Leatherwood v. Allbaugh

• Decision Date: 27 June 2017
• Docket Number: No. 16-6251,16-6251
• Citation: 861 F.3d 1034
• Parties: Michael Don LEATHERWOOD, Petitioner-Appellant, v. Joe M. ALLBAUGH, Interim Director, Oklahoma Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

861 F.3d 1034

Michael Don LEATHERWOOD, Petitioner-Appellant,

v.Joe M. ALLBAUGH, Interim Director, Oklahoma Department of Corrections, Respondent-Appellee.

No. 16-6251

United States Court of Appeals, Tenth Circuit.

Filed June 27, 2017

Mark Henricksen, Henricksen & Henricksen, Lawyers, Inc., Oklahoma City, Oklahoma, appearing for Appellant.

Keeley L. Miller, Assistant Attorney General (E. Scott Pruitt, Attorney General, and Jennifer B. Welch, Assistant Attorney General, with her on the briefs), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

The district court denied state prisoner Michael Leatherwood's 28 U.S.C. § 2241 habeas application. It granted him a certificate of appealability ("COA") on his claim that revocation of his suspended sentence for violation of a probation condition violated his procedural and substantive due process rights. It denied a COA on his other claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm the district court's denial of his due process claim. We also deny his request for additional COAs and his motion to supplement the record.

I. BACKGROUND

A. State Court Proceedings

1. Sentence

In 2009, Mr. Leatherwood pled guilty in Oklahoma state court to two counts of Rape in the First Degree and four counts of Rape in the First Degree by Instrumentation. Judge Kenneth Watson sentenced him to six concurrent 20-year terms and suspended the sentence except for 90 days in jail.

Upon completion of his jail time, Mr. Leatherwood was supposed to serve "the remainder of [his] sentence(s) ... under the terms set forth in the probation guidelines," including a list of Special Probation Conditions for Sex Offenders ("Special Probation Conditions"). Record on Appeal ("ROA") at 1700, 1703. He would therefore serve a suspended sentence and also be under probationary supervision. See Okla. Stat. tit. 22 § 991(a)(A)(1).¹

Mr. Leatherwood agreed to the Special Probation Conditions "as consideration for the imposition of a probated sentence, in whole or in part" and acknowledged that "[f]ailure to comply with any of these conditions may result in the revocation ... of [his] probated sentence." ROA at 1703.

One of the Special Probation Conditions, Rule 17, required that Mr. Leatherwood "[n]ot date, socialize, or enter into a romantic or sexual relationship with any person who has children under the age of eighteen (18) years present in their residence or custody at any time." Id. Judge Watson ordered Mr. Leatherwood to report to jail on January 8, 2010.

2. First Revocation—Five Years

On September 23, 2009, before the scheduled start of Mr. Leatherwood's jail term, the State applied to revoke his suspended sentence, alleging he had violated several probation conditions. Mr. Leatherwood was put in jail before his revocation hearing. Judge Watson, who had imposed the original sentence, held a revocation hearing on January 8, 2010. During the hearing, Mr. Leatherwood's counsel stipulated to five of the alleged probation violations, including a violation of Rule 17 based on Mr. Leatherwood's relationship with Regina Wood, the mother of two minor children. Judge Watson chastised Mr. Leatherwood for refusing to follow the rules, stating, "And now they put you in jail and you're doing the same thing over there.... I gave you all the rope in the world and you hung yourself with it." Id. at 891. Judge Watson revoked five years of Mr. Leatherwood's suspended sentence.

3. Second Revocation—15 Years

On April 14, 2010, while Mr. Leatherwood was serving his five-year prison term,² the State filed a second application to revoke, alleging Mr. Leatherwood had continued to violate Rule 17 while he was incarcerated. Judge Watson recused himself. Judge Tammy Bass-LeSure presided over a second revocation hearing on August 3, 2010. She noted that despite Judge Watson's admonitions "not to have any relationship ... with a person that has children in their custody," Mr. Leatherwood had gone to "great lengths to hide the fact" that he continued his relationship with Ms. Wood. Id. at 1032-33. Mr. Leatherwood acknowledged that he "would not do anything to intentionally or willfully violate the conditions of my probation except for [Rule] 17 and I take responsibility for that." Id. at 1065. "[L]ooking at the totality" of the circumstances, including Mr. Leatherwood's own statements and deceptive behavior, Judge Bass-LeSure concluded he knew he had violated Rule 17. Id. at 1033. Consequently, she revoked the remaining 15 years of his suspended sentence.

