Hawkins v. Harvanek

1

JERRY RAY HAWKINS, Petitioner, v. KAMERON HARVANEK, Warden,^[1] Respondent.

No. 20-CV-0121-CVE-JFJ

United States District Court, N.D. Oklahoma

January 27, 2023

OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

Petitioner Jerry Hawkins, a state prisoner appearing pro se,^[2] brings this action pursuant to 28 U.S.C. § 2254, seeking federal habeas relief from the judgment entered against him in the District Court of Tulsa County, Case No. CF-2011-1610. Hawkins raises two grounds for relief, asserting that his pleas of guilty and nolo contendere were not knowing and voluntary and that he received constitutionally ineffective assistance of counsel. Dkt. # 1, at 3-4. Respondent Kameron Harvanek has filed a response (Dkt. # 15) in opposition to the petition, as well as the state-court record (Dkt. # 16). Having considered the parties' arguments and the relevant record, the Court denies the petition.

I. BACKGROUND

Hawkins was convicted in the District Court of Tulsa County in 2013 on three counts of exhibiting obscene materials to a minor one count of procuring child pornography, and two counts of lewd acts. Dkt. # 15-4, at 1-20. Hawkins entered a blind plea of nolo contendere to one count of lewd acts and a blind plea of guilty to all remaining counts. Id. The state district court imposed concurrent twenty-year terms of imprisonment on each count of lewd acts and exhibiting obscene materials to a minor, as well as a ten-year term of imprisonment, to be served consecutively, for procuring child pornography. Id.

Hawkins through counsel, filed a timely motion to withdraw his pleas on January 11, 2013. Id., at 21-23. The motion stated two grounds for relief:

ONE: The Defendant states that due to his stress in the subject situation he was unable to make a free and voluntary decision to either accept the State's recommendation, plea “blind” or proceed to a jury trial.

TWO: The Defendant states that due to the “sensitive” subject matter of the criminal charges against him; and, his embarrassment relating thereto, he was unable to make a free and voluntary decision to either accept the State's recommendation, plea “blind” or proceed to a jury trial.

Id., at 22. The state district court conducted a hearing on the motion, at which Hawkins provided testimony. See Dkt. 15-3, at 16-26. The district court denied relief, and Hawkins sought a writ of certiorari in the Oklahoma Court of Criminal Appeals (OCCA). See Dkt. # 15-2. The OCCA affirmed Hawkins' conviction and sentence on July 25, 2019. See Dkt. # 15-1.

II. GROUND ONE: KNOWING AND VOLUNTARY PLEAS

In his first ground for relief, Hawkins contends that his pleas were not “knowingly, intelligently, and voluntarily made because they were entered as the result of inadvertence, ignorance, misunderstanding, and misapprehension.” Dkt. # 1, at 3. Hawkins raised this argument in his petition for writ of certiorari. Dkt. # 15-2, at 12-18. The OCCA denied relief on procedural grounds:

In his first proposition of error, Petitioner argues that his guilty pleas were not knowingly, intelligently, and voluntarily made, and therefore the District Court erred in not allowing Petitioner to withdraw his pleas. Petitioner contends his pleas were entered as a result of inadvertence, ignorance, mistake, and without deliberation as a result of unseemly haste because he was under the impression, relying on the advice of his attorney, that one of the six counts against him would be dismissed and the prosecution would recommend the term of years in a previously rejected offer. Petitioner urges that the stress of learning that counsel's advice was wrong resulted in him having “no time to process and consider what had transpired and his options[.]”

Petitioner did not raise this claim in his motion to withdraw plea. Nor did he raise this claim during the hearing on his motion to withdraw. Petitioner has therefore waived this claim from appellate review by failing to raise it during the proceedings on his motion to withdraw plea and in the petition for writ of certiorari. Rules 4.2(B) and 4.3(C)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019); Weeks v. State, 2015 OK CR 16, ¶¶ 27-29, 362 P.3d 650, 657. Proposition I is denied.

Dkt. # 15-1, at 3-4.

