REPORT AND RECOMMENDATION
BERNARD M. JONES, Magistrate Judge.
Petitioner, Brandon Wayne Brown, 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 his state court conviction in Case No. CF-2013-1139, District Court of Cleveland County, State of Oklahoma. Respondent has filed a Response [Doc. No. 7] and has conventionally filed the State Court Record [Doc. No. 9].2
The matter is now at issue and has been referred by United States District Judge David L. Russell for proposed findings and recommendations 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.
I. Procedural History
On October 28, 2014, Petitioner entered a guilty plea on charges of Attempt to Escape from Penitentiary After Former Conviction or Two or More Felonies. See Plea of Guilty Summary of Facts form [Doc. No. 7-1]. Petitioner was sentenced to ten years' imprisonment, consecutive to his sentence in Case No. CF-2009-1648, District Court of Cleveland County, State of Oklahoma. See Judgment and Sentence [Doc. No. 7-2].3 Petitioner moved to withdraw his guilty plea and the district court denied the motion. See Mot. to Withdraw Guilty Plea [Doc. No. 7-3] and Summ. Order [Doc. No. 7-4]. Petitioner then filed a direct certiorari appeal of his conviction to the Oklahoma Court of Criminal Appeals (OCCA). On December 15, 2015 the OCCA denied relief and affirmed Petitioner's conviction. See OCCA Summ. Op. Denying Certiorari [Doc. No. 7-6]. Petitioner did not seek state post-conviction relief. On December 15, 2016, Petitioner instituted the present action seeking federal habeas corpus relief.
II. Grounds for Federal Habeas Relief
Petitioner purports to bring three separate grounds for federal habeas corpus relief but all three grounds are premised on the same proposition: "Petitioner['s] plea was not voluntarily and intentionally made because he was misinformed of the correct range of punishment." See Pet. at pp. 16-19.4 Petitioner challenged his conviction on these same grounds on direct certiorari appeal to the OCCA. Respondent concedes the instant Petition is timely filed and the grounds raised are exhausted. See Resp. at p. 2, ¶¶ 4-5.
III. Standard of Review
Petitioner's grounds for habeas relief, adjudicated on the merits by the OCCA, are governed by the standards of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. __, 134 S.Ct. 10, 16 (2013).
Pursuant to the AEDPA, this Court may grant habeas relief only if the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1), (2). A state-court decision is contrary to clearly established federal law under 28 U.S.C. § 2254(d)(1) if it "applies a rule that contradicts the governing law set forth in Supreme Court cases or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent." Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016) (internal quotation marks omitted). "A statecourt decision is an `unreasonable application' of Supreme Court precedent if the decision `correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.'" Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015) (quoting Williams v. Taylor, 529 U.S. 362, 407-08 (2000)).
"Review of a state court's factual findings under § 2254(d)(2) is similarly narrow." Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016). Factual findings will not be unreasonable merely because on habeas review the court "would have reached a different conclusion in the first instance." Brumfield v. Cain, ___ U.S. ___, 135 S.Ct. 2269, 2277 (2015) (citation omitted). Instead, the court must defer to the state court's factual determinations so long as "reasonable minds reviewing the record might disagree about the finding in question." Id.
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149, 1151 (2016) (internal quotation marks and citation omitted). "The state court decision must be so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (internal quotation marks and citation omitted).
IV. Analysis
Petitioner challenges the voluntariness of his guilty plea on the following bases: (1) the trial court improperly relied upon Okla. Stat. tit. 21, § 51.1 to enhance his sentence; (2) the two prior felony convictions for perjury "occurred on the exact same date and location" and therefore, "could be used only as a single enhancement" under § 51.1; and (3) his sentence range should have been zero to two years instead of four years to life.
OCCA Decision
On direct appeal, the OCCA addressed these claims of error and found as follows:
Petitioner argues in Proposition I that his guilty plea was not voluntarily and intelligently made because he was misinformed of the correct range of punishment. Petitioner argues, in essence, that his conviction for Attempting to Escape from Penitentiary may not be enhanced with the prior felony convictions relied upon by the State.
