Hopkins v. McCollum
| Decision Date | 25 November 2015 |
| Docket Number | Case No. CIV-13-679-R |
| Parties | JESSE HOPKINS, III, Petitioner, v. TRACY MCCOLLUM, WARDEN, Petitioner. |
| Court | U.S. District Court — Western District of Oklahoma |
Petitioner, Jesse Hopkins, III, appearing pro se, has filed a Petition for Habeas Corpus Relief pursuant to 28 U.S.C. § 2254 [Doc. No. 1] challenging the constitutionality of the revocation of his suspended sentence. Respondent has filed a Response [Doc. No. 8] and Petitioner has filed a Reply [Doc. No. 13]. The matter is now at issue. United States District Judge David L. Russell has referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that the Petition be denied.
On February 23, 2004, Petitioner was convicted, pursuant to a plea of guilty, in Case No. CF-2003-4037, District Court of Oklahoma County, State of Oklahoma, of two counts of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm. He received a ten-year suspended sentence on each count, with rules and conditions of probation. The sentences were ordered to run concurrently with each other and with a sentence received in Case No. CF-2003-4588, District Court of Oklahoma County, State of Oklahoma.
On June 29, 2011, the State filed an application to revoke Petitioner's suspended sentence, alleging Petitioner had committed new violations of law. Specifically, the State charged Petitioner as follows: Assault and Battery with a Deadly Weapon (Counts 1, 2 and 3); and Possession of a Firearm After Former Conviction of a Felony (Count 4). On August 18, 2011, the state district court conducted an evidentiary hearing on the State's application. The court then revoked Petitioner's sentence, finding the State had established by a preponderance of the evidence that Petitioner had committed two counts of assault and battery with a deadly weapon. See State Court Record (Record) [Doc. No. 10, conventionally filed], Transcript of Hearing (Tr.) at pp. 70-72. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the revocation. See OCCA Summary Opinion [Doc. No. 8-5].1
On the evening of April 12, 2011, several people, including those affiliated with certain gangs, were gathered in the parking lot of a local barber shop in Del City, Oklahoma. Three of the people present were Kendall Watkins, his brother Davontre Watkins, and their cousin, Curtarius Perry. An unidentified individual took a swing at Kendall Watkins. Words were exchanged and immediately thereafter approximately 8-10 shots were fired. Both Davontre Watkins and Curtarius Perry were shot.
All three individuals testified at the revocation hearing. David Abel, the detective who investigated the shooting, also testified. Detective Abel had interviewed each of the Watkins brothers approximately one week after the shooting. At that time, they independently identified Petitioner as the shooter from a photographic lineup and gave written statements to Detective Abel that Petitioner shot at them. The lineup identifications and written statements wereadmitted into evidence along with Davontre Watkins' diagram of the scene of the incident and the position of Petitioner at the time of the shooting in relation to Davontre Watkins and the other testifying witnesses who were present at the scene.3
At the hearing, each of the Watkins admitted that they did not want to give their testimony and that they had been subpoenaed to testify. But they further testified that they had been truthful and accurate when interviewed by Detective Abel. Davontre Watkins further testified that a code of conduct in their community prohibited "snitching."
Contrary to their written statements, the Watkins brothers testified that they did not know who fired the shots. Kendall Watkins testified that during the police interview he only identified Petitioner as someone present at the time of the incident. And Davontre Watkins testified that during his interview with Detective Abel, he only identified Petitioner as the shooter based on what someone else had told him. Davontre Watkins, however, made an in-court identification of Petitioner as that same person.
Detective Abel testified about the interviews of the Watkins brothers. He testified that the Watkins brothers had been interviewed separately and that each of them identified Petitioner as the shooter based on their own observations.
At the close of the hearing, the State dismissed Count 3 as a basis for revocation. In addition, the trial court dismissed Count 4 because no evidence was introduced as to any prior felony conviction against Petitioner. Thus, two counts of assault and battery with a deadly weapon served as the basis for revocation.
