Pettie

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

CEBON WAYNE PETTIE,

Petitioner,

v. Case No. 23-CV-0328-SEH-SH

DAVID ROGERS, Interim

Warden,1

Respondent.

OPINION AND ORDER

Petitioner Cebon Wayne Pettie (“Pettie”), an Oklahoma prisoner

appearing through counsel, seeks federal habeas relief under 28 U.S.C. §

2254, asserting he is in state custody in violation of federal law pursuant to

the criminal judgment entered against him in Tulsa County District Court

Case No. CF-2008-2687. Specifically, Pettie argues his plea was unknowing

and involuntary and he received ineffective assistance of plea counsel. [See

ECF No. 2 at 11]. Having considered Pettie’s Petition for Writ of Habeas

Corpus (“Petition”) [ECF No. 2], Respondent’s Response to Petition [ECF No.

9], Pettie’s Reply [ECF No. 11], the record of state-court proceedings provided

1 Pettie presently is incarcerated at the Red Rock Correctional Center in

Lawton, Oklahoma, and David Rogers is the Interim Warden of that facility.

The Court therefore substitutes David Rogers, Interim Warden, in place of

Steven Harpe as party Respondent. See Rule 2(a), Rules Governing Section

2254 Cases in the United States District Courts. The Clerk of Court shall

note on the record this substitution.

by Respondent [ECF Nos. 9-1 through 9-17 and 10], and applicable law, the

Court DENIES the Petition.

BACKGROUND

On October 6, 2008, in the District Court of Tulsa County Case No. CF-

2008-2687, Pettie pleaded no contest to the following six charges: two counts

of manslaughter in the first degree, possession of marijuana, driving under

suspension, transporting an open container and not having any insurance.

[See ECF No. 10-1 at 3-4]. Pettie’s convictions stem from an incident on May

16, 2008, wherein Pettie was driving while under the influence and struck

the vehicle of Benjamin and Hughla Som de Cerff, causing their deaths. [See

ECF No. 10-5 at 40-41].

Pettie entered a blind plea. [ECF No. 10-6 at 26; see also ECF No. 10-1 at

4-5]. After conducting an aggravation and mitigation hearing on December 1,

2008, Tulsa County District Judge Dana Kuehn (“Judge Kuehn”) found Pettie

guilty of all charges beyond a reasonable doubt and sentenced him to thirty-

five years in the custody of the Department of Corrections for Counts 1 and 2

plus fines and costs, one year in the custody of the Tulsa County Jail for

Counts 3 and 4 plus fines and costs, and a $10 fine plus costs for Counts 5

and 6. [ECF No. 10-2 at 62-63; see also ECF No. 10-5 at 67-68 and ECF No.

10-6 at 2-9, 13-14]. Pettie’s terms of incarceration were ordered to run

concurrently. [ECF No. 10-2 at 63].

On December 9, 2008, Pettie timely moved to withdraw his plea. [ECF

No. 10-6 at 15-20; see also ECF No. 10-6 at 22-23]. After conducting a

hearing on the matter [see ECF Nos. 10-3 and 10-4], Judge Kuehn denied

Pettie’s motion. [ECF No. 10-4 at 51-52].2 Convoluted appellate proceedings

ensued [see ECF No. 9 at 3-9]. After being granted an appeal out of time,

Pettie filed a Petition in Error claiming Judge Kuehn abused her discretion

in denying Pettie’s motion to withdraw his plea because his plea was not

voluntarily entered and he received ineffective assistance of plea counsel.

[ECF Nos. 9-16 and 9-17]. The Oklahoma Court of Criminal Appeals

(“OCCA”) denied Pettie’s Petition for Writ of Certiorari and affirmed Judge

Kuehn’s decision. [ECF No. 9-4].

The instant Petition for Writ of Habeas Corpus [ECF No. 2] followed.

Pettie alleges he “received ineffective assistance of counsel who failed to

advise him of the nature, purpose and consequences of his plea thus [Pettie’s]

plea was not knowingly, voluntarily or intelligently entered.” [Id. at 11.]

2 Relevant facts related to Pettie’s plea and efforts to withdraw his plea will

be discussed in more detail below.

