Brown v. Green

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
FABION D. BROWN, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-24-1220-SLP
)
MARGARET GREEN, Warden, 	)
)
Respondent. 	)
O R D E R
Petitioner Fabion D. Brown, a state prisoner proceeding pro se, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his Oklahoma state-court
conviction in Case No. CF-2012-938, District Court of Oklahoma County. 	Petitioner’s
Amended Petition [Doc. No. 11] is the operative pleading. Respondent filed a Motion to
Dismiss [Doc. Nos. 30–31], to which Petitioner responded. [Doc. No. 33]. On December
29, 2025, United States Magistrate Judge Chris M. Stephens entered a Report and
Recommendation (R&R) recommending the Court dismiss the Petition with prejudice
because Petitioner waived his right to federal habeas review. [Doc. No. 38] at 7.
Petitioner was advised that he could object to the R&R and that failure to timely
object could result in the waiver of his right to appellate review of the factual and legal
issues raised. Petitioner timely objected. [Doc. No. 39]. The Court, therefore, must make
a de novo determination of the portions of the R&R to which specific objections have been
made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Review of all other issues addressed
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 1 of 13

2
by the Magistrate Judge is waived. See Moore v. United States, 950 F.2d 656, 659 (10th
Cir. 1991); see also United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
I. 	Background
The R&R sets out the procedural history in detail, and the parties do not object to
its recitation of the background. In pertinent part, Petitioner was convicted by jury in June
2014 of (1) two counts of first-degree murder and (2) conspiracy to commit a felony in
Case No. CF-2012-938 in the District Court of Oklahoma County, Oklahoma, and he was
sentenced to death. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed
the convictions, but reversed and remanded for resentencing due to a Faretta error. 	See
OCCA Order [Doc. No. 31-5]; Brown v. State, 422 P.3d 155, 171-73 (Okla. Crim. App.
2018); see also Faretta v. California, 422 U.S. 806 (1975).1
At resentencing on January 11, 2019, Petitioner appeared with counsel (who had
served as standby counsel during his 2014 jury trial and sentencing) and entered into a
sentencing agreement under which the State dismissed its Bill of Particulars in exchange
for Petitioner’s waiver of all appellate rights and consent to judicial sentencing. See [Doc.
No. 31-1] at 54–56, 58; Appeal Waiver [Doc. No. 31-6] at 8. The waiver is documented
across multiple signed instruments: a Waiver of Right to Appeal specifically enumerating
and waiving “federal habeas corpus review”, id.; an Agreed Sentencing Summary executed
in open court reflecting “All Appellate rights waived” as an express term of sentence and
1 The Court agrees with the R&R’s conclusion that the exhibits attached to Respondent’s
supporting brief are pertinent matters of record and conversion to a motion for summary judgment
is not required. R&R [Doc. No. 38] at 1. Petitioner did not object to this conclusion.
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 2 of 13

3
all answers were “freely and voluntarily given,” id. at 2, 4–5; a certification by defense
counsel confirming counsel had advised Petitioner of his appellate rights, that he fully
understood them, and that he “affirmatively states he/she does not want to appeal this
conviction — Defendant has signed waiver,” id. at 5, 7; and Petitioner’s own written
confirmation that he fully understood the questions asked and that his answers were freely
and voluntarily given, id. at 2, 4–6. Petitioner was sentenced to life without the possibility
of parole. [Doc. No. 31-6] at 2; [Doc. No. 31-7].
Petitioner filed no challenge for nearly two years. Between 2021 and 2024, he filed
a series of post-conviction applications in state court, all dismissed on the ground of his
appeal waiver. 	Petitioner now seeks federal habeas relief on two grounds: (1) that the
prosecution knowingly presented false testimony from multiple witnesses in violation of
the Sixth and Fourteenth Amendments, and (2) that the state district court violated due
process in dismissing his second post-conviction application. 	[Doc. No. 11]. 	The
Magistrate Judge recommends dismissal based on enforcement of the appeal waiver under
the framework of United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). Petitioner objects
on eight grounds.
II. 	Petitioner’s Objections
Petitioner raises multiple objections to the R&R, several of which overlap. 	For
clarity, the Court addresses them by subject matter rather than in strict numerical order.
The Court first considers Petitioner’s objections to the legal framework applied to the
waiver, then his objections to whether the waiver was knowing and voluntary, and finally
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 3 of 13