Petitioner raises three grounds for federal habeas relief. First, Petitioner claims the State's application to revoke did not give Petitioner adequate notice of the grounds upon which the State sought revocation, in violation of his due process rights. Second, Petitioner claims the evidence was insufficient to support the revocation and therefore his sentences were revoked in violation of his due process rights. Third, Petitioner claims his appellate counsel was ineffective for failing to raise on direct appeal the fact that after the revocation hearing, but during the pendency of his direct appeal, the State dismissed the new criminal charges filed against him and based on the same conduct as that which had formed the basis for the revocation.
Petitioner raised Grounds One and Two on direct appeal and the OCCA denied the claims and affirmed the revocation. Ground Three is unexhausted but Respondent contends the claim lacks merit. Respondent further contends that because the entire Petition can be denied on the merits, exhaustion is not required, relying on 28 U.S.C. § 2254(b)(2).4 As discussed infra, the Court construes the Petition as brought pursuant to 28 U.S.C. § 2241. Although Respondent relies on § 2254(b)(2), which governs only petitions brought pursuant to 28 U.S.C. § 2254, it is clear that "[a] court may deny a § 2241 application on the merits without resolving the exhaustion question." Simpson v. Chrisman, 562 F. App'x 724, 275 (10th Cir. 2014) (). Thus, theCourt addresses Ground Three without first requiring exhaustion of the claim in the Oklahoma courts.
Petitioner filed this action pursuant to 28 U.S.C. § 2254. Respondent contends that "there is authority for adjudicating the Petition as arising under 28 U.S.C. § 2241." See Response at p. 3. Respondent does not, however, specifically request this Court to construe the Petition as such. As discussed infra, the characterization of the Petition may impact the standard of review governing Petitioner's claims.
The Tenth Circuit has not held in any published decision whether a habeas petition challenging the constitutionality of the revocation of a suspended sentence is more properly viewed as a challenge to the conviction and sentence itself, or a challenge to the execution of a sentence. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (). At least one unpublished decision from the circuit has treated such a petition as a challenge to the execution of the sentence arising under § 2241. See, e.g., Stoltz v. Sanders, Nos. 00-6188, 00-6288, 2000 WL 1730894 (10th Cir. 2000) (unpublished op.) ().5 In a more recent unpublished decision, however, the Tenth Circuitdeclined to decide "whether the district court was correct in re-characterizing [the petitoner's] § 2254 petition" challenging the revocation of his suspended sentence as a § 2241 petition attacking the execution of his sentence. See Klein v. Franklin, 437 F. App'x 681, 682 n.2 (10th Cir. 2011).6 And in other unpublished decisions, the Tenth Circuit has addressed a challenge to the revocation of a suspended sentence under § 2254, without expressly addressing whether the challenge is to the conviction and sentence itself, or to the execution of the sentence. See, e.g, Lynch v. O'Dell, 163 F. App'x 704 (10th Cir. 2006).
A number of district courts within the Tenth Circuit have treated challenges to the revocation of a suspended sentence as properly brought pursuant to § 2241. See, e.g., Anderson v. Higgins, No. 09-CV-776-CVE-PJC, 2013 WL 885639 at *1 (N.D. Okla. March 8, 2013) (unpublished op.); Rivas v. Dinwiddie, No. 07-CV-152-GFK-PJC, 2010 WL 476651 at *2 (N.D. Okla. Feb. 4, 2010) (unpublished op.); Scott v. Province, No. CIV-10-178-D, 2010 WL 2610665 (W.D. Okla. May 14, 2010) (Report and Recommendation); see also id. 2010 WL 2610562 (W.D. Okla. June 25, 2010) (Order Adopting); Williams v. Addison, No. CIV-06-1364-R, 2009 WL 1752172 (W.D. Okla. June 19, 2009) (unpublished op.) (). The Court finds this weight of authority persuasive, particularly given the characterization of the revocation of a suspended sentence by the Oklahoma courts. See supra footnote 5. Therefore, this Court similarly finds that the Petition...
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