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 challenges his conviction in Murray County
District Court Case No. CF-2009-155 for conspiracy to traffic
a controlled dangerous substance (methamphetamine) (Count 3),
raising the following grounds for relief:
I. The evidence was insufficient to support Petitioner's
conviction for conspiracy to traffic methamphetamine.
II. Petitioner's due process rights to a fair trial were
violated because the State failed to establish the chain of
custody for the drug evidence which formed the basis for his
conviction for conspiracy to traffic.
III. Petitioner's due process rights to a fair trial were
violated by the prosecutor's failure to disclose
exculpatory evidence and the prosecutor's misconduct in
IV. Petitioner's Fourteenth Amendment due process rights
were violated because the charging documents failed to give
adequate notice of the offense(s) charged.
V. Petitioner's Fourteenth Amendment due process rights
were violated when the trial court failed to instruct the
jury on the lesser included offense of conspiracy to possess
VI. The trial court in voir dire violated Petitioner's
Fourteenth Amendment due process rights to a fair trial by
diminishing and mis-defining the prosecution's burden to
prove guilt beyond a reasonable doubt.
VII. Petitioner was denied his Sixth and Fourteenth Amendment
rights to the effective assistance of counsel at trial.
VIII. Petitioner's retrial following the declaration of a
mistrial violated double jeopardy.
has filed a response to the petition (Dkt. 10), and
Petitioner has filed a reply to the response (Dkt. 14). The
following records have been submitted for consideration in
A. Petitioner's direct appeal brief.
B. Petitioner's motion to supplement appeal record and
request for evidentiary hearing.
C. The State's brief in Petitioner's direct appeal.
D. Summary Opinion affirming Petitioner's judgment and
E. Petitioner's petition for rehearing.
F. Order denying rehearing.
G. Mistrial and trial transcripts. H. Trial exhibits.
I. Original record.
the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
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).
I: Sufficiency of the Evidence
alleges the evidence was insufficient to support his
conviction for conspiracy to traffic methamphetamine (Count
3). On direct appeal, the Oklahoma Court of Criminal Appeals
(OCCA) denied relief as follows:
[W]e find that the evidence, when viewed in a light most
favorable to the State, was sufficient for any rational trier
of fact to find the essential elements of conspiracy to
traffic in methamphetamine beyond a reasonable doubt.
Eastlick v. State, 90 P.3d 556, 559 (Okla. Crim.
App. 2004). There was sufficient evidence of an agreement to
traffic in methamphetamine between Turner and his
co-defendants and sufficient evidence of overt acts in
furtherance of the agreement. Jones v. State, 965
P.2d 385, 386 (Okla. Crim. App. 1998).
Turner v. State, No. F-2010-1128, slip op. at 3
(Okla. Crim. App. May 9, 2012) (Dkt. 10-4).
“Sufficiency of the evidence can be considered to be a
mixed question of law and fact.” Case v.
Mondagon, 887 F.2d 1388, 1392 (10th Cir. 1989),
cert. denied, 494 U.S. 1035 (1990). In federal
habeas review of a state court conviction, “the
relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original).
Supreme Court repeatedly has emphasized the deference the
reviewing court owes to the trier of fact and “the
sharply limited nature of constitutional sufficiency
review.” Wright v. West, 505 U.S. 277, 296
(1992) (citing Jackson, 443 U.S. at 319). “[A]
federal habeas corpus court faced with a record of historical
facts that supports conflicting inferences must presume--even
if it does not affirmatively appear in the record--that the
trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”
Jackson, 443 U.S. at 326. The court must
“accept the jury's resolution of the evidence as
long as it is within the bounds of reason.” Grubbs
v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)
(citing United States v. Edmondson, 962 F.2d 1535,
1548 (10th Cir. 1992)). “To be sufficient, the evidence
supporting the conviction must be substantial; that is, it
must do more than raise a mere suspicion of guilt.”
Beachum v. Tansy, 903 F.2d 1321, 1332 (10th Cir.),
cert. denied, 498 U.S. 904 (1990) (citing United
States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.
a sufficiency challenge was resolved on the merits by the
state courts, . . . AEDPA adds an additional degree of
deference, and the question becomes whether the OCCA's
conclusion that the evidence was sufficient constituted an
unreasonable application of the Jackson
standard.” Diestel v. Hines, 506 F.3d 1249,
1267 (10th Cir. 2007) (citations and internal quotation marks
omitted), cert. denied, 553 U.S. 1079 (2008). This
standard is called “deference squared.” Hooks
v. Workman, 689 F.3d 1148, 1166 (10th Cir. 2012 (quoting
Young v. Sirmons, 486 F.3d 655, 666 n.3 (10th Cir.
2007)). “Even if a state court resolves a claim in a
summary fashion with little or no reasoning, [this court]
owe[s] deference to the state court's result.”
Paine v. Massie, 339 F.3d 1194, 1198 (10th Cir.
2003). A state court's summary disposition must be upheld
unless a federal habeas court is persuaded, after conducting
an independent review of the record and pertinent federal
law, that the state court's result “unreasonably
applies clearly established federal law.” Id.
(quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th
determine whether there was sufficient evidence presented at
trial to sustain petitioner's conviction, the Court first
must look to Oklahoma law for the elements of the crime.