4
his objections concerning miscarriage of justice, actual innocence, and the need for further
proceedings.
A. Applicable Framework – Objections I, IV, VI, and VII
Several of Petitioner’s objections contend that the Magistrate Judge applied the
wrong legal framework to his analysis. For example, in Objection I, he argues that because
guilt was determined by jury verdict rather than guilty plea, the plea-based waiver
framework in Hahn is inapposite and the waiver cannot bar review of trial-stage
constitutional violations. [Doc. No. 39] at 1–2. 	In Objections IV, VI, and VII, Petitioner
argues that Schlup v. Delo, 513 U.S. 298 (1995), rather than Hahn, is the governing
framework, that actual innocence independently defeats enforcement of any waiver, and
that the Magistrate Judge erred by reaching the waiver question before conducting a Schlup
analysis. [Doc. No. 39] at 5–7, 9–11. The Court disagrees.
The Tenth Circuit evaluates the enforceability of an appellate waiver under a three-
prong analysis: (1) whether the disputed matter falls within the scope of the waiver; (2)
whether the waiver was knowing and voluntary; and (3) whether enforcement would result
in a miscarriage of justice.2 	Hahn, 359 F.3d at 1325. 	Although Petitioner entered a
sentencing agreement rather than a guilty plea, Hahn and analogous contract principles
govern. Sternberg v. Sec’y, Dep’t Of Health And Hum. Servs., 299 F.3d 1201, 1206 (10th
Cir. 2002); Mathis v. Jones, 490 F. App’x 132, 135 (10th Cir. 2012), aff’g No. CIV-11-
694-C, 2012 WL 668813 (W.D. Okla. Jan. 10, 2012). 	In Mathis, as here, an Oklahoma
2 Petitioner did not object to the R&R’s conclusion that the disputed matter falls within the scope
of the waiver so the Court does not review that issue herein.
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 4 of 13

5
state prisoner convicted of murder by a jury agreed to life without parole in exchange for
dismissal of a capital Bill of Particulars and a full waiver of appellate rights. Mathis, 490
F. App’x at 135. When analyzing the enforceability of the waiver, the Tenth Circuit cited
Hahn to support the requirement that a defendant must have “sufficient awareness of the
relevant circumstances and likely consequence” of the waiver. Id. Ultimately, the Mathis
court affirmed the denial of habeas relief because the petitioner failed to demonstrate that
the state court’s finding of a valid, knowing, and voluntary waiver was an unreasonable
application of Supreme Court precedent. Id.
Thus, the Court agrees with the Magistrate Judge’s conclusion that, at minimum,
“Hahn’s analysis is instructive when reviewing Petitioner’s appeal waiver.”3 R&R [Doc.
No. 38] at 10. The Court further finds that the R&R properly analyzed Petitioner’s waiver
under established waiver principles, including whether the waiver in the Sentencing
Agreement was within scope, knowing and voluntary, and whether enforcement would
result in a miscarriage of justice.4 	Nor did the R&R err by stating that the relevant
3 This is, in part, because the logic behind enforcing appeal waivers in plea agreements is the same
as in sentencing agreements. As the Second Circuit explained, “permitting a defendant who has
secured the benefits of [a plea] agreement to appeal a sentence conforming to the agreement would
render the plea bargaining process and the resulting agreement meaningless . . . The same logic
applies in this case.” United States v. Cano, 190 F. App’x 34, 36 (2d Cir. 2006) (internal quotations
and citation omitted).
4 Other circuits have held that waivers in post-conviction sentencing agreements are enforceable.
See United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013) (“We will enforce a defendant’s
waiver of appellate rights if the waiver was knowing and voluntary, and if the waiver applies to
the circumstances at hand.”); United States v. Cano, 190 F. App’x 34, 36 (2d Cir. 2006) (“Although
the waiver here at issue is part of a sentencing agreement rather than a plea agreement, we have
held that the two are analogous for purposes of determining the enforceability of appeal waivers.”
(citation omitted)); United States v. Cheney, 571 F.3d 764, 766 (8th Cir. 2009); United States v.
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 5 of 13

