Smith v. Allbaugh, Case No. 15-CV-445-GKF-FHM

• Decision Date: 06 September 2017
• Docket Number: Case No. 15-CV-445-GKF-FHM
• Parties: ANTONIO DEANDRE SMITH, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

ANTONIO DEANDRE SMITH, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent.

Case No. 15-CV-445-GKF-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

September 6, 2017

OPINION AND ORDER

Before the Court is Petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1). Respondent filed a response (Dkt. # 5) to the petition. Petitioner filed a reply (Dkt. # 7) to Respondent's response. For the reasons discussed below, the petition for writ of habeas corpus shall be denied.

BACKGROUND

On May 6, 2014, Petitioner entered blind pleas of guilty to three (3) counts of Trafficking in Illegal Drugs (Counts 1, 2, and 7), Possession of a Firearm While in the Commission of a Felony (Count 3), Unlawful Possession of Drug Paraphernalia (Count 6), Acquiring Proceeds from Drug Activity (Count 8), and Possession of a Firearm After Former conviction of a Felony (Count 9), in Tulsa County District Court, Case No. CF-2013-361.¹ The trial judge accepted the pleas and sentenced Petitioner to thirty (30) years imprisonment on each of Counts 1, 2, 3, 7, 8, and 9, and one (1) year in the county jail on Count 6, with the sentences ordered to be served concurrently. The transcript from the plea hearing and the Judgments and Sentences reflect that the trial judge advisedPetitioner of his right to appeal and appeal procedures. See Dkt. ## 5-1, 5-2 at 31-32.² However, Petitioner did not move to withdraw his guilty pleas during the ten-day period following sentencing and did not perfect a certiorari appeal.

On December 22, 2014, Petitioner filed an application for post-conviction relief, identifying three (3) grounds of error, as follows:

Ground 1: Petitioner was deprived of a timely direct appeal through no fault of his own and is now entitled to an out-of-time appeal as a matter of due process.

Ground 2: Petitioner was denied the effective assistance of trial counsel to which he was entitled under the 6th & 14th Amendments to the U.S. Constitution and Art. II, §§ 7 and 20 of the OK Constitution.

Ground 3: Petitioner was denied the effective assistance of counsel to which he was entitled under the 6th and 14th Amendments to the U.S. Constitution and Art. II, §§ 7 and 20 of the OK Constitution.

(Dkt. # 5-2 at 2, 4, 5). By order filed March 12, 2015, the state district court recommended that an appeal out of time be denied. See Dkt. # 5-3 at 3-7. Petitioner filed a post-conviction appeal in the OCCA. By order filed June 17, 2015, in Case No. PC-2015-274 (Dkt. # 5-4), the OCCA denied the post-conviction application for appeal out of time.

On August 12, 2015, Petitioner filed his federal petition for writ of habeas corpus (Docket #1). Petitioner raises two (2) claims, as follows:

Ground 1: Ineffective assistance of counsel, and due process.

My private attorney [Kevin Adams] failed to communicate state's plea offer to me. He presented a false plea offer to me. As a result of that I lost the opportunity to accept the plea offer because the state withdrew it.

Ground 2: Ineffective assistance of counsel, and due process.

I informed my public defender [Katherine Greubel] that my private attorney did not convey the State's earlier plea offer to me. The public defender failed to inform the court of this matter. She misinformed the court that I had rejected the offer. She failed to advise me the offer could be reinstated.

(Dkt. # 1 at 6). In response to the petition, Respondent asserts that Petitioner's claims are procedurally barred.

In addition to a reply to the response (Dkt. # 7), Petitioner filed motions to "supplement" (Dkt. # 9), for an evidentiary hearing (Dkt. # 13), and for appointment of counsel (Dkt. # 14). As discussed below, the Court finds the motion to "supplement" is time barred and shall be denied on that basis. Also, Petitioner's motions for evidentiary hearing and for appointment of counsel shall be denied.

