Opinion
No. CIV-19-374-R
03-27-2020
DAVID LEE DANIELS II, Petitioner, v. JANET DOWLING, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner David Lee Daniels II, a state prisoner, has filed an Amended and Supplemented Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court convictions. (ECF No. 14). Respondent has filed her Response to Petition for writ of Habeas Corpus (ECF No. 19). For the reasons set forth below, it is recommended that the Court DENY the Petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2011, in response to a 911 call reporting a burglary, Oklahoma City Police Officer John Stacey apprehended Mr. Daniels running away from the home of Jennifer Payne. Transcript of Jury Trial Proceedings, Vol. II, 28-30, 49-54, State of Oklahoma v. Daniels, Case No. CF-2011-1962 (Okla. Co. Dist. Ct. Nov. 4, 2014) (Trial TR. Vol. II). On April 7, 2011, Petitioner was charged in Oklahoma County District Court Case No. CF-2011-1962 with four felony counts: first-degree burglary, two counts of concealing stolen property, and assault upon a peace officer. Post-Conviction Original Record, State of Oklahoma v. Daniels, Case No. CF-2011-1962; PC-2018-862 (Okla. Ct. Crim. App. Sept. 13, 2018) (O.R.).
Two Original Records were filed in the instant case—one which had been filed in Petitioner's direct appeal and one which had been filed in Petitioner's post-conviction proceedings. The latter, which spans 542 bates-stamped pages, is more complete and will be the record to which the undersigned refers.
Attorney Malcom Savage initially represented Petitioner, but withdrew from the case on November 26, 2012, the same day Mr. Daniels waived his right to preliminary hearing. (O.R. 37-39). Ultimately, Petitioner retained attorney Warren Plunk, who represented Mr. Daniels at trial. (O.R. 86). Prior to trial and while represented by Mr. Plunk, Petitioner rejected the State's plea offer of 20 years total incarceration on both counts. Transcript of Jury Trial Proceedings, Vol. I, 10-12, State of Oklahoma v. Daniels, Case No. CF-2011-1962 (Okla. Co. Dist. Ct. Nov. 3, 2014) (Trial TR. Vol. I).
At trial, Ms. Payne testified that while at home on the afternoon of March 29, 2011, two individuals kicked in her front door, causing her to hide in her bedroom closet and call 911. (Trial TR. Vol. II, 28-30). The State offered into evidence a recording of the 911 call which was played for the jury. (Trial TR. Vol. II, 30-31; State's Exhibit 1). At an evidentiary hearing in post-conviction proceedings, Mr. Plunk testified that he did not play the 911 call for petitioner and that it was possible that the first time he listened to the 911 call was when it was played during the jury trial. Evidentiary Hearing Transcript, State of Oklahoma v. Daniels, Case No. CF-2011-1962 (Okla. Co. Dist. Ct. Apr. 2, 2018) at 150.
On November 5, 2014, a jury convicted Mr. Daniels of: (1) first-degree burglary in violation of 21 O.S. § 1431 and (2) concealing stolen property, in violation of 21 O.S. 1713. (O.R. 213-216). During the second-stage sentencing proceedings, Mr. Plunk stipulated to Mr. Daniels' ten prior felony convictions, which were presented to the jury in an unredacted form. Transcript of Jury Trial Proceedings, Vol. III, 5-7, 16-25, State of Oklahoma v. Daniels, Case No. CF-2011-1962 (Okla. Co. Dist. Ct. Nov. 5, 2014) (Trial TR. Vol. III); State's Exhibits 3-12. Mr. Daniels was sentenced to 35 years on count one and 10 years on count two, to be served concurrently. (O.R. 190).
On August 7, 2015, Petitioner filed a direct appeal in the OCCA, which affirmed the conviction on May 6, 2016. (ECF Nos. 19-2 & 19-1). On May 5, 2017, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court. (ECF No. 19-4). The district court denied post-conviction relief and the OCCA affirmed the denial. (ECF Nos. 19-8 & 19-16).
