Brown v. Green

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
FABION D. BROWN, )
)
Petitioner, )
)
v. ) Case No. CIV-24-1220-SLP
)
MARGARET GREEN, Warden, )
)
Respondent. )
REPORT AND RECOMMENDATION
Petitioner Fabion D. Brown, a state prisoner proceeding pro se, filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254, challenging his state conviction and sentence
in Case No. CF-2012-938, District Court of Oklahoma County, Oklahoma. He later filed
an amended petition, Doc. 11 (“Petition”), which is the operative petition under review.
United States District Judge Scott L. Palk referred this matter to the undersigned Magistrate
Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Respondent filed a motion to
dismiss and supporting brief, Docs. 30, 31, and Petitioner filed a response, Doc. 33.1
1 Respondent has attached several exhibits to her supporting brief. In non-habeas
litigation, such attachments would generally require a court to convert a motion to dismiss
to a motion for summary judgment. Whitmore v. Parker, 484 F. App’x 227, 231 (10th Cir.
2012). However, in habeas proceedings, such conversion is not required because “the
district court may dismiss summarily a petition on the merits when no claim for relief is
stated,” and “is plainly permitted to consider pertinent matters of record submitted by the
respondent.” Id. at 231-32 (citation modified). “While the Federal Rules of Civil
Procedure may be applied in habeas proceedings, they need not be in every instance—
particularly where strict application would undermine the habeas review process under [the
Antiterrorism and Effective Death Penalty Act of 1996].” Id. at 231 (citation modified).
Here, Respondent’s attachments are pertinent matters of record and conversion is not
required.
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For the reasons set forth below, the undersigned recommends that the Court dismiss
the Petition with prejudice. Adoption of this recommendation would moot the following
pending requests and motions: (1) Petitioner’s requests for discovery and an evidentiary
hearing, Doc. 33 at 9-10; (2) his Motion for Court Intervention to Prevent Retaliatory
Actions by Department of Corrections Officials, Doc. 35; and (3) his Request for Court
Recommendation to Confer Regarding Potential Stipulation for Relief, Doc. 37.
I. Procedural History and Petitioner’s Claims
On June 26, 2014, a jury found Petitioner guilty of (1) two counts of first-degree
murder and (2) conspiracy to commit a felony (murder), in Case No. CF-2012-938 in the
District Court of Oklahoma County. Pet. at 1; Doc. 31-1 at 56; see also State v. Brown,
No. CF-2012-938.2 At the sentencing phase, the jury decided on a punishment of death for
the two counts of first-degree murder. Doc. 31-1 at 56; see also Okla. Stat. tit. 21,
§ 701.10(A) (describing how after a defendant’s conviction “of murder in the first degree,
wherein the state is seeking the death penalty,” a district court “shall conduct a separate
sentencing proceeding to determine whether the defendant should be sentenced to death,
life imprisonment without parole or life imprisonment”).
The district court sentenced Petitioner to death on the two counts of first-degree
murder, and ten years of imprisonment for conspiracy. Pet. at 1. Petitioner filed a direct
2 The undersigned takes judicial notice of the state court docket sheets in Oklahoma County
Case No. CF-2012-938, and Petitioner’s various filings with the Oklahoma Court of
Criminal Appeals. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
(noting “discretion to take judicial notice of publicly-filed records in our court and certain
other courts concerning matters that bear directly upon the disposition of the case at hand”).
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appeal with the Oklahoma Court of Criminal Appeals (“OCCA”). See Brown v. State,
No. D-2014-705. On February 15, 2018, the OCCA affirmed Petitioner’s convictions but
reversed his death sentences due to error under Faretta v. California, 422 U.S. 806 (1975).
See Doc. 31-5; Brown v. State, 422 P.3d 155, 171-73 (Okla. Crim. App. 2018) (ruling
Petitioner did not knowingly and voluntarily waive counsel during the punishment stage
of proceedings). The OCCA remanded the case to the district court for resentencing on the
two counts of first-degree murder. 422 P.3d at 178.
