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, 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
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
XIII. Cumulative error deprived Petitioner of a fair trial.
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
E. State court record.
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).
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).
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
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).
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
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: Tainted Jury
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. The third contested juror was B.H., whose
father was the warden of Howard McLeod Correctional Center,
where the alleged incident occurred.
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[.]
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.
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
Golden v. State, No. F-2011-506, slip op. at 2-3
(Okla. Crim. App. Apr. 23, 2013).
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).
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).
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
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.
II: Chain of Custody
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).
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
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 ...