Tibbetts v. Rogers

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KENNETH H. TIBBETTS, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-23-913-J
)
DAVID ROGERS, 	)
Warden, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner Kenneth H. Tibbetts, proceeding pro se, seeks a writ of habeas
corpus under 28 U.S.C. § 2254. Doc. 34. United States District Judge Bernard
M. Jones has referred this matter to the undersigned Magistrate Judge for
initial 	proceedings 	pursuant 	to 	28 	U.S.C. 	§ 	636(b)(1)(B), 	(C). 	Doc. 	26.
Respondent 	filed 	a 	response 	to 	the 	amended 	petition 	and 	included 	as
attachments Petitioner’s state-court filings and those courts’ decisions. Doc.
36.1 Respondent also provided to the Court the plea hearing transcript, the
1 	Petitioner objects to the length of Respondent’s response to his amended
petition. Doc. 43, at 3. He asks the Court to strike the response because it
violates LCvR7.1(e) which limits response briefs to thirty pages. Id. But this
Rule, unless Respondent files a motion, does not apply to a response to the
merits of a habeas corpus petition. The Court ordered Respondent to file a
response in accordance with Rule 5 and Respondent complied. Doc. 35; see also
Rule 5, Rules Governing Section 2254 Cases in the United States District Courts
(requiring the respondent, when the court so orders, to “address the allegations
in the petition” and furnish available transcripts, briefs on appeal, and “the
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sentencing hearing transcript, the plea withdrawal hearing transcript, and
portions of the original record for Beckham County District Court Case No. CF-
2015-188.2 Docs. 37-38. Petitioner filed a reply. Doc. 43. For the reasons below,
the undersigned recommends the Court deny habeas corpus relief.
I. 	Procedural background.
Petitioner seeks habeas corpus relief from the Judgment and Sentence
the 	Beckham 	County 	District 	Court 	imposed 	against 	him 	in 	Case 	No.
CF-2015-188. Doc. 34, at 1.3
After sentencing, through retained plea counsel, Petitioner applied to
withdraw his guilty plea. Doc. 36, Ex. 3. Petitioner’s plea counsel argued
opinions and dispositive orders of the appellate court”). The Court denies
Petitioner’s request to strike the response.
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
3 	Petitioner 	pleaded 	guilty 	to 	robbery 	with 	a 	weapon 	after 	former
conviction of a felony (“AFCF”) (Count 1), in violation of O KLA . STAT . tit. 21,
§ 801; possession of a firearm AFCF (Count 2), in violation of O KLA . STAT.
tit. 21, § 1283(A); kidnapping AFCF (Counts 3 & 4), in violation of OKLA . STAT .
tit. 21, § 741; attempted robbery with a dangerous weapon AFCF (Counts 5
& 6), in violation of OKLA . STAT . tit. 21, § 801; and possession of a firearm AFCF
(Count 7), in violation of O KLA . STAT . tit. 21, § 1283(A). Doc. 36, Ex. 1. On
March 30, 2016, the state district court sentenced Petitioner to five life
sentences (Counts 1 and 3-6) and two ten-year sentences (Counts 2 and 7), with
Counts 1-4 and 7 to run concurrently, Counts 5 and 6 to run concurrently, and
Counts 5 and 6 to run consecutively to Count 1. Id. Ex. 2.
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Petitioner did not knowingly or voluntarily enter his plea because he “did [not]
fully understand what the effect of entering a blind plea could mean for
sentencing” and 	“the effects of his medical condition and the drugs used to
treat his condition had impaired his mental capacity to comprehend what was
happening at the time of the entry of [the] plea.” Id. Ex. 3, at 1. Then, through
court-appointed plea withdrawal counsel,4 Petitioner filed a brief in support of
his 	request. 	Id. 	Ex. 	4. 	After 	a 	hearing, 	the 	state 	district 	court 	denied
Petitioner’s request to withdraw his pleas, id. Ex. 5, at 3, and Petitioner
appealed to the Oklahoma Court of Criminal Appeals (OCCA) in Case No. C-
2016-419, id. Exs. 5-6.
In this direct appeal, Petitioner’s appellate counsel argued:
Proposition I: Mr. Tibbetts’ guilty plea was invalid, because the
court—just weeks after a notice to declare an insanity defense was
filed—failed to conduct any meaningful inquiry into Petitioner’s
competence.
Proposition II: The record did not establish an adequate factual
basis, 	as 	even 	the 	State 	acknowledged. 	The 	plea 	cannot 	be
considered knowing, intelligent and voluntary. The trial court
erred by denying Petitioner’s application to withdraw the guilty
plea.
Proposition 	III: 	Petitioner 	was 	not 	properly 	advised 	of 	the
punishment 	ranges 	for 	the 	underlying 	offenses, 	and 	the 	plea
cannot be considered knowing, intelligent and voluntary. The trial
court erred by denying Petitioner’s application to withdraw the
guilty plea.
4 	Referred to as “conflict counsel” in OCCA decisions excerpted below.
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Proposition IV: Acceptance of Petitioner’s pleas and imposition of
sentences 	violated 	Petitioner’s 	constitutional 	and 	statutory
protections against double jeopardy and double punishment.
Proposition V: Admitting documents protected by doctor-patient
privilege into evidence constituted plain error. Petitioner was
deprived [of] a fair sentencing hearing, and the error contributed
to an excessive sentence.
Proposition VI: Prosecutorial misconduct at both the sentencing
hearing and the withdrawal hearing deprived Mr. Tibbetts of his
right to fair proceedings.
Proposition VII: Petitioner was denied the effective assistance of
counsel throughout the case in violation of his rights under the 6th
and 14th Amendments to the United States Constitution and Art.
II, §§ 7 and 20, of the Oklahoma Constitution.
Proposition VIII: Cumulative errors deprived Mr. Tibbetts of a fair
proceeding and a reliable outcome.
Id. Ex. 6. The OCCA denied Petitioner’s certiorari appeal. Id. Ex. 9.
Petitioner then filed a pro se application for post-conviction relief and
argued:
Proposition I: The waiver doctrine found in 22 O.S. § 1086 does not
apply to fundamental constitutional claims.
Proposition II: Petitioner was denied constitutionally effective
assistance of counsel due to an actual conflict of interest with his
retained counsel of record.
Proposition III: The district court of Beckham County was without
subject-matter jurisdiction to prosecute Petitioner.
Proposition IV: Petitioner was denied constitutionally effective
assistance of 	counsel due 	to 	the 	deficient performance 	of his
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attorney and the resulting prejudice Petitioner suffered, which
was the proximate result of conflicting interests.
Proposition 	V: Petitioner 	was 	denied 	constitutionally effective
assistance of appellate counsel.
Id. Ex. 10.
The state district court denied post-conviction relief, and the OCCA
affirmed in Case No. PC-2023-581. Id. Ex. 15. Before the Court is Petitioner’s
amended petition for habeas corpus relief. Doc. 34.5
II. 	Petitioner’s claims.
Petitioner raises seven grounds for relief:
Ground I: The State obtained Petitioner’s plea convictions and
punishments in violation of the 14th [Amendment] Due Process of
Law Clause.
Ground II: Petitioner’s Counts: 2 and 7; 1 and 3; and 5 and 6 plea
convictions and concurrent punishments violate Petitioner’s 5th
[Amendment] Double Jeopardy Clause protections.
5 	Petitioner’s original Petition contained both exhausted and unexhausted
claims. 	Doc. 	1. 	Respondent 	moved 	to 	dismiss, 	and 	the 	undersigned
recommended 	the 	Court 	allow 	Petitioner 	to 	voluntarily 	dismiss 	the
unexhausted claim. Docs. 13-14 & 22. In an objection, Petitioner asked to
dismiss the unexhausted portion of his original Ground V. Doc. 17, at 8. The
Court granted Petitioner’s request and dismissed the unexhausted claim for
relief, 	leaving 	the 	Petition 	with 	only 	exhausted 	claims 	and 	rendering
Respondent’s motion to dismiss moot. Doc. 26. Petitioner filed an Amended
Petition, and the Court ordered the State to respond. Docs. 34-35. Petitioner’s
Amended Petition supersedes the original and is now the operative pleading.
Cf. Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (“[A]n
amended complaint ordinarily supersedes the original and renders it of no
legal effect.”).
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Ground 	III: 	Petitioner[’s] 	due 	process 	of 	law 	rights 	to 	a 	fair
sentencing was deprived[,] violated[,] and denied by inadmissible
prejudicial medical evidence and prosecutorial misconduct.
Ground 	IV: 	Petitioner[’s] 	6th 	[Amendment] 	rights 	to 	effective
assistance of counsel was deprived, denied[,] and violated at the
plea, entry, plea conviction and sentencing.
Ground 	V: 	Petitioner’s 	6th 	and 	14th 	[Amendment] 	rights 	to
effective assistance of counsel and due process of law on appeal of
right was violated.
Ground 	VI: 	The 	state 	court 	lacked 	jurisdiction 	to 	charge[,]
prosecute[,] or convict Petitioner[, which was a] 14th [Amendment]
due process of law violation.
Ground VII: Petitioner[’s] 6th and 14th [Amendment] due process
of 	law 	rights 	to 	the 	effective 	assistance 	of 	counsel 	at 	plea
withdrawal and certiorari appeal was violated and denied.
Doc. 34, at 5-22.
III. 	Standard of review for habeas corpus relief and the doctrine of
procedural default.
“The standards set 	forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (‘AEDPA’) guide [this Court’s] review of 28 U.S.C. § 2254
applications.” Wellmon v. Colo. Dep’t of Corr., 952 F.3d 1242, 1245 (10th Cir.
2020). A petitioner is entitled to federal habeas relief only if the state court’s
adjudication of the merits of the petitioner’s claim “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
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presented in the State court proceeding.” 28 U.S.C. § 2254(d). “It is the
petitioner’s burden to make this showing and it is a burden intentionally
designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242 (10th
Cir. 2015) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). This standard
“reflects the view that habeas corpus is a ‘guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011)
(quoting 	Jackson 	v. Virginia, 	443 U.S. 307, 332 n.5 (1979) (Stevens, J.,
concurring in judgment)).
In analyzing a § 2254 claim, the Court first determines “whether the
petitioner’s 	claim 	is 	based 	on 	clearly 	established 	federal 	law, 	focusing
exclusively on Supreme Court decisions.” Hanson v. Sherrod, 797 F.3d 810, 824
(10th Cir. 2015); see also Menzies v. Powell, 52 F.4th 1178, 1195 (10th Cir.
2022) (“We first determine whether the Supreme Court has clearly established
the 	pertinent 	constitutional 	protection.”). 	Clearly 	established 	federal 	law
consists of Supreme Court holdings in cases with facts similar to those in the
petitioner’s case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If
clearly established federal law exists, this Court then considers whether the
state court decision was contrary to or an unreasonable application of that
precedent. See Owens, 792 F.3d at 1242; see also Menzies, 52 F.4th at 1196
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(“We then ask whether the state court’s decision was contrary to, or involved
an unreasonable application of, that precedent.”).