DISCUSSION

I. Legal Standards

A federal court has discretion to grant federal habeas relief to a prisoner

who is in state custody pursuant to a final criminal judgment if the prisoner

“is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 5 (2010)

(“[I]t is only noncompliance with federal law that renders a State’s criminal

judgment susceptible to collateral attack in the federal courts.”). But the

federal habeas statutes, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) and as interpreted by the United

States Supreme Court, significantly limit a federal court’s discretion to grant

habeas relief to a state prisoner.

“A state prisoner generally must exhaust available state-court remedies

before a federal court can consider a habeas corpus petition.” Bland v.

Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006); see 28 U.S.C. § 2254(b)(1)(A).

When a state prisoner fairly presents a federal claim in state court and the

state court adjudicates that claim on the merits, a federal court cannot grant

habeas relief as to that claim unless the prisoner first shows that the state

court’s decision as to that claim either (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.” Douglas v. Workman, 560 F.3d 1156, 1170 (10th

Cir. 2009) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

As used in § 2254(d)(1), the phrase “clearly established Federal law”

means “the governing legal principle or principles” stated by “the holdings” of

the Supreme Court’s “decisions as of the time of the relevant state-court

decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v.

Taylor, 529 U.S. 362, 412 (2000)). Thus, when § 2254(d)(1)’s framework

informs a federal court’s analysis, the first question for the court is whether

the petitioner’s claim rests on law that was clearly established by Supreme

Court precedent at the time of the relevant state-court decision. House v.

Hatch, 527 F.3d 1010, 1015-18 (10th Cir. 2008). If such law exists, and the

state court has correctly identified that law, the only question under §

2254(d)(1) is “whether the decision ‘unreasonably applies that principle to the

facts of the prisoner’s case.’” Cullen v. Pinholster, 563 U.S. 170, 182 (2011)

(quoting Williams, 529 U.S. at 413). To establish that the state court’s

decision unreasonably applied the law, a petitioner “must show that the state

court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, “a petitioner

must persuade a federal court that no ‘fairminded juris[t]’ could reach the

state court’s conclusion under [the Supreme] Court’s precedents.” Brown v.

Davenport, 596 U.S. 118, 135 (2022) (quoting Davis v. Ayala, 576 U.S. 257,

269 (2015)).

Under § 2254(d)(2), a petitioner must show that the state court’s decision

rests on an unreasonable determination of the facts. But “a state-court

factual determination is not unreasonable merely because the federal habeas

court would have reached a different conclusion in the first instance.” Wood

v. Allen, 558 U.S. 290, 301 (2010). Instead, the reasonableness of a state

court’s factual determination also is measured by Richter’s fairminded-

disagreement standard. Dunn v. Madison, 583 U.S. 10, 13-14 (2017). And “if

[Richter’s] rule means anything, it is that a federal court must carefully

consider all the reasons and evidence supporting the state court’s decision”

and that the federal court may not disturb the state court’s decision “without

identifying—let alone rebutting—all of the justifications” that may support

that decision. Mays v. Hines, 592 U.S. 385, 391-92 (2021) (per curiam). In

addition, when § 2254(d) applies, the federal court’s review is limited to the

same record that was presented in state court unless and until the petitioner

satisfies § 2254(d)’s demanding preconditions to relief, Pinholster, 563 U.S. at

185, and the federal court must presume the correctness of any state-court

factual findings unless the petitioner presents clear and convincing evidence

to rebut that presumption, 28 U.S.C. § 2254(e)(1).

If a petitioner satisfies § 2254(d)’s preconditions to relief, the federal

court may then review the petitioner’s federal claim de novo. Milton v.

Miller, 744 F.3d 660, 670-71 (10th Cir. 2014). But, even on de novo review, a

federal court must apply § 2254(e)(1)’s presumption of correctness to any

state-court factual findings relevant to the federal claim. Sumpter v. Kansas,

61 F.4th 729, 750 (10th Cir. 2023). Moreover, even if the federal court

determines that a constitutional error occurred, the court may not grant

federal habeas relief unless the petitioner also “show[s] that the error had a

‘“substantial and injurious effect or influence”’ on the outcome of his trial.”