Harvanek raises the affirmative defense of procedural default, arguing that Hawkins' claim is procedurally barred from federal habeas review because the claim was defaulted in state court. Dkt. # 15, at 14-19. Under the doctrine of procedural default, federal courts are precluded from “consider[ing] issues on habeas review that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” McCracken v. Gibson, 268 F.3d 970, 976 (10th Cir. 2001) (internal quotation marks omitted). “To be independent, the procedural ground must be based solely on state law.” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (internal quotation marks omitted). To be adequate, a state procedural ground “must be strictly or regularly followed and applied evenhandedly to all similar claims.” Id. (internal quotation marks omitted). Where, as here, the state has pleaded the affirmative defense of a state procedural bar, “the burden to place that defense in issue shifts to the petitioner,” who must, at a minimum, provide “specific allegations . . . as to the inadequacy of the state procedure.” Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999).

Hawkins does not dispute the independence or adequacy of the state procedural ground on which the OCCA denied his claim. Having reviewed the state appellate rules and opinion cited by the OCCA as the grounds for denial, the Court finds no indication that they implicate federal law or that the OCCA's decision was otherwise based on federal law. Further, Harvanek provided argument and authority supporting a finding of independence and adequacy, and Hawkins failed to provide “specific allegations” concerning either. Hooks, 184 F.3d at 1217; see Dkt. # 15, at 1617.

Thus, to overcome the procedural bar, Hawkins must demonstrate either “cause for the default and actual prejudice,” or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Hawkins has neither asserted cause^[3] and prejudice excusing his procedural default nor provided argument suggesting that his claim must be reviewed on the merits to prevent a fundamental miscarriage of justice. See Spears v. Mullin, 343 F.3d 1215, 1252-53 (10th Cir. 2003) (finding claim procedurally barred where petitioner “[did] not address his alleged procedural default” by challenging the state procedural rule's adequacy or alleging cause and prejudice or a fundamental miscarriage of justice).

Hawkins' sole argument relating to the procedural default is that the OCCA erred in its determination that he had failed to present the claim in his plea withdrawal motion. Dkt. # 1-1, at 12-13. “[A] federal habeas court,” however, “does not have license to question a state court's finding of procedural default or to question whether the state court properly applied its own law.” Fuller v. Pacheco, 531 Fed.Appx. 864, 868 (10th Cir. 2013) (internal quotation marks omitted) (quoting Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010)); see Finlayson v. State, 6 F.4th 1235, 1240 (10th Cir. 2021) (explaining that the Court “will not review the propriety of the state court's . . . application of its own procedural rule,” because “a violation of state law, such as the misapplication of a state procedural rule, cannot justify habeas relief”).

Accordingly, the Court finds that Hawkins' claim is procedurally barred from federal habeas review.

III. GROUND TWO: INEFFECTIVE ASSISTANCE OF COUNSEL

In his second ground for relief, Hawkins asserts that the state district court “erred in not appointing conflict-free counsel to represent [him] at the hearing on the motion to withdraw his guilty pleas,” thereby depriving him of reasonably effective assistance of counsel in violation of the Sixth Amendment. Dkt. # 1, at 4. Hawkins claims that “in order to show his pleas were not entered knowingly and voluntarily, [he] would have been required to show that he did not receive competent representation in entering the pleas.” Dkt. # 1-1, at 14-15. He claims that his counsel “knew of this and vehemently fought to defend himself rather than [Hawkins] during the withdrawal hearing.” Id. (arguing that his counsel's “examination of [him at the hearing] was oriented to protect counsel's interests rather than to establish the facts supporting [Hawkins'] motion to withdraw the guilty plea”).

The OCCA reviewed Hawkins' claim and determined that it should be denied:

The record flatly refutes Petitioner's assertion that an actual conflict of interest arose warranting plea counsel's withdrawal and the appointment of conflict counsel. In the present case, Judge Caputo specifically examined Petitioner concerning the nature of his allegations and whether he was accusing plea counsel of some form of misconduct or incompetence. Petitioner denied on the record that he was accusing plea counsel of deficient performance resulting in the inadvertent entry of the pleas. Instead Petitioner testified that it was his own “misunderstanding of the system, of the way things are written” that led to his desire to withdraw his pleas.

Petitioner merely raises the possibility that a conflict of interest existed that warranted the appointment of conflict counsel. This is wholly insufficient to warrant relief. Under the total circumstances presented here, there was no error from the trial court's failure to appoint conflict counsel. Rutan, 2009 OK CR 3, ¶ 67,

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