“A state court’s decision is ‘contrary to’ clearly established federal law ‘if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than
the Court has on a set of materially indistinguishable facts.’” Owens, 792 F.3d
at 1242 (quoting Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013)). “It is
not enough that the state court decided an issue contrary to a lower federal
court’s conception of how the rule should be applied; the state court decision
must be ‘diametrically different’ and ‘mutually opposed’ to the Supreme Court
decision itself.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
The “‘unreasonable application’ prong requires [the petitioner to prove]
that the state court ‘identified the correct governing legal principle from
Supreme Court decisions but unreasonably applied that principle to the facts
of the prisoner’s case.’” Owens, 792 F.3d at 1242 (alterations omitted) (quoting
Bland, 459 F.3d at 1009). On this point, “the relevant inquiry is not whether
the state court’s application of federal law was incorrect, but whether it was
‘objectively 	unreasonable.’” 	Id. 	(internal 	quotation 	marks 	omitted). 	So 	to
qualify for habeas relief on this prong, a petitioner must show “‘there was no
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reasonable basis’ for the state court’s determination.” Id. at 1243 (quoting
Cullen, 563 U.S. at 188). “In other words, ‘so long as fairminded jurists could
disagree on the correctness of the state court’s decision,’ habeas relief is
unavailable.” Id. (quoting Harrington, 562 U.S. at 101).
This 	Court’s 	“deference 	extends 	not 	only 	to 	the 	state 	court’s 	legal
conclusions but also its factual findings.” Menzies, 52 F.4th at 1195. The Court
must 	“accept 	a 	state-court 	[factual] 	finding 	unless 	it 	was 	based 	on 	‘an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.’” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting
28 U.S.C. § 2254(d)(2)); see also Menzies, 52 F.4th at 1195 (explaining that a
habeas court defers to the state court’s factual findings “unless it ‘plainly
misapprehend[ed] or misstate[d] the record in making [its] findings, and the
misapprehension goes to a material factual issue that is central to [the]
petitioner’s claim’” (alterations in original) (quoting Ryder ex rel. Ryder v.
Warrior, 810 F.3d 724, 739 (10th Cir. 2016))). The Court presumes the factual
determination to be correct and a petitioner can only rebut this presumption
with clear and convincing evidence. See Davis, 576 U.S. at 271; see also 28
U.S.C. § 2254(e)(1).
This standard of review only applies to claims that have not been
procedurally defaulted in state court, as “[a] federal habeas court generally
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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). “Under the doctrine of procedural default, claims that
are defaulted in state court on adequate and independent state procedural
grounds will not be considered by a habeas court.” Simpson v. Carpenter, 912
F.3d 542, 570 (10th Cir. 2018) (quoting Fairchild v. Workman, 579 F.3d 1134,
1141 (10th Cir. 2009)); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A]
federal court will not review the merits of claims, including constitutional
claims, that a state court declined to hear because the prisoner failed to abide
by a state procedural rule.”). “A state procedural default is ‘independent’ if it
relies on state law, rather than federal law.” Smith v. Workman, 550 F.3d 1258,
1274 (10th Cir. 2008). “A state procedural default is ‘adequate’ if it is firmly
established and regularly followed.” Id.; see, e.g., Ellis v. Hargett, 302 F.3d
1182, 1186 (10th Cir. 2002) (holding OCCA’s procedural bar of the petitioner’s
claim 	raised 	for 	the 	first 	time 	in 	a 	post-conviction 	proceeding 	was 	“an
independent and adequate state ground for denying habeas relief”).
A federal court may not consider claims defaulted in state court on
adequate and independent state procedural grounds “unless the prisoner 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
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result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501
U.S. 722, 750 (1991).
The fundamental miscarriage of justice exception to procedural default
is “a markedly narrow one, implicated only in extraordinary cases where a
constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007)
(quoting Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999)). So a prisoner
“asserting innocence as a gateway to defaulted claims must establish that, in
light of new evidence, ‘it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547
U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). And
“[t]he 	gateway 	should 	open 	only 	when 	a 	petition 	presents 	‘evidence 	of
innocence so strong that a court cannot have confidence in the outcome of the
trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error.’” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (quoting
Schlup, 513 U.S. at 316).
Finally, although this Court liberally construes the petition, it will not
supply Petitioner with an argument. See, e.g., United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[B]ecause [the petitioner] appears pro se, we must
construe 	his 	arguments 	liberally; 	this 	rule 	of 	liberal 	construction 	stops,
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however, at the point at which we begin to serve as his advocate.” (citing Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991))).
IV. 	Analysis.
A. 	Ground One.
1. 	The OCCA did not improperly apply Supreme Court
law or unreasonably determine that Petitioner was
competent to enter his guilty pleas.
Petitioner claims he was deprived of his due process rights because when
he entered his guilty pleas he “was more likely than not incompetent.” Doc. 34,
at 5. He argues evidence of his incompetence was before the judge during the
plea hearing and the state district judge had an “obligatory affirmative duty
under the due process clause to conduct an adequate competency inquiry and
determination 	of 	[Petitioner] 	to 	enter 	the 	blind 	pleas 	knowingly[,]
intelligently[,] and voluntar[ily] prior to accepting the blind pleas.” Id. at 5-6.
Petitioner also argues he “did not provide” the state district court “with a
sufficient basis to accept [his] blind pleas . . . as being knowing[,] intelligent[,]
or voluntary.” Id. at 6.
a. 	Clearly established federal law.
“[A] federal court may set aside a state court guilty plea only for failure
to satisfy due process.” Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir.
1996). “To satisfy due process, a guilty plea must be knowing, intelligent, and
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voluntary.” Payne v. Dowling, 790 F. App’x 884, 886 (10th Cir. 2019) (citing
Boykin v. Alabama, 395 U.S. 238, 241-43 (1969)). “To be a knowing and
intelligent 	plea, 	‘[t]he 	defendant 	need 	not 	understand 	every 	collateral
consequence of the plea, but need only understand its direct consequences.’”
Id. (quoting United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002)).
“To be voluntary, the decision to plead guilty must be the defendant’s decision.”
Id.
Petitioner asserts he did not intelligently enter his pleas because he was
“more likely than not incompetent.” Doc. 34, at 5. “A competency claim by a
criminal 	defendant 	may 	implicate 	both 	substantive 	and 	procedural 	due
process.” 	Gilbert v. Mullin, 302 F.3d 1166, 1178-79 (10th Cir. 2002). “A
procedural competency claim is based upon a trial court’s alleged failure to
hold a competency hearing, or an adequate competency hearing, while a
substantive competency claim is founded on the allegation that an individual
[entered a guilty plea] while, in fact, incompetent.” McGregor v. Gibson, 248
F.3d 946, 952 (10th Cir. 2001). “In order for a habeas petitioner to prevail on a
procedural competency claim, ‘the petitioner must establish that a reasonable
judge should have had a bona fide doubt as to his competence at the time of
[the guilty plea].’” Gilbert, 302 F.3d 1178 (quoting McGregor, 248 F.3d at 952);
see also Allen v. Mullin, 368 F.3d 1220, 1238-39 (10th Cir. 2004) (“The standard
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of competence to enter a guilty plea is identical” to the test for competency to
stand trial.). Substantively, a defendant is competent to enter a guilty plea if
he “has ‘sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding’ and 	has ‘a rational as 	well as factual
understanding of the proceedings against him.’” Godinez v. Moran, 509 U.S.
389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per
curiam)).
b. 	The OCCA’s decision.
The OCCA addressed the merits of Petitioner’s competency claim and
held:
This Court reviews the denial of a motion to withdraw guilty
plea for an abuse of discretion. Cox v. State, 2006 OK CR 51, ¶ 18,
152 P.3d 244, 251, overruled on other grounds, State v. Vincent,
2016 OK CR 7, 371 P.3d 1127. On certiorari review of a guilty plea,
our review is limited to two inquiries: (1) whether the guilty plea
was made knowingly and voluntarily; and (2) whether the district
court accepting the guilty plea had jurisdiction. Lewis v. State,
2009 OK CR 30, ¶ 4, 220 P.3d 1140, 1142 (citing Cox, 2006 OK CR
51, ¶ 4, 152 P.3d at 247). A voluntary guilty plea waives all non-
jurisdictional defects. Cox, 2006 OK CR 51, ¶ 4, 152 P.3d at 247
(citing Frederick v. State, 1991 OK CR 56, ¶ 5, 811 P.2d 601, 603).
We review the entire record in examining the voluntariness of the
plea. Fields v. State, 1996 OK CR 35, ¶ 28, 923 P.2d 624, 630;
Berget v. State, 1991 OK CR 121, ¶ 15, 824 P.2d 364, 370.
The standard for determining the validity of a guilty plea is
whether the plea represents a voluntary and intelligent choice
among alternative courses of action open to the defendant. North
Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970); Hopkins v. State, 1988 OK CR 257, ¶ 2, 764 P.2d 215, 216.
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When a defendant claims that his guilty plea was entered through
inadvertence, ignorance, influence or with deliberation, he has the
burden of showing that the plea was entered as a result of one of
these reasons and that there is a defense that should be presented
to the jury. Estell v. State, 1988 OK CR 287, ¶ 7, 766 P.2d 1380,
1383.
I. Competency to Plead
Petitioner 	contends 	the 	trial 	court 	failed 	to 	conduct 	an
adequate investigation into his competency to enter a guilty plea.
Three (3) weeks prior to entering his blind plea, Petitioner filed a
notice of intent to declare an insanity defense on January 20, 2016.
On appeal, Petitioner asserts this notice placed his “mental state”
at issue and necessitated the trial court conduct a comprehensive
probe into his competency prior to accepting his plea. Petitioner
argues 	that 	“[w]ithout 	an 	appropriate 	interrogation 	before
accepting [his] plea and waiver of constitutional rights, acceptance
of the guilty plea was fundamentally defective.” Thus, Petitioner
contends the trial court abused its discretion when it denied his
application to withdraw.
Petitioner has failed to demonstrate the trial court abused
its discretion in denying his motion to withdraw his plea. Given
that Petitioner had previously filed notice of his intent to pursue
an insanity defense, the trial court arguably could have delved a
little deeper into Petitioner’s competence at the plea hearing.
However, the court’s inquiry was not, as Petitioner contends,
“fundamentally defective.” Especially 	in light of the fact that
neither plea counsel nor the prosecutor questioned Petitioner’s
competency at the plea hearing. See Ocampo v. State, 1989 OK CR
38, ¶ 5, 778 P.2d 920, 922 (“In tendering a guilty plea, defense
counsel, bound by the Rules of Professional Conduct, should either
raise the issue of competency, if there are articulable facts which
raise a question of the present condition of the defendant prior to
the tender of a plea, or be restrained from utilizing the issue of
competency as a tactic to obtain a delay of the proceedings.”).
As defined in 22 O.S.2011, § 1175.1(1), “‘competency means
the present ability of a person . . . to understand the nature of the
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charges 	and 	proceedings 	brought 	against 	him 	or 	her 	and 	to
effectively and rationally assist in his or her defense.” (emphasis
added). A review of the record clearly reveals Petitioner was
competent to enter his plea. See Ocampo, 1989 OK CR 38, ¶¶ 3-8,
778 P.2d at 921-23. The mere fact Petitioner subsequently became
unhappy with the sentences he received does not render his plea
invalid. Fields, 1996 OK CR 35, ¶ 53, 923 P.2d at 634. The trial
court did not abuse its discretion in denying Petitioner’s motion to
withdraw. Petitioner’s Proposition I is denied.
Doc. 36, Ex. 9, at 4-6.
c. 	The OCCA reasonably determined that the state
district court did not deprive Petitioner of his
procedural due process rights.