Davenport, 596 U.S. at 126 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)).

Applying these legal standards, the Court turns to Pettie’s claim.

II. Unknowing and Involuntary Plea

Pettie advances one claim containing two subparts. Pettie alleges he

“received ineffective assistance of counsel who failed to advise him of the

nature, purpose and consequences of his plea thus petitioner’s plea was not

knowingly, voluntarily or intelligently entered.” [ECF No. 2 at 11].

Therefore, the Court will address both portions of his claim: that his plea was

involuntary and unknowing and that he received ineffective assistance of

plea counsel. Concerning his plea, Pettie alleges:

[e]vidence presented indicated that [Pettie] did not understand the

plea form and the questions asked of him, as he was told he would

receive a sentence less than what he was legally eligible for and as

a result that plea resulted from coercion. [Pettie] pled no-contest

to crimes that lacked sufficient evidence to convict him because

there was no factual basis for the offense. The evidence failed to

establish that [Pettie] ever read or went over the plea form and the

plea form was incomplete. [Pettie’s] Trial Counsel admitted he

possessed no specific knowledge of going over the plea form with

[Pettie] at the hearing on the Motion to withdraw the plea. Mr.

Zanerhaft also admitted he was unaware of [Pettie’s] learning

disabilities. [Pettie’s] fiancée, Sascha Elsner, testified that Mr.

Zanerhaft went over the form with [Pettie] in the hallway outside

of court just before entering the plea. Ms. Elsner explained that

[Pettie] had a learning disability and struggled to read. [Pettie’s]

evidence that the plea form was incomplete is corroborated by clear

and convincing evidence.

[ECF No. 2 at 13].

A. The OCCA’s Decision

In evaluating Pettie’s claim, the OCCA explained:

This Court’s primary concern in evaluating the validity of a guilty

plea is whether the plea was knowingly and voluntarily entered.

Dunn v. State, 2018 OK CR 35, ¶ 9, 434 P.3d 1, 3. We review a

district court’s denial of a motion to withdraw plea for abuse of

discretion. Champion v. State, 2002 OK CR 8, ¶ 3, 461 P.3d 952,

954. Under an abuse of discretion standard, we will not reverse

the district court unless it made “a clearly erroneous conclusion

and judgment” that is against the logic and effect of the facts

presented. State v. Hodges, 2020 OK CR 2, ¶ 3, 457 P.3d 1093,

1095. The burden is on Pettie to show a defect in the plea process

that entitles him to withdraw the plea. Elmore v. State, 1981 OK

CR 8, ¶ 8, 624 P.3d 78, 80. Furthermore, this Court has stated

that, “[n]either Petitioner’s dissatisfaction with the sentence, nor

an inaccurate prediction by counsel of the likely sentence to be

imposed on a blind plea, is a sufficient ground for withdrawal of a

plea.” Champion, 2020 OK CR 8, ¶ 3, 461 P.3d at 954.

The district court’s ruling rejecting Pettie’s claim that his plea was

not knowing and voluntarily entered is supported by the record.

We find the district court did not abuse its discretion in denying

his motion to withdraw guilty plea.

[ECF No. 9-4 at 2-3]. Pettie argues this holding is “objectively unreasonable

considering [he] has the right to the effective assistance of counsel in plea

negotiations.” [ECF No. 2 at 14].

B. Analysis and Conclusion

To comport with due process, a plea must be knowing, voluntary and

intelligent. Brady v. United States, 397 U.S. 742, 747-78 (1970); Boykin v.

