Milsap v. Whitten
| Docket Number | CIV-21-610-R |
| Decision Date | 16 February 2022 |
| Parties | DAVANTE MILSAP, Petitioner, v. RICK WHITTEN, Warden, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
REPORT AND RECOMMENDATION
Petitioner a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C § 2254. Doc. No. 1. Petitioner is challenging his convictions of multiple crimes in the District Court of Oklahoma County. Respondent has responded to the Petition and filed the relevant state court records. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
On May 3, 2019, Petitioner entered pleas of guilty pursuant to a plea deal on the following charges in seven separate cases: CF-2017-1372: Count 1, Robbery by Two or More Persons, Counts 6 and 7, Assault and Battery with a Dangerous Weapon, Count 8, Assault While Masked, Counts 9 and 10, Pointing a Firearm at Another, and Count 12, Possession of a Firearm After Juvenile Adjudication; CF-2017-2271: Count 1, Unauthorized Use of a Motor Vehicle, Count 2, Possession of a Firearm After Juvenile Adjudication, Count 3, Concealing Stolen Property, and Count 5, Obstructing an Officer; CF-2017-7599: Count 1, Accessory to a Felony (Use of a Vehicle to Facilitate the Discharge of a Firearm) and Count 3, Possession of a Firearm After Juvenile Adjudication; CF-2018-483: Count 1, Assault and Battery Likely to Cause Death; CF-2018-3085: Counts 1-3, Assault and Battery on a Detention Officer; CF-2018-3394: Count 1, Assault and Battery on a Detention Officer; CM-2018-3731: Count 1, Assault and Battery. Doc. No. 19-1 at 1-3.
On May 13, 2019, Petitioner filed a letter that the state court construed as a timely pro se motion to withdraw his guilty pleas. Doc. No. 19-2. Therein he raised one ground for relief - that his guilty pleas were not voluntarily and knowingly entered because his plea counsel had informed him that he could later withdraw his guilty pleas if he so chose. Id. The state court appointed conflict counsel and held a hearing on Petitioner's motion on June 13, 2019. Doc. No. 19-3. After hearing testimony, the state court denied Petitioner's motion. Id. at 48-52. Following said denial, the state court sentenced Petitioner to concurrent sentences on each of his convictions. Doc. No. 19-1 at 3.
Petitioner timely appealed his convictions to the Oklahoma Court of Criminal Appeals (“OCCA”). In his Petition in Error, Petitioner raised the following grounds for relief: (1) the trial court abused its discretion in not allowing Petitioner to withdraw his guilty pleas; (2) Petitioner's sentence on one of his convictions was excessive; (3) Petitioner's pleas were not knowingly and voluntarily entered and thus it was error to sentence Petitioner on such pleas or fail to allow him to withdraw the same; (4) the trial court's judgment and sentence and its order overruling Petitioner's application to withdraw his pleas denied Petitioner due process and equal protection of the law; and (5) any other errors that he may raise in an Amended Petition in Error. Doc. No. 19-2 at 3-4.[1]
In the Brief in Support of his Petition in Error, Petitioner asserted three grounds for relief: (1) the state court erred in denying his motion to withdraw his guilty pleas based on his assertion that his plea counsel failed to inform him that he had to have a legal reason to withdraw them; (2) the state court erred in denying his motion to withdraw his plea agreements based on his assertion that he was incorrectly informed of the sentencing range for one of his convictions; and (3) he received ineffective assistance of counsel during the proceedings on his motion to withdraw. Doc. No. 19-3 at 11-20. On March 12, 2020, the OCCA affirmed the state court's ruling. Doc. No. 19-1.
Petitioner filed the current action seeking habeas relief on June 14, 2021. Doc. No. 1. He raises two grounds for relief. First, Petitioner argues that his guilty pleas were not knowingly and voluntarily entered because he was not informed that he had to have a legal reason to withdraw the same. Id. at 2-3, 7-9. Second, Petitioner contends the trial court abused its discretion in denying his request to withdraw his pleas because he was misinformed regarding the sentence range for one of his convictions. Id.[2] In his Response, Respondent argues neither ground entitles Petitioner to habeas relief. Doc. No. 19.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The AEDPA directs courts to “ensure a level of ‘deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if “a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with Court's precedents.” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of “clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
“[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004) (citations omitted). Consequently, federal habeas “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
Petitioner contends that he did not knowingly and voluntarily enter his guilty pleas based on his assertion that his counsel informed him that he could withdraw the same for any reason within ten days. The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. Boykin, 395 U.S. at 242. “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) (quotations omitted). A guilty plea is constitutional “if the circumstances demonstrate that the defendant understood the nature and the consequences of the charges against him and . . . voluntarily chose to plead guilty.” Miles v. Dorsey, 61 F.3d 1459, 1466 (10th Cir. 1995); see also Boykin, 395 U.S. at 242-44 (same).
In rejecting this claim on certiorari appeal, the OCCA ruled as follows:
The record amply supports the trial court's denial of the motion to withdraw pleas. First, Petitioner's primary attorney testified Petitioner asked her prior to May 3, 2019, to seek a fifteen year plea agreement with the State. Second, Petitioner testified he asked the ADA for a plea offer on May 3, 2019. Third, plea counsel testified that on May 3, 2019, Petitioner asked the ADA if she would agree to a fifteen in and twenty out sentence. The ADA agreed and Petitioner entered his guilty pleas. At the withdrawal hearing, however, Petitioner stated he knew the State's offer would be its last offer, so he agreed to plead guilty in the ‘heat of the moment,' despite the fact that he was innocent and believed he could simply write a letter to his primary attorney stating he wanted to withdraw his pleas. This testimony is simply incredible. There was no exigency for him to plead guilty. He was in court simply to obtain a new trial date. Petitioner's claims of innocence are patently false and the record shows he knew exactly what he was doing when he entered his guilty pleas and that he got the plea agreement he requested. It was only after he contemplated the reality of his sentence that he sought to withdraw his pleas. Disappointment with the sentence imposed does not afford grounds for withdrawal of a plea of guilty. Lozoya v. State, 1996 OK CR 55, ¶ 44, 932 P.2d 22, 34. The trial court did not abuse its discretion in denying Petitioner's motion to withdraw guilty pleas.
United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002) (citations and quotations omitted). Furthermore, it is not necessary that the record reflect a detailed enumeration and waiver of rights as a result of the guilty plea; rather the issue is simply whether the record affirmatively shows that the guilty plea...
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