Petitioner argues that the state district court violated his due process
rights by failing to further investigate his competency because he alerted the
court of his intent to mount an insanity defense at trial.6 See Doc. 34, at 5-6;
see also Doc. 43, at 4-5. In other words, he asserts that evidence of his mental
incompetence at the time of the charged offenses should have triggered a more
6 	This notice stated:
COMES NOW the Defendant, by and through his attorney, Alicia
Carrington Sorelle, of Elk City, OK, and declares the intent to rely
upon the defense of insanity at trial on this matter. Counsel has
applied for, and is seeking, medical records for the use by an expert
witness, and at trial, to determine whether the Defendant was
mentally capable of knowing what he was doing at the time of the
alleged crime based upon effects resulting from the use of his
lawfully 	prescribed 	drugs 	used 	to 	treat 	an 	existing 	medical
condition.
Doc. 38, Ex. 1, at 71.
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thorough investigation into his competency at the time of the plea hearing to
enter a guilty plea. Doc. 43, at 4 (“Petitioner argues in Reply[] that his defense
counsel’s filing the pre-trial insanity at time of committing crimes, induced by
medical 	treatment 	medications 	and 	having 	Petitioner[’s] 	mental 	[h]ealth
examined 	by 	a[n] 	unqualified 	mental 	health 	counselor 	was 	more 	than
sufficient to put the plea judge on notice the defendant’s mental health [was]
at issue requiring a competency inquiry beyond that cursory competency
inquiry [state law].” (citing King v. State, 553 P.2d 529, 535 (Okla. Crim. App.
1976))). The OCCA considered this argument and held that the district court’s
lack of inquiry did not render Petitioner’s guilty pleas defective. Doc. 36, Ex. 9,
at 5. This determination was not contrary to or an unreasonable application of
federal law.
Petitioner argues that his notice of intent to mount an insanity defense
to his crimes required the district court to further inquire into his competence
to enter a guilty plea. This argument fails under clearly established law. To
establish that a reasonable judge should have had a “bona fide doubt” as to a
defendant’s competence to enter a guilty plea, there are
no fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is
often a difficult one in which a wide range of manifestations and
subtle nuances are implicated. That they are difficult to evaluate
is suggested by the varying opinions trained psychiatrists can
entertain on the same facts.
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Drope v. Missouri, 420 U.S. 162, 180 (1975). Some factors that might warrant
further inquiry are “evidence of . . . irrational behavior, . . . demeanor at trial,
and any prior medical opinion on competence to stand trial.” Id. As well as any
representations of defense counsel about a defendant’s competence. McGregor,
248 F.3d at 954.
The record shows that neither Petitioner’s counsel nor the prosecutor
raised competence at the plea hearing and the court conducted a thorough
colloquy with Petitioner concerning his present mental state before accepting
his pleas. Doc. 37, Ex. 1, at 11-13. Petitioner also coherently testified under
oath and at length during his sentencing hearing about his mental state at the
time he committed the crimes. Id. at 112-173.
At 	the 	plea 	hearing, 	Petitioner 	stated 	that 	he 	was 	not 	under 	the
influence of drugs, medication, or alcohol, that he had never been treated for
emotional or mental health problems, that he was voluntarily entering a guilty
plea, and that he believed himself to be mentally competent at that time. Id.
at 	11-13. 	These 	“[s]olemn 	declarations 	in 	open 	court 	carry 	a 	strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Despite
Petitioner’s earlier notice of a potential insanity defense to his crimes, a
reasonable judge under these circumstances would not have a bona fide doubt
that Petitioner had the “‘sufficient present ability to consult with his lawyer
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with a reasonable degree of rational understanding’ and ha[d] ‘a rational as
well as factual understanding of the proceedings against him.’” Godinez, 509
U.S. at 396 (quoting Dusky, 362 U.S. at 402). So the Court cannot conclude that
the 	OCCA’s 	decision 	that 	the 	district 	court 	did 	not 	violate 	Petitioner’s
procedural due process rights at the time of his pleas was either contrary to or
an unreasonable application of clearly established federal law. See, e.g., Wood
v. Allbaugh, No. CIV-13-628-M, 2016 WL 8309028, at *11-12 (W.D. Okla. Dec.
22, 2016) (denying habeas relief where petitioner argued state district court
“was on notice” that he had “at some point in time been treated for mental
illness,” summarizing the state district court’s colloquy, and concluding that
“[c]learly established federal law required nothing more”), adopted, 2017 WL
706340 (W.D. Okla. Feb. 22, 2017); see also Wright v. Arellano, 410 F. App’x
120, 124 (10th Cir. 2011) (upholding denial of habeas relief where petitioner
argued his confusion about the advisement of his rights to testify “created a
doubt as to his competency to stand trial, which in turn triggered the trial
court’s duty to conduct a competency hearing before proceeding further”).
The Court should conclude Petitioner is not entitled to habeas relief on
his procedural due process claim. 28 U.S.C. § 2254(d).
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d. 	The OCCA did not unreasonably apply Supreme
Court 	law 	or 	make 	an 	unreasonable
determination of the facts given the evidence
presented 	in 	state 	court 	when 	it 	determined
Petitioner was competent to enter a guilty plea.
The 	OCCA 	reviewed 	the 	entire 	record 	and 	held 	“Petitioner 	was
competent to enter his plea.” Doc. 36, Ex. 9, at 6. Respondent argues the OCCA
reasonably applied federal law and reasonably determined the facts when it
concluded Petitioner was competent to plead guilty to his crimes. Doc. 36, at
26-31. The undersigned agrees.
Respondent cites the guilty plea form signed by Petitioner where he
stated 	he 	understood 	the 	nature 	and 	consequences 	of 	the 	guilty 	plea
proceeding, that he had been informed of the charges against him and the
range of possible punishments, that he had consulted his lawyer about his
potential defenses to the charges, that he understood his constitutional rights
and that he was giving up certain rights, that he was not under the influence
of any substance that would affect his ability to understand the proceedings,
that he had not been treated for mental illness or confined to a mental hospital,
and that he was satisfied with his counsel’s advice to change his plea. Doc. 38,
Ex. 1, at 82-89. Respondent also cites the plea hearing transcript where the
state court asked Petitioner and his counsel questions about Petitioner’s
competency and understanding of the proceeding, his sentencing hearing
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transcript where Petitioner testified at length and admitted he was responsible
for his criminal actions, and his withdrawal hearing transcript where conflict
counsel told the court that Petitioner did not need a competency assessment.
Doc. 37, Ex. 1, at 10-13, 135, 201-202.
The undersigned has reviewed the record and transcripts and agrees
they amply support the OCCA’s determination that Petitioner was competent
to enter his pleas. Petitioner stated in his guilty plea form that he understood
the nature and consequences of the plea proceedings and had consulted his
lawyer before changing his plea. Doc. 38, Ex. 1, at 82-90. The state court then
examined Petitioner in open court at the plea hearing about whether he
understood what he was doing and whether he was doing it freely and
intelligently after consulting his counsel. Doc. 38, Ex. 1, at 10-13. The Court
affords a strong presumption of reliability to Petitioner’s statements made in
open court at the plea hearing. See, e.g., Blackledge, 431 U.S. at 73-74.
The 	OCCA 	did 	not 	unreasonably 	apply 	Supreme 	Court 	law 	in
determining Petitioner’s competency and the record supports the OCCA’s
finding that Petitioner was competent to enter his guilty pleas. See Godinez,
509 U.S. at 396, Boykin, 395 U.S. at 241-43. So Petitioner is not entitled to
habeas corpus relief on his substantive due process claim.
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e. 	Petitioner’s factual basis claim is not cognizable
on 	habeas 	corpus 	review 	and 	the 	OCCA
procedurally barred it.
In his motion to withdraw his guilty plea, Petitioner claimed his “plea
was not entered knowingly or voluntarily.” Doc. 36, Ex. 3. Then, in his
certiorari appeal, Petitioner argued that his guilty pleas lacked a sufficient
factual basis. Id. Ex. 6, at 22-28. As part of the same proposition, Petitioner
briefly 	argued 	that 	his 	plea 	was 	not 	entered 	knowingly, 	intelligently,
voluntarily, in violation of his due process rights. Id. at 22 (citing Boykin, 395
U.S. 242-43). Both arguments were raised separately from his competency
argument. Id. at 15-22. The OCCA held that Petitioner had waived his factual-
basis claim under Rule 4.2(B) of the Rules of the Oklahoma Court of Criminal
Appeals by failing to raise it in his application to withdraw his plea. Doc. 36,
Ex. 9, at 6-7.
Petitioner’s intent to raise a factual-basis claim in his amended habeas
corpus petition is unclear. See Doc. 34, at 6. But, as much as he does try to
claim that the lack of a factual basis for his guilty pleas rendered them
unknowing and involuntary, that claim is not cognizable on habeas corpus
review. See, e.g., Perkis v. Sirmons, 201 F. App’x 648, 651 (10th Cir. 2006)
(“[U]nless a defendant claims factual innocence while pleading guilty, there is
no federal constitutional requirement for the district court to ascertain a
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factual basis for the plea.”); Berget v. Gibson, 1999 WL 586986, at *4-6 (10th
Cir. 1999) (“Controlling federal case law teaches that the requirement of a
factual basis for a guilty plea is not rooted in the federal Constitution;
therefore, it is not redressable under 28 U.S.C. § 2254. . . . Only when the
defendant claims his factual innocence while pleading guilty, a situation not
present here, have state courts been constitutionally required to establish a
factual basis for a plea.” (collecting cases)). And, even if it were cognizable, the
OCCA’s procedural bar of the claim precludes this Court’s review.
The OCCA held that Petitioner had waived his factual basis claim under
Rule 4.2(B), which precludes certiorari review of a claim that has not been
raised in the plea withdrawal proceedings. Doc. 36, Ex. 9, at 6-7; see also Rule
4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Tit. 22, Ch.18, App.
Under Oklahoma law any claim not first raised in the withdrawal proceedings
is waived. Walker v. State, 953 P.2d 354, 355 (Okla. Crim. App. 1998) (“We do
not reach the merits of the first proposition, for [petitioner] waived the issue
by failing to raise it in his motion to withdraw guilty plea.”).
This Court “will not consider 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.’” Smallwood v. Gibson, 191 F.3d 1257,
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1268 (10th Cir. 1999) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir.
1998)). A procedural bar is an affirmative defense, so Respondent bears the
burden of asserting it and, if Petitioner argues the state procedural bar is
inadequate, Respondent also bears the burden of proving its adequacy. Hooks
v. Ward, 184 F.3d 1206, 1216-17 (10th Cir. 1999). Petitioner does not address
the OCCA’s procedural bar of his factual basis claim in his reply or assert the
waiver rule is not independent or adequate. Doc. 43, at 4-6. The undersigned
concludes this Court is procedurally barred from hearing this claim.
“It is well established that the OCCA’s waiver rule is based on Oklahoma
state law 	and is ‘considered independent for 	purposes 	of federal habeas
review.’” Elam v. Dowling, No. CIV-19-223-R, 2019 WL 10852802, at *3 (W.D.
Okla. July 22, 2019) (quoting Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir.
2014)), adopted, 2020 WL 4015625 (W.D. Okla. July 16, 2020). “Whether a
state procedural bar is ‘adequate’ to bar federal habeas review ‘is a matter of
federal law.’” Milsap v. Whitten, No. CIV-21-610-R, 2022 WL 873514, at *8
(W.D. Okla. Feb. 16, 2022), adopted, 2022 WL 868524 (W.D. Okla. Mar. 22,
2022) (quoting Johnson v. Lee, 578 U.S. 605, 608 (2016)). “[T]he appropriate
question is whether the state court’s ‘application of the particular procedural
default rule [at issue] to all similar claims has been evenhanded in the vast
majority of cases.’” Id. (alteration in original) (quoting Thacker v. Workman,
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678 F.3d 820, 835 (10th Cir. 2012)). That the OCCA may have “overlooked the
procedural bar as an occasional act of grace is insufficient to conclude that the
procedural bar is inadequate.” Cannon v. Gibson, 259 F.3d 1253, 1268 (10th
Cir. 2001) (internal quotation omitted). The undersigned finds no reason to
conclude the OCCA’s procedural rule is inadequate. See Elam, 2019 WL
10852802, at *3 (“The weight of this authority and Tenth Circuit precedent
convinces this Court that the OCCA applies [Rule 4.2(B)] evenhandedly and
that the OCCA’s procedural rule is both independent and adequate to preclude
federal review.” (internal citation omitted)); see also Lewallen v. Martin, 755 F.