Alabama, 395 U.S. 238, 242 (1969); see also Hill v. Lockhart, 474 U.S. 52, 56

(1985) (noting that a plea is valid if it “represents a voluntary and intelligent

choice among the alternative courses of action open to the defendant”

(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970))). At a minimum,

for a plea to be knowing and intelligent, the defendant must understand the

nature of the charges against him, the possible penalties, and the fact that he

is waiving several constitutional rights by entering a plea. Brady, 397 U.S.

at 756-57; Boykin, 395 U.S. at 242-44; see also United States v. Hurlich, 293

F.3d 1223, 1230 (10th Cir. 2002) (“The defendant need not understand every

collateral consequence of the plea, but need only understand its direct

consequences.”); Cunningham v. Diesslin, 92 F.3d 1054, 1061 (10th Cir. 1996)

(“An attorney’s erroneous sentence estimate ... does not render a plea

unknowingly made.”). In determining whether a plea is knowing and

voluntary, courts may consider answers a defendant has provided on written

forms relevant to the plea. Hoffman v. Young, 23 F. App’x 885, 887 (10th Cir.

2001).3 And a defendant’s in-court statements made under oath during the

plea hearing as to the knowing and voluntary nature of his pleas are also

accorded a strong presumption of reliability. See Blackledge v. Allison, 431

U.S. 63, 73-74 (1977) (noting that “representations of the defendant ... at [a

plea] hearing as well as any findings made by the judge accepting the plea,

constitute a formidable barrier in any subsequent collateral proceedings”).

A defendant’s decision to enter a plea must also be voluntary; thus, a plea

is constitutionally infirm if it is the product of coercion. See Euziere v. United

States, 249 F.2d 293, 295 (10th Cir. 1957) (“A plea of guilty interposed as the

result of coercion is not consistent with due process and therefore a judgment

and sentence imposed pursuant to such a plea cannot stand.”).

3 The Court cites all unpublished decisions herein as persuasive authority.

Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

i. Knowing and Intelligent

The Court has reviewed the transcripts of the relevant hearings, and the

record supports the objective reasonableness of the OCCA’s decision. At the

plea hearing, Judge Kuehn asked Pettie, “[d]o you have any questions for me

about anything on this form?” [ECF No. 10-1 at 3]. Pettie answered, “[n]o,

ma’am.” [Id.] Judge Kuehn then outlined the six (6) charges he was facing,

including “not having any insurance,” outlined the rights encompassed by a

jury trial, and asked “do you wish for a jury to decide this matter or do you

want to go forward with the plea which we will talk about? Which one?” [Id.]

Pettie responded, “the plea.” [Id.]. Judge Kuehn then explained:

When we come back here, there are many options that can happen.

Your attorney is going to be asking for a certain recommendation

and the State is going to be asking me to sentence you to

something. There is no set plea negotiation number in this

case. You are getting a PSI that’s going to tell me more about you,

but the punishment range in your case for your charges is four to

life. That means when we come back, I can sentence you to life,

I can sentence you to four, I can sentence you to anything

in between. Your attorney might ask me for probation. You

might get a split sentence or you do some jail time, some probation

time, or it might be that I give you all jail time, and there is no

guarantee on this number. Do you understand that’s what

a blind plea means, sir?

A: Yes, ma’am.

Q: Do you have any questions for me about what that means?

A: No, ma’am.

Q: Have you gone over this with your lawyer?

A: Yes, ma’am.

[Id. at 5 (emphasis added)]. The prosecutor even stated on the record the

State would be asking for “30 years in the penitentiary.” [Id. at 6].

Furthermore, Pettie’s plea paperwork indicates the applicable punishment

ranges for the six charged crimes [ECF No. 10-6 at 25], Pettie was entering a

plea of no contest, there was no plea agreement, and he was entering a “blind

plea[.]” [Id. at 26]. Portions of the plea paperwork were incomplete. [See,

e.g., id. at 25 (answer to question 14 is incomplete), 27 (question 32 is

unanswered)]. At the plea withdrawal hearing, Pettie’s counsel, Jack

Zanerhaft (“Zanerhaft”), testified the incomplete portions were an oversight.

He prepared the plea paperwork prior to meeting with Pettie and went over it

with him before the hearing. [ECF No. 10-4 at 13, 25-26]. Zanerhaft also

testified that Pettie’s family was involved in the decision to plead no contest

and never informed him Pettie had any learning disabilities. [Id. at 9, 17-18;

see also ECF No. 10-3 at 8 (Pettie testified his counsel did not know he was

enrolled in learning disability classes), 32 (Pettie testified he is not limited

mentally)].