Relief is unwarranted for Proposition I because the record shows Petitioner's prior felony convictions used to enhance his sentence did not arise out of the same transaction or occurrence or series of events closely related in time and location. Nor were they an integral part of the charged offense because Petitioner was not serving the sentences for these particular crimes when he attempted to escape from the Lexington prison. The State complied with the statutory provisions governing the charged offense in his case, none of which prohibit enhancement of sentence using the prior felony convictions. Petitioner was therefore advised of the proper range of punishment before entering his guilty plea. 21 O.S. 2011, §§ 9 & 51.1(C); Snyder v. State, 1989 OK CR 81, ¶ 4, 806 P.2d 652, 654.
See OCCA Summ. Op. at pp. 2-3.5
Clearly Established Federal Law
To comport with due process, a guilty plea must be made knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). A guilty plea is valid if it "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) (citation omitted). "In accepting a guilty plea, a trial court must make sure that the accused has a full understanding of what the plea connotes and of its consequences, including the maximum penalty to which the accused may be exposed." Clark v. Mullins, 179 F. App'x 551, 554 (10th Cir. 2006) (citing Boykin, 395 U.S. at 243-44) (additional citations omitted)).
Application
A review of the record establishes that Petitioner's plea was knowingly and voluntarily made. The Plea of Guilty Summary of Facts form shows that Petitioner understood he faced a sentence of four years to life imprisonment. See id. [Doc. No. 7-1] at p. 4, ¶ 16. Petitioner further understood that no plea agreement existed and therefore, the court could sentence him within the range of punishment of four years to life imprisonment. Id., at p. 5, ¶¶ 23, 25. Petitioner also understood that he had been charged after former conviction of two prior felonies. Id., ¶ 26; see also id. at p. 2, ¶ 12. Petitioner represented that he was pleading guilty of his own free will and "without any coercion or compulsion of any kind[.]" Id., ¶ 30. Additionally, Petitioner represented that he had reviewed the form with his attorney, understood its contents, and agreed with the answers set forth therein. Id. at p. 6.
The transcript of proceedings before the trial court also make clear that Petitioner's plea was knowing and voluntary. With respect to Petitioner's challenge to the use of prior felony convictions to enhance his sentence, a hearing on that issue was conducted on October 1, 2014. The State amended the Information at that time and relied upon Counts 10 and 11 in Case No. CF-09-1648, District Court of Cleveland County, State of Oklahoma as the basis for the enhancements. See Prior Felony Convictions Tr. at pp. 8-9; see also Original Record at 32 (Summ. Order). The trial court found that the offenses underlying those counts occurred at different times and involved different victims. Id. at pp. 9-10. Moreover, at the time of Petitioner's attempted escape, he was not currently serving the sentences imposed as to Counts 10 and 11. See id. at p. 8.6 Additionally, at that hearing Petitioner was advised of the Court's ruling that the range of punishment he faced for the crime of attempted escape from a penitentiary was four years to life imprisonment. See id. at p. 13.
At a subsequent hearing on October 22, 2014, Petitioner notified the trial court that he wanted to enter a plea of guilty. The trial court discussed, extensively, the range of punishment Petitioner faced, and that the court was rejecting Petitioner's argument that his sentencing range was only zero to two years. The trial court made clear to Petitioner that any disagreement Petitioner had with the trial court's legal conclusion regarding the applicable range of punishment would not be grounds upon which Petitioner could later challenge his plea as not knowingly and voluntarily entered.
THE COURT: Mr. Brown, what do you think the punishment range is?
THE DEFENDANT: Zero to two.
THE COURT: Okay. Understanding that the lawyers in the room say it's four to life, do you still wish to enter a plea?
THE DEFENDANT: Yes.
THE COURT: And then if sentenced to more than two years, do you understand that you're not going to be successful if you come back in front of me and say, gee, my plea wasn't knowingly and voluntarily given because I didn't understand the punishment range, Judge, let me withdraw my plea. I'm not going to let you do that. Do you understand?
