United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge
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
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
(Dkt. 1 at 5).
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.
C. Oklahoma Court of Criminal Appeals' Summary Opinion
affirming Petitioner's judgment and sentence. (Dkt.
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).
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;
(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).
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;
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).
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
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).
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.”). ...