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Sells v. Patton

United States District Court, N.D. Oklahoma

March 24, 2017

JOE M. ALLBAUGH, Director, [1]Respondent.



         Before 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.


         On 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.[2] 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.

         Later 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.”

         On 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.

         In 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 with Petitioner.

         As a 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 Beverly Atteberry.

         Petitioner 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 Comments.
Proposition 5: Appellant's sentences for these convictions are excessive.
Proposition 6: Appellant was denied the effective assistance of counsel.
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.

         (Doc. 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 Court.

         On June 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 follows:

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).

         On 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.

         (Doc. 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) ...

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