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Golden v. Allbaugh

United States District Court, E.D. Oklahoma

March 3, 2017

JOE M. ALLBAUGH, DOC Director, Respondent.


          Ronald A. White, United States District Judge

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner, a pro se prisoner currently incarcerated at Cimarron Correctional Facility in Holdenville, Oklahoma, is challenging his conviction and sentence in Atoka County District Court Case No. CF-2010-233 for Possession of Contraband by an Inmate in a Penal Institution, After Former Conviction of Two or More Felonies. He raises the following grounds for relief:

I. The jury panel was tainted.
II. The State failed to show a proper chain of custody.
III. The evidence was insufficient to support the verdict.
IV. The presentation of other-crimes evidence deprived Petitioner of a fair trial and due process of law.
V. The trial court erred by prohibiting exculpatory evidence from being presented to the jury. At a minimum, the trial court prevented the defense from presenting evidence.
VI. Prosecutorial Misconduct denied Petitioner a fair trial and due process of law.
VII. The trial court erred by using felonies which arose from the same transaction.
VIII. The trial court erred by prohibiting the judgments and sentences as to former felonies from being appropriately redacted.
IX. Petitioner received ineffective assistance of counsel.
X. The trial judge erred by ordering the sentence to be served consecutively to other sentences.
XI. The court erred in failing to follow statutory procedures when the jury had questions.
XII. Petitioner's right to be free from double jeopardy was violated.
XIII. Cumulative error deprived Petitioner of a fair trial.

         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.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's judgment and sentence.
D. Transcripts
E. State court record.

         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).


         In the early morning hours of October 23, 2010, a prison guard caught Petitioner smoking a marijuana cigarette in the bathroom of his cell block at the Howard McLeod Correctional Center in Atoka, Oklahoma. (Tr. I, 140-44, 181). Officer Justin Brown smelled the strong odor of burning marijuana and entered the bathroom to find Petitioner and another inmate standing near the showers. (Tr. I, 142-44, 167, 170). Petitioner was holding a hand-rolled cigarette, and when he saw Officer Brown, he turned his back and ran toward the toilet area. (Tr. I, 144-47, 149-50, 157). Before Officer Brown could catch him, Petitioner ate the cigarette. (Tr. I, 145-47, 171, 261, 263). Officer Brown and other officers quickly apprehended Petitioner and the other inmate. (Tr. I, 144-48, 175-76, 190-93, 256-58). Once the two inmates were removed from the bathroom into a secure area, the bathroom was searched for contraband. (Tr. I, 147-49, 178). The only contraband that was found was a used cigarette butt by one of the toilets. (Tr. I, 192-93, 200).

         As Petitioner was transported to the segregated housing unit (“SHU”) at the correctional center, Officer Jesse McDaniel conducted a “shake down” of Petitioner's single-occupancy cell. (Tr. I, 178, 193, 201, 276). All of Petitioner's personal possessions, including a large, blue folder with Petitioner's name and prisoner number, were collected by Officer McDaniel and wrapped in a blanket. (Tr. I, 178-80, 182, 194-95; State's Ex. 1-B; Dkt. 11-3 at 103). The blanket containing Petitioner's belongings were immediately given to Officer Carol Doose, who personally transported the bundle to the SHU where it was checked into the property room by Sergeant Jerome Mick. (Tr. I, 179, 183, 193-94, 204-05, 225-26). While Sergeant Mick was taking inventory of Petitioner's property, he discovered a secret “hidey hole” cut into an envelope within the folder. (Tr. I, 219-22; State's Ex. 1-B through 1-E; Dkt. 11-3 at 103-06). Inside the hole was a tobacco pouch containing a baggie with a green leafy substance and a blue pill. (Tr. I, 222-27; State's Ex. 1-F, 1-G; Dkt. 11-3 at 107-08).

