Phillips v. Hamilton

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

COLE ISAAC PHILLIPS, )

)

Petitioner, )

)

v. ) Case No. CIV-23-1182-F

)

CASEY HAMILTON, Warden, )

)

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Cole Isaac Phillips, proceeding pro se, filed a Petition for Writ of Habeas

Corpus Under 28 U.S.C. § 2254 (“Petition”) challenging his state court conviction and

sentence in Case No. CF-2020-64, District Court of Custer County, Oklahoma. Doc. 1.

United States District Judge Stephen P. Friot referred this matter to the undersigned

Magistrate Judge for proposed findings and recommendations consistent with 28 U.S.C.

§ 636(b)(1)(B)-(C). Respondent filed a Response and the state court record, and Petitioner

filed a Reply. Docs. 14, 16, 17. Petitioner also filed a Motion to Compel Judgment

Pursuant to Federal Rule of Civil Procedure, Rule 12(c) (“Motion to Compel Judgment”)

to prompt this Court’s ruling. Doc. 18. For the reasons set forth below, the undersigned

recommends that the Court DENY both the Petition and the Motion to Compel Judgment.

I. Relevant Procedural History

Petitioner was convicted of first-degree heat of passion manslaughter in a bench trial

in Custer County, Oklahoma. Doc. 14-1 at 1. He was sentenced to fifty years’

imprisonment, with all but the first twenty years suspended. Id. Petitioner filed a direct

appeal with the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed his

conviction and sentence on November 3, 2022. Docs. 14-1, 14-2.

On January 23, 2023, Petitioner filed a motion to dismiss with the District Court of

Custer County (“January 2023 Motion”). Doc. 14-17. In the motion, Petitioner argued the

state court lacked subject-matter jurisdiction because he was Native American and the

crime occurred in Indian country. Id. at 1-2. On January 26, 2023, the trial court denied

Petitioner’s motion. Doc. 14-18. Petitioner did not appeal the trial court’s decision on his

jurisdictional challenge. Petition at 5.

Later, on March 6, 2023, Petitioner filed an application for post-conviction relief

(“March 2023 Application”). Doc. 14-19. He again challenged the trial court’s subject-

matter jurisdiction; he also raised several other challenges to his state conviction and

sentence. Id. at 3-23. The trial court denied the application on May 11, 2023, and Petitioner

appealed to the OCCA. Docs. 14-20, 14-22. On October 13, 2023, the OCCA denied relief

on procedural grounds. Doc. 14-21. The OCCA ruled that Petitioner had earlier sought

post-conviction relief in the trial court with his January 2023 Motion and “did not initiate

a timely appeal” of the trial court’s order denying relief. Id. at 1-2. The OCCA further

held:

Petitioner’s propositions of error either were or could have been raised in his

previous application for post-conviction relief, and are thus barred by res

judicata or waived. He has not established any sufficient reason for not

asserting or inadequately raising his current grounds for relief in his previous

application for post-conviction relief.

Id. at 3 (citations omitted).

On December 26, 2023, Petitioner filed his Petition in this Court, asserting four

grounds for relief. Petition at 5-10. In Ground One, Petitioner argues that Oklahoma

lacked subject-matter jurisdiction to convict and sentence him because he is Native

American and the crime occurred on Indian land. In Ground Two, Petitioner asserts that

he received ineffective assistance of trial counsel when counsel failed to object to

prejudicial testimony at sentencing and ineffective assistance of appellate counsel when

counsel failed to assert the claim. In Ground Three, Petitioner claims his rights to due

process were violated when the trial judge relied on an incorrect factual determination.

And in Ground Four, Petitioner alleges that the OCCA purposefully misconstrued his

January 2023 Motion as an application for post-conviction relief.

II. Standard of Review

Where the state court adjudicated a claim on the merits, the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) significantly limits a federal habeas

court’s review of that claim. 28 U.S.C. § 2254; Brown v. Davenport, 596 U.S. 118, 125

(2022). The habeas court may grant habeas relief only if the petitioner can establish that

the decision 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 in

the State court proceeding.” 28 U.S.C § 2254(d)(1)-(2).

AEDPA also codifies the exhaustion doctrine. To advance the principle of comity,

AEDPA requires the federal habeas court to consider whether the petitioner previously

presented his grounds for relief to the OCCA. 28 U.S.C. § 2254(b)(1); Coleman v.

Thompson, 501 U.S. 722, 731 (1991) (“[T]he States should have the first opportunity to

address and correct alleged violations of state prisoner’s federal rights.”). AEDPA also

provides that habeas relief shall not be granted unless the remedies available in state court

have been exhausted.1 28 U.S.C. § 2254(b)(1)(A). In addition to exhaustion, a federal

habeas court must examine the state court’s resolution of the presented claim. “[F]ederal

courts will not review questions of federal law presented in a habeas petition when the state

court’s decision rests upon a state-law ground that ‘is independent of the federal question

and adequate to support the judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting

Coleman, 501 U.S. at 729). This doctrine bars federal habeas relief when a petitioner failed

to comply with relevant state procedural rules, as “the state court’s refusal to adjudicate the

claim ordinarily qualifies as an independent and adequate state ground for denying federal

review.” Id.; see also Coleman, 501 U.S. at 729-30.