At the plea withdrawal hearing, Pettie testified:

Q: And that plea you knew to be what’s called a blind plea; isn’t

that true?

A: Yes.

Q: And even Judge Kuehn explained to you what a blind plea

meant, didn’t she?

A: Yes.

[ECF No. 10-3 at 15].

Q: And you knew what the ranges of punishment were that you

could have faced because that’s on this form; isn’t that true?

A: Yes.

Q: And Mr. Zanerhaft went over that with you, didn’t he?

A: Yes.

Q: As a matter of fact, you knew that the range, at least for

manslaughter, was not less than four years nor more than life,

correct?

A: Yes.

Q: It was your decision to enter what kind of plea to this charge?

A: No contest.

Q: All right. Now, whose idea was it to enter a plea of no contest?

A: Jack’s.

Q: Okay. Did you agree with that?

A: Yes.

***

Q: You knew that you weren’t entering a plea of guilty, correct?

A: Yes.

[Id. at 18-19].

Q: So you knew full well when you were entering this plea exactly

what you were getting into, didn’t you?

A: I guess. Yeah.

[Id. at 28]. The record also reveals Pettie completed the twelfth grade

[ECF No. 10-6 at 24] and could read and write well enough to pass a

driver’s license exam [ECF No. 10-4 at 36].

At other points during the plea withdrawal hearing, Pettie testified he did

not understand the “no contest plea” but he understood everything else.

[ECF No. 10-3 at 22; see also id. at 20, 31]. Pettie also testified Zanerhaft did

not inform him of the 85% Rule4 and did not go over the entire form with him,

but he did sign the plea paperwork. [Id. at 7, 8, 17, 21]. Pettie testified

Zanerhaft told him, “manslaughter carr[ies] four to life, and that I wouldn’t

get no life or 30 years.” [Id. at 6]. Pettie’s fiancée testified Zanerhaft

informed Pettie “he would only get four to eight [years].” [ECF No. 10-4 at

31]. Revealingly, Pettie testified the trial court should allow him to withdraw

his plea “[b]ecause I don’t think I deserve no 35 years for no car accident.”

[Id. at 31].

The record establishes Pettie understood the nature of the charges against

him, the possible penalties and that he was waiving several constitutional

rights by entering his plea. Judge Kuehn made it abundantly clear that

Pettie could receive anywhere from four years to life incarceration, thereby

undermining any erroneous sentence estimate provided by Zanerhaft. Pettie

was provided multiple opportunities to ask Judge Kuehn questions on the

record and did not. In all, the record supports the reasonableness of the

OCCA’s determination that Pettie’s plea was knowing and intelligent.

4 Under Oklahoma law, Pettie is required to serve at least eighty-five percent

of his sentence without the possibility of parole, see Okla. Stat. tit. 21, §

13.1(3) (hereinafter “the 85% Rule”).

ii. Voluntary

Regarding the voluntariness of Pettie’s plea, Pettie’s plea paperwork

states he was not forced, abused, mistreated or promised anything by anyone

to enter his plea and he entered his plea on his own free will without any

coercion or compulsion of any kind. [ECF No. 10-6 at 26]. Further, at the

plea hearing, Pettie testified no one asked him to answer the questions on his

plea paperwork in a certain way and no one was forcing him to enter a plea.

[ECF No. 10-1 at 2, 3]. As noted, he also testified he agreed with Zanerhaft’s

advice to enter a no contest plea. [ECF No. 10-3 at 19]. Therefore, the record

also supports the reasonableness of the OCCA’s determination that Pettie’s

plea was voluntary.

On the record presented, the Court finds and concludes that the OCCA’s

rejection of Pettie’s challenge to the constitutional validity of his plea was

neither contrary to nor based on an unreasonable application of clearly

established federal law nor an unreasonable determination of the facts. The

Court therefore denies the Petition as to this portion of Pettie’s claim.