On January 11, 2019, Petitioner was represented by counsel3 and resentenced
pursuant to an agreement with the State. In essence, Petitioner agreed to waive all appellate
rights in exchange for the State’s dismissal of its Bill of Particulars, and the parties agreed
to allow the district court to sentence him. Petitioner signed and agreed to the following
Waiver of Right to Appeal:
I, FABION DEMARGIO BROWN, hereby acknowledge that I have been
fully advised of my rights to appeal including my right to a direct appeal of
any re-sentencing verdict or agreement, my rights of federal habeas corpus
review of any re-sentencing verdict or agreement, my right to any State post-
conviction review of any re-sentencing verdict or agreement and my right to
any request to review through Certiorari to the United State[s] Supreme
Court to review of any re-sentencing verdict or agreement. At this time, I
knowingly and voluntarily waive the right to any and all forms and forums
of appeal in this matter. I have been advised by my attorney that upon my
execution of this instrument, any efforts toward completing an appeal of any
issue in this case will cease, and that upon filing of this waiver an appeal
3 Petitioner’s counsel at resentencing had served as standby counsel for him during his
2014 jury trial and sentencing. Doc. 31-1 at 54-56, 58.
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cannot be reinstated. I further acknowledge that I am barred from attempting
to raise any issues on appeal in any forum at any future time in this case.
Doc. 31-6 at 8.
Petitioner also signed a statement that he and his attorney had read the Agreed
Sentencing After Jury Trial Summary of Facts (“Agreed Sentencing Summary”), that it
was a true statement of the questions asked and his answers, and that his answers were
“freely and voluntarily given.” Id. at 4-5. Petitioner’s signed statement further included
that he approved accuracy of the Agreed Sentencing Summary and did not desire to add or
change anything. Id. The Agreed Sentencing Summary includes the statement that
“Defendant waives jury trial. In exchange, the State dismisses the Bill of Particulars.
Defendant has executed [a] Waiver of Right to Appeal.” Id. at 2. The Agreed Sentencing
Summary also includes the statement that his sentence will include “all appellate rights
waived.” Id. Additionally, Petitioner and his counsel signed a Certification of Appeal
Rights by [Appellate] Counsel stating that counsel had advised him of his appellate rights
and that Petitioner understood those rights and affirmatively stated he “does not want to
appeal this conviction.” Id. at 7; see also id. at 5 (signatures of Petitioner’s counsel and
counsel for the State on the Agreed Sentencing Summary acknowledging that counsel had
advised Petitioner of his appellate rights). And Petitioner waived his right to any further
appeals in open court. Id. at 5 (signatures of the Oklahoma County District Judge and two
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court reporters stating that the provisions of the Agreed Sentencing Summary had been
“done in open court, with all parties present” (citation modified)); Doc. 31-1 at 79.4
At resentencing, the district court sentenced Petitioner to life without the possibility
of parole on the two counts of first-degree murder. Doc. 31-6 at 2; Doc. 31-7.
Petitioner did not file a direct appeal or otherwise challenge his conviction or
resentencing for nearly two years. Then from 2021 to 2024, Petitioner had a series of
filings in district court and the OCCA:
• On January 4, 2021, he filed a request with the district court for files,
records, and transcripts in his case. Doc. 31-1 at 80-81; Doc. 31-8.
The district court denied the request on January 14, 2021. Doc. 31-9.
It noted that “Petitioner is barred from seeking State post-conviction
review due to his waiver of January 11, 2019.” Id. at 2.
• On March 14, 2023, Petitioner filed with the district court an
Application for Post-Conviction Relief raising six claims to challenge
the fairness of his jury trial, effectiveness of counsel on appeal, and
the appeal waiver. Doc. 31-11. The district court dismissed the
application on June 16, 2023, Doc. 31-13, and later dismissed
Petitioner’s motion to reconsider, Doc. 31-18. The district court
found the application was time-barred and Petitioner had waived any
post-conviction review when he “knowingly and voluntarily entered
the Waiver of Right to Appeal in this case.” Doc. 31-13 at 1.