6
miscarriage-of-justice inquiry focuses on whether the waiver itself is unlawful, rather than
whether some other aspect of the underlying proceedings allegedly involved legal error.
That is the correct inquiry under the waiver cases the R&R applied. Petitioner provides no
persuasive authority demonstrating that it was error to apply Hahn or the framework
traditionally applied to guilty-plea waivers. The Court finds Objection I lacks merit.5
Relatedly, Objections IV, VI, and VII all rest on the same premise: that Petitioner’s
appeal waiver is an ordinary procedural bar to which Schlup and cause-and-prejudice
principles automatically apply. 	[Doc. No. 39] at 5–11. 	Specifically, in Objection IV,
Petitioner argues that actual innocence overrides any “procedural waiver” where the State
does not dispute the underlying facts. In Objection VI, he argues that the R&R committed
a sequencing error by enforcing the waiver before determining whether he satisfied the
actual-innocence gateway under Schlup. In Objection VII, he argues that the R&R failed
to conduct the required Schlup analysis at all.
The Court is not persuaded. 	Procedural default arises when a petitioner fails to
properly present a claim to a state court or fails to properly exhaust a habeas claim. Tryon
v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023). Even where a procedural default exists, a
petitioner may overcome it by showing either cause and prejudice for the default or actual
Trejo-Nolasquez, 346 F. App’x 374 (10th Cir. 2009); United States v. Stevens, 66 F.3d 431, 437
(2d Cir. 1995).
5 Additionally, as noted in the R&R, other federal habeas courts have similarly enforced a state
defendant’s appeal waiver made in connection with the defendant’s plea or sentencing agreement
so long as the waiver was explicit and made knowingly and voluntarily. See R&R [Doc. No. 38]
11 (gathering cases); see also Johnston v. Hill, 340 F. Supp. 2d 1134, 1141 (D. Or. 2004) (holding
waiver of post-conviction rights in state plea agreement precluded habeas relief under § 2254).
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 6 of 13

7
innocence. 	Frye v. Raemisch, 546 F. App’x 777, 781 (10th Cir. 2013) (citing Bousley v.
United States, 523 U.S. 614, 622 (1998)). Here, the R&R correctly recites these standards
and concludes enforcement of a waiver of appellate rights is not a procedural default. The
Court agrees. An express contractual waiver of appellate rights is distinct from the concept
of procedural default. An express appeal waiver is an affirmative, bargained-for agreement
to relinquish the right to seek further review in exchange for a discrete benefit. Petitioner’s
cited cases do not establish that application of Schlup is required. Thus, the Court disagrees
with Petitioner that the R&R “nullifies” Schlup. 	The R&R simply concluded, correctly,
that Schlup does not control the threshold issue presented here. Upon de novo review, the
Court agrees with the analysis in the R&R.
B. Knowing and Voluntary – Objections II, III
In Objections II and III, Petitioner challenges whether the waiver was “knowing and
voluntary.” Specifically, he argues that he could not knowingly and voluntarily waive his
right to appeal because Respondent withheld key evidence before he signed the waiver,
including impeachment information about the lead detective. 	He further argues that
Respondent allowed a false and misleading narrative to reach the jury and that any waiver
obtained after a conviction under those circumstances cannot be knowing, intelligent, or
voluntary.
These arguments were not presented to the Magistrate Judge and may not be raised
for the first time in an objection. See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th
Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate
judge’s report are deemed waived.”); see also San Roman v. Vaughn, 442 F. App’x 365,
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 7 of 13