App’x 735, 744-45 (10th Cir. 2018) (denying certificate appealability and
upholding 	district 	court’s 	finding 	that 	OCCA’s 	Rule 	4.2(B) 	bar 	was 	not
“inadequate”).
Petitioner’s 	default 	of 	his 	factual 	basis 	claim 	on 	independent 	and
adequate state grounds bars this Court’s review unless he can show cause and
prejudice or a fundamental miscarriage of justice. Petitioner does not assert
cause or resulting prejudice to overcome the procedural bar. See, e.g., Simpson
v. Carpenter, 912 F.3d 542, 571 (10th Cir. 2018) (holding that a petitioner
“must establish both cause and prejudice to overcome the state procedural
bar.”). And he does not invoke the miscarriage-of-justice exception by alleging
he is factually innocent. See Magar, 490 F.3d at 820 (holding that the exception
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26
is a “markedly narrow” one that is “implicated only in ‘extraordinary case[s]
where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.’” (quoting Phillips, 182 F.3d at 774)). So Petitioner
presents no basis to overcome the procedural bar to habeas review of his factual
basis claim.
2. 	Conclusion.
The Court should deny habeas corpus relief on Ground One. Petitioner
is not entitled to habeas relief on his competency claim and his factual basis
claim is barred from review.
B. 	Grounds 	Two 	and 	Three: 	Petitioner’s 	claims 	are
procedurally barred, and Petitioner has not shown cause
and 	prejudice 	or 	a 	fundamental 	miscarriage 	of 	justice
sufficient to overcome that bar.
In Ground Two, Petitioner claims his “plea convictions and confinement
on Counts 2 and 7; Counts 1 and 3 and Counts 5 and 6, violate the Double
Jeopardy Clause.” Doc. 34, at 10. In Ground Three, Petitioner claims the state
deprived him of his due process right to a fair sentencing proceeding because
of 	the 	admission 	of 	“prejudicial 	medical 	evidence 	and 	prosecutorial
misconduct.” Id. at 11-12. The OCCA found Petitioner had waived review of
these claims under Rule 4.2(B). Doc. 36, Ex. 9, at 8-10.
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1. 	The OCCA’s decision.
a. 	Dismissal 	of 	the 	Double 	Jeopardy 	claim
presented in Ground Two.
The OCCA held:
Petition[er] claims a number of his convictions violate the
Double 	Jeopardy 	Clause 	of 	the 	United 	States 	and 	Oklahoma
Constitutions and Oklahoma’s statutory prohibition against double
punishment found at 21 O.S.2011, § 11(A). Petitioner’s claim is
procedurally 	defective 	as 	he 	failed 	to 	raise 	this 	issue 	in 	his
application to withdraw his guilty plea or his brief in support of the
withdrawal application. Nor was it raised at any point during the
hearing on his motion to withdraw. Thus, we do not reach the
merits of Petitioner’s claim as he has waived appellate review of
this issue. Rule 4.2(B), Rules of the Oklahoma Court of Criminal
Appeals, Ch. 18, App. (2016) (“No matter may be raised in the
petition for a writ of certiorari unless the same has been raised in
the application to withdraw the plea.”).
Doc. 36, Ex. 9, at 8-9. The court also included a footnote:
Petitioner specifically challenges his (1) Counts 2 and 7
convictions for Possession of a Firearm After a Former Felony
Conviction; (2) Count 1—Robbery with a Dangerous Weapon and
Count 	3—Kidnapping 	convictions; 	and 	(3) 	Counts 	5 	and 	6
convictions for Attempted Robbery with a Dangerous Weapon.
Id. at 8.
b. 	Dismissal 	of 	the 	claims 	presented 	in 	Ground
Three.
As to Petitioner’s excessive sentence claim, the OCCA held:
Petitioner argues that he received an excessive sentence
because of improprieties at the sentencing hearing. Specifically,
Petitioner argues the State was erroneously permitted to admit
“privileged” medical records at the sentencing hearing. Petitioner
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argues, “The impact of divulging these privileged communications
cannot be understated, and it eradicated any possibility of leniency
from the sentencing court.”
This Court will review a properly raised excessive sentence
claim presented in a certiorari appeal. Whitaker v. State, 2015 OK
CR 1, ¶ 9, 341 P.3d 87, 90. However, excessive sentence claims
must be raised before the district court at the hearing on the
motion to withdraw plea and a sufficient record must be made
which allows for meaningful appellate review. Id., 2015 OK CR 1,
¶¶ 10-11, 341 P.3d at 90. Petitioner failed to raise below any of the
underlying issues of this claim in his application to withdraw, brief
in support of his withdrawal application, or at any point during the
hearing on his motion. Thus, Petitioner’s Proposition V claim is
waived. Rule 4.2(B), Rules of the Oklahoma Court of Criminal
Appeals, Ch. 18, App. (2016).
Id. at 9. As to Petitioner’s prosecutorial misconduct claim, the OCCA held:
Petitioner 	argues 	improper 	conduct 	by 	the 	prosecutor
deprived him of his right to a fair proceeding and due process of
law. Petitioner specifically contends the prosecutor (1) improperly
utilized Petitioner’s medical records at the sentencing hearing
. . . . As to the first contention, Petitioner did not raise this claim
in his application to withdraw, brief in support of his withdrawal
application, or at any point during the hearing on his motion.
Thus, this portion of his claim is waived. See Rule 4.2(B), Rules of
the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App.
(2016) (“No matter may be raised in a petition for a writ of
certiorari unless the same has been raised in the application to
withdraw the plea, which must accompany the records filed with
this Court.”).
Id. at 9-10.
2. 	Grounds Two and Three are procedurally defaulted.
This Court “will not consider issues on habeas review ‘that have been
defaulted in state court on an independent and adequate state procedural
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ground, 	unless the 	petitioner 	can 	demonstrate cause 	and prejudice 	or a
fundamental miscarriage of justice.’” Smallwood, 191 F.3d at 1268 (quoting
English, 146 F.3d at 1259). The undersigned concludes Petitioner’s procedural
default of these claims in state court precludes federal habeas review.
The OCCA declined to review the claims raised in Grounds Two and
Three under Rule 4.2(B), which bars certiorari review of a claim that has not
been raised at any point in the plea withdrawal proceedings before the district
court. See Doc. 36, Ex. 9, at 8-10 (claim not raised “in his application to
withdraw his guilty plea or his brief in support of the withdrawal application[]
[n]or was it raised at any point during the hearing on his motion to withdraw”);
see also Jimenez v. State, 561 P.3d 1124, 1127 & n.3 (Okla. Crim. App. 2024)
(observing that the district court had appointed conflict counsel and had
considered two supplemental motions filed by conflict counsel as well as the
“timely application to withdraw” filed by plea counsel during the withdrawal
proceedings).
As explained above this rule is well established as an independent
ground for dismissal. See Elam, 2019 WL 10852802, at *3. Petitioner argues in
his reply to the response to his Double Jeopardy ground that under the
Supreme Court’s recent decision in Glossip v. Oklahoma, 604 U.S. 226 (2025),
the OCCA’s application of this bar “is inadequate and not independent.” Doc.
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43, at 6.7 He cites the Court’s language concerning its jurisdiction to review a
federal claim on its merits because “the OCCA ‘made application of the
procedural bar depend on an antecedent ruling on federal law, that is, on the
determination of whether federal constitutional error ha[d] been committed.’”
Glossip, 604 U.S. at 244 (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
The Court concluded that, because the OCCA had made a “federal holding,”
Oklahoma’s Post-Conviction Procedures Act posed “no impediment” to the
Court’s review. Id. at 243. That is not the case here.
The OCCA made no “antecedent ruling on federal law” before barring
review of Petitioner’s claims under its own rules. See Doc. 36, Ex. 9, at 8-10. So
the 	undersigned 	finds 	no 	reason 	to 	conclude 	the 	OCCA’s 	bar 	was 	not
independent or adequate to bar habeas corpus review. See, e.g., Elam, 2019 WL
10852802, at *3 (“The weight of this authority and Tenth Circuit precedent
convinces this Court that the OCCA applies the rule evenhandedly and that
the OCCA’s procedural rule is both independent and adequate to preclude
federal review.” (citing Banks, 692 F.3d at 1145)).
This Court is therefore barred from reviewing Petitioner’s claims unless
he can show cause and prejudice or a fundamental miscarriage of justice.
7 	Petitioner does not reply to the response of a procedural bar to his
Ground Three.
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Cause requires a showing that “that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986).
For the first time in his reply, Petitioner asserts ineffective assistance of
counsel as cause for his procedural default of his Double Jeopardy claim. See
Doc. 43, at 6 (“[P]lea counsel, ineffective assistance cause and prejudice
overcome the default of the double jeopardy claim in State trial court”). But the
OCCA also procedurally barred Petitioner’s ineffective assistance of counsel
claim made in his certiorari appeal. See Doc. 36, Ex. 9, at 11-12. So Petitioner
cannot use it as cause for defaulting his Double Jeopardy claim. See Edwards
v. Carpenter, 529 U.S. 446, 453 (2000) (holding that an ineffective assistance
claim “asserted as cause for the procedural default of another claim” must not
“itself” be procedurally defaulted). Without a showing of cause, the Court need
not consider whether Petitioner suffered prejudice. Simpson, 912 F.3d at 571;
Steele v. Young, 11 F.3d 1518, 1522 n.7 (10th Cir. 1993).
Petitioner 	does 	not 	invoke 	the 	miscarriage 	of 	justice 	exception 	by
alleging he is innocent of the crimes. See Magar, 490 F.3d at 820. In fact, he
admits throughout his amended petition that he committed the crimes. So
Petitioner presents no basis to overcome the procedural bar to habeas review
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of his claims in Grounds Two and Three. The Court should deny habeas corpus
relief.
C. 	Ground Four: Petitioner’s ineffective assistance of 	plea
counsel claim is barred from habeas corpus review.
In Ground four Petitioner complains of ineffective assistance of plea
counsel. Doc. 34, as 13. He asserts plea counsel was deficient for mishandling
his insanity defense and allowing him to plead guilty when he was “more likely
than not incompetent,” failing to challenge “the lack of a factual basis for [his]
blind plea to Counts 3, 5 and 6,” failing to properly advise him of the sentencing
ranges, failing to object to “double jeopardy punishments,” failing to object to
the 	admission 	of 	inadmissible 	prejudicial 	medical 	record 	evidence 	and
prosecutor statements, and failing “to invoke [the] sequestration rule.” Id. at
14. Petitioner raised this ineffectiveness claim on certiorari review. Doc. 36,
Ex. 6, at 49-55. The OCCA procedurally barred the claim under Rule 4.2(B).
Respondent argues the Court should decline to review this ineffectiveness
claim based on the OCCA’s application of this independent and adequate
procedural rule. Doc. 36, at 61-67. The undersigned agrees.