• On September 16, 2024, Petitioner filed with the district court a
second Application for Post-Conviction Relief, against challenging
the jury verdict and appeal waiver. Doc. 31-19. The district court
dismissed the application on October 8, 2024. Doc. 31-22. It again
found “Petitioner affirmatively waived any post-conviction review,
judicial review or modification of sentence. This waiver expressly
include[s] Petitioner’s right to file an Application for Post-Conviction
Relief.” Id. at 1. The district court also threatened to sanction
4 The record does not include a transcript of the district court’s resentencing. However, the
docket’s minute entry on OSCN for the resentencing reflects “the defendant waives his
right to any further appeals in open court.” Doc. 31-1 at 79.
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Petitioner for “an abuse of process” if he “continues to file”
applications for post-conviction relief, requests for judicial review, or
requests for modification of sentence. Id.
• Petitioner appealed the district court’s dismissal of his second
application to the OCCA. Doc. 31-23; see Brown v. State, PC-2024-
812 (Okla. Crim. App. Oct. 8, 2024). On November 6, 2024, the
OCCA declined jurisdiction, based on Petitioner’s failure to follow
OCCA rules, and dismissed the appeal. Doc. 31-25.
• On November 18, 2024, Petitioner filed a motion for appeal out of
time before the district court. Doc. 31-26. On February 5, 2025, the
district court denied Petitioner’s motion and again noted he
“affirmatively waived any post-conviction review, judicial review, or
modification of sentence.” Doc. 31-28.
Petitioner filed his original habeas petition with this Court on November 21, 2024,
Doc. 1, and a supporting brief on November 25, 2024, Doc. 6. On January 9, 2025, the
Court ordered Petitioner to file an amended petition using the Court-approved form
because Petitioner’s initial filings did “not clearly set forth his claims for federal habeas
relief, the facts supporting each claim, and the earlier presentation of those claims in state
courts.” Doc. 10 at 1. The Court advised Petitioner that any amended petition would
supersede and replace his original petition and supporting brief. Id. at 2.
On February 3, 2025, Petitioner filed his Petition, Doc. 11, which raises two
grounds:
• Ground One: Petitioner alleges “his State Court Conviction was
obtained in violation of his Sixth and Fourteenth Amendment rights.”
Pet. at 7. He claims “the prosecution knowingly presented false
testimony from multiple witnesses.” Id.
• Ground Two: Petitioner argues the “Trial Court denied [him] Due
Process which is guaranteed under both the Fifth and Fourteenth
Amendment of the U.S. Constitution.” Id. at 8. He claims “the district
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court erred in dismissing Petitioner’s second application for Post-
conviction relief.” Id. at 12.
Respondent filed a motion to dismiss the Petition and brief in support. Docs. 30,
31. Respondent asks the Court to dismiss the Petition on three separate grounds:
• Petitioner’s claims are barred from federal habeas review due to his
waiver of appellate rights, Doc. 31 at 15-20;
• Petitioner failed to exhaust any of his claims to the OCCA before
filing the Petition, id. at 21-24; and
• the Petition is untimely under 28 U.S.C. § 2244(d)(1), Doc. 31 at 24-
29.
Petitioner filed a response in opposition of Respondent’s motion to dismiss, and he
attached an affidavit and supporting exhibits. Docs. 33, 33-1, 33-2. He argues that his
claims are reviewable by this Court “because the alleged Procedural bars [of appeal waiver,
failure to exhaust state remedies, and timeliness] are overcome by a credible claim of actual
innocence, and by extraordinary circumstances constituting ‘cause and prejudice’
warranting ‘equitable tolling.’” Doc. 33 at 2.
The undersigned recommends that the Court dismiss the Petition with prejudice
because Petitioner’s waiver of his right to federal habeas review should be enforced. If the
Court adopts this recommendation, it need not consider Respondent’s additional arguments
about exhaustion of Petitioner’s claims or the timeliness of his Petition.