8
370 n.5 (10th Cir. 2011). 	While Petitioner relied on the false testimony and Harkins
allegations as part of his broader actual-innocence, cause-and-prejudice, equitable-tolling,
and anti-waiver arguments, see Pet.’s Resp. [Doc. No. 33] at 2–7, he did not present
arguments that his waiver was unknowing or involuntary. 	See R&R [Doc. No. 38] at 13
(“Petitioner neither challenges voluntariness of the appeal waiver in his Petition nor claims
in his Response that he waived any appellate rights unknowingly or involuntarily.”). Thus,
these arguments are deemed waived. 	Nevertheless, even if the Court were to reach the
merits, Petitioner’s authorities and argument focus on whether the alleged conduct could
support an underlying due process claim. He does not cite any authorities that demonstrate
the R&R erred in finding that the waiver was knowing and voluntary based on alleged
errors in the underlying proceeding. But see Hahn, 359 F.3d at 1326 n.12 (discussing the
“logical failings of focusing on the result of a proceeding, rather than on the right
relinquished, in analyzing whether an appeal waiver is unknowing or involuntary”).
Accordingly, and upon review, the Court agrees with the well-reasoned conclusion of the
Magistrate Judge that Petitioner knowingly and voluntarily waived his right to federal
habeas relief through his Waiver of Right to Appeal, related documents he signed with
counsel, and his statements in open court.
C. Miscarriage of Justice – Objections III, IV, V, VII, VIII
Many of Petitioner’s objections relate to the analysis in the R&R concerning Hahn’s
third prong regarding whether enforcing a waiver would result in a “miscarriage of justice.”
As noted in the R&R, enforcement of an appellate waiver results in a miscarriage of justice
only in four circumstances: (1) where the district court relied on an impermissible factor
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 8 of 13

9
such as race, (2) where ineffective assistance rendered the waiver invalid, (3) where the
sentence exceeds the statutory maximum, or (4) where the waiver is otherwise unlawful.
United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001). The R&R concluded that
the first three exceptions were not applicable, and Petitioner does not object to that
conclusion. 	Instead, the R&R (and therefore, Petitioner’s Objections) focused primarily
on the last element and whether a claim of actual innocence is part of the analysis. 	See
R&R [Doc. No. 38] at 14–17.
In Objections III and V, Petitioner reasserts arguments considered and rejected by
the Magistrate Judge that false testimony presented at trial and evidence suppressed in
violation of Brady and Giglio render the waiver otherwise unlawful under Hahn’s
miscarriage of justice prong, and that these constitutional violations at the 2014 trial should
defeat enforcement of the Sentencing Agreement’s waiver. 	[Doc. No. 39] at 3-5, 7-8.
However, the “otherwise unlawful” inquiry is directed at the waiver itself, not alleged
errors in the underlying conviction. United States v. Smith, 500 F.3d 1206, 1213 (10th Cir.
2007); United States v. Gutierrez, 133 F.4th 999, 1009 (10th Cir. 2025). “For the waiver
to be invalid on the ground of unlawfulness, the unlawfulness must seriously affect the
fairness, integrity or public reputation of judicial proceedings.” United States v. Sandoval,
477 F.3d 1204, 1208 (10th Cir. 2007) (internal quotations and citation omitted). 	Thus,
the “inquiry is not whether the sentence is unlawful, but whether the waiver itself is
unlawful because of some procedural error or because no waiver is possible.” 	Id.
Petitioner identifies no circumstances that satisfy this inquiry, and the record reflects none.
The Court agrees with the R&R that the “otherwise unlawful” exception does not apply.
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 9 of 13