Finally, with federal habeas review, “[a] pro se litigant’s pleadings are to be

construed liberally and held to a less stringent standard than formal pleadings drafted by

lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court will not,

however, provide a petitioner with arguments or act as his advocate. See id.

III. Analysis

This Court may not review habeas claims that arise only under state law or that have

been procedurally defaulted. Those reasons preclude review of Petitioner’s claims here.

1 There are two narrow exceptions to the exhaustion requirement, though neither is relevant

here. A petitioner is not required to exhaust his state court remedies when there is “an

absence of available State corrective process” or “circumstances exist that render such

process ineffective to protect” the petitioner’s rights. 28 U.S.C. § 2254(b)(1)(B).

A. Petitioner’s Ground Four: Federal habeas relief is not available for his

claim that the OCCA mischaracterized his January 2023 Motion.

It is helpful conceptually to start with Ground Four and Petitioner’s principal

complaint—that the OCCA erred in treating his January 2023 Motion as an application for

post-conviction relief. He contends the OCCA “purposefully misconstrued a motion to

dismiss as an application for post-conviction relief,” which he argues was an abuse of

power, an abuse of discretion, and fraudulent. Petition at 9.

Petitioner’s claim, however, implicates only the OCCA’s application of state law.

In his January 2023 Motion, Petitioner challenged his conviction and sentence, and the trial

court denied his motion on the merits. Under Oklahoma law, “[a]ny person who has been

convicted of, or sentenced for, a crime and who claims . . . that the court was without

jurisdiction to impose sentence . . . may institute a proceeding under the Post-Conviction

Procedure Act[.]” Okla. Stat. tit. 22, § 1080. This act requires trial courts to “take account

of substance, regardless of defects of form,” when considering filings that challenge a

conviction and sentence. Id. § 1083(a); see Nicholson v. Stitt, 508 P.3d 442, 446 (Okla.

2022) (citing Okla. Stat. tit. 22, § 1080 and explaining, in the context of prisoners’ claims

of lack of subject-matter jurisdiction, that “[a] final judgment and sentence can only be

vacated through a timely appeal or by seeking post-conviction relief under the Post-

Conviction Procedure Act”); Houghton v. City of Wewoka, 753 P.2d 933, 935 (Okla. Crim.

App. 1988) (citing Okla. Stat. tit. 22, § 1083(a) and ruling a municipal court “would have

been correct” to treat a prisoner’s motion for resentencing as an application for post-

conviction relief), overruled in part on other grounds by Blades v. State, 107 P.3d 607, 608

(Okla. Crim. App. 2005). As such, the question of whether the OCCA properly construed

the January 2023 Motion as an application for post-conviction relief is answered only by

looking at Oklahoma state law and does not require consideration of federal law.2

Petitioner’s Ground Four claim fails because federal habeas relief is not available

for challenges related only to a state court’s application of its own post-conviction law.

“[F]ederal habeas corpus relief does not lie for errors of state law,” and “it is not the

province of a federal habeas court to reexamine state-court determinations on state-law

questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Instead, relief under AEDPA

may only be granted for claims that arise under federal law. See, e.g., 28 U.S.C.

§ 2254(d)(1) (obliging federal courts to defer to a state court adjudication “unless the

adjudication of the claim . . . 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” (emphasis added)). The undersigned recommends that the

Court deny relief as to Petitioner’s Ground Four.3

2 Petitioner’s argument that, under the doctrine of law of the case, the OCCA was bound

by the trial court’s treatment of the January 2023 Motion does not alter the conclusion that

Petitioner’s claim arises only under state law. See Reply at 2-3.

3 In considering whether Ground Four could be liberally construed as an argument arising

under federal law, the undersigned has considered whether Petitioner presented argument

that his constitutional due process rights were violated by Oklahoma’s post-conviction

process. See Petition at 9-10. But “[f]ederal courts may upset a State’s postconviction

relief procedures only if they are fundamentally inadequate to vindicate the substantive

rights provided.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52,

69 (2009); accord Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987) (holding that post-

conviction relief procedures are constitutional if they “comport[] with fundamental

fairness”). Petitioner has not shown the OCCA’s characterization of the January 2023

Motion transgressed fundamental fairness.

B. Petitioner’s Grounds One, Two, and Three: His remaining claims are

procedurally barred from this Court’s review.

Petitioner presented Ground One (that the state lacked subject-matter jurisdiction)

in both his January 2023 Motion and his March 2023 Application. When the trial court

denied the January 2023 Motion, Petitioner did not appeal the ruling. When the OCCA

considered the subject-matter jurisdiction claim in Petitioner’s appeal of his March 2023

Application, the OCCA denied review under the doctrine of res judicata. Doc. 14-21 at 2-

3. The OCCA also held that, in failing to timely appeal the trial court’s denial of the

January 2023 Motion, Petitioner waived his right to do so under the court rules. Id.; Rules

of the Oklahoma Court of Criminal Appeals, Rule 5.2(C)(1). The OCCA made clear that

Petitioner could have raised his jurisdictional claim before the OCCA by appealing the

denial of the January 2023 Motion, but he did not.

