likewise, the Court should reject any theory that the State's failure to appoint Petitioner counsel for his post-conviction proceedings constitutes sufficient “cause.” See Davila v. Davis, 137 S.Ct. 2058, 2062 (2017) (“Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default.”) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)). Finally, Mr. Christian offers no argument that a fundamental miscarriage of justice had occurred with respect to Ground Four. See ECF Nos. 1, 18, 42. As a result, the Court should find that Ground Four is procedurally barred from consideration on habeas review. See Grant v. Royal, 886 F.3d at 902 (“Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim.”).
VI. PETITIONER'S MOTION FOR EVIDENTIARY HEARING
Mr. Christian has filed a Motion for an Evidentiary Hearing. (ECF No. 12). As a basis for the motion and in support of his claim of diligence in the state court, Petitioner attaches his “Application for Evidentiary Hearing on Sixth Amendment Claim” that he presented in the OCCA in connection with his direct appeal brief. See ECF No. 12-1. On direct appeal, Petitioner had alleged that his trial counsel, Mr. Bullard, was ineffective for failing to investigate Petitioner's mental health. See ECF No. 23-2:36-37. But as discussed, Petitioner has not raised a “failure to investigate” claim in his habeas Petition. See supra. As a result, the Court should deny the Motion for Evidentiary Hearing as it is based on a claim not currently before the Court.
VII. RECOMMENDATION
It is recommended that the Court DENY Mr. Christian's Petition for Writ of Habeas Corpus and Motion for Evidentiary Hearing (ECF No. 12).
VIII. NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by March 1, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IX. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.