10
In Objections IV and VII, Petitioner argues that his evidence of actual innocence is
sufficient to overcome the waiver. [Doc. No. 39] at 5–7, 10–11. Petitioner largely frames
these arguments in the context of the R&R’s error in applying Schlup rather than as it
relates to the “miscarriage of justice.” Id. However, the R&R considered whether a claim
of “actual innocence” creates an additional fifth exception to the Hahn enforcement
framework and in doing so, considered the merits of Petitioner’s claim of actual innocence.
R&R [Doc. No. 38] at 15–17. 	Accordingly, giving liberal construction to Petitioner’s
objections and having already determined Schlup does not apply, the Court reviews the
objections within the Hahn framework.
As an initial matter, the Tenth Circuit has not held that actual innocence satisfies
Hahn’s miscarriage of justice exception in the context of an express appellate waiver.
United States v. Miles, 546 F. App’x 730, 733 n.1 (10th Cir. 2012); United States v.
Winberg, 786 F. App’x 753, 758–59 (10th Cir. 2019). 	In both cases, the court assumed
without deciding that actual innocence might implicate the “otherwise unlawful” category
and denied relief because the actual innocence claim failed on the merits. Doing the same,
the Magistrate Judge concluded that even assuming actual innocence could satisfy Hahn’s
miscarriage of justice exception, the merits of the claim failed. 	[Doc. No. 38] at 16–17.
Petitioner’s Objections do not challenge any specific finding or analysis as it relates to the
R&R’s conclusion that his claim of “actual innocence” fails on the merits. 	Rather, the
Objection simply repeats the same factual allegations argued to the Magistrate Judge and
argues that Schlup should have been employed. 	[Doc. No. 39] at 5–7. 	Accordingly,
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 10 of 13

11
because Petitioner does not specifically challenge the R&R’s merits analysis of his actual-
innocence claim, de novo review of that aspect of the R&R is not required.
In conclusion, the Court agrees with the analysis and conclusions in the R&R such
that Petitioner’s appeal waiver precludes federal habeas relief, and enforcement of his
appeal waiver will not result in a miscarriage of justice.
D. Additional Pending Motions
In addition to the Motion to Dismiss, the R&R also addressed three additional
motions or requests for relief by Petitioner: (1) Request for Discovery and Evidentiary
Hearing [Doc. No. 33]; (2) Motion for Court Intervention [Doc. No. 35]; and (3) Motion
to Confer [Doc. No. 37]. 	The R&R recommends that if the Court adopts the R&R then
each request should be denied as moot. Petitioner does not object to this recommendation.
However, Petitioner’s Objection VIII addresses the need for an evidentiary hearing,
but it appears to depart from the position he took before the Magistrate Judge. 	In his
Response to the Motion to Dismiss, he requested an evidentiary hearing. [Doc. No. 33] at
9–11. But in Objection VIII, he now argues that no evidentiary hearing is needed because
the facts are undisputed, and he further contends that enforcing the waiver in this formerly
capital case would not satisfy the required standard of heightened reliability. 	[Doc. No.
39] at 11–12; see also Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (holding the
Eighth Amendment requires that sentencing procedures in capital cases be evaluated under
a heightened standard of reliability). Beyond this conclusory statement, Petitioner provides
no authority that such a standard would apply in this context. He also did not argue for a
heightened reliability standard in his briefing to the Magistrate Judge. See [Doc. No. 33].
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 11 of 13

12
Even if the Court assumed the standard is applicable, Petitioner provides no argument or
analysis as to why any of the R&R’s conclusions do not meet that standard. 	Thus, even
liberally construed, Petitioner’s argument is conclusory and underdeveloped, and the Court
declines to consider it. 	See Moore v. Gibson, 195 F.3d 1152, 1180 n.17 (10th Cir.
1999) (court will not consider unsupported and undeveloped issues in federal proceeding
for habeas relief under § 2254).
III. 	Conclusion
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
38] is ADOPTED and the Respondent’s Motion to Dismiss [Doc. No. 30] is GRANTED.
Accordingly, the Amended Petition [Doc. No. 11] is DISMISSED WITH PREJUDICE. A
separate Judgment of Dismissal shall be entered contemporaneously with this Order.
IT IS FURTHER ORDERED that Petitioner’s Motion for Court Intervention [Doc.
No. 35] and Petitioner’s Motion to Confer [Doc. No. 37] are DENIED as MOOT.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. 	A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 12 of 13

13
Upon consideration, the Court finds the requisite standard is not met in this case.
Therefore, a COA is DENIED.
IT IS SO ORDERED this 24 th day of March, 2026.
Case 5:24-cv-01220-SLP Document 40 Filed 03/24/26 Page 13 of 13