         Sergeant Mick tagged the items into evidence and submitted them to Lieutenant Todd Dillard. (Tr. I, 227-28, 230-32, 234, 236, 246-47; Trial Exhibits 1-F, 1-G). Lieutenant Dillard then placed them into a secure contraband locker for investigation. (Tr. I, 267-68, 273-74; Trial Exhibits 1-F, 1-G). Investigating Officer Theresa Guest-Settlemeyer later retrieved the items from the locker and conducted a field test of the green leafy substance. (Tr. I, 286-89). The substance tested positive for marijuana. (Tr. I, 287-89; Trial Exhibit 1-J).

         On November 17, 2010, Officer Guest-Settlemeyer transported the green leafy substance and the blue pill to the Oklahoma State Bureau of Investigation (“OSBI”) Office in McAlester, Oklahoma for further testing. (Tr. I, 286-89; Trial Exhibit 1-I). On November 19, 2010, OSBI Criminalist John Giles tested the submitted items. (Tr. II, 301-302, 307-310). Criminalist Giles analyzed the green leafy substance and conclusively identified it as marijuana. (Tr. II, 301-307; Trial Exhibit 1-A). The blue pill, which had been broken by the time it was tested, was identified by Criminalist Giles as a Schedule I substance commonly known as “Ecstasy.” (Tr. II, 301-07, 310, 313; Trial Exhibit 1-A).

         After Petitioner was caught in the bathroom, he waived his right to remain silent and spoke with Lieutenant Dillard. (Tr. I, 258-59; Trial Exhibit 1-H; Dkt. 11-3 at 109). He told Lieutenant Dillard that he could not pass a drug test for marijuana and that he had eaten the hand-rolled cigarette he was seen holding in the bathroom. (Tr. I, 259-264; State's Ex. 1-H; Dkt. 11-3 at 109). When Lieutenant Dillard informed Petitioner that the administrative sanctions for testing positive for marijuana or refusing a drug test were the same, Petitioner refused to take a drug test. (Tr. I, 264-266).

         Ground I: Tainted Jury

         Petitioner alleges he was denied his right to due process and a fair trial because of a “tainted” jury. He claims three members of the jury had, at a minimum, situations involving the appearance of impropriety, and one member served in violation of a statute. Petitioner claims that two of the contested jurors, K.L.B. and L.T., were father and daughter.[1] The third contested juror was B.H., whose father was the warden of Howard McLeod Correctional Center, where the alleged incident occurred.

         Petitioner claims that B.H.'s jury service violated Okla. Stat. tit. 22, § 660, which states in pertinent part:

A challenge for implied bias may be taken for all or any of the following cases, and for no other:
1. Consanguinity or affinity within the fourth degree, inclusive, to the person injured by the offense charged or on whose complaint the prosecution was initiated[.]


         Petitioner alleges the warden of the facility would be both the person injured by the offense and the person upon whose complaint the prosecution was instituted. Therefore, the warden's daughter should not have served on the jury. Petitioner further alleges that because K.L.B. was the father of L.T., the father could have had undue influence over his daughter.

         This claim was raised in Petitioner's direct appeal, and the Oklahoma Court of Criminal Appeals (“OCCA”) denied it on the merits.

We reject Golden's claim that his jury panel was tainted. Allowing B.H., the daughter of the warden of the prison where the crime occurred, to serve on the jury did not violate Okla. Stat. tit. 22, § 660. First, the plain language of the statute does not require the automatic exclusion of a panelist because of a familial relationship to the injured or complaining party. Second, and more importantly, the warden constituted neither the injured nor complaining party under the circumstances of this case. The record shows the examination of B.H. was sufficient to examine and resolve any question of implied bias she may have held and the district court did not abuse its discretion in allowing her to serve. See Sanchez v. State, 223 P.3d 980, 997 (2009). Appellant also challenges the district court's decision allowing a second juror, L.T., to serve. The questions put to L.T. on voir dire and her responses resolved any fair concern that her decision would be unduly influenced by her mother who also sat on this jury. Id. This claim is denied.

Golden v. State, No. F-2011-506, slip op. at 2-3 (Okla. Crim. App. Apr. 23, 2013).