1. 	The OCCA’s decision.
The OCCA held:
Petitioner alleges that both his plea counsel and conflict
counsel 	were 	ineffective. 	As 	to 	plea 	counsel’s 	performance,
Petitioner complains that counsel was ineffective for failing to:
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33
(1) investigate and confirm Petitioner’s competency prior to
his plea—Proposition I;
(2) 	challenge 	the 	factual 	basis 	of 	Petitioner’s 	plea—
Proposition II;
(3) ensure Petitioner was properly advised of the sentencing
ranges—Proposition III;
(4) ensure Petitioner was not doubly punished for a single
criminal transaction—Proposition IV;
(5) object to privileged material being introduced at the
sentencing hearing—Proposition V;
(6) object to the prosecutor’s improper statements at the
sentencing hearing—Proposition VI; and
(7) 	invoke 	the 	rule 	of 	sequestration 	at 	the 	sentencing
hearing.
Petitioner did not raise any of these ineffectiveness claims in
his application to withdraw, brief in support of his withdrawal
application, or at any point during the hearing on his motion. This,
despite 	the 	fact 	conflict 	counsel 	was 	appointed 	to 	represent
Petitioner nearly a month prior to the hearing on his motion to
withdraw. Nor does Petitioner contend on appeal that conflict
counsel was ineffective for failing to raise these issues below.
These claims are therefore waived. See Rule 4.2(B), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016)
(“No matter may be raised in a petition for a writ of certiorari
unless the same has been raised in the application to withdraw the
plea, which must accompany the records filed with this Court.”).
Doc. 36, Ex. 9, at 10-11 (footnote omitted).
2. 	The OCCA’s bar is independent and adequate, and
Petitioner has not shown cause and prejudice or a
fundamental miscarriage of justice.
The Court has already addressed and rejected Petitioner’s challenge to
the adequacy and independence of the OCCA’s procedural bar under Rule 4.2.
See Elam, 2019 WL 10852802, at *3; Lewallen, 755 F. App’x at 744-45. Moving
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on to cause, Petitioner asserts his court-appointed withdrawal counsel did not
raise 	plea 	counsel’s 	ineffectiveness 	because 	“there 	existed 	no 	procedural
mechanism” for conflict counsel to raise any new claims not included in
Petitioner’s original plea withdrawal motion, which had been filed by plea
counsel. Doc. 43, at 7. But, as the OCCA explained, conflict counsel could have
raised the issue in the brief in support of the withdrawal application or at any
point during the hearing on the motion. Doc. 36, Ex. 9, at 12. Indeed, that is
the whole point of appointing conflict counsel. And, here, conflict counsel had
nearly a month to raise any additional issues. Id.
Petitioner cites no authority to show that, contrary to the OCCA’s
interpretation 	of 	its 	own 	rules, 	withdrawal 	counsel 	could 	not 	raise 	plea
counsel’s 	alleged 	ineffectiveness 	after 	the 	state 	court 	appointed 	him 	to
represent Petitioner in the withdrawal proceedings. See, e.g., Jimenez, 561
P.3d at 1127 & n.3. So he fails to establish cause for his procedural default of
this claim. See, e.g., Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997)
(“Cause may be established by showing that ‘the factual or legal basis for a
claim 	was 	not 	reasonably 	available 	to 	counsel’ 	or 	that 	there 	was 	‘some
interference 	by 	officials 	that 	made 	compliance 	impracticable.’” 	(quoting
Murray, 477 U.S. at 488)). Having failed to establish cause, the Court need not
consider the prejudice prong. Simpson, 912 F.3d at 571; Steele, 11 F.3d at 1522
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n.7. And Petitioner does not invoke the miscarriage of justice exception by
alleging he is innocent of the crimes. See Magar, 490 F.3d at 820. So Petitioner
presents no basis to overcome the procedural bar to habeas review of his
ineffective assistance of plea counsel claim in Ground Four. The Court should
deny habeas corpus relief.
D. 	Ground 	Five: 	The 	OCCA 	reasonably 	determined
Petitioner’s plea withdrawal counsel was not ineffective.
In Ground Five, Petitioner claims his court-appointed plea withdrawal
counsel 	provided 	ineffective 	assistance 	by 	“foregoing 	an 	independent
investigation of the available appellate grounds of error,” “fail[ing] to conduct
independent research of the relevant law in relation to appellate errors,” and
“fail[ing] 	to 	amend 	the 	inadequate 	plea 	withdrawal 	motion” 	filed 	by
Petitioner’s plea counsel. Doc. 34, at 16.8 Petitioner raised an ineffective
assistance of withdrawal counsel claim in his certiorari appeal. Doc. 36, Ex. 6,
at 55-56. The OCCA addressed the merits of the claim and denied it. Doc. 36,
Ex. 9, at 12-13.
8 	Petitioner 	also 	asserts 	his 	withdrawal 	counsel 	inadequately 	and/or
inar[t]fully argued the grounds raised in his certiorari appeal to the OCCA.
Doc. 34, at 16. This is incorrect as Petitioner was appointed different appellate
counsel for his direct certiorari appeal. See Doc. 36, Ex. 6.
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1. 	Clearly established federal law.
Under clearly established law, Petitioner must show his attorney’s
performance was deficient and prejudicial. See Strickland v. Washington, 466
U.S. 668, 691-92 (1984). A court will only consider an attorney’s performance
“deficient” if it falls “outside the wide range of professionally competent
assistance,” and such review “must be highly deferential.” Id. at 689-90.
“[P]rejudice” 	involves 	“a 	reasonable 	probability 	that, 	but 	for 	counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. This “requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.” Pinholster, 563 U.S. at 189 (quoting Harrington, 562 U.S. at
112).
The 	OCCA’s 	determination 	of 	Petitioner’s 	ineffective 	assistance 	of
counsel claim is entitled to “doubly deferential judicial review that applies to a
Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). “Surmounting Strickland’s high bar is
never an easy task.” Harrington, 562 U.S. at 105 (internal quotation marks
and citation omitted). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from
asking 	whether 	defense 	counsel’s 	performance 	fell 	below 	Strickland’s
standard.” Id. at 101; see also id. at 105 (“Federal habeas courts must guard
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against 	the 	danger 	of 	equating 	unreasonableness 	under 	Strickland 	with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is
any 	reasonable 	argument 	that 	counsel 	satisfied 	Strickland's 	deferential
standard.”).
2. 	The OCCA’s decision.
The OCCA held:
As 	to 	conflict 	counsel, 	Petitioner 	complains 	only 	that
counsel’s written brief filed in support of Petitioner’s application to
withdraw and counsel’s performance at the withdrawal hearing
were deficient. This is the first opportunity in which this claim
could be raised so it is properly before the Court. A criminal
defendant is entitled to effective assistance of counsel at a hearing
on a motion to withdraw. Carey v. State, 1995 OK CR 55, ¶ 5, 902
P.2d 1116, 1117; Randall v. State, 1993 OK CR 47, ¶ 7, 861 P.2d
314, 316. To prevail on an ineffective assistance of counsel claim,
an appellant must show both that counsel’s performance was
deficient 	and 	that 	the 	deficient 	performance 	prejudiced 	his
defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984). See also Harrington v. Richter, 562
U.S. 86, 104-05, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011)
(summarizing Strickland two-part test).
As 	discussed 	in 	Proposition 	I, 	the 	record 	sufficiently
demonstrates Petitioner was competent at the time he entered his
plea. Thus, Petitioner fails to show prejudice even if counsel was
deficient in the manner in which he handled this issue at the
withdrawal hearing. Petitioner’s failure to show prejudice is fatal
to his claim. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985). Proposition VII is denied.
Doc. 36, Ex. 9, at 12-13.
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3. 	The OCCA did not unreasonably apply Strickland.
Because the OCCA properly applied Strickland to deny Petitioner’s
ineffective assistance of withdrawal counsel claim on the merits,9 this Court
reviews the OCCA’s decision under § 2254(d)(1) to determine whether its
application of the Strickland standard was unreasonable. Harrington, 562 U.S.
at 101.
On certiorari appeal, Petitioner argued counsel “merely summarized
[Petitioner’s medical condition (including three Wikipedia articles) and added
no substance to the effort to withdraw the plea” after being appointed to take
over as withdrawal counsel. Doc. 36, Ex. 6 at 55-56. Petitioner further argued,
“Most importantly, despite being prompted by the court several times at the
withdrawal hearing, [counsel] did not request a contemporaneous competency
determination.” Id. at 56.
In denying Petitioner’s claim, the OCCA, relying on its previous holding
that “the record sufficiently demonstrates Petitioner was competent at the
time 	he 	entered 	his 	plea,” 	concluded 	Petitioner 	had 	failed 	to 	satisfy
9 	“[W]hen determining whether a state court’s decision was ‘contrary to’
clearly established law, we simply determine whether the state court correctly
identified 	Strickland 	as 	the 	controlling 	legal 	authority 	and 	applied 	that
framework.” Sumpter v. Kansas, 61 F.4th 729, 743 (10th Cir. 2023). The OCCA
did so here, so Petitioner has not shown that the OCCA’s decision was contrary
to clearly established federal law.
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Strickland’s prejudice requirement. Id. Ex. 9, at 11-13. This Court’s inquiry is
not 	whether 	counsel’s 	performance 	did 	indeed 	prejudice 	Petitioner, 	but
whether the OCCA unreasonably applied the Strickland standard in making
this determination. Harrington, 562 U.S. at 105. Given the thorough colloquy
about Petitioner’s competence to enter a guilty plea and the lack of any
evidence of incompetence at the time of the plea hearing, see Doc. 37, Ex. 1, at
8-13, Petitioner cannot show that the OCCA unreasonably applied Strickland
in 	determining 	a 	lack 	of 	prejudice 	resulting 	from 	withdrawal 	counsel’s
representation.
Petitioner is not entitled to habeas corpus relief on his 	ineffective
assistance of withdrawal counsel claim. So the undersigned recommends the
Court deny relief on this ground.
E. 	Ground Six: Petitioner is not entitled to habeas corpus
relief on his Indian country jurisdiction claim.
Petitioner argues that “Beckham County Oklahoma and its Elk City
town, is located in ‘Indian Country’ and the Petitioner is an Indian and enrolled
member of the federally recognized Osage Indian Tribe,” bringing his charged
crimes within the ambit of the Major Crimes Act (MCA). Doc. 34, at 18. He
argues the state district court therefore lacked jurisdiction to prosecute him.
See, e.g., McGirt v. Oklahoma, 591 U.S. 894, 932 (2020) (“[T]he MCA applies to
Oklahoma according to its usual terms: Only the federal government, not the
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State, may prosecute Indians for major crimes committed in Indian country.”);
see also 18 U.S.C. § 1153 (“Any Indian who commits against the person or
property of another Indian or other person any of the following offenses,
namely, murder, manslaughter, kidnapping, maiming, a felony under chapter
109A, 	incest, 	a 	felony 	assault 	under 	section 	113, 	an 	assault 	against 	an
individual who has not attained the age of 16 years, felony child abuse or
neglect, arson, burglary, robbery, and a felony under section 661 of this title
within the Indian country,10 shall be subject to the same law and penalties as
all other persons committing any of the above offenses, within the exclusive
jurisdiction of the United States.”).11 Petitioner claims the OCCA’s decision
denying this claim on post-conviction appeal was “based on clearly erroneous
factual findings” because he committed his crimes “in the Cheyenne-Arapaho,
10 	The MCA defines “Indian Country” as “(a) all land within the limits of
any 	Indian 	reservation 	under 	the 	jurisdiction 	of 	the 	United 	States
Government, notwithstanding the issuance of any patent, and, including
rights-of-way 	running 	through 	the 	reservation, 	(b) 	all 	dependent 	Indian
communities within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running through
the same.” 18 U.S.C. § 1151.