On July 12, 2019, Mr. Daniels filed an amended and supplemented habeas petition in this court, asserting two grounds for relief. (ECF No. 14).
II. STANDARD OF REVIEW
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). "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, 814 (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." Richter, 562 U.S. at 102-103 (citation omitted).
On review of such claims, 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, this 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). 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." Richter, 562 U.S. at 101-02. 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 petitioner can only rebut this presumption with clear and convincing evidence. See id. at 2199-2200; see also 28 U.S.C. § 2254(e)(1).
If the state appellate court has not addressed the merits of a claim, the Court exercises its independent judgment. See Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) ("For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our 'independent judgment[.]' " (citation omitted). "And, even in the setting where we lack a state court merits determination, '[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.' " Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (citation omitted).
III. GROUND ONE
In Ground One, Mr. Daniels asserts three claims of ineffective assistance of counsel against his trial attorneys, Mr. Savage and Mr. Plunk. (ECF No. 14:5-17). The Court should deny habeas relief on Ground One.
A. Clearly Established Law
The burden on a habeas petitioner when pursuing an ineffective assistance of counsel claim is "particularly difficult." Johnson v. Carpenter, 918 F.3d 895, 900 (10th Cir. 2019). Utilizing deference under the AEDPA, a habeas petitioner is not entitled to relief on his claim of ineffective assistance of trial counsel unless he demonstrates that the OCCA's adjudication was contrary to, or an unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984).
A Strickland claim will be sustained only when: (1) "counsel made errors so serious that counsel was not functioning as 'counsel' " and (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. A defendant can establish the first prong by showing that counsel performed below the level expected from a reasonably competent attorney in criminal cases. Id. at 687-88. There is a "strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Id. at 688. In making this determination, a court must "judge ... [a] counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Moreover, review of counsel's performance must be highly deferential. "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
To establish the second prong, a defendant must show that counsel's deficient performance prejudiced the defense, to the extent that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. at 694. The likelihood of a different result "must be substantial, not just conceivable." Richter, 562 U.S. at 112. If a petitioner is unable to show either "deficient performance" or "sufficient prejudice," his claim of ineffective assistance fails. Strickland, 466 U.S. at 700. Thus, it is not always necessary to address both Strickland prongs.
B. Mr. Savage
Mr. Daniels argues that his first trial attorney, Mr. Savage, rendered ineffective assistance by advising him to waive his preliminary hearing, then immediately withdrawing from the case the same day. (ECF No. 14:11-14). According to Petitioner, "Mr. Savage's actions were unreasonable, unethical, prejudicial, and deprived Petitioner not only of his constitutional right to a preliminary hearing, but deprived him a critical stage of ... his legal proceedings." (ECF No. 14:13).
Petitioner raised this issue in his direct appeal, arguing that Mr. Savage's advice to Petitioner to waive his preliminary hearing "and then walk away from his client without any further legal responsibility" was "unconscionable and constituted ineffective assistance of counsel." (ECF No. 19-2:41). The OCCA rejected this claim, concluding only that no prejudice had occurred under Strickland. See ECF No. 19-1:4 ("While counsel were not perfect, Appellant has shown no reasonable probability that these identified acts or omissions, either individually or collectively, would have changed the outcome of the trial or sentencing.").
The OCCA acknowledged "the two pronged" test under Strickland, but only addressed the "prejudice" prong. See ECF No. 19-1:4.
In cases where a state court addresses only one prong of a multi-prong analysis, a federal habeas court may address the other prong(s) de novo. See Porter v. McCollum, 558 U.S. 30, 39, (2009) (per curiam) ("Because the state court did not decide whether [petitioner's] counsel was deficient, we review this element of [petitioner's] Strickland claim de novo."); see also Hooks v. Workman, 689 F.3d 1148, 1888 (10th Cir. 2012) ("in those instances where the OCCA did not address the performance prong of Strickland and we elect to do so, our review is de novo."). Here, the Court should conduct a de novo review of Strickland's "deficiency" prong and conclude that Petitioner has not established a constitutional violation.
In Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019) the Tenth Circuit noted " 'some possible tension between' the language in Richter requiring federal habeas courts to grant AEDPA deference to the adjudication of claims, not arguments, and 'the approach of Wiggins [v. Smith, 539 U.S. 10 (2003)] and its progeny where' we deny AEDPA deference to the 'portion of a Strickland claim ... not reached by a state court.' " Smith v. Sharp, 935 F.3d at 1072, n.2. Even so, the Court stated that "even after Richter, this court has denied AEDPA deference to the unadjudicated prejudice prongs of a broader Strickland habeas claim." Id.
Mr. Daniels argues that Mr. Savage was ineffective for advising him to waive his preliminary hearing and then immediately withdrawing from the case. See supra. But a court minute detailing the waiver stated that Mr. Daniels "waive[d] [his preliminary hearing] to lock in plea ... knowing Savage is allowed to [withdraw]." (O.R. 39). On the morning of trial, after hearing argument on Petitioner's motion to remand for a preliminary hearing, the trial judge noted the court minute and denied the motion, finding that Petitioner had properly waived his right to preliminary hearing. Trial TR. Vol. I, 9. There is nothing in the record which would indicate that Petitioner's decision to waive his preliminary hearing was the result of deficient performance by Mr. Savage. In fact, the record is clear that Petitioner waived his preliminary hearing in order to "lock in" a plea deal—actions which the trial court deemed sufficient when denying Petitioner's motion to remand. Thus, under a de novo review, the Court should conclude that Mr. Savage was not "deficient" under Strickland and habeas relief is not warranted.
C. Mr. Plunk
Petitioner argues that Mr. Plunk rendered ineffective assistance of counsel by:
• failing to ensure that the probation portion of prior felonies which were submitted during the second-stage of trial had been redacted and(ECF No. 14:6-11, 15-17). The OCCA rejected these claims on the merits, stating that Petitioner had failed to demonstrate prejudice under Strickland. Utilizing AEDPA deference, the Court should conclude that the OCCA's determinations were reasonable.
• failing to review the 911 call from the victim which led Petitioner to reject a plea offer.
1. Failure to Redact Portions of Prior Felony Convictions
As part of the second-stage sentencing proceedings, the State presented evidence that Mr. Daniels had been previously convicted of ten felonies. See State's Exhibits 3-12. Mr. Plunk did not request redaction of any of the Judgments and Sentences which outlined the prior felonies, and they were presented to the jury in their entirety. See id. Mr. Daniels argues that Mr. Plunk was ineffective for failing to verify that all references to probation had been redacted from seven of the exhibits. (ECF No. 14:15-17). The OCCA rejected this claim on the merits, noting that no prejudice had resulted from trial counsel's actions. (ECF No. 19-1:4). The Court should defer to the OCCA's ruling and conclude that habeas relief is not warranted.
Under Oklahoma law, for individuals convicted of a felony after having been convicted of at least two prior felonies within 10 years of the date following the completion of the execution of the sentence, the statutory range of punishment is 20 years to life imprisonment. See 21 O.S. § 51.1(B). Here, Mr. Daniels was sentenced to 35 years on count one and 10 years on count two, to be served concurrently. (O.R. 190). Because the sentence was within the statutory range of punishment, Mr. Daniels cannot demonstrate prejudice resulting from Mr. Plunk's failure to redact portions of the exhibits. See Moore v. Allbaugh, 2016 WL 3129227, at *9 (N.D. Okla. 2016) (rejecting habeas petitioner's Strickland claim, stating that because "[p]etitioner's sentences were well below the statutory maximum for each of his crimes," he was not prejudiced by his trial counsel's failure to redact references to probation which were included in State's exhibits submitted to the jury). As a result, the Court should conclude that habeas relief is not warranted on this issue.
