United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL DISTRICT JUDGE.
the Court is Petitioner's 28 U.S.C. § 2254 habeas
corpus petition (Doc. 1). Petitioner is a state inmate and
appears pro se. Respondent filed a response (Doc. 7)
to the petition and provided the state court record (Docs. 7,
8, 9, 10, 11) for resolution of the claims raised in the
petition. Petitioner filed a reply (Doc. 14) to the response.
For the reasons discussed below, the petition for writ of
habeas corpus shall be denied.
November 11, 2009, thirty-one (31) year old Reco Eugene Sells
(Petitioner) attended his son's middle school football
practice in Tulsa, Oklahoma. Also present at the practice was
the team's trainer, or “water girl, ”
thirteen (13) year old K.G. While K.G. talked to a friend on
her cell phone, Petitioner approached K.G. and asked if he
could borrow her phone. Petitioner took the phone from K.G.,
walked away, and used the phone to call someone. After about
two (2) minutes, Petitioner returned the phone to K.G.
that afternoon, about thirty (30) minutes after returning
home, K.G. began receiving texts on her cell phone from
Petitioner. Petitioner asked “is it okay if I text
you?” K.G. responded “sure.” The next day,
November 12, 2009, during school, Petitioner again texted
K.G. saying “good morning” and “hello
sunshine.” Because the texting made her uncomfortable,
K.G. told the football coach and her counselor about
receiving the texts. Her counselor told K.G. to tell her
mother about the texts. After learning that her thirteen (13)
year old daughter had been receiving texts from a thirty-one
(31) year old man, K.G.'s mother, Karen Gilbert, went to
the Education Service Center to talk to the campus police
chief. He advised Mrs. Gilbert to keep K.G.'s phone to
monitor the texts. The texting continued. Mrs. Gilbert became
concerned with the frequency and the content of the texts.
For example, Petitioner texted “getting out of the
shower and thinking of you, ” “good night,
sunshine, ” and “good night, sexy.”
November 18, 2009, K.G. and her parents met with detectives
from the cyber crimes division of the Tulsa Police
Department. With the permission of K.G.'s parents,
Detective Scott Gibson took possession and control of
K.G.'s cell phone. Detective Gibson adopted K.G.'s
persona and responded to Petitioner's texts as if he were
a fourteen (14) year old K.G. To preserve the cell phone
data, cyber crimes detectives used computer software to
download the data and prepared a data log, arranging the
texts in chronological order.
early December 2009, Petitioner's texts became sexually
explicit. On December 3, 2009, Petitioner texted that he
“will send you pic of my body, ” and then sent
four (4) pictures of his erect penis. On December 4, 2009,
Petitioner sent texts stating “I want to lick you from
head 2 toe babe til u say stop, ” and “yr butt is
sexy baby yr body is hot.” On December 5, 2009, he sent
another picture of his penis and texted “I want to kick
with u all nite babe.” Also, on December 5, 2009,
Petitioner texted “I will kiss u suck on yr tits, lick
yr pussy, suck on yr toes, then stick it in nice &
slow.” Petitioner sent texts agreeing to meet K.G.
alone at a Tulsa park on Friday, December 11, 2009, for the
purpose of having sexual intercourse. When Petitioner arrived
at the agreed location, he was arrested by Tulsa Police
officers. Detective Gibson read Petitioner his
Miranda rights, Petitioner waived those rights and
agreed to talk. Detective Gibson audiotaped his conversation
result of those events, Petitioner was charged in Tulsa
County District Court, Case No. CF-2011-3557, with three (3)
counts of Lewd or Indecent Proposal to a Child (Counts I, II,
III), and Facilitating Sexual Conduct with a Minor by Use of
a Computer (Count IV). At the conclusion of the two stage
jury trial, Petitioner's jury found him guilty as charged
and recommended sentences of ten (10) years imprisonment and
a $1, 000 fine on Counts I and III, fifteen (15) years
imprisonment and a $2, 000 fine on Count II, and five (5)
years imprisonment on Count IV. On September 19, 2011, the
trial judge sentenced Petitioner in accordance with the
jury's recommendation and ordered the sentences to be
served consecutively. See Doc. 8-6 at 6. During
trial proceedings, Petitioner was represented by attorney
appealed his convictions to the Oklahoma Court of Criminal
Appeals (OCCA). On direct appeal, Petitioner, represented by
attorney Matthew D. Haire, raised nine (9) propositions of
error, as follows:
Proposition 1: The State failed to prove beyond a reasonable
doubt that Appellant was not entrapped.
