FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 24, 2016 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
ANTHONY MICHAEL OLLER,
Petitioner - Appellant,
v. No. 16-6044 (D.C. No. 5:15-CV-01076-W) JASON BRYANT, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, GORSUCH and McHUGH, Circuit Judges.
Pro se litigant 1 Anthony Michael Oller seeks a Certificate of Appealability
(“COA”) from the district court’s denial of his petition for habeas corpus relief
from his Oklahoma state court convictions. We deny Oller’s application for a
COA and dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 1 Because Oller appears pro se, we construe his filings liberally, see, e.g., Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft arguments or otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). I
Oller pled guilty to state charges without the benefit of a plea agreement.
He pled guilty to first degree manslaughter, leaving the scene of a fatality
accident, and driving with his license revoked, in violation of Okla. Stat. tit. 21,
§ 711(1) (2011) and Okla. Stat. tit. 47, §§ 10-102.1 & 6-303(B) (2011),
respectively. After the trial court accepted his guilty plea, but before sentencing,
Oller sought to withdraw his plea on grounds that his counsel was ineffective and
had coerced him to plead guilty. The trial court denied the motion. After
sentencing, Oller again sought to withdraw his plea. His motion was again denied
after a hearing. He petitioned for certiorari from the Oklahoma Court of Criminal
Appeals (“OCCA”), but his petition was denied.
Oller then filed the instant action in federal court, seeking collateral relief
from his state conviction under 28 U.S.C. § 2254, and reiterating the arguments
he made before the OCCA regarding the validity of his plea. The district court
denied Oller’s petition and his subsequent application for a COA. Oller now
seeks to appeal that denial.
II
Oller cannot appeal the district court’s denial of his petition for habeas
relief “[u]nless a circuit justice or judge issues a certificate of appealability.” 28
U.S.C. § 2253(c)(1). “A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.”
2 Id. § 2253(c)(2). In a § 2254 petition for habeas relief from a state court
conviction, “[w]e look to the District Court’s application of [§ 2254] to
petitioner’s constitutional claims and ask whether that resolution was debatable
amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
III
Oller argues his plea was invalid for five reasons: (1) the Oklahoma state
court lacked a sufficient factual basis to accept his guilty plea; (2) the Oklahoma
state court erroneously applied the factors used to calculate the restitution portion
of his sentence; (3) the Oklahoma state court failed to comply with Oklahoma
procedural rules in denying his first motion to withdraw his guilty plea; (4) his
guilty plea was coerced; and (5) he received ineffective assistance of counsel.
A. State-law Arguments
Habeas corpus relief from state custody is available only for “violation[s]
of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a),
and a COA may only issue if “the applicant has made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). The Supreme Court has
“repeatedly held that ‘federal habeas corpus relief does not lie for errors of state
law.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire,
502 U.S. 62, 67 (1991)). Oller’s first three arguments allege errors of state law
committed by the Oklahoma trial court, none of which rise to the level of a
federal constitutional violation. Therefore, Oller cannot make a substantial
3 showing that he was denied a constitutional right based on these arguments.
Specifically, Oller first argues that the state court’s acceptance of his guilty
plea without an adequate factual basis violates his Due Process rights. But the
Supreme Court has not acknowledged a Due Process requirement that state courts
must first establish an independent factual basis before acceptance of a guilty
plea. See North Carolina v. Alford, 400 U.S. 25, 32 (1970) (“Ordinarily, a
judgment of conviction resting on a plea of guilty is justified by the defendant’s
admission that he committed the crime charged against him . . . even though there
is no separate, express admission by the defendant that he committed the
particular acts claimed to constitute the crime charged.”). Second, Oller argues
that the state court did not follow Oklahoma procedure for calculating restitution.