4. Direct Appeal and Post-Conviction Review

Mr. Leatherwood appealed to the Oklahoma Court of Criminal Appeals ("OCCA"), raising three issues that are relevant here: (1) the revocation violated his procedural and substantive due process rights because (a) Rule 17 failed to warn him that he could violate it while incarcerated, and (b) the revocation was so arbitrary as to be fundamentally unfair; (2) Judge Bass-LeSure's bias violated due process; and (3) cumulative error in the second revocation proceeding required reversal. The OCCA affirmed.

Mr. Leatherwood then sought post-conviction relief, alleging: (1) ineffective assistance of counsel; (2) judicial bias and conflict;³ and (3) cumulative error. The state trial court denied relief, and the OCCA affirmed.

B. Federal Habeas Proceedings

In October 2013, Mr. Leatherwood applied for habeas relief under 28 U.S.C. § 2241 in the United States District Court for the Western District of Oklahoma. He asserted seven grounds for relief: (1) violation of due process; (2) insufficient evidence; (3) improper admission of evidence; (4) judicial bias; (5) judicial conflict; (6) ineffective assistance of counsel; and (7) cumulative error. As on direct appeal, his first claim alleged violation of procedural and substantive due process because (1) Rule 17 failed to warn that he could violate it while incarcerated, and (2) the revocation arbitrarily deprived him of his liberty. Mr. Leatherwood filed motions to supplement his application with affidavits from Justin Jones, the former Director of the Oklahoma Department of Corrections, and from Judge Watson.

The magistrate judge recommended denial of Mr. Leatherwood's habeas application. Over Mr. Leatherwood's objection, the federal district court agreed. It also denied his request for an evidentiary hearing and his motions to supplement the record. The court issued a COA on the claim alleging a violation of procedural and substantive due process but declined any other COAs.

Mr. Leatherwood filed a timely notice of appeal on his due process claim. He also requests COAs on his judicial bias/conflict⁴ and cumulative error claims, and he has moved to supplement the record on appeal with an affidavit from Judge Watson.

II. LEGAL BACKGROUND

A. Section 2241 Challenge to Revocation and Standard of Review

1. 28 U.S.C. § 2241 and Revocation

A habeas application under 28 U.S.C. § 2241 generally attacks the execution of a sentence rather than its validity. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1213 (10th Cir. 2009) ("[State prisoner's] § 2241 habeas petition can only challenge the execution of his sentence, not the validity of his conviction and the original sentence."); Yellowbear v. Wyoming Att'y Gen. , 525 F.3d 921, 924 (10th Cir. 2008) ("Section [ ] 2241 is a vehicle for [a state prisoner] ... attacking the execution of a sentence." (citations omitted)). It challenges "the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement."McIntosh v. U.S. Parole Comm'n , 115 F.3d 809, 812 (10th Cir. 1997) (quotations omitted).

A state prisoner's challenge to the revocation of a suspended sentence is properly brought under § 2241 based on our circuit precedent. Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000) (stating that a habeas application challenging where a state sentence will be served "seems to fit better under the rubric of § 2241"); Stoltz v. Sanders , Nos. 00-6188 & 00-6288, 242 F.3d 390, 2000 WL 1730894, at *1 (10th Cir. 2000) (unpublished table decision) ("To the extent [petitioner] is challenging the revocation of his [suspended] sentence, we construe his petition as filed under 28 U.S.C. § 2241 because it challenges the execution of his sentence, rather than its validity.").⁵ By contrast, a state prisoner's federal habeas challenge to the validity of an underlying conviction or sentence must typically be brought under § 2254. Montez , 208 F.3d at 865.

Mr. Leatherwood challenges the execution of his sentence—whether he will serve 15 years in prison or as a suspended sentence. See id . He does not challenge the validity of his rape conviction or his sentence of six concurrent 20-year terms. He therefore properly brought a § 2241 habeas application.⁶

2. Standard of Review

"When reviewing the denial of a habeas petition under § 2241, we review the district court's legal conclusions de novo and accept its factual findings unless clearly erroneous." al-Marri v. Davis , 714 F.3d 1183, 1186 (10th Cir. 2013). In doing so, we employ the same deference the district court must apply in reviewing the state proceedings. Curtis v. Chester , 626 F.3d 540, 544 (10th Cir. 2010).

The standard of federal habeas review of state court decisions depends on which habeas statute applies. For § 2254 habeas applications, relief may not be granted unless the state court'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," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). Congress imposed these standards when it enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and it...