2. Failure to Review the 911 Call
Mr. Daniels argues that Mr. Plunk rendered ineffective assistance of counsel by failing to listen to the recording of the 911 call made by the victim, Ms. Payne, prior to trial. (ECF No. 14:6-11). According to Petitioner, the 911 call was "the most damaging evidence the State used against Petitioner" and Mr. Plunk's failure to listen to the tape "led to Petitioner rejecting a plea offer and asserting his right to a jury trial" in violation of Lafler v. Cooper, 566 U.S. 156, 163 (2012).
In Lafler, the Supreme Court addressed the issue of how to apply Strickland's prejudice test where ineffective assistance of counsel resulted in a rejection of a plea offer and the defendant is convicted at an ensuing trial. Lafler, 566 U.S. at 163 (U.S. 2012). According to the Court, where "the ineffective advice led not to an offer's acceptance but its rejection[,]... a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ... that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Lafler, 566 U.S. at 164.
In his Application for Post-Conviction Relief in district court, Petitioner alleged that his appellate counsel had been ineffective on direct appeal for failing to raise the Lafler issue that Mr. Plunk had been ineffective in advising him to reject a plea offer in violation of Lafler. (ECF No. 19-4). According to Petitioner, Mr. Plunk told him that "the state didn't have any evidence" and, as a result, he should reject the State's offer of 20 years. (ECF No. 19-4:11). In his post-conviction appeal, Petitioner additionally argued that if he had heard the 911 recording before trial, he would have taken the State's offer. (ECF No. 19-15:20).
On direct appeal, Mr. Daniels alleged that trial counsel rendered ineffective assistance by failing to ensure that Petitioner had listened to the 911 call prior to trial. (ECF No. 19-2:41-42). According to Petitioner, "[w]ithout personal knowledge of the State's entire case and all the ramifications of that evidence, Mr. Daniels was not able to make an informed decision whether his case should go to trial or whether he should consider any plea offers from the State." (ECF No. 19-2:42). On direct appeal, Mr. Daniels couched the argument in terms of Mr. Plunk's "fail[ure] to fully communicate," but did not specifically argue, under Lafler, that: (1) that counsel had advised him to reject any plea offer or (2) but for trial counsel's inaction, he would have accepted the State's offer. In his petition, Mr. Daniels makes it clear that his habeas claim is based on a violation of Lafler, as he asserted in his Application for Post-Conviction Relief. See ECF No. 14:8-14:10.
In addressing the merits of whether appellate counsel had been ineffective for failing to raise the Lafler issue in direct appeal, the OCCA necessarily addressed the underlying allegations involving trial counsel—that Mr. Plunk had advised Petitioner to reject a plea offer without having played the 911 call for Petitioner and but for failing to play the 911 recording, Mr. Daniels would have accepted the State's offer. See Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 747 (10th Cir. 2016) ("To assess the merits of [petitioner's] ineffective-assistance-of-appellate-counsel claim, we first examine the merits of the issue appellate counsel failed to raise.") (citation omitted). In doing so, the OCCA found that the appeal record established that:
• Mr. Daniels was aware of police reports in the case that contained information about the 911 call;(ECF No. 19-16:6-7). As a result of these findings, the Court found no merit to Petitioner's argument that appellate counsel had been ineffective for failing raise the Lafler claim on direct appeal. (ECF No. 19-16:7). The Court should conclude that the OCCA's decision was reasonable.
• Mr. Daniels knew that the sentencing range for the first-degree burglary charge was 20 years to life imprisonment;
• Mr. Daniels was advised of the State's offer of 20 years and affirmatively rejected that offer;
• Mr. Daniels maintained his innocence at trial and at his sentencing hearing;
• Mr. Plunk had never advised Mr. Daniels that the State's case was weak;
• Mr. Plunk had negotiated a plea for Mr. Daniels which he advised Petitioner to take; and
• Mr. Daniels rejected the plea and chose to go to trial.