Again, this argument involves the interpretation and application of Oklahoma
law, 2 and the Supreme Court has not recognized a constitutional right that would
apply. Third, Oller argues that the state court abused its discretion in denying his
first motion to withdraw his guilty plea. This argument is based on Oklahoma
criminal procedure, and the United States Constitution does not provide an
unconditional right to withdraw a guilty plea prior to sentencing. Okla. Stat. tit.
2 Oller uses the phrase “ignorance, inadvertence, and misunderstanding” to describe the circumstances surrounding the entry of his plea. Pet’r Br. at 4, 4A. This phrase derives from Oklahoma case law, and does not, by its mere mention, raise a federal constitutional argument. See Chastain v. State, 706 P.2d 539, 540 (Okla. Crim. App. 1985), overruled on other grounds, Luster v. State, 746 P.2d 1159 (Okla. Crim. App. 1987).
4 22, § 517 (2011) (“The court may, at any time before judgment, upon a plea of
guilty, permit it to be withdrawn, and a plea of not guilty substituted.”); see
Padilla v. Kentucky, 559 U.S. 356, 383 (2010) (Alito, J., concurring in the
judgment) (acknowledging that withdrawal of a guilty plea is discretionary under
federal rules).
B. Plea Coercion
Oller’s fourth argument is that his plea was coerced. He claims his own
defense counsel coerced him into pleading guilty “by the threats of filing charges
against [his] mother and father[,] therefore overcoming [his] free will.” Pet’r Br.
at 4A (citing Brady v. United States, 397 U.S. 742, 750 (1970)).
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 24, 2016 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
ANTHONY MICHAEL OLLER,
Petitioner - Appellant,
v. No. 16-6044 (D.C. No. 5:15-CV-01076-W) JASON BRYANT, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, GORSUCH and McHUGH, Circuit Judges.
Pro se litigant 1 Anthony Michael Oller seeks a Certificate of Appealability
(“COA”) from the district court’s denial of his petition for habeas corpus relief
from his Oklahoma state court convictions. We deny Oller’s application for a
COA and dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 1 Because Oller appears pro se, we construe his filings liberally, see, e.g., Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft arguments or otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). I
Oller pled guilty to state charges without the benefit of a plea agreement.
He pled guilty to first degree manslaughter, leaving the scene of a fatality
accident, and driving with his license revoked, in violation of Okla. Stat. tit. 21,
§ 711(1) (2011) and Okla. Stat. tit. 47, §§ 10-102.1 & 6-303(B) (2011),
respectively. After the trial court accepted his guilty plea, but before sentencing,
Oller sought to withdraw his plea on grounds that his counsel was ineffective and
had coerced him to plead guilty. The trial court denied the motion. After
sentencing, Oller again sought to withdraw his plea. His motion was again denied
after a hearing. He petitioned for certiorari from the Oklahoma Court of Criminal
Appeals (“OCCA”), but his petition was denied.
Oller then filed the instant action in federal court, seeking collateral relief
from his state conviction under 28 U.S.C. § 2254, and reiterating the arguments
he made before the OCCA regarding the validity of his plea. The district court
denied Oller’s petition and his subsequent application for a COA. Oller now
seeks to appeal that denial.
II
Oller cannot appeal the district court’s denial of his petition for habeas
relief “[u]nless a circuit justice or judge issues a certificate of appealability.” 28
U.S.C. § 2253(c)(1). “A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.”
2 Id. § 2253(c)(2). In a § 2254 petition for habeas relief from a state court
conviction, “[w]e look to the District Court’s application of [§ 2254] to
petitioner’s constitutional claims and ask whether that resolution was debatable
amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
III
Oller argues his plea was invalid for five reasons: (1) the Oklahoma state
court lacked a sufficient factual basis to accept his guilty plea; (2) the Oklahoma
state court erroneously applied the factors used to calculate the restitution portion
of his sentence; (3) the Oklahoma state court failed to comply with Oklahoma
procedural rules in denying his first motion to withdraw his guilty plea; (4) his
guilty plea was coerced; and (5) he received ineffective assistance of counsel.
A. State-law Arguments
Habeas corpus relief from state custody is available only for “violation[s]
of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a),
and a COA may only issue if “the applicant has made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). The Supreme Court has
“repeatedly held that ‘federal habeas corpus relief does not lie for errors of state
law.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire,
502 U.S. 62, 67 (1991)). Oller’s first three arguments allege errors of state law
committed by the Oklahoma trial court, none of which rise to the level of a
federal constitutional violation. Therefore, Oller cannot make a substantial
3 showing that he was denied a constitutional right based on these arguments.
Specifically, Oller first argues that the state court’s acceptance of his guilty
plea without an adequate factual basis violates his Due Process rights. But the
Supreme Court has not acknowledged a Due Process requirement that state courts
must first establish an independent factual basis before acceptance of a guilty
plea. See North Carolina v. Alford, 400 U.S. 25, 32 (1970) (“Ordinarily, a
judgment of conviction resting on a plea of guilty is justified by the defendant’s
admission that he committed the crime charged against him . . . even though there
is no separate, express admission by the defendant that he committed the
particular acts claimed to constitute the crime charged.”). Second, Oller argues
that the state court did not follow Oklahoma procedure for calculating restitution.
Again, this argument involves the interpretation and application of Oklahoma
law, 2 and the Supreme Court has not recognized a constitutional right that would
apply. Third, Oller argues that the state court abused its discretion in denying his
first motion to withdraw his guilty plea. This argument is based on Oklahoma
criminal procedure, and the United States Constitution does not provide an
unconditional right to withdraw a guilty plea prior to sentencing. Okla. Stat. tit.
2 Oller uses the phrase “ignorance, inadvertence, and misunderstanding” to describe the circumstances surrounding the entry of his plea. Pet’r Br. at 4, 4A. This phrase derives from Oklahoma case law, and does not, by its mere mention, raise a federal constitutional argument. See Chastain v. State, 706 P.2d 539, 540 (Okla. Crim. App. 1985), overruled on other grounds, Luster v. State, 746 P.2d 1159 (Okla. Crim. App. 1987).
4 22, § 517 (2011) (“The court may, at any time before judgment, upon a plea of
guilty, permit it to be withdrawn, and a plea of not guilty substituted.”); see
Padilla v. Kentucky, 559 U.S. 356, 383 (2010) (Alito, J., concurring in the
judgment) (acknowledging that withdrawal of a guilty plea is discretionary under
federal rules).
B. Plea Coercion
Oller’s fourth argument is that his plea was coerced. He claims his own
defense counsel coerced him into pleading guilty “by the threats of filing charges
against [his] mother and father[,] therefore overcoming [his] free will.” Pet’r Br.
at 4A (citing Brady v. United States, 397 U.S. 742, 750 (1970)). “Coercion by
the accused’s counsel can render a plea involuntary.” Fields v. Gibson, 277 F.3d
1203, 1213 (10th Cir. 2002) (internal alteration omitted) (quoting United States v.
Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988)); see also Boykin v. Alabama, 395
U.S. 238, 242 (1969).
Oller’s convictions arise from a hit-an-run accident in which a pedestrian
was struck and killed by a truck. When first interviewed by police, Oller’s father
told police that Oller had been driving that truck. At both hearings on Oller’s
motions to withdraw his guilty plea, Oller admitted that he “had written letters
asking [his] parents to lie for” him at his trial. ROA Vol. 1 at 264. Garey Corey,
Oller’s counsel at the time he entered his plea, testified at the motion hearings
that he advised Oller that these letters “encouraging them to alter their
5 testimonies,” could lead to perjury charges if Oller’s parents testified at trial. Id.
at 267, 299. Corey strongly urged Oller to plead guilty, and Oller now argues that
Corey’s advice rose to the level of coercion.
Oller makes no claim that he was physically coerced, threatened with harm,
or intentionally misinformed. “Strongly urg[ing]” a client to plead guilty, when
counsel believes it is in the client’s best interest, is not necessarily coercion. See
Fields, 277 F.3d at 1213–14; Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir.
1995). “Indeed, one central component of a lawyer’s job is to assimilate and
synthesize information from numerous sources and then advise clients about what
is perceived to be in their best interests.” Fields, 277 F.3d at 1214. Because
Oller’s testimony confirms that his parents may have been subject to perjury
charges, his counsel’s advice to factor this into his decision to plead guilty does
not amount to coercion. Oller has therefore failed to make “a substantial showing
of the denial of a constitutional right” on this basis.
C. Ineffective Assistance of Counsel
Finally, Oller argues that he received ineffective assistance of counsel from
both Corey and his conflict counsel, Jeff Crites. Oller alleges that (1) Corey
“had” Oller plead guilty to charges for which the court lacked a sufficient factual
basis because Oller “was not able to finish paying” Corey, and (2) Crites failed to
bring to the trial court’s attention that there was an insufficient factual basis to
accept Oller’s plea. Pet’r Br. at 4B.
6 The Supreme Court has adopted a two-part standard for evaluating
challenges to guilty pleas based on claims of ineffective assistance of counsel.
Hill v. Lockhart, 474 U.S. 52, 58 (1985); Bonney v. Wilson, 754 F.3d 872, 881
(10th Cir. 2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).
First, “the defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. In order to
undermine the voluntariness of his guilty plea, the assistance Oller received must
have been outside “the range of competence demanded of attorneys in criminal
cases.” Hill, 474 U.S. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)). Second, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
Oller has failed to make a substantial showing that the assistance he
received was ineffective. As previously explained, Oller was not coerced into
pleading guilty, but strongly encouraged to do so. If the case had proceeded to
trial, and if his father had testified that Oller had not been driving the truck, his
father might have been subject to perjury charges, and Oller might have been
subject to charges of conspiracy to commit perjury. Oller’s counsel presented
him with these possibilities, and advised him to plead guilty. Further, had Oller’s
father testified at trial that Oller was not driving the truck, he would have faced
serious impeachment given his earlier statements to police. Even if Oller
7 declined to call his father as a witness, the government could have called him in
an attempt to elicit testimony that Oller was indeed driving the truck. In light of
these circumstances, reasonable jurists would not disagree that Corey’s advice to
plead guilty was within the bounds of reasonable representation. See Bonney,
754 F.3d at 875–78 (reversing the district court’s grant of habeas relief where
counsel reasonably weighed the benefits of an exculpatory letter from a
complaining witness against the potential damage that the letter could cause to the
theory of defense).
Oller’s claim that Corey and Crites provided ineffective assistance by not
objecting to the factual sufficiency of the state’s Probable Cause Affidavit also
fails. As previously explained, the Affidavit states that Oller’s father informed
police that Oller was driving the truck that hit the pedestrian. Although Oller
argues the Affidavit itself is hearsay inadmissible at trial, his father’s testimony
would have been admissible, and problematic for Oller. Thus, reasonable jurists
would not disagree that counseling Oller to plead guilty and accept the facts as
alleged in the Affidavit was within the bounds of reasonable representation.
Because Oller fails to make a substantial showing on the first prong of the
Strickland test, we need not address prejudice.
IV
The application for a Certificate of Appealability is DENIED, and this
matter is DISMISSED. Because the district court certified that this appeal is not
8 taken in good faith, Oller’s pending in forma pauperis motion is also DENIED. 3
Entered for the Court
Mary Beck Briscoe Circuit Judge
3 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.”); Order, Oller v. Bryant, No. CIV-15-1076-W, Doc. No. 23 (W.D. Okla. Feb. 16, 2016) (finding Oller “will not be able to present a reasoned, nonfrivolous argument” on appeal and certifying that the appeal is not taken in good faith).