II. Analysis of Petitioner’s Appeal Waiver
In early 2019, Petitioner was preparing for a capital resentencing proceeding where
the State had filed a Bill of Particulars to seek a sentence of death. At resentencing on
January 11, 2019, Petitioner signed a Waiver of Right to Appeal and other documents
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where he agreed in open court to waive any rights to further appeal in exchange for the
State’s dismissal of the Bill of Particulars. With that dismissal, Petitioner did not face the
possibility of a sentence of death in a second-stage capital proceeding.
Respondent argues that Petitioner’s appeal waiver in January 2019 is enforceable
and precludes any habeas review by this Court. Petitioner does not contest that he signed
a Waiver of Right to Appeal; nor does he challenge the voluntariness of his agreement at
resentencing. Instead, he argues more generally that “no waiver is absolute” and any cases
enforcing a waiver of rights from a plea agreement do not apply to him because he only
has a sentencing agreement. Doc. 33 at 2-4. Petitioner also categorizes his appeal waiver
as an “alleged procedural bar[]” that can be “overcome by a credible claim of actual
innocence” or “extraordinary circumstances constituting ‘cause and prejudice.’” Id. at 2;
see also id. at 9 (arguing the Court should not enforce the waiver because Petitioner can
overcome the “procedural default”). However, a waiver of appellate rights is not a
procedural bar that can be overcome by a showing of either actual innocence or cause and
prejudice. As set forth below, Petitioner’s waiver of a right to seek federal habeas relief is
enforceable.
A. Waiver of appellate rights is not a procedural bar
A federal habeas court may consider a procedurally defaulted claim “when it is
necessary to avoid a miscarriage of justice.” Taylor v. Powell, 7 F.4th 920, 926 (10th Cir.
2021) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). In such cases, the claim of actual
innocence is not a basis for granting habeas relief, but instead serves as “a gateway through
which a habeas petitioner must pass to have his otherwise barred constitutional claim
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considered on the merits.” Id. (quoting Schlup, 513 U.S. at 315). “A showing of gateway
actual innocence can allow an applicant to file an otherwise-barred successive or abusive
petition, to avoid a statute of limitations, to overcome a failure to develop facts or observe
filing deadlines, or to assert a claim otherwise subject to procedural default.” Farrar v.
Raemisch, 924 F.3d 1126, 1131 n.5 (10th Cir. 2019) (citing McQuiggin v. Perkins, 569
U.S. 383, 392-93 (2013)). Similarly, where a petitioner “has procedurally defaulted a
claim,” the federal habeas court may review it “if the defendant can first demonstrate . . .
‘cause’ and actual ‘prejudice.’” Bousley v. United States, 523 U.S. 614, 622 (1998). Such
procedural bar can occur when a petitioner fails to properly present the claim to a state
court or when a habeas claim has not been properly exhausted. Tryon v. Quick, 81 F.4th
1110, 1139 (10th Cir. 2023).
Notably, procedural default does not include enforcement of a waiver of appellate
rights. Accordingly, Petitioner’s argument that his waiver of appellate rights is a
procedural default that can be overcome by actual innocence or cause and prejudice is
without merit.
B. General principles for assessing an appeal waiver
“Given the importance of plea bargaining to the criminal justice system, [federal
courts] generally enforce plea agreements and their concomitant waivers of appellate
rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004). “Rules of contract
law inform the interpretation and enforcement of promises in a plea agreement.” United
States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir. 1997) (citation modified).
Further, “the Constitution insists, among other things, that the defendant enter a guilty plea
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that is voluntary and that the defendant must make related waivers knowingly, intelligently,
and with sufficient awareness of the relevant circumstances and likely consequences.”
United States v. Ruiz, 536 U.S. 622, 629 (2002) (citation modified). At resentencing,
Petitioner entered into a sentencing agreement with an appeal waiver. Though Petitioner
did not enter into a plea agreement, similar contract principles and caselaw related to
enforcement of waivers apply to a sentencing agreement involving the waiver of appellate
rights. See, e.g., Sternberg v. Sec’y, Dep’t of Health & Hum. Servs., 299 F.3d 1201, 1206
(10th Cir. 2002) (“Sentencing agreements, like plea agreements, are generally interpreted
according to commercial contract principles.”).
The Tenth Circuit has robust caselaw that analyzes a federal defendant’s waiver of
appellate rights when signing a plea agreement. “In reviewing appeals brought after a
defendant has entered into an appeal waiver,” the Tenth Circuit uses a “three-prong
analysis” “to determine: (1) whether the disputed appeal falls within the scope of the waiver
of appellate rights; (2) whether the defendant knowingly and voluntarily waived his
appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325 (citation modified). The undersigned analogizes a state
defendant’s appeal waiver to those appeal waivers more commonly arising in federal
convictions where a defendant signs an appeal waiver as part of a plea agreement. As such,
Hahn’s analysis is instructive when reviewing Petitioner’s appeal waiver. Further, the
Tenth Circuit has cited Hahn when enforcing a state defendant’s agreement to waive his
appellate rights—in a situation like Petitioner’s—when that defendant at sentencing
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knowingly and voluntarily agreed to a life sentence in exchange for dismissal of a Bill of
Particulars in a murder case. Mathis v. Jones, 490 F. App’x 132, 135 (10th Cir. 2012).
Like Mathis, here “Petitioner’s negotiated sentencing agreement constituted a
waiver of his right to a jury trial on the issue of his sentencing. Thus, the sentencing
agreement, like a guilty plea, must be both knowing and voluntary.” Mathis v. Jones,
No. CIV-11-694-C, 2012 WL 668813, at *6 (W.D. Okla. Jan. 10, 2012) (citation modified)
(R&R), adopted, 2012 WL 668812 (W.D. Okla. Feb. 28, 2012), aff’d, 490 F. App’x 132.
Other federal habeas courts have enforced an appeal waiver if such waiver—as part of the
state defendant’s plea or sentencing agreement—was explicit and made knowingly and
voluntarily. See, e.g., Thompson v. Holman, No. 4:09CV135, 2013 WL 435972, at *1
(S.D. Miss. Jan. 16, 2013) (recommending that a state inmate could not seek federal habeas
review because he signed a sentencing agreement with a valid waver that he would file “no
appeals of any type to include direct or post conviction relief”) (R&R), adopted, 2013 WL
425859 (S.D. Miss. Feb. 4, 2013); Cross v. Perez, 823 F. Supp. 2d 142, 147, 149 (E.D.N.Y.
2011) (concluding a state inmate knowingly and voluntarily signed an appeal waiver that
waived his “right to file habeas corpus petitions in state and federal court”); Rodriguez v.
Conway, 2010 WL 92911, at *4-6 (E.D.N.Y. Jan. 6, 2010) (finding a state inmate
knowingly and voluntarily signed a plea agreement waiving his appeal rights “through the
state and federal system”); Brown v. Thompson, 2007 WL 2594054, at *1 (M.D. Ga.
Sept. 5, 2007) (concluding a state inmate knowingly entered into a plea agreement that
waived “any right to appeal and to a challenge in either a State or Federal Habeas Corpus
proceeding”).
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C. Petitioner’s waiver is enforceable
To be enforceable with this Court, Petitioner’s waiver of his right to seek federal
habeas relief must satisfy Hahn’s “three-prong analysis.” 359 F.3d at 1325. The
undersigned concludes that Petitioner’s waiver is enforceable.
1. Within the scope
Petitioner’s request for federal habeas relief falls within the scope of his waiver of
appellate rights. He acknowledged in his Waiver of Right to Appeal that he “waive[d] the
right to any and all forms and forums of appeal in this matter” and was “barred from
attempting to raise any issues on appeal in any forum at any future time in this case.”
Doc. 31-6 at 8. Petitioner also waived his right to any further appeals in open court.
Doc. 31-1 at 79. He does not directly contest the scope of his appeal waiver in his Petition
or Response. See Doc. 33 at 1-9. As such, the Petition falls within the scope of the waiver.
2. Knowing and voluntary waiver
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. At resentencing, Petitioner conferred with counsel and was “fully
advised of [his] rights to appeal,” including his “rights of federal habeas corpus review of
any re-sentencing verdict or agreement.” Doc. 31-6 at 8. He then agreed in the Waiver of
Right to Appeal to “knowingly and voluntarily waive the right to any and all forms and
forums of appeal in this matter.” Id. Petitioner’s counsel certified that (1) she had advised
him of his appellate rights, (2) he understood those rights, and (3) he affirmatively stated
he “does not want to appeal this conviction.” Doc. 31-6 at 7. Petitioner signed the
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certification. Id. He also signed the Agreed Sentencing Summary indicating “all appellate
rights waived” as part of his sentence and that he fully understood the questions and
answered them freely and voluntarily. Doc. 31-6 at 2, 4-5. Consistent with the signed
documents, the district court’s minute entry on OSCN from the resentencing reflects “the
defendant waives his right to any further appeals in open court.” Doc. 31-1 at 79; see also
Doc. 31-6 at 5 (signatures of the Oklahoma County District Judge and two court reporters
stating that the provisions of the Agreed Sentencing Summary had been “done in open
court, with all parties present”). And finally, 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.
Respondent notes that Petitioner challenges his underlying conviction and “may
claim” the Waiver of Right to Appeal does not specifically mention seeking habeas relief
for his underlying conviction in the “including” clause that noted possible appeals. Doc. 31
at 18 n.3. Petitioner, though, was advised of his appellate rights in general, including the
existence of federal habeas review, before agreeing to be “barred from attempting to raise
any issues on appeal in any forum at any future time.” Doc. 31-6 at 8. His understanding
to “knowingly and voluntarily waive the right to any and all forms and forums of appeal in
this matter,” id., is consistent with the affirmation by Petitioner and counsel that he “does
not wish to appeal this conviction,” id. at 7. Accordingly, Respondent has satisfied this
second Hahn prong. See Ruiz, 536 U.S. at 629 (“The law ordinarily considers a waiver
knowing, intelligent, and sufficiently aware if the defendant fully understands the nature
of the right and how it would likely apply in general in the circumstances—even though
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the defendant may not know the specific detailed consequences of invoking it.” (citation
modified)).
3. No miscarriage of justice
Finally, enforcement of Petitioner’s appeal waiver will not result in a miscarriage
of justice. “Enforcement of an appellate waiver does not result in a miscarriage of justice
unless enforcement would result in one of” only “four situations.” Hahn, 359 F.3d at 1327
(citation modified). Those four exceptions include “where the district court relied on an
impermissible factor such as race, where ineffective assistance of counsel in connection
with the negotiation of the waiver renders the waiver invalid, where the sentence exceeds
the statutory maximum, or where the waiver is otherwise unlawful.” United States v.
Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001).
a. Petitioner does not satisfy the “otherwise unlawful”
exception
With respect to these four exceptions, Petitioner presents no argument—and nothing
in the record suggests—that any of the first three exceptions applies. Here, Petitioner
asserts actual innocence. Of the four miscarriage-of-justice exceptions, “the only one that
could possibly encompass an actual-innocence claim is the fourth, catch-all category
permitting review where the waiver is otherwise unlawful.” United States v. Miles, 546 F.
App’x 730, 733 n.1 (10th Cir. 2012). The Tenth Circuit has yet to decide “whether a claim
of actual innocence implicates the lawfulness of an express waiver of review,” id., and this
Court need not do so now as Petitioner’s actual-innocence claim fails on the merits. See
discussion infra.
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Moreover, “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) (citation
modified). Indeed, “the unlawfulness must go to the waiver itself,” United States v.
Gutierrez, 133 F.4th 999, 1009 (10th Cir. 2025), and not to any alleged error with the
underlying conviction. See United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007)
(noting the miscarriage-of-justice “exception looks to whether the waiver is otherwise
unlawful, not to whether another aspect of the proceeding may have involved legal error”
(citation modified)). The relevant inquiry is “whether the waiver itself is unlawful because
of some procedural error or because no waiver is possible.” Sandoval, 477 F.3d at 1208.
Here, Petitioner avoided the “chance of another death verdict upon resentencing,” Doc. 31
at 19 n.4, and he fails to offer any reason now to suggest the waiver has some procedural
error or was not possible. Petitioner claims only generally that “no waiver is absolute” and
he cannot waive his right to a fair trial. Doc. 33 at 3. As such, Petitioner has not established
that his appeal waiver from the resentencing is otherwise unlawful.
b. Petitioner’s actual innocence claim fails on the merits and
cannot establish a fifth miscarriage-of-justice exception to
enforcement of an appeal waiver
As to whether a claim of actual innocence creates an additional fifth exception, the
Tenth Circuit “has yet to hold that an actual-innocence exception exists under the
miscarriage-of-justice rubric in the context of an express waiver of review in a plea
agreement.” Miles, 546 F. App’x at 733 n.1 (“We have thus far recognized only four
circumstances relieving the defendant of the consequences of such a waiver.”); see also
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United States v. Winberg, 786 F. App’x 753, 758-59 (10th Cir. 2019) (declining to decide
“whether actual innocence would satisfy Hahn’s ‘miscarriage of justice’ exception because
[petitioners’] innocence claim lacks merit”); United States v. Walker, No. 13-CR-28-JED,
2018 WL 1144587, at *7 (N.D. Okla. Mar. 2, 2018) (finding enforcement of a waiver
would not result in a miscarriage of justice, in part, because the Tenth Circuit has not held
that an actual-innocence claim can establish the miscarriage-of-justice factor). Again, this
Court need not decide whether enforcement of Petitioner’s waiver would be a miscarriage
of justice as his claim of innocence is without merit.
To establish actual innocence, Petitioner “must demonstrate that, in light of all the
evidence, it is more likely than not that no reasonable juror would have convicted him.”
Bousley v. United States, 523 U.S. 614, 623 (1998) (citation modified). He has not done
so here. He relies on a notarized statement that presents a hearsay statement purportedly
made by Petitioner’s codefendant. Doc. 11-1. This statement and Petitioner’s self-serving
statements of innocence in no way demonstrate that it is more likely than not that a
reasonable jury would not have convicted him. See, e.g., Frost v. Pryor, 749 F.3d 1212,
1232 (10th Cir. 2014) (stating that “simply maintaining one’s innocence, or even casting
some doubt on witness credibility, does not necessarily satisfy” the “demanding standard”
of a “credible showing of actual innocence” (citation modified)); Whitebird v. Snider, 28
F. App’x 783, 786 (10th Cir. 2001) (affirming petitioner had not demonstrated actual
innocence based on affidavits of petitioner and co-defendant averring that petitioner was
not involved in the crime of conviction); Knickerbocker v. Wolfenbarger, 212 F. App’x
426, 433-34 (6th Cir. 2007) (determining petitioner had not demonstrated actual innocence
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in part because actual-innocence claim relied on affidavit stating that co-defendant said
petitioner was innocent, which statement was “hearsay and thus presumptively less reliable
than direct testimony” (citation modified)).
Because Petitioner’s “claim of actual innocence has no merit, he has not established
that enforcing the collateral-attack waiver in his plea agreement would be a miscarriage of
justice.” United States v. Throne, No. 16-CR-00073-CMA, 2021 WL 6090987, at *4 (D.
Colo. Dec. 23, 2021); see also Miles, 546 F. App’x at 734 (affirming that petitioner had
not established a miscarriage-of-justice exception when his actual innocence claim failed
on the merits); United States v. Miles, 553 F. App’x 846, 848 (10th Cir. 2014) (explaining
petitioner’s “actual-innocence claim clearly failed on the merits, meaning it could not
constitute an exception to the waiver” (citation modified)).
4. Conclusion
Petitioner’s federal habeas proceeding is within the scope of his appeal waiver, he
knowingly and voluntarily waived his right to federal habeas relief, and enforcement of his
appeal waiver will not result in a miscarriage of justice. The undersigned concludes
Petitioner’s appeal waiver bars his federal habeas review. As such, the undersigned has
not considered Respondent’s additional arguments about exhaustion of Petitioner’s claims
or the timeliness of his Petition.