         The Supreme Court has held that “the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors, ” and the “failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (citations and internal quotation marks omitted). Because of the “broad deference traditionally accorded to trial courts in determining jury selection procedures and conducting voir dire, ” however, “[a] federal habeas court may reverse a state court's findings of juror impartiality only upon a showing of manifest error.” Lucero v. Kirby, 133 F.3d 1299, 1308 (10th Cir. 1998) (citation omitted). To make such a showing, a petitioner “must demonstrate either that the trial resulted in actual prejudice or that it gave rise to a presumption of prejudice because it involved such a probability that prejudice will result that it is deemed inherently lacking in due process.” Id. (citations and internal quotation marks omitted).

         The record shows that during voir dire, B.H. told the court that she was the warden's daughter. (Tr. I, 95). The court then inquired whether she could be fair and impartial, and she answered that she could. (Tr. I, 95-96). In response to the court's additional questioning, B.H. stated she had not discussed this case, or any case, with her father. (Tr. I, 96). She also did not know and was not familiar with any witnesses from the correctional facility. (Tr. I, 97-98). She further stated that she presumed Petitioner was not guilty, and there was no reason she could not be fair. (Tr. I, 98). In response to questions from defense counsel, B.H. stated she rarely spoke with her father, she never had visited the correctional facility, and she had no problem rendering a not guilty verdict. (Tr. I, 106-09). Defense counsel passed B.H. for cause and chose not to excuse her from the jury panel, even though he had a peremptory challenge available for her removal. (Tr. I, 109-10).

         With respect to the mother and daughter jurors, the record shows that both were specifically asked about their relationship and whether they could make up their own minds about the case. (Tr. I, 79-80). Both responded in the affirmative, and the daughter specifically stated that she understood that her mother was not her “boss, ” and her mother would not unduly influence her decision. (Tr. I, 80). Defense counsel declined to question these two potential jurors or to use a peremptory challenge to remove one or both of them from the panel.

         After careful review, this Court finds the OCCA's decision on this issue was not contrary to, or an unreasonable application, of Supreme Court law. See 28 U.S.C. § 2254(d). Because Petitioner has not demonstrated manifest error in this case, habeas relief cannot be granted.

         Ground II: Chain of Custody

         Petitioner next alleges the State failed to show a proper chain of custody for the contraband. Respondent asserts this claim is an issue of state law that is not cognizable in this habeas action. “Federal habeas review is not available to correct state law evidentiary errors. . . . [Petitioner] is entitled to relief only if an alleged state-law error was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process.” Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012) (citations and internal quotation marks omitted). In considering the issue, this Court defers to the state court's interpretation of state law. See, e.g., Gonzales v. Tafoya, 515 F.3d 1097, 1126-27 (10th Cir.) (“In conducting our inquiry, we defer to the state court's interpretations of state law.”), cert. denied, 555 U.S. 890 (2008).

         Petitioner is arguing that the chain of custody for the contraband was insufficient, because the evidence changed hands several times, and there were “gaps” in the chain. Respondent alleges Petitioner's claim relies on mere speculation and fails to show grossly prejudicial error that rendered his trial fundamentally unfair. The OCCA found no merit in the claim on direct appeal:

The district court did not err in rejecting Golden's attack on the chain of custody and admitting the contraband evidence. See Postelle v. State, 267 P.3d 114, 132 (Okla. Crim. App. 2011), cert. Denied, ___ U.S. ___, 133 S.Ct. 282 (2012) (court's ruling admitting evidence is reviewed for an abuse of discretion); Mitchell v. State, 235 P.3d 640, 657-58 (Okla. Crim. App. 2010) (where there is only speculation that tampering or alteration occurred, it is proper to admit the evidence and allow any doubt to go to the weight of the evidence rather than its admissibility).

Golden, No. F-2011-506, slip op. at 3.

The purpose of the chain of custody rule is to guard against substitution of or tampering with the evidence between the time it is found and the time it is analyzed. Although the State has the burden of showing the evidence is in substantially the same condition at the time of offering as when the crime was committed, it is not necessary that all possibility of alteration be negated. If there is only speculation that tampering or alteration ...

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