THE DEFENDANT: I understand you won't.
THE COURT: If you want a jury trial, if you want to fight it, October 27th is the date and time. You understand?
THE DEFENDANT: Yeah. Yes.
THE COURT: So knowing that the State and your counsel and the Court believe it's four to life, do you wish to enter a plea at this time?
THE DEFENDANT: Yes.
See Plea Tr. at pp. 13-14. The trial court went further and advised Petitioner that if he entered a plea of guilty, any challenge that he did not knowingly and voluntarily enter his plea would not be subject to review in any post-conviction challenge. Instead, Petitioner would only be able to challenge, as a matter of Oklahoma law, whether the sentence was outside the range statutorily permitted. See id. at pp. 14-18.
The Court then reiterated the consequences of Petitioner's plea and the sentencing range he faced.
THE COURT: . . . So, Mr. Brown, regardless of the agreement, disagreement about whether it's four to life or zero to two, this Court right now believes it's four to life.
THE DEFENDANT: I understand.
THE COURT: So when I sentence you, it will be four to life. Do you understand that?
THE DEFENDANT: I understand, yes.
THE COURT: Knowing that, do you want to withdraw your plea of guilty?
THE DEFENDANT: No.
Id. at p. 18.
Petitioner's claim that his plea was not knowingly and voluntarily made lacks merit. The OCCA's determination that Petitioner was properly advised of the sentencing range is neither contrary to nor an unreasonable application of clearly established federal law nor is it an unreasonable determination of the facts in light of the evidence presented. The record amply demonstrates that Petitioner understood the range of punishment he faced. See Cross v. Franklin, 520 F. App'x 671, 674-75 (10th Cir. 2013) (rejecting habeas petitioner's challenge to voluntariness of guilty plea on grounds he did not know the punishment range of the charges filed against him where Summary of Facts form listed the proper range of punishment and petitioner responded affirmatively at plea hearing in response to the court asking him whether he knew the punishment range); see also Brown v. Dep't of Corrs. Oklahoma State Penitentiary, 597 F. App'x 960, 963 (10th Cir. 2014) ("Mr. Brown testified that he understood that the maximum sentence for child sexual abuse was life imprisonment . . . [a]nd in his written plea, he acknowledged the maximum was ten years for subornation of perjury. Thus, he had a full understanding of the consequences of his plea.") (citations omitted).
To the extent Petitioner claims the OCCA improperly construed and/or applied the Oklahoma statutory provisions which governed his applicable range of punishment and the use of prior felony convictions for enhancement, he raises matters of state law not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); see also Porter v. Allbaugh, 672 F. App'x 851, 858 (10th Cir. 2016) (rejecting habeas petitioner's challenge that the Oklahoma state courts violated his constitutional rights by misinterpreting state law as to proper statute governing crime of conviction and applicable sentencing range because on habeas review a federal court "must `accept the [state] court's construction of that State's statutes.") (citing Missouri v. Hunter, 459 U.S. 359, 368 (1983); Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002) (explaining that "the [state] courts' interpretation of the state . . . statute is a matter of state law binding on this court") (additional citations omitted); Fryar v. Peterson, 259 F. App'x 83, 84 (10th Cir. 2007) (rejecting habeas petitioner's challenge to the habitual-offender enhancement of his sentence on grounds that habeas review "is limited to `violation[s] of the Constitution or laws or treaties of the United States,' 28 U.S.C. § 2254(a), and this claim is rooted in Oklahoma state law.").
The OCCA found, as a matter of state law, that his sentence was properly enhanced and that the trial court applied the correct sentencing range. These determinations are not subject to federal habeas review. In sum, the OCCA reasonably determined that Petitioner's plea was knowing and voluntary. Petitioner's grounds for habeas relief, therefore, lack merit and the Petition should be denied.
RECOMMENDATION
It is recommended that the Petition [Doc. No. 1] be denied.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by November 20, 2017. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