In Lafler, all parties agreed that trial counsel had rendered deficient performance in advising his client to reject a plea offer on grounds that he could not be convicted at trial. Lafler, 566 U.S. at 163. But here, the OCCA made a finding of fact that Mr. Plunk had advised Petitioner to accept the State's offer. See supra. Petitioner has not met his burden to rebut this finding with "clear and convincing evidence" nor has he even argued that Mr. Plunk had advised him to reject the State's offer. Instead, he states that he rejected the plea offer based on his belief that the State lacked sufficient evidence to obtain a conviction. (ECF No. 14:7). Apparently, this "belief" was based on the fact that Mr. Plunk had failed to listen to the 911 call and relay its contents to Petitioner. See ECF No. 14:8 (Petitioner's allegations that Mr. Plunk " never informed Petitioner of the contents of the tape before Petitioner chose to reject the State's plea offer."). But even without the 911 call, the evidence at trial was sufficient to convict Mr. Daniels on each count.
See 28 U.S.C. § 2254(e)(1). --------
The trial court instructed the jury that the elements of first-degree burglary under Oklahoma law required proof of:
• breaking;(O.R. 138-139). The court also instructed the jury that under Oklahoma law, the elements of concealing stolen property required proof of:
• entering;
• a dwelling;
• of another;
• in which a human is present;
• with intent to commit some crime therein.
• concealing;(O.R. 140).
• feloniously obtained personal property;
• from the owner;
• known by the defendant to have been feloniously obtained;
• with the intent to deprive permanently.
At trial, the victim testified that she saw two individuals through the peephole of her home, followed by the kicking down of her front door. (Trial TR. Vol. II, 28-30). When the kicking began, Ms. Payne hid in a closet and called 911. (Trial TR. Vol. II, 29). Oklahoma City Police Officer Stacey testified that he observed Mr. Daniels coming from inside the victim's home when he arrived on the scene in response to a 911 call. (Trial TR. Vol. II, 49). When Officer Stacey eventually apprehended Mr. Daniels, the victim's checkbook was found in the coat he was wearing. (Trial TR. Vol. II, 55). Officer Stacey also testified that after explaining the definition of "first-degree burglary" to Petitioner, Mr. Daniels affirmatively stated: "[t]here wasn't nobody in that house." (Trial TR. Vol. II, 58-59).
Mr. Daniels argues that but for trial counsel's failure to play the 911 recording for him, he would have accepted the State's plea offer. But based on the forgoing trial testimony (which did not include the substance of the 911 call) the jury had sufficient information to obtain a conviction against Mr. Daniels for first-degree burglary and concealing stolen property. Accordingly, the Court should conclude: (1) that the OCCA's rejection of Mr. Daniels' claims against Mr. Plunk for failing to listen to the 911 call (in the context of appellate counsel's failure to raise this claim on direct appeal) was neither contrary to, nor an unreasonable application of, Supreme Court precedent; and (2) habeas relief is not warranted.
IV. GROUND TWO
In Ground Two, Mr. Daniels argues that he is entitled to habeas relief based on his appellate counsel's failure to raise the issue of Mr. Plunk's ineffectiveness under Lafler on direct appeal. (ECF No. 14:17-19). However, based on the lack of merit to the underlying claim against Mr. Plunk, see supra, the Court should conclude that Mr. Daniels is not entitled to habeas relief on Ground Two. See Ryder ex rel. Ryder v. Warrior, 810 F.3d at 749 ("because [petitioner's] claim of ineffective assistance of trial counsel is meritless, his claim that appellate counsel was ineffective for failing to raise the issue likewise fails.").
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
It is recommended that the Court DENY the habeas Petition (ECF No. 14).
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by April 13, 2020, 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).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on March 27, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE