Tibbetts v. Rogers

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
KENNETH H. TIBBETTS, )
)
Petitioner, )
)
v. ) Case No. CIV-23-913-J
)
DAVID ROGERS, Warden, )
)
Respondent. )
ORDER
Petitioner, Kenneth H. Tibbetts, a state prisoner appearing pro se, filed a Petition pursuant
to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. [Doc. No. 1]. The matter
was referred for initial proceedings to United States Magistrate Judge Suzanne Mitchell consistent
with 28 U.S.C. § 636(b)(1)(B), (C). Respondent filed a motion to dismiss arguing that Petitioner
improperly presented both exhausted and unexhausted claims [Doc. Nos. 13-14] and Judge
Mitchell has issued a Report and Recommendation agreeing. (Rep. and Rec.) [Doc. No. 22].1
Judge Mitchell recommends that the Court permit Petitioner to dismiss the unexhausted claim,
which would moot the motion to dismiss or, if Petitioner declines to dismiss the unexhausted claim,
she recommends that the Court grant the motion to dismiss and dismiss the Petition without
prejudice. See id. at 17. Petitioner has objected (Pet.’s Obj.) [Doc. No. 25], triggering de novo
review.
1 In June 2024, Judge Mitchell issued a Report and Recommendation with the same
recommendation. However, that recommendation was based on the belief that Petitioner’s post-
conviction appeal was still pending before the Oklahoma Court of Criminal Appeals (OCCA).
While that recommendation was pending, the OCCA denied Petitioner’s post-conviction appeal.
The Court thus declined to adopt the Report and Recommendation and re-referred the matter back
to Judge Mitchell. [Doc. No. 21].
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I. Relevant Background
In Beckham County District Court, Case No. CF-2015-188, Petitioner blindly pleaded
guilty to (1) Count One: robbery with a weapon, (2) Counts Two and Seven: possession of a
firearm, (3) Counts Three and Four: kidnapping, and (4) Counts Five and Six: attempted robbery
with a dangerous weapon, all after a former felony conviction. [Doc. No. 14, Ex. 1]. The court
sentenced Petitioner to life imprisonment on Counts One, Three, Four, Five, and Six, and ten-years
imprisonment on Counts Two and Seven. See id., Ex. 2.
Petitioner was represented by Ms. Alicia Sorelle during the plea and sentencing. At his
request, Ms. Sorelle also prepared a motion to withdraw the guilty plea alleging that Petitioner’s
plea was not entered knowingly and voluntarily because (1) he did not fully understand the effects
of entering a blind plea, and (2) the effects of his medical condition and medications impaired his
mental capacity. See id., Ex. 3. A conflict attorney, Mr. Richard Yohn, prepared the brief in
support of Petitioner’s motion to withdraw his guilty plea and represented Petitioner during the
hearing on the motion. Mr. Yohn focused on Petitioner’s alleged mental incapacitation. See id.,
Ex. 4. The court overruled the motion to withdraw. See id., Ex. 6.
Petitioner then filed a direct appeal, represented by Mr. Chad Johnson. Relevant here, the
direct appeal alleged that Ms. Sorelle’s representation was constitutionally ineffective because she
(1) mishandled Petitioner’s mental health/competency issues, (2) allowed a plea without sufficient
factual basis, (3) failed to properly advise Petitioner of the sentencing ranges, (4) allowed
impermissible multiple punishments, (5) failed to object to privileged materials, (6) failed to object
to the State’s improper statements, and (7) failed to invoke sequestration. The direct appeal also
argued that Mr. Yohn’s representation was constitutionally ineffective on grounds that he only
summarized the medical history and did not request a competency determination. See id., Ex. 9.
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The OCCA found that these claims were waived because they were not raised in Ms.
Sorelle’s motion to withdraw the plea, in Mr. Yohn’s brief in support of that motion, or during the
plea withdraw hearing. The OCCA further noted that Petitioner had not alleged that Mr. Yohn
was ineffective for failing to challenge Ms. Sorelle’s alleged ineffectiveness. See id., Ex. 12.
Petitioner then proceeded with a pro se application for post-conviction relief. He argued
for the first time that the State lacked jurisdiction to convict him and alleged that Ms. Sorelle had
conflicts of interest, failed to investigate all lines of defense (including Petitioner’s competency),
and coerced him into pleading guilty. He also raised a generic ineffective assistance of appellate
counsel claim with no description of the alleged errors. See id., Ex. 14. The state court denied
relief on the jurisdiction question and found that Petitioner’s claims regarding Ms. Sorelle’s
representation lacked merit and had been waived. As for Petitioner’s ineffective assistance of
appellate counsel claim, the court assumed Petitioner was arguing that representation was deficient
because Mr. Johnson failed to challenge the State’s jurisdiction or allege that Ms. Sorelle had
conflicts of interest, failed to investigate all lines of defense, and coerced him into pleading guilty.
On that basis, the state court found that because the relevant claims lacked merit, Petitioner could
not establish that his appellate counsel had been ineffective for failing to raise them. See id., Ex.
18.
On appeal to the OCCA, Petitioner alleged that he was entitled to relief because (1) the
state court failed to address and consider his motion for appointment of post-conviction counsel,
(2) the State lacked jurisdiction to charge and convict him, and (3) appellate counsel had failed to
challenge the state court’s jurisdiction. See id., Ex. 35. The OCCA again denied relief, concluding
that Petitioner’s ineffective assistance of appellate counsel and jurisdictional claims were without
merit. [Doc. No. 19, Ex. 1].
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II. Petitioner’s Habeas Claims
Relevant here, Petitioner has raised three claims of ineffective assistance of counsel. In
Ground Four, Petitioner alleges that Ms. Sorelle was ineffective for failing to (1) request a mental
competency exam, (2) challenge the plea’s factual basis, (3) advise Petitioner of the sentencing
ranges, (4) object to impermissible multiple punishments, (5) object to privileged materials, (6)
object to the State’s improper statements, and (7) invoke sequestration. See Pet. at 13. In Ground
Five, Petitioner claims that (1) Ms. Sorelle was ineffective because she failed to raise her own
deficiencies in the motion to withdraw the guilty plea, (2) Mr. Yohn was ineffective for failing to
conduct an independent investigation into Ms. Sorelle’s deficiencies, and (3) appellate counsel
was ineffective for failing to raise these “clearly meritorious grounds of error” on direct appeal.
Id. at 15-16. Finally, in Ground Seven, Petitioner argues that Ms. Sorelle was ineffective because
she had conflicts of interest with Petitioner, including having a working relationship with
Petitioner’s wife’s divorce attorney and having a personal relationship with the sitting judge and
the victim’s family. Petitioner also blames appellate counsel for failing to investigate and raise
these claims on direct appeal. See id. at 20.
III. Judge Mitchell’s Recommendation
Respondent filed a motion to dismiss arguing, in relevant part, that Petitioner’s Grounds
Five and Seven were unexhausted and thus Petitioner had improperly filed a Petition containing
both exhausted and unexhausted claims. [Doc. Nos. 13-14]. However, after the motion to dismiss
was filed, the OCCA ruled on Petitioner’s post-conviction appeal. See supra at 1, n. 1. Thus,
Judge Mitchell concludes that Ground Seven is exhausted and only a portion of Ground Five –
Petitioner’s allegation that Ms. Sorelle was ineffective for failing to raise her own deficiencies in
the motion to withdraw the guilty plea – remains unexhausted. See Rep. and Rec. at 9-12.
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IV. Analysis
A. Exhaustion Requirements
To be heard in federal court on a petition for writ of habeas corpus, a state prisoner must
have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
This means a state prisoner must pursue each claim through “one complete round of the State’s
established appellate review process,” giving the state courts a “full and fair opportunity” to correct
alleged constitutional errors. Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (cleaned
up). If a petitioner has not properly exhausted state remedies, the Court will not entertain an
application for a writ of habeas corpus unless exhaustion would have been futile, i.e., because
either “there is an absence of available State corrective process” or “circumstances exist that render
such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i), (ii).
Finally, “a federal district court must ordinarily dismiss the entire petition when one or more of
the habeas claims are unexhausted.” Kell v. Benzon, 925 F.3d 448, 451 (10th Cir. 2019).
B. The Court’s Finding and Petitioner’s Objection
A thorough review of Petitioner’s claims in his direct appeal, application for post-
conviction relief, and post-conviction appeal reveals that Petitioner has never complained to either
the state court or the OCCA that Ms. Sorelle was deficient in failing to raise her own alleged
ineffectiveness in the original plea withdraw motion. See supra at 2-3. Thus, the Court agrees
with Judge Mitchell that this portion of Ground Five is unexhausted and Petitioner has presented
a pleading containing both exhausted and unexhausted claims.
In his objection, Petitioner argues that the Court should excuse exhaustion of this claim on
grounds of futility. First, with liberal construction, Petitioner appears to argue that the limited ten-
day window a defendant has from the date he enters his plea to the deadline for moving to withdraw
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the plea is insufficient. Second, he argues that the process further “forecloses appeal of ineffective
assistance of counsel that occurs during the drafting, filing, and hearing of the motion to withdraw
plea.” Pet.’s Obj. at 4. In support, Petitioner cites Martinez v. Ryan, 566 U.S. 1 (2012) and Travino
v. Thaler, 569 U.S. 413 (2013). See id.
In Martinez, the Supreme Court held that “a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial” when state law provides
that “claims of ineffective assistance of trial counsel must be raised in an initial-review collateral
proceeding” and “in the initial-review collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.” Martinez, 566 U.S. at 17. In Trevino, the Supreme Court held
that Martinez applied even when the state provided a theoretical opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal, “but the design and operation of the state’s
procedural requirements for doing so often made that theoretical possibility a practical
impossibility.” Fairchild v. Trammell, 784 F.3d 702, 720 (10th Cir. 2015). But these cases are
not applicable here because the Tenth Circuit has concluded that Oklahoma law allows defendants
a meaningful opportunity to raise ineffective assistance of trial counsel claims on direct appeal.
See id. at 721; see also Cuesta-Rodriguez v. Royal, No. CIV-11-1142-M, 2016 WL 5485117, at
*19 (W.D. Okla. Sept. 29, 2016) (“The exceptions in Martinez . . . and Trevino . . . are not
applicable to Petitioner, as Oklahoma law allows defendants a meaningful opportunity to raise
ineffective-assistance-of-trial-counsel claims on direct appeal under OCCA Rule 3.11.”), aff’d sub
nom., Cuesta-Rodriguez v. Carpenter, 916 F.3d 885 (10th Cir. 2019). Indeed, both Petitioner’s
conflict attorney and appellate attorney could have addressed Ms. Sorelle’s failure to raise her own
ineffectiveness, and as importantly, Petitioner could have raised the claim and/or challenged Mr.
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Yohn and Mr. Carpenter’s failure to do so, in his application for post-conviction relief. He did
not, see supra at 2-3, and the claim remains unexhausted.
V. Conclusion
On de novo review, the Court agrees with Judge Mitchell that Petitioner’s claim in Ground
Five that Ms. Sorelle was ineffective for failing to raise her own deficiencies in the original motion
to withdraw his plea is unexhausted and thus ADOPTS the Report and Recommendation.
Anticipating this result, Petitioner asks to dismiss this claim and proceed with his exhausted
claims. See Pet.’s Obj. at 7. Plaintiff’s request is GRANTED, and the relevant claim is deemed
DISMISSED without prejudice. As this leaves Petitioner’s Petition with only exhausted claims,
Respondent’s pending motion to dismiss [Doc. No. 13] is DENIED as moot. This matter is RE-
REFERRED to Judge Mitchell.
IT IS SO ORDERED this 21st day of November, 2024.
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