ANALYSIS

A. Exhaustion

Petitioner presented his habeas claims of ineffective assistance of counsel to the OCCA on post-conviction appeal. Therefore, Petitioner has satisfied the exhaustion requirement of 28 U.S.C. §2254(b) for federal habeas corpus review. However, as discussed in Part D below, the claims are procedurally barred.

B. Motions for an evidentiary hearing and for appointment of counsel

Upon review of the record and Petitioner's claims, the Court finds that Petitioner is not entitled to an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 184-85 (2011); Williams v. Taylor, 529 U.S. 420 (2000). The motion for an evidentiary hearing is denied.

In addition, there is no constitutional right to counsel beyond the direct appeal of a conviction. See Swazo v. Wyoming Department of Corrections, 23 F.3d 332 (10th Cir. 1994). For that reason, the Court exercises its discretion to deny Petitioner's motion for appointment of counsel.

C. Motion to "supplement"

In his motion to "supplement" (Dkt. # 9), Petitioner claims that counsel provided ineffective assistance in failing to advise that Petitioner had grounds to withdraw his guilty pleas. As a result, he was deprived of an appeal through no fault of his own. Petitioner does not raise this claim of ineffective assistance of counsel in his petition for writ of habeas corpus.³ Therefore, the Court shall adjudicate the motion to "supplement" as a motion to amend the petition for writ of habeas corpus.

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year statute of limitations for habeas corpus claims. 28 U.S.C. § 2244(d). While Petitioner timely filed his habeas petition, he filed his motion to "supplement" on January 13, 2017, or more than seventeen (17) months after he filed his original petition and more than one (1) year past the one-year statute of limitations deadline.⁴ Therefore, unless Petitioner is entitled to equitable tolling of the limitationsperiod or the ground raised in the proposed amended petition relates back to the original petition, the claim presented in the motion to amend is untimely.

Petitioner has not demonstrated he is entitled to equitable tolling. A petitioner is entitled to equitable tolling "only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner's burden in making this demonstration is a heavy one: a court will apply equitable tolling only if a petitioner is able to "show specific facts to support his claim of extraordinary circumstances and due diligence." Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (internal quotation marks and citation omitted). Significantly, equitable tolling applies only in "rare and exceptional circumstances." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).

Here, Petitioner fails to show that "some extraordinary circumstance stood in his way" and prevented him from filing a timely motion to amend. Thus, without more, Petitioner fails to show "rare and exceptional circumstances" that justify equitable tolling.

Because Petitioner's motion to "supplement" is untimely under the AEDPA, the motion must be denied unless the claim raised in motion relates back to the date of the original petition. See Fed. R. Civ. P. 15(c) (providing conditions determining whether an amended pleading relates back to the date of the original pleading); United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000);Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001) (citing Espinoza-Saenz, 235 F.3d at 505, for proposition that "an untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the District Court's discretion, relate back to the date of the original motion if and only if the original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case"). While an amendment can relate back to the original filing date if "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading," Fed. R. Civ. P. 15(c)(1)(B), the Supreme Court has determined that, with respect to amendment of habeas petitions, "[a]n amended habeas petition . . . does not relate back (and, thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650 (2005). That the grounds for relief are related to the petitioner's trial and conviction is, by itself, insufficient. Id. Rather, "relation back depends on the existence of a common 'core of operative facts' uniting the original and newly asserted claims." Id. at 659.

Upon review of the original petition and the motion to "supplement," the Court finds that Petitioner's new claim of ineffective assistance of counsel does not relate back to the original petition. Petitioner's new claim serves to insert a new theory into the case. In his reply to Respondent's response in opposition to the motion to "supplement," Petitioner argues that the claim raised in the motion is merely an effort "to separate the claims that are compounded in ground 2 of the original petition." See Dkt. # 12 at 3. The Court disagrees with Petitioner's assessment of his claims. The new claim of ineffective assistance of counsel identified in the motion to "supplement" identifies deficiencies in counsel's performance during the ten-day period after sentencing duringwhich a motion to withdraw pleas of guilty should have been filed. See Dkt. # 9 at 1. In contrast, the ineffective assistance of counsel claim raised in Ground 2 of the petition addresses counsel's alleged deficient performance during entry of Petiti...