11 	As Respondent points out, not all of Petitioner’s crimes fall within the
MCA. See Doc. 36, at 73 n.8 (noting Petitioner was convicted of possessing a
firearm after former conviction of a felony which is not an enumerated crime
under the MCA).
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[I]ndian country” “allotments” that remained after the reservation had been
disestablished. Doc. 34, at 18; Doc. 43, at 8-9; see also 28 U.S.C. § 2254(d) (A
petitioner is entitled to federal habeas relief if the state court’s adjudication of
the merits of the petitioner’s claim “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.”).
In response, Respondent argues there is no clearly established Supreme
Court law that confers exclusive prosecutorial authority under the MCA to the
federal government or that holds a state prosecution in violation of the MCA is
redressable on habeas review. Doc. 36, at 85-112. Citing Oklahoma v. Castro-
Huerta, 597 U.S. 629 (2022), Respondent argues the Supreme Court left open
whether the State had concurrent jurisdiction with the federal government
under the MCA to prosecute Indians who commit a major crime in Indian
country. Id. at 88.
In Castro-Huerta, the Court stated that its “precedents establish that
Indian country is part of a State’s territory and that, unless preempted, States
have jurisdiction over crimes committed in Indian country.” 597 U.S. at 638.
The Court then considered “whether the State’s authority to prosecute crimes
committed 	by 	non-Indians 	against 	Indians 	in 	Indian 	country 	has 	been
preempted.” Id. (citing U.S. Const. Art. VI.). In particular, the Court examined
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the reach of the General Crimes Act and, noting that the Act does not say, “that
federal jurisdiction is exclusive in Indian country,” held that “both the Federal
Government and the State have concurrent jurisdiction [under the Act] to
prosecute crimes committed [by non-Indians] in Indian country.” Id. at 639; see
also 	id. 	at 	647 	(“After 	independently 	examining 	the 	question, 	we 	have
concluded that the General Crimes Act does not preempt state jurisdiction over
crimes committed by non-Indians against Indians in Indian country.”).12
Respondent admits, however, that Petitioner is an “Indian.” See, e.g.,
Doc. 36, at 87; see also id. Ex. 10, at 3513 & Ex. 11, at 4; Hudson v. Harpe, 2024
WL 262695, at *1 (10th Cir. Jan. 24, 2024) (Because [the petitioner] is a
member of the Muscogee (Creek) Nation — and therefore, an Indian — Castro-
Huerta does not apply to this case.”). And the plain language of the MCA
12 	Mr. 	Castro-Huerta 	asserted 	that, 	like 	the 	MCA 	which 	“grants 	the
Federal Government exclusive jurisdiction to prosecute certain major crimes
committed by Indians in Indian country,” the General Crimes Act also granted
the federal government exclusive jurisdiction over non-Indian crime in Indian
country. Castro-Huerta, 597 U.S. at 641. The Court rejected the argument by
stating that “[u]like the General Crimes Act, the Major Crimes Act says that
defendants in Indian country “shall be subject to the same law” as defendants
in federal enclaves.” Id. at 641-42 (citing 18 U.S.C. § 1153). “So even assuming
that the text of the Major Crimes Act provides for exclusive federal jurisdiction
over major crimes committed by Indians in Indian country . . . that conclusion
does not translate to the differently worded General Crimes Act.” Id. at 642.
13 	Petitioner attached to his post-conviction application an “Osage Nation
Membership Card” the Nation issued to him in 2009. Doc. 36, Ex. 10, at 35.
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43
“confers exclusive federal criminal jurisdiction over “[a]ny Indian who commits
against the person or property of another Indian or other person” any of the
offenses enumerated in the statute. 18 U.S.C. § 1153(a).” United States v.
Hatley, 2025 WL 2553109, at *7 (10th Cir. Sept. 5, 2025) (emphasis deleted);
see also McGirt, 591 U.S. at 933 (“[T]he MCA applies only to certain crimes
committed in Indian country by Indian defendants.”). So the pertinent question
Petitioner asks this Court to consider is whether Oklahoma lacked jurisdiction
to try him—an Indian—because he committed his major crimes within Indian
Country—in particular, within the confines of a Cheyenne-Arapaho allotment.
Doc. 43, at 8-9; see also Doc. 36, Ex. 14, at 12 (Petitioner argued that the state
district court’s decision denying him post-conviction relief was contrary to the
holdings of McGirt because “Reservations and Indian Allotments, the Indian
titles to which have not been extinguished, qualify as Indian Country”).
“In this circuit, ‘[t]he issue of whether the state court properly exercised
jurisdiction’ over an Indian who committed major crimes in Indian country is
‘an important federal constitutional question’ and the ‘[a]bsence of jurisdiction
in the convicting court is . . . a basis for federal habeas corpus relief cognizable
under the due process clause.’” July v. Tinsley, 2025 WL 2700111, at *11 (N.D.
Okla. Sept. 19, 2025) (quoting Yellowbear v. Wyo. Atty. Gen., 525 F.3d 921, 924
(10th Cir. 2008)). So the Court should reject Respondent’s argument given that
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it asks the Court to restrict its review based on a lack of clearly established
federal law. See id. at *11 n.8.
Respondent also argues the Court should either apply a procedural bar
to Petitioner’s jurisdictional claim or deny the claim on its merits. Doc. 36, at
112-194. The undersigned agrees Petitioner is not entitled to habeas corpus
relief on this claim.
1. 	The OCCA’s decision.
Petitioner raised his Indian country jurisdiction claim in his application
for post-conviction relief. Doc. 36, Ex. 10. After the state district court denied
relief, id. Ex. 12, Petitioner appealed to the OCCA, id. Ex. 13-14, and that court
affirmed, id. Ex. 15.
The OCCA held:
Before the trial court, Petitioner asserted that the trial court
lacked 	jurisdiction 	to 	convict 	and 	punish 	him. 	See 	McGirt 	v.
Oklahoma, 140 S.Ct. 2452 (2020). Citing State ex rel. Matloff v.
Wallace, 2021 OK CR 21, 497 P.3d 686, cert. denied, 142 S.Ct. 757
(2022), 	Judge 	Weedon 	denied 	Petitioner’s 	second 	proposition
holding that Petitioner’s reliance on McGirt v. Oklahoma was
without merit. In Matloff, this Court determined that the United
States Supreme Court decision in McGirt, because it is a new
procedural rule, is not retroactive and does not void final state
convictions. See Matloff, 2021 OK CR 21, ¶¶ 27-28, 40, 487 P.3d at
691-92, 694.
The convictions in this matter were final before the July 9,
2020, decision in McGirt, and the United States Supreme Court’s
holding 	in 	McGirt 	does 	not 	apply. 	We 	decline 	Petitioner’s
invitation to revisit our holding in Matloff.
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Id. Ex. 15, at 5-6.
The OCCA affirmed the state district court’s opinion denying post-
conviction relief. Id. Ex. 15, at 6. In that opinion, the state district court made
the following factual findings:
Petitioner 	alleges 	that 	the 	District 	Court 	of 	Beckham
County, State of Oklahoma, did not have jurisdiction to prosecute
him pursuant to McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
It is undisputed that the location of the crime is within the
historical boundaries of the Cheyenne and Arapaho Reservation.
Petitioner asserts that the reservation still exists, and the State of
Oklahoma cannot prosecute him for a crime committed in Indian
Country. In Murphy v. Royal, 875 F.3d 896, 904 (10th Cir. 2017),
aff’d sub nom. Sharp v. Murphy, 140 S. Ct. 2412 (2020), the Tenth
Circuit explained:
All land within the borders of an Indian reservation –
regardless of whether the tribe, individual Indians, or
non-Indians hold title to a given tract of land – is
Indian country unless Congress has disestablished the
reservation or diminished its borders.
The United States Supreme Court recently addressed the
application of the Major Crimes Act to crimes committed within
the Creek Nation in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
Justice Gorsuch succinctly stated the analysis for determining
disestablishment of a reservation:
To determine whether a tribe continues to hold a
reservation, there is only one place we may look: the
Acts of Congress.
McGirt at 2462. It is not within the Court’s role to disestablish a
reservation.
. . .
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The Cheyenne and Arapaho Tribes’ agreement was codified
in The Act of March 3, 1891. Under this treaty, Cheyenne and
Arapaho 	tribal 	members 	could 	each 	choose 	160 	acres 	for 	an
individual allotment. The Cheyenne and Arapaho Tribes were paid
$1,500,000.00 as consideration for the unallotted land. (The actual
payment of these funds was problematic, but that issue is not
before the Court.)
The 	Act 	of 	March 	3, 	1891, 	stated 	that, 	subject 	to 	the
allotment of land to the individual members of the tribe:
Cheyenne and Arapaho tribes of Indians agree to cede,
convey, transfer, relinquish and surrender forever and
absolutely, without any reservation whatever express
or implied, all claim, title, and interest, of every kind
and character, in and to the lands embraced in the
following 	described 	tract 	of 	country 	in 	the 	Indian
Territory, to-wit:
The Act goes on to describe an area of land that appears to
include the location of the subject offense.
The funds were to be paid to the Cheyenne and Arapaho
Tribes in consideration for “. . .the cessation of territory and
relinquishment of title, claim, and interest in and to lands as
aforesaid . . .”. The Tenth Circuit has interpreted this language as
evincing a “manifest purpose to dissolve tribal government and
assimilate the Indian allottees in the community”. Ellis v. Page,
351 F.2d 250, 252 (10th Cir. 1965). In a hunting rights case in the
Tenth Circuit, the Cheyenne and Arapaho Tribes did not contest
the district court’s finding that the reservation was disestablished.
Cheyenne-Arapaho Tribes of Oklahoma v. State of Oklahoma, 618
F.2d 665, 667 (10th Cir. 1980).
The language in the treaty with the Cheyenne and Arapaho
Tribes is very different from the language in the Creek Nation’s
Treaty [considered in McGirt]. The plain language of the Act
appears to divest the Cheyenne and Arapaho Tribes of all rights to
the surplus land. The language “cede . . . relinquish and surrender
forever and absolutely” along with the receipt of consideration for
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47
“cessation of territory” rises to the level of an act of cession. The
Cheyenne and Arapaho Tribe sold their surplus unallotted lands
to the Federal Government without reserving any interest and
thereby disestablished the reservation.
The Court notes that the Cheyenne and Arapaho Tribes
made their agreement only four years after the Dawes Act, and ten
years before the Creek Nation finally signed a treaty.
Pursuant to the analysis set out in McGirt, the Court finds
that the Cheyenne and Arapaho Treaty, which was ratified by
Congress through the Act of March 3, 1891, disestablished the
Cheyenne and Arapaho Tribes’ Reservation.
Indian 	Country 	includes 	Indian 	reservations, 	dependent
Indian Communities, and Indian allotments to which the Indian
titles have not been extinguished. 18 U.S.C. § 1151; State v. Klindt,
1989 OK CR 75, 782 P.2d 401, 403. There is no evidence that
the crime occurred on Trust Land, land owned by the Tribe,
or an existing Indian allotment.
The Oklahoma Court of Criminal Appeals considered the
Kiowa 	allotment 	and 	cession 	agreement 	and 	found 	it
disestablished 	the 	Kiowa 	Comanche 	Apache 	Reservation.