III. Additional pending motions
Petitioner also has three pending motions that would be mooted by the adoption of
this recommendation. However, the following sections discuss alternative grounds for
denying the motions.
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A. Requests for discovery and evidentiary hearing
At the end of his response, Petitioner requests several categories of discovery and
an evidentiary hearing. Doc. 33 at 9-10. Under the Court’s local rules, “a response to a
motion may not also include a motion or a cross-motion made by the responding party.”
LCvR7.1(c) (citation modified). As a pro se litigant, Petitioner “must follow the same rules
of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.
1992). Accordingly, the requests for discovery and an evidentiary hearing should be denied
for failure to comply with the Court’s rules.
B. Motion for Court Intervention to Prevent Retaliatory Actions by
Department of Corrections Officials, Doc. 35 (“Motion for Court
Intervention”)
After briefing on the Petition was complete, Petitioner filed the Motion for Court
Intervention “to protect him from recent and future retaliatory actions being carried out by
prison officials at the Mack Alford Correctional Center in response to his filing” the
Petition. Doc. 35 at 1. In general, Petitioner claims the warden denied him a job as a law
clerk, prohibited him from going to the law library, and terminated his job as a chapel clerk.
Id. at 1-2. He alleges this conduct violated his “constitutional right to access the Courts
and to do so free from retaliation from prison authorities.” Id. at 2.
Petitioner’s request for Court intervention is outside the scope of his habeas claim
and should be denied. Habeas petitions under 28 U.S.C. § 2254 “are used to collaterally
attack the validity of a conviction and sentence.” McIntosh v. U.S. Parole Comm’n, 115
F.3d 809, 811 (10th Cir. 1997) “Prisoners who wish to challenge only the conditions of
their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits
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filed pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971)—not through federal habeas proceedings.” Standifer v. Ledezma, 653 F.3d 1276,
1280 (10th Cir. 2011) (citation modified). In limited circumstances, a “hybrid” habeas
corpus/civil rights action may be permissible where a prisoner purports to bring both types
of claims in his initial filing and the prisoner complies with the applicable procedural
requirements. Whitmore v. Parker, 484 F. App’x 227, 240 (10th Cir. 2012). But this
matter is not such a hybrid action as Petitioner presents only § 2254 claims in his Petition
and through a later, stand-alone motion separately seeks Court intervention regarding his
conditions of confinement.
Accordingly, the Court should deny the Motion for Court Intervention because the
request is unrelated to the Petition and habeas corpus relief is unavailable for the nature of
his claims. See id. at 239-40 (affirming denial of civil rights claims sought through habeas
action as the § 2241 habeas action was “limited to challenges to the execution of a
sentence” and “not meant to” provide relief “for the circumstances of confinement”
(citation modified)). If Petitioner seeks to assert civil rights claims challenging the
conditions of his confinement, he must file a separate civil rights action pursuant to 42
U.S.C. § 1983.
C. Request for Court Recommendation to Confer Regarding Potential
Stipulation for Relief, Doc. 37 (“Motion to Confer”)
Petitioner recently filed the Motion to Confer and seeks the Court’s assistance to
“recommend and support the parties” to confer about “the possibility of a stipulated
resolution of this Habeas Corpus proceeding.” Doc. 37 at 1. He wants a “good-faith
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conference between petitioner and Respondent” to discuss relief before a judicial ruling.
Id. The Court should deny the Motion to Confer on its merits.
IV. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DISMISS
the Petition, Doc. 11, with prejudice based on Petitioner’s waiver of his right to seek federal
habeas relief. Adoption of this recommendation would moot the pending requests and
motions:
• requests for discovery and an evidentiary hearing, included in his
response, Doc. 33;
• Motion for Court Intervention, Doc. 35; and
• Motion to Confer, Doc. 37.
The parties are advised of their right to object to this Report and Recommendation. See 28
U.S.C. § 636. Any objection must be filed with the Clerk of this Court not later than
January 20, 2026. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object
timely waives the right to appellate review of the factual and legal issues addressed in this
Report and Recommendation. 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 29th day of December, 2025.
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