III. Ineffective Assistance of Plea Counsel

With respect to the ineffective assistance of counsel portion of his claim,

Pettie alleges he “was denied the effective assistance of counsel in plea

negotiations and in considering whether he should enter a blind plea.” [ECF

No. 2 at 18]. Further, Pettie’s counsel:

[F]ailed to ensure he could read and understand the plea form,

failed to advise him of the correct range of punishment, failed to

advise that he would be required to serve 85% of the sentence

imposed as part of the plea, and promised him a sentence far less

than what he was eligible to receive and that he ultimately did

receive from the Trial Court.

[Id.]

A. The OCCA Decision

Pettie presented this claim to the OCCA. The OCCA rejected Pettie’s

claim. The OCCA reasoned:

The burden is on Pettie to prove (1) that counsel’s performance was

deficient and (2) that counsel’s deficient performance resulted in

prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Wiley v. State, 2008 OK CR 30, ¶ 4, 199 P.3d 877, 878. He must

show there is a reasonable probability that, but for plea counsel’s

errors, he would not have pled guilty and would have insisted on

going to trial. Lozoya v. State, 1996 OK CR 55, ¶ 27, 932 P.2d 22,

31. As with any claim of ineffective assistance of counsel, this

Court need not determine whether counsel’s performance was

deficient if the claim of ineffective assistance of counsel can be

disposed of on the ground of lack of prejudice. See Malone v. State,

2013 OK CR 1, ¶ 16, 293 P.3d 198, 207.

In support of his claim, he cites to the numerous alleged failings of

plea counsel raised in Proposition 1. Pettie’s arguments involving

the alleged failings of plea counsel are refuted by the record. Pettie

has not shown he was prejudiced by counsel’s representation at the

plea hearing or that counsel was ineffective. His ineffective

assistance of counsel claim is denied.

[ECF No. 9-4 at 3-4]. Pettie contends, “the OCCA’s opinion was not merely

erroneous but objectively unreasonable meeting [Pettie’s] burden for issuing

the writ[.]” [ECF No. 2 at 18].

B. Analysis and Conclusion

The OCCA correctly identified the legal principles governing Pettie’s

ineffective assistance of counsel claim. In Hill v. Lockhart, 474 U.S. 52, 58

(1985), the Supreme Court held “that the two-part Strickland v. Washington

test applies to challenges to guilty pleas based on ineffective assistance of

counsel.” Strickland requires a defendant to show (1) that counsel’s

performance was unreasonable when measured against “prevailing

professional norms” and (2) “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 690-91, 694 (1984).

The second part of the test determines whether counsel’s alleged errors

resulted in prejudice. Id. at 694. To demonstrate prejudice in the context of

a guilty plea, a defendant “must show that there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill, 474 U.S. at 59. Because the OCCA

identified the correct standard governing his claim, Pettie cannot show that

the OCCA’s decision is “contrary to” clearly established federal law.

Nor can he show that the OCCA’s decision is based on an objectively

unreasonable application of the Strickland/Hill standard or an unreasonable

determination of the facts. When a state court applies Strickland’s two-prong

inquiry, the state court must view counsel’s performance with the “strong

presumption” that counsel’s performance was reasonable “under prevailing

professional norms.” Strickland, 466 U.S. at 688-89. Standing alone, this

standard is “highly deferential.” Id. at 689. Section 2254(d)(1) adds a second

layer of deference. When a federal habeas court reviews a state court’s

decision on a Strickland claim, the habeas court must grant the state court “a

deference and latitude that are not in operation when the case involves

review under the Strickland standard itself.” Richter, 562 U.S. at 101. The

only question for the habeas court is whether the state court had a

reasonable basis for rejecting the Strickland claim. Id. And “[t]he Strickland

standard is a general one, so the range of reasonable applications is

substantial.” Id. at 105.