Martinez v. State, 2021 OK CR 40, ¶ 18, 24. In an unpublished
opinion, the Court of Criminal Appeals found the Cheyenne and
Arapaho agreement contained “almost identical language” as the
Kiowa agreement, and found the historic Cheyenne and Arapaho
Reservation was disestablished by Congress. State v. Whitebuffalo,
F-2021-429 at page 8.
Further, the Oklahoma Court of Criminal Appeals has ruled
that McGirt does not apply retroactively to convictions already
final when that ruling was announced. Matloff v. Wallace, 2021
OK CR 21, ¶ 40. Petitioner’s convictions were final for [sic] at the
time McGirt was decided, and relief is further barred by the ruling
in Matloff.
Proposition III is denied.
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Id. Ex. 12, at 5-8. (emphasis added).
2. 	The Court should bypass the potential procedural bar
of Petitioner’s Indian country jurisdiction claim and
deny him habeas corpus relief.
Petitioner’s convictions were final in 2017 when the OCCA affirmed
them, and Petitioner did not seek further review. See Doc. 36, Ex. 9 (summary
opinion denying certiorari). When the Supreme Court decided McGirt in 2020,
it recognized that many state prisoners who “try to challenge their state
convictions [under its decision] may face significant procedural obstacles,
thanks to well-known state and federal limitations on postconviction review in
criminal proceedings.” 591 U.S. at 933 & n.15 (citing Oklahoma’s procedural
rule that claims not raised previously on direct appeal are waived). Although
relying on a different procedural ground than the one the Supreme Court
referenced, the OCCA did later decide to bar the application of what it
described as McGirt’s “new procedural rule[] to convictions that were final
when the [McGirt] rule was announced.” See State ex rel. Matloff v. Wallace,
497 	P.3d 	686, 	688-89 	(Okla. 	Crim. 	App. 	2021) 	(“In 	state 	post-conviction
proceedings, 	this 	Court 	has 	previously 	applied 	its 	own 	non-retroactivity
doctrine—often drawing on, but independent from, the Supreme Court’s non-
retroactivity doctrine in federal habeas corpus—to bar the application of new
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49
procedural 	rules 	to 	convictions 	that 	were 	final 	when 	the 	rule 	was
announced.”).14
In deciding Petitioner’s post-conviction appeal, the OCCA referenced its
holding 	in 	Matloff 	when 	it 	affirmed 	the 	state 	district 	court’s 	denial 	of
Petitioner’s Indian country jurisdiction claim. See Doc. 36, Ex. 15, at 5-6. It is
unclear whether the OCCA’s reference to Matloff amounts to the application
of a procedural bar. See id. Ex. 15, at 7 (affirming the district court’s finding
that 	“Petitioner’s 	reliance 	on 	McGirt 	v. 	Oklahoma 	was 	without 	merit”).
Respondent argues it might be a procedural bar, and so this Court should find
it to be an adequate and independent bar to habeas corpus review. Doc. 36, at
112-115. 	Petitioner 	does 	not 	reply 	to 	this 	argument. 	Doc. 	43, 	at 	8-9.
Alternatively, Respondent argues the OCCA made a merits determination
“that does not run afoul of § 2254(d).” Id. (citing Fitzer v. Hamilton, No. CIV-
18-283-RAW-GLJ (E.D. Okla. Jan. 2, 2025), attached to Response as Ex. 21).
The undersigned addresses both alternatives.
14 	The 	OCCA 	concluded 	that 	“McGirt 	announced 	a 	rule 	of 	criminal
procedure, using prior case law, treaties, Acts of Congress, and the Major
Crimes Act to recognize a long dormant (or many thought, non-existent) federal
jurisdiction 	over 	major 	crimes 	committed 	by 	or 	against 	Indians 	in 	the
Muscogee (Creek) Reservation.” Matloff, 497 P.3d at 691.
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a. 	Procedural bar.
As stated previously, this Court will not review the merits of a claim,
including a constitutional claim, “that a state court has declined to hear
because the prisoner failed to abide by a state procedural rule.” Martinez, 506
U.S. at 9. If that rule relies on state law rather than federal law and the state
court regularly follows it, then this Court cannot consider the claim unless a
petitioner shows cause for the default and actual prejudice as a result, or that
this 	Court’s 	failure 	to 	consider 	the 	claim 	will 	result 	in 	a 	fundamental
miscarriage of justice. Coleman, 501 U.S. at 750.
Respondent argues the OCCA’s application of its post-conviction non-
retroactivity rule in Matloff is independent of federal law and adequate
because it is firmly established and the OCCA has applied it to more than 350
cases. Doc. 36, at 119-43. At least two district courts in this Circuit have
partially agreed with Respondent.
In July, the court found the non-retroactivity rule was adequate because
the OCCA had applied it many times. 2025 WL 2700111, at *13 (“Respondent
shows that the OCCA has applied the [non-retroactivity] rule in more than 350
cases since [Matloff v.] Wallace was decided. . . . On this record, the Court finds
that the [non-retroactivity] rule is adequate because it is ‘firmly established
and regularly followed.’” (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)). The
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July court also found it to be independent because, although the OCCA had
discussed the federal law of retroactivity in reaching its decision, it had “also
clearly 	expressed 	that 	its 	ultimate 	decision 	on 	that 	issue 	rest[ed] 	on
independent state law grounds.” Id. (citing Matloff, 497 P.3d at 688-89, 694).
And, “[u]nder Supreme Court precedent, that clear expression is sufficient to
establish that the [non-retroactivity] rule is ‘independent’ of federal law.” Id.;
see also Michigan v. Long, 463 U.S. 1032, 1041 (1983) (“If a state court chooses
merely to rely on federal precedents as it would on the precedents of all other
jurisdictions, then it need only make clear by a plain statement in its judgment
or opinion that the federal cases are being used only for the purpose of
guidance, 	and 	do 	not 	themselves 	compel 	the 	result 	that 	the 	court 	has
reached.”). Based on these findings, and the petitioner’s failure to show cause
and prejudice or a fundamental miscarriage of justice, the Court barred habeas
corpus relief on the petitioner’s Indian country jurisdiction claim. 2025 WL
2700111, at *13-14. The court did, however, issue a certificate of appealability
“on the issue of whether the rule announced by the [OCCA] in [Matloff] is an
independent and adequate state procedural rule that bars relief as to [the
petitioner’s] claim that he was denied due process when the State of Oklahoma
exercised criminal jurisdiction to prosecute him for crimes he committed in
Indian 	country.” 	Id. 	at 	14. 	The 	court 	did 	so 	because 	it 	concluded 	that
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“reasonable jurists could debate whether [the] claim [] state[d] a substantial
constitutional claim and could debate the Court’s determination that relief on
that claim [was] barred by an adequate and independent state procedural
rule.” Id.
In Fitzer, the court was less clear that the OCCA’s application of the non-
retroactivity rule to the petitioner’s case was a procedural bar. No. CIV-18-283-
RAW-GJL, slip op. at 17. It did agree, however, that the rule was independent
because the OCCA, “[a]fter examining its own precedent and having sought
guidance from federal case law, . . . decided in [Matloff] that ‘for purposes of
[its] state law retroactivity analysis, McGirt’s holding’ was not ‘substantive.’”
Id. at 16 (quoting Matloff, 497 P.3d at 691). The court also agreed it was
adequate 	but 	then 	denied 	habeas 	corpus 	relief 	after 	determining 	the
petitioner’s Indian country jurisdiction claim lacked merit because the OCCA’s
decision 	to 	apply 	non-retroactivity 	was 	“neither 	contrary 	to, 	or 	an
unreasonable application of, any clearly established Supreme Court law, nor
was it based on an unreasonable determination of the facts.” Id. at 17-18.
Having considered these cases, the undersigned recommends the Court
use its discretion to bypass the procedural bar issue because the claim is
readily resolved on its merits. See, e.g., Smith v. Duckworth, 824 F.3d 1233,
1242 	(10th 	Cir. 	2016) 	(“[W]here 	‘the 	claim 	may 	be 	disposed 	of 	in 	a
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straightforward fashion on substantive grounds,’ this court retains discretion
to bypass the procedural bar and reject the claim on the merits.”) (quoting
Revilla v. Gibson, 283 F.3d 1203, 1210-11 (10th Cir. 2002)); see also Wilson v.
Bridges, 2024 WL 589106, at *5-6 (N.D. Okla. Feb. 13, 2024) (bypassing the
respondent’s request to apply the non-retroactivity procedural bar to the
petitioner’s Indian country jurisdiction claim and denying the claim “because
the factual record that [the petitioner] did develop in state court shows that he
is not Indian for purposes of federal law . . . [and] he ha[d] not shown that he
[was] in state custody in violation of federal law, as required to obtain relief
under § 2254(a)”), aff’d, 2024 WL 4132399 (10th Cir. Sept. 10, 2024).15
15 	In Wilson, the petitioner argued the OCCA’s application of the non-
retroactivity bar to his Indian country jurisdiction claim on post-conviction
review was “unconstitutional.” See Wilson, 2024 WL 4132399, at *2. The Tenth
Circuit affirmed the district court’s denial of this claim holding the two bases
for denial were not debatable. Id. at *3. “First, because this claim ‘focuses only
on the State’s post-conviction remedy and not the judgment which provides the
basis for his incarceration, it states no cognizable federal habeas claim.’” Id.
(quoting Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998)). And “[s]econd,
the district court concluded that the OCCA’s application of [Matloff] . . . became
irrelevant when this Court exercised its discretion to bypass any procedural
bars that might preclude habeas relief and to instead reject Wilson’s habeas
claim on the merits.” Id. (internal quotation marks omitted).
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b. 	The 	state 	court’s 	denial 	of 	Petitioner’s
Indian country jurisdiction claim was not
based on an unreasonable determination
of the facts.
Petitioner does not make clear in his Amended Petition what facts the
state 	court 	unreasonably 	determined 	in 	denying 	his 	Indian 	country
jurisdiction claim. See 28 U.S.C. § 2254(d)(2); Doc. 34, at 18. He does, however,
point to his brief in support of his application for postconviction relief, in which
he argued that “Elk City and the land area in Beckham County relevant to this
case[] is centrally located within the established boundaries of the Cheyenne-
Arapaho reservation.” Doc. 34, Ex. 10, at 14. In support of this assertion,
Petitioner referenced a 2010 map of Oklahoma tribal jurisdictions. Id. at 36.
In 	his 	reply 	to 	the 	habeas 	corpus 	response, 	Petitioner 	clarifies 	that 	he
committed his crimes within a Cheyenne-Arapaho allotment which remained
after the reservation was disestablished. Doc. 43, at 8-9.
This 	Court’s 	“[r]eview 	of 	a 	state 	court’s 	factual 	findings 	under
§ 2254(d)(2) is . . . narrow.” Smith, 824 F.3d at 1241.16 This Court presumes
16 	The OCCA stated in its order affirming the denial of post-conviction
relief that the state district court found the tribal jurisdiction claim “was
without merit.” See Doc. 36, Ex. 15, at 5. Because the state district court gave
multiple reasons for finding the claim lacked merit, this Court may “look
through” the OCCA’s decision to consider the state district court’s rationale
and assume the OCCA “adopted the same reasoning.” Wilson v. Sellers, 584
U.S. 122, 125 (2018).
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those findings are correct unless Petitioner rebuts those findings by “‘clear and
convincing evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)).
