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Carshall v. Wade

United States District Court, E.D. Oklahoma

March 3, 2017

KEITH RAY CARSHALL, Petitioner,
v.
MIKE WADE, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. White United States District Judge

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is attacking his conviction in Pittsburg County District Court Case No. CF-2010-39 for Assault and Battery with a Deadly Weapon. He sets forth one ground for relief:

Ineffective assistance of the appellate counsel for failing to raise 4 meritorious issues of ineffective assistance of trial counsel for failing to use available impeachment evidence, failed to establish perjury on arresting officers, failing to investigate and failed to present a complete defense.

(Dkt. 1 at 5).[1]

         The respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the court for consideration in this matter:

A. Petitioner's direct appeal brief. (Dkt. 17-1).
B. The State's brief in Petitioner's direct appeal. (Dkt. 17-2).
C. Oklahoma Court of Criminal Appeals' Summary Opinion affirming Petitioner's judgment and sentence. (Dkt. 17-3).
D. Trial Court's Supplemental Order Denying Post-Conviction Relief. (Dkt. 17-4).
E. Oklahoma Court of Criminal Appeals' Order Affirming Denial of Post-Conviction Relief. (Dkt. 17-5).
F. Relevant transcript excerpts. (Dkt. 17-6).
G. Petitioner's brief in support of application for post-conviction relief. (Dkt. 17-7).
H. State court record. (Dkt. 18).

         Standard of Review

         Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.

28 U.S.C. § 2254(d).

         Facts

         On January 20, 2010, Officer Chris Morris of the McAlester Police Department was dispatched to Petitioner's residence in response to Petitioner's call concerning an intruder in his home who was trying to kill him. Upon arrival at the residence, Officer Morris approached the door and observed Petitioner with blood on him and holding a knife. Petitioner came out onto the porch and said that someone in the house was trying to kill him. Morris ordered Petitioner to put down the knife, and Petitioner complied. Morris put on rubber gloves and handcuffed Petitioner. (Dkt. 17-6 at 2-3; 12-13).

         Shortly after Lieutenant Hearod arrived to assist, Donna MacDowell stepped out onto the front porch. She had lacerations on her face and body and was covered in blood. She informed the officers that Petitioner had tried to kill her. Officer Hearod administered first aid to Ms. MacDowell to stop the bleeding. (P.H. Tr. 25-26, 42; Dkt. 18-2 at 25-26, 42).

         Analysis

         “There is a strong presumption that counsel provided effective assistance of counsel, and petitioner has the burden of proof to overcome that presumption.” United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)), cert. denied, 489 U.S. 1089 (1989). To prevail on his claim of ineffective assistance of counsel, petitioner must show that (1) his counsel's performance fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” id. at 694.

         The record shows that Petitioner did not raise a claim of ineffective assistance of trial counsel in his direct appeal. (Dkt. 17-1). In his application for post-conviction relief and his subsequent post-conviction appeal, however, Petitioner alleged trial counsel was ineffective in failing to (1) utilize available impeachment evidence; (2) establish perjury by the arresting officers; (3) investigate and call Officer Kevin Hearod as a witness; and (4) present a complete defense. (Dkt. 17-7). Petitioner also argued his appellate counsel was ineffective for failing to raise these issues concerning trial counsel's ineffectiveness. Id. The trial court denied the post-conviction application, and the Oklahoma Court of Criminal Appeals (OCCA) set forth Petitioner's claims and affirmed the denial of post-conviction relief as follows:

. . . Petitioner argues that trial counsel was ineffective because he failed to present arresting officer impeachment evidence, failed to establish perjury by the arresting police officers, failed to investigate and failed to present a complete defense. Petitioner also argues he was denied effective assistance of appellate counsel because appellate counsel failed to raise these issues regarding trial counsel's ineffectiveness. . . .
In an order filed January 24, 2013, the Honorable James D. Bland, Associate District Judge, denied Petitioner's application for post-conviction relief. After remanding the matter for additional findings of fact and conclusions of law in an Order entered April 18, 2013, a supplemental order was filed in this Court on May 16, 2013.
Judge Bland found Petitioner presented no issue which could not have been raised in his direct appeal. Applying the proper standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), Judge Bland found that none of trial counsel's representation in the four areas alluded to by Petitioner were deficient or ineffective. Judge Bland, therefore, concluded that none of these issues were plainly meritorious appellate issues. He found there was not a reasonable probability that any of these issues would have resulted in a favorable result if raised on direct appeal. Judge Bland found Petitioner failed to show that there was deficient performance by trial or appellate counsel or that there was any resulting prejudice.
Petitioner's conviction was appealed to this Court. In an unpublished opinion issued January 6, 2012, Appeal No. F-2010-0849, the Judgment and Sentence were affirmed. All issues previously ruled upon by this Court are res judicata, and all issues not raised in the direct appeal, which could have been raised, are waived. Any allegations as to trial counsel's ineffectiveness have been waived. Castro v. State, 880 P.2d 387 (Okla. Crim. App. 1994).

Carshall v. State, No. PC 2013-0166, slip op. at 1-2 (Okla. Crim. App. Jan. 14, 2013) (Dkt. 17-5).

         Under Oklahoma law, claims of ineffective assistance of trial counsel which could have been raised on direct appeal, but were not, are waived. Speared v. State, 139 P.3d 953-54 (Okla. Crim. App. 2006). See also Cannon v. Mullein, 383 F.3d 1152, 1159 (Okla. Crim. App. 2004) (“Oklahoma, unlike most jurisdictions, generally requires a criminal defendant to raise such claims on direct appeal or forfeit them.”). ...


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