In his March 2023 Application, Petitioner presented Grounds Two and Three (that

he received ineffective assistance of counsel and that his rights to due process were

violated), as well as Ground One again, both to the trial court and to the OCCA on appeal.

Docs. 14-19, 14-22. The OCCA, however, determined that Petitioner had previously

sought post-conviction relief through his January 2023 Motion, thus rendering the January

2023 Motion a “previous application for post-conviction relief” and the March 2023

Application a “subsequent post-conviction proceeding.” Doc. 14-21 at 2-3. The OCCA

also ruled Grounds Two and Three could have been raised in the January 2023 Motion. Id.

at 2 (“Petitioner’s propositions of error either were or could have been raised in his previous

application for post-conviction relief, and are thus barred by res judicata or waived.”).

Consequently, the OCCA ruled it was procedurally barred from reviewing Petitioner’s

appeal of his March 2023 Application. Id. at 3 (citing Okla. Stat. tit. 22, § 1086).

“A federal habeas court generally may consider a state prisoner’s federal claim only

if he has first presented that claim to the state court in accordance with state procedures.”

Shinn v. Ramirez, 596 U.S. 366, 371 (2022). When the prisoner fails to do so and the state

court dismisses the claim on that basis, the claim is procedurally defaulted. Id. The

doctrine of procedural default prohibits a federal court from considering a specific habeas

claim that was resolved on an independent and adequate state procedural ground, unless

the petitioner “can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will result

in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991);

see also Maes v. Thomas, 46 F.3d 979, 985 (10th Cir. 1995). “A state court finding of

procedural default is independent if it is separate and distinct from federal law.” Maes, 46

F.3d at 985. A finding of procedural default is adequate if it has been applied

“evenhandedly in the vast majority of cases.” Id. at 986 (internal quotation marks omitted).

Applying these principles here, Petitioner’s Grounds One, Two and Three are

procedurally barred from this Court’s review. The OCCA’s procedural bars as applied to

these claims were independent because Petitioner’s failure to comply with state procedural

rules was “the exclusive basis for the state court’s holding.” Id. at 985; see also Rules of

the Oklahoma Court of Criminal Appeals, Rule 5.2(C); Okla. Stat. tit. 22, § 1086. The

Tenth Circuit has consistently found Oklahoma’s waiver law to be an independent and

adequate state procedural ground when the OCCA refuses to consider post-conviction

claims that could have been raised on direct appeal or in a previous post-conviction

proceeding. See, e.g., Fontenot v. Crow, 4 F.4th 982, 1023-24 (10th Cir. 2021) (holding

waiver rule under Post-Conviction Procedure Act is independent and adequate state ground

for procedural default); Johnson v. Champion, 288 F.3d 1215, 1226 n.3 (10th Cir. 2002)

(holding Rule 5.2(C) is independent and adequate state ground for procedural default).

Because Petitioner’s claims were defaulted in state court on independent and

adequate state procedural grounds, this Court may not address them unless Petitioner can

establish cause and actual prejudice or a fundamental miscarriage of justice. See Coleman,

501 U.S. at 749-50. The undersigned has reviewed Petitioner’s challenge to the OCCA’s

characterization of his January 2023 Motion and liberally construes it as an argument for

cause to overcome the procedural default. See Petition at 9-10; Reply at 2-4, 7. Any

argument for cause by Petitioner fails. With his January 2023 Motion, Petitioner chose to

assert only his jurisdictional claim and to forgo other claims for post-conviction relief. To

establish cause, Petitioner must establish that “something external to the petitioner,

something that cannot fairly be attributed to him” impeded his efforts to comply with the

state’s procedural rule. Coleman, 501 U.S. at 753. Petitioner’s own filing decisions are

fairly attributed to him, and he provides no evidence of external factors that impacted his

compliance with Oklahoma court rules. Petitioner has not shown cause for his procedural

default. Nor has he attempted to show a fundamental miscarriage of justice. Accordingly,

Petitioner is not entitled to habeas corpus relief on Grounds One, Two, or Three. The

undersigned recommends that the Court deny relief on these claims.

IV. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned recommends that the Court DENY the

Petition and DENY AS MOOT the Motion to Compel Judgment. Docs. 1, 18. 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 this Court by September 16, 2024.

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to timely object to this Report

and Recommendation waives the right to appellate review of the factual and legal issues

addressed in this Report and Recommendation. See Moore v. United States, 950 F.2d 656,

659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues referred to the undersigned

Magistrate Judge in this matter.

ENTERED this 26" day of August, 2024.

(paw. Stephon

CHRIS M. ee Mf

UNITED STATES MAGISTRATE JUDGE

10