“All land within the borders of an Indian reservation—regardless of
whether the tribe, individual Indians, or non-Indians hold title to a given tract
of land—is Indian country unless Congress has disestablished the reservation
or diminished its borders.” Murphy, 875 F.3d at 904. The state district court’s
findings—which the OCCA affirmed on appeal—were based on the factual
determinations 	that 	Congress 	had 	disestablished 	the 	Cheyenne-Arapaho
Reservation and that “there [was] no evidence that the crime occurred . . . [on]
an existing Indian allotment.” Doc. 36, Ex. 7-8.
Petitioner 	does 	not 	dispute 	the 	disestablishment 	of 	the 	Cheyenne-
Arapaho Reservation. See, e.g., Ellis v. Page, 351 F.2d 250, 251 (10th Cir. 1965)
(agreeing with the state that when the petitioner committed murder in Custer
County, 	Oklahoma, 	“the 	Cheyenne 	and 	Arapaho 	reservation 	had 	been
disestablished and was non-existent”). And he does not offer here, nor did he
offer in state court, any evidence or factual support for his assertion that he
committed his crimes on an existing Cheyenne-Arapaho allotment the Indian
title[] to which ha[d] not been extinguished.” 18 U.S.C. § 1151; see also 28
U.S.C. § 2254(e)(1).
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Because 	Petitioner 	offers 	no 	evidence 	to 	show 	the 	state 	courts’
adjudication 	of 	his 	Indian 	country 	jurisdiction 	claim 	was 	based 	on 	an
unreasonable factual determination, he has not carried his burden under
§ 2254(e)(1).17 So the Court should deny habeas corpus relief on this claim.18
F. 	Ground 	Seven: 	The 	OCCA 	reasonably 	determined 	that
Petitioner’s appellate counsel was not ineffective.
In his final ground for relief, Petitioner’s claims his appellate counsel
who represented him on certiorari appeal provided ineffective assistance by
17 	Petitioner 	also 	argues 	that 	the 	OCCA’s 	decision 	is 	based 	on 	an
unreasonable application of McGirt because of several factual differences
between Petitioner’s case and the facts underlying McGirt. Doc. 43, at 8-9.
Petitioner is a member of a different tribe than the defendant in McGirt, each
with its own treaty with the United States, and the crimes occurred on
different tribal lands. Id. But, as noted, the state district court recognized
Petitioner’s claim as treaty-based and factually denied it. And, as stated above,
Petitioner has not rebutted these factual findings with clear and convincing
evidence.
18 	Petitioner asks this Court to review the OCCA’s factual determinations
de novo because “it is the federal not state courts who [are] responsible for
interpreting the Cheyenne-Arap[a]ho treaties.” Doc. 43, at 9. But, even under
a de novo review, the undersigned would reach the same conclusion that
Petitioner has not rebutted the state court’s factual findings by clear and
convincing evidence to show that his crime occurred within the boundaries of
“Indian 	country” 	for 	purposes 	of 	jurisdiction 	under 	the 	MCA. 	See, 	e.g.,
Sumpter, 61 F.4th at 750 (“We begin by noting that ‘[e]ven when reviewing a
habeas claim de novo rather than under § 2254(d), state-court factfinding still
receives the benefit of doubt under § 2254(e)(1): that is, ‘[a]ny state-court
findings of fact that bear upon the claim are entitled to a presumption of
correctness 	rebuttable 	only 	by 	clear 	and 	convincing 	evidence.’” 	(quoting
Fontenot v. Crow, 4 F.4th 982, 1061 (10th Cir. 2021))).
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“fail[ing] to investigate and raise the clearly meritorious grounds of error on
appeal and in lieu thereof, [instead] rais[ing] the procedurally barred grounds
of error.” Doc. 34, at 20-21. He asserts his appellate counsel should have
brought a claim that his original plea counsel provided ineffective assistance
because 	of 	a 	conflict 	of 	interest, 	should 	have 	raised 	an 	Indian 	country
jurisdiction claim, and should have better argued “the standard for plain error
on his defaulted claims.” Id. at 20; Doc. 43, at 10-11.
1. 	Clearly established federal law.
To 	prevail 	on 	an 	ineffective 	assistance 	of 	appellate 	counsel 	claim,
Petitioner 	must 	satisfy 	Strickland’s 	deficient 	performance 	and 	prejudice
requirements. Malicoat v. Mullin, 426 F.3d 1241, 1249 (10th Cir. 2005) (citing
Strickland, 	466 	U.S. at 	687). 	“[T]he 	Supreme 	Court 	has 	recognized 	that
‘appellate counsel who filed a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among 	them in order to
maximize the likelihood of success on appeal.’” Id. (quoting Smith v. Robbins,
528 U.S. 259, 288 (2000)).
“Nevertheless, in certain circumstances, appellate counsel’s omission of
an issue may constitute ineffective assistance under Strickland.” Id. So, “[i]n
analyzing such claims, the court must consider the merits of the omitted issue.”
Id. “A sufficiently meritorious omitted claim certainly can, by itself (or in
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relation to other issues that counsel did pursue), establish constitutionally
deficient 	performance 	by 	appellate 	counsel.” 	Cargle 	v. 	Mullin, 	317
F.3d 1196, 1205 (10th Cir. 2003). But “if the issue is meritless, its omission will
not constitute deficient performance.” Id. at 1202. “The omitted issue’s merits
determine both deficient performance and prejudice.” Wood v. Carpenter, 907
F.3d 1279, 1304 (10th Cir. 2018).
As with all ineffective assistance claims, the OCCA’s determination is
entitled to “doubly deferential judicial review that applies to a Strickland claim
evaluated under the § 2254(d)(1) standard.” Knowles, 556 U.S. at 123.
2. 	The OCCA’s decision.
The OCCA held:
We find no merit in the claim that Petitioner was denied
effective assistance of appellate counsel as alleged in his post-
conviction application. The Post-Conviction Procedure Act is not a
substitute for a direct appeal, nor is it intended as a means of
providing a petitioner with a second direct appeal. Fowler v. State,
1995 OK CR 29, ¶ 2, 896 P.2d 566, 569; Maines v. State, 1979 OK
CR 71, ¶ 4, 597 P.2d 774, 775-76.
In 	his 	brief, 	Petitioner 	alleges 	Judge 	Weedon 	erred 	in
denying 	his 	claim 	that 	he 	was 	denied 	effective 	assistance 	of
appellate counsel. Petitioner makes several different claims within
the 	context 	of 	his 	argument 	that 	his 	appellate 	counsel 	was
ineffective. He argues his appellate counsel inadequately argued
otherwise 	winning 	claims 	and 	that 	his 	appellate 	counsel
overlooked meritorious claims. There is nothing in this case that
indicates appellate counsel was ineffective in the claims actually
raised in his direct appeal or that had appellate counsel argued
any of these omitted issues on appeal it would have changed the
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result of his appeal. Petitioner’s arguments are speculation and
second-guessing of his attorney’s strategies. A review of the record
makes it clear these claims are unsupported. Petitioner does not
establish any deficient performance by appellate counsel in these
claims.
After examining Petitioner’s claims of ineffective assistance
of counsel, pursuant to the Logan and Strickland standards stated
above, Petitioner has failed to establish that appellate counsel’s
performance 	was 	deficient 	or 	objectively 	unreasonable 	and
Petitioner has failed to establish any resulting prejudice. As a
result, 	Petitioner’s 	ineffective 	assistance 	of 	appellate 	counsel
claims are without merit.
Doc. 36, Ex. 15, at 4-5.
3. 	The 	OCCA 	reasonably 	determined 	that 	appellate
counsel did not provide ineffective assistance.
Relevant to Petitioner’s habeas claim, the OCCA’s determination was
based on its assessment that appellate counsel did not omit meritorious claims,
and this determination was not contrary to or an unreasonable application of
Strickland. 	Evaluating 	appellate 	counsel’s 	performance 	under 	Strickland
requires consideration of the merits of the omitted issue, which “determines
both deficient performance and prejudice.” Wood, 907 F.3d at 1304. Consistent
with this standard, the OCCA considered whether, “had appellate counsel
argued any of these omitted issues on appeal[,] it would have changed the
result of his appeal.” Doc. 36, Ex. 15, at 4.
In 	his 	amended 	habeas 	corpus 	petition, 	Petitioner 	argues 	his 	plea
counsel had a conflict of interest because she was “direct friends” on Facebook
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with some of the victims’ family members and with the state judge who
presided over the guilty plea hearing. Doc. 34, at 20. The OCCA affirmed the
state district court’s opinion where it found no merit in Petitioner’s claim that
his plea counsel provided ineffective assistance because of a conflict of interest:
Petitioner . . . alleges that Alicia Sorelle “shared a personal
and vicarious relationship” with the victims, the grandchildren of
the victims, and Judge Haught. Petitioner relies solely on evidence
that Alicia Sorelle is Facebook friends with Dana Southall, Jenna
Dodson, and Judge Haught for his allegation of conflict of interest.
Petitioner has not established that Dana Southall and Jenna
Dodson are related to any victim in this case. Even taking the
evidence in the light most favorable to Petitioner, the existence of
a Facebook relationship with a granddaughter of a victim does not
establish a conflict of interest for an attorney. Petitioner has also
failed to establish any conflict of interest due to a purported
relationship with Judge Haught.
The claim of ineffective assistance of counsel due to a conflict
of interest is denied.
Doc. 36, Ex. 12, at 3-4.
“[U]ntil 	a 	defendant 	shows 	that 	his 	counsel 	actively 	represented
conflicting interests, he has not established the constitutional predicate for his
claim of ineffective assistance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
The mere “possibility of [a] conflict is insufficient to impugn a criminal
conviction.” Id.
As the state court found, Petitioner’s allegations of a conflict amount to
no more than a mere “possibility” of conflict. Because this could not establish
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the constitutional predicate for his ineffective assistance of plea counsel claim,
appellate counsel cannot be considered ineffective for failing to raise it. See,
e.g., Cargle, 317 F.3d at 1202 (stating that “if the issue is meritless, its omission
will not constitute deficient performance”).
Likewise, the undersigned has determined Petitioner’s Indian country
jurisdiction claim lacks merit. So Petitioner cannot satisfy the Strickland
standard to warrant habeas corpus relief. See, e.g., Neill v. Gibson, 278 F.3d
1044, 1057 (10th Cir. 2001) (“[T]he relevant questions are whether appellate
counsel was ‘objectively unreasonable’ in failing to raise these . . . claims on
direct appeal and, if so, whether there is a ‘reasonable probability that, but for
his counsel’s unreasonable failure’ to raise these claims, [the petitioner] ‘would
have prevailed on his appeal.’”) (quoting Smith, 528 U.S. at 285).
Finally, 	Petitioner’s 	claim 	that 	his 	appellate 	counsel 	submitted 	a
deficient brief on appeal does not satisfy the Strickland standard. Appellate
counsel “‘need not (and should not) raise every nonfrivolous claim, but rather
may select from among them in order to maximize the likelihood of success on
appeal.’” Malicoat, 426 F.3d at 1249 (quoting Smith 528 U.S. at 288). Petitioner
fails to establish a reasonable possibility that, but for appellate counsel’s
failure to raise additional issues, he would have prevailed on appeal. Neill, 278
F.3d at 1057.
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The OCCA’s application of Strickland to deny Petitioner’s ineffective
assistance of appellate counsel claim was not unreasonable. The Court should
deny habeas corpus relief on Petitioner’s last ground.
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny habeas corpus relief.
The undersigned advises Plaintiff of his right to file an objection to this
Report 	and 	Recommendation 	with 	the 	Clerk 	of 	this 	Court 	on 	or 	before
December 1, 2025, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ.
P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a
timely objection to this Report and Recommendation waives the right to
appellate review of both factual and legal questions contained herein. 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 12th day of November, 2025.
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