Pettie raises several instances in support of this claim, and the Court

will address each. First, Pettie claims his counsel failed to ensure Pettie

could read and understand the plea form. [ECF No. 2 at 18]. While a portion

of the plea paperwork is incomplete, Pettie testified he did inform his counsel

that he graduated high school, but did not inform him that he had learning

disabilities. [ECF No. 10-3 at 43]. Further testimony at the plea withdrawal

hearing reveals there was strong communication between defense counsel

and Pettie’s family in reaching the plea decision. This supports the

presumption that if there were concerns about Pettie’s mental capacity,

Zanerhaft would have been informed of them. [See, e.g., ECF No. 10-4 at 9,

18 and ECF No. 10-3 at 14-15]. Pettie obtained a driver’s license and

testified he is not mentally impaired. [ECF No. 10-3 at 32; ECF No. 10-4 at

36]. Further, a review of the plea hearing transcript demonstrates Judge

Kuehn outlined the charges and range of punishments and provided Pettie

with the opportunity to ask questions. [ECF No. 10-1 at 3, 5]. Nothing in the

record supports Pettie’s position that he did not understand what he was

agreeing to or that his counsel failed to ensure he understood the process.

[See ECF No. 10-3 at 28]. Therefore, Pettie has failed to demonstrate

Zanerhaft’s performance was deficient in this regard.

Next, Pettie alleges his counsel failed to advise him of the correct range

of punishment. [ECF No. 2 at 18]. Pettie does not cite the record for this

proposition. [Id.] The plea paperwork includes the punishment range and

Judge Kuehn advised Pettie of the same. [ECF No. 10-6 at 25 and ECF No.

10-1 at 5]. Accordingly, Pettie failed to establish he was prejudiced by his

counsel’s alleged failure to inform him of the correct range of punishment.

Pettie also alleges Zanerhaft failed to advise him that he would be

required to serve eighty-five percent of the sentence imposed as part of the

manslaughter convictions. However, the plea paperwork indicates the 85%

Rule applied to Pettie’s convictions [ECF No. 10-6 at 25], and Pettie signed

the plea paperwork indicating he understood the form and that his answers

were true and correct [Id. at 27]. He also testified at the plea withdrawal

hearing as follows:

Q: You indicated on that question there that the answers were

true and correct when you were speaking with the Judge, didn’t

you?

A: Yes.

Q: You also indicated that you understood that I, meaning you,

may be prosecuted for perjury if I made false statements to the

Court.

A: Yes.

[ECF No. 19-3 at 22]. Further, Zanerhaft testified he “absolutely” explained

the 85% Rule to Pettie. [ECF No. 10-4 at 21]. Accordingly, Pettie has failed

to establish either deficient performance by his counsel or prejudice.

Finally, Pettie alleges Zanerhaft “promised him a sentence far less than

what he was eligible to receive and that he ultimately did receive from the

Trial Court.” [ECF No. 2 at 18]. Zanerhaft expressly denied any such

promise. [See ECF No. 10-4 at 19]. Pettie’s plea paperwork also indicated he

was not being promised anything by anyone to enter his plea. [ECF No. 10-6

at 26]. Even if Zanerhaft had promised Pettie a lenient sentence prior to the

plea hearing, Judge Kuehn told Pettie at the plea hearing that he could

receive any sentence between four years to life and “there is no guarantee on

the number.” [ECF No. 10-1 at 5]. Pettie answered affirmatively that he

understood. [Id.]. Therefore, Pettie cannot demonstrate any prejudice due to

Zanerhaft’s purported promise.

Viewing the OCCA’s decision with the required deference, the record

refutes Pettie’s claims that his attorney provided ineffective assistance

during entry of his guilty plea. The OCCA’s decision on Pettie’s ineffective

assistance of counsel claim was well within the range of reasonable

applications. Therefore, the Court denies Pettie’s Petition as to this portion

of his claim.

CONCLUSION

The Court finds and concludes Pettie has not made the necessary

showings to obtain federal habeas relief under 28 U.S.C. § 2254. The Court

therefore denies the Petition. The Court further concludes that no certificate

of appealability shall issue because reasonable jurists would not debate the

correctness of this Court’s assessment of Pettie’s two-part constitutional

claim. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

IT IS THEREFORE ORDERED that the Petition [ECF No. 2] is

denied; a certificate of appealability is denied; and a separate judgment

shall be entered in this matter.

IT IS FURTHER ORDERED that the Clerk of Court shall note on the

record the substitution of David Rogers, Interim Warden, in place of Steven

Harpe as party Respondent.

IT IS SO ORDERED this 10* day of April, 2026.

Sara E. Hill

UNITED STATES DISTRICT JUDGE

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