Proposition 2: Errors in jury instructions required
Appellant's convictions and sentences to be reversed.
Proposition 3: Appellant's convictions of Counts 2, 3,
and 4 violate Okla. Stat. tit. 21, § 11; Counts 2 and 3
violate the state and federal ban on double jeopardy.
Proposition 4: Appellant's convictions must be reversed
because the trial court failed to instruct the jury on the
lesser-included misdemeanor offense of Using Electronic
Communications to Make Obscene, Threatening or Harassing
Proposition 5: Appellant's sentences for these
convictions are excessive.
Proposition 6: Appellant was denied the effective assistance
Proposition 7: Prosecutorial misconduct infected the
proceedings and violated Appellant's state and federal
rights to due process.
Proposition 8: Error in the admission of evidence during
trial requires reversal of Appellant's convictions.
Proposition 9: Cumulative error requires reversal of
Appellant's convictions and sentences.
7-1). On October 8, 2012, in an unpublished summary opinion
filed in Case No. F-2011-868, the OCCA denied relief and
affirmed the Judgment and Sentences of the trial court.
See Doc. 7-3. Petitioner did not file a petition for
writ of certiorari at the United States Supreme
18, 2013, Petitioner filed an application for post-conviction
relief in state district court. See Doc. 14 at 10.
On July 31, 2013, the state district judge denied the
requested relief. See Doc. 7-4 at 4-8. Petitioner
appealed, raising three (3) propositions of error, as
Proposition 1: That his fundamental right to a fair trial
were [sic] violated by the introduction of unauthenticated
documentation to the jury.
Proposition 2: Hearsay was improperly introduced at trial in
support of the unauthenticated documentation.
Proposition 3: The police failed to properly execute warrant
to search Petitioner's home or belongings.
Id. at 1-2. On January 9, 2014, in Case No.
PC-2013-783, the OCCA affirmed the denial of post-conviction
relief (Doc. 7-5).
March 21, 2014, Petitioner filed his federal petition for
writ of habeas corpus (Doc. 1), along with a supporting brief
(Doc. 2). Petitioner raises the following grounds of error:
Ground 1: Petitioner's conviction is in violation of
Okla. Stat. tit. 21, § 11; Okla. Const. art. II, §
21; and the Fifth Amend. double jeopardy clause.
Ground 2: Petitioner was improperly, and unlawfully,
convicted for crimes under general provisions instead of
controlling specific provisions.
Ground 3: Petitioner's fundamental right to a fair trial
have [sic] been violated.
Ground 4: Hearsay testimony was improperly presented in
support of unauthenticated documentation. Hearsay was only
attempt to authenticate documents.
Ground 5: No warrant was issued, nor was a proper service of
warrant made on any party, in violation of Petitioner's
4th Amendment rights.
Ground 6: The State failed to prove beyond a reasonable doubt
that Petitioner was not entrapped.
Ground 7: Errors in jury instructions require
Petitioner's convictions and sentences to be reversed.
Ground 8: Jury instructions were contradictory and confusing,
and unconstitutionally shifted the burden of proof.
1). Respondent filed a response (Doc. 7) to the petition and
asserts that Petitioner is not entitled to relief either
under 28 U.S.C. § 2254(d) ...