See Jackson, 443 U.S. at 324 n.16; see also
Torres v. Mullin, 317 F.3d 1145, 1152 (10th Cir.),
cert. denied, 540 U.S. 1035 (2003). Here, the
prosecution was required to prove (1) Petitioner agreed with
another to manufacture or possess 20 grams or more of a
substance containing a detectable amount of methamphetamine,
and (2) an overt act in furtherance of that agreement. Okla
Stat. tit. 21, §§ 421, 423; Okla. Stat. tit. 63,
§ 2-408; Okla. Stat. tit. 63, §§ 2-415 (B)(1)
& (C)(4)(a); OUJI-CR 2d 2-17, 2-19, 6-13 (Supp. 2008);
alleges the OCCA's decision on this issue was incorrect,
because the State had to affirmatively prove the substance
found in his home was equal to 20 or more grams of
methamphetamine. He argues the State failed to prove this
element, because the methamphetamine “cook” had
not been completed when the sheriff's deputy went through
Petitioner's house, and only a small sample not equal to
a trafficking amount tested positive as methamphetamine.
(Dkt. 3 at 14-17).
Oklahoma law, “[c]onspiracy is a crime, separate and
distinct, from the underlying crime contemplated.”
Jones v. State, 128 P.3d 521, 543 (Okla. Crim. App.
2006). “The crime of conspiracy does not depend on the
goal of the conspiracy being achieved, nor does it disappear
if the goal is in fact achieved.” Littlejohn v.
State, 181 P.3d 736, 742 (Okla. Crim. App. 2008). A
conspiracy requires proof of an agreement to commit a crime
and some overt act by one or more of the parties in
furtherance of the conspiracy. McGee v. State, 127
P.3d 1147, 1149 (Okla. Crim. App. 2005). Therefore, in order
to convict Petitioner of conspiracy, the State was not
required to prove the elements of the underlying crime of the
successful manufacture or possession of twenty or more grams
of methamphetamine. Jones, 128 P.3d at 543. Instead,
the State was only required to prove that Petitioner agreed
to manufacture or possess a trafficking amount of what he
believed was methamphetamine. See, e.g., Littlejohn,
181 P.3d at 741 (noting that “one can be guilty of
conspiring to commit a crime without the goal ever being
County Deputy Sheriff Jay McClure testified that on December
22, 2009, he was dispatched to Petitioner's residence for
a burglary in progress. When he arrived and exited his patrol
car, he noticed a chemical odor of anhydrous ammonia and
ether which are precursors in the manufacture of
methamphetamine. He saw one person running into the woods and
a second person trying to get into the residence. On the
patio, Deputy McClure observed some cans of ether and a
pitcher containing a pink, powdery substance. McClure
suspected that methamphetamine was being manufactured.
McClure spoke to Kirby Lawrence, the man who was trying to
get inside the house, and then obtained a search warrant for
the residence. Lawrence was taken into custody for
outstanding felony warrants for possession of
methamphetamine. (Tr. I, 97-101; Dkt. 11-3). Petitioner was
charged by Information on December 30, 2009. (O.R. 1; Dkt.
11-7 at 13).
McClure took a sample weighing 2.63 grams from the contents
of the pitcher and packaged it for analysis by the Oklahoma
State Bureau of Investigation (OSBI). (Tr. I, 102, 128,
150;Tr. Vol. II, 270; State's Ex. 14A). He also weighed
the remaining contents of the pitcher and conducted a field
test on those contents. (Tr. I, 102). The contents of the
pitcher weighed 56.9 grams and field tested positive for
pseudoephedrine. (Tr. I, 102-03, 128; State's Ex. 5B
& 12A). The sample taken from the pitcher and sent to the
OSBI was analyzed, and it tested positive as methamphetamine.
(Tr. I, 149-151; State's Ex. 13).
Lawrence testified he had been convicted and served time in
prison for distribution and conspiracy to manufacture
methamphetamine. He went to Petitioner's house to sell
Petitioner some drugs and to manufacture drugs at the house.
Lawrence had an agreement with Petitioner that a third of the
manufactured drugs went to Petitioner, because he had
furnished the place for the methamphetamine cook. Lawrence
brought pseudoephedrine pills, a grinder, a funnel, and lye
for the manufacture, and the other required supplies already
were at Petitioner's house. On several previous
occasions, Lawrence had manufactured more than 20 grams of
methamphetamine at Petitioner's house. (Tr. I, 160-68,
178-180; Dkt 11-3).
leaving Lawrence in the house, Petitioner provided him with
two large tea pitchers to produce the methamphetamine and
showed Lawrence where the anhydrous ammonia was located in
the basement. Petitioner helped Lawrence get all the supplies
together and told Lawrence to do the manufacturing outside,
about 50 yards from the house. Petitioner also told Lawrence
to be careful, because his neighbor was the mother or
grandmother of a police officer. Petitioner later returned to
the house to get some “ice” and said he was
leaving again to go to his girlfriend's house and to meet
with Tim Lance. (Tr. I 169-71, 173-74, 178)
unlawful in Oklahoma to manufacture or possess 20 or more
grams of a substance containing a detectable amount of
methamphetamine. Okla. Stat. tit. 63, §§ 2-415
(B)(1) & (C)(4)(a). Here, the Court finds it was
reasonable for the jury to conclude that when Lawrence
entered Petitioner's home with enough pseudoephedrine to
exceed the trafficking amount, and Petitioner assisted in and
allowed Lawrence to proceed with the cook, Petitioner
understood and agreed to traffic in methamphetamine. See
Soriano v. State, 248 P.3d 381, 397-98 (Okla. Crim. App.
2011) (noting that one ounce of methamphetamine constitutes a
“trafficking quantity” under Oklahoma law).
there was no direct testimony indicating Petitioner's
knowledge of the amount of pseudoephedrine necessary to
produce up to 20 grams of methamphetamine, there was
admissible evidence regarding the past drug history between
Petitioner and Lawrence, upon which the jury could reasonably
infer such knowledge. See Carter v. State, 177 P.3d
572, 575 (Okla. Crim. App. 2008) (holding that a conspiracy
may be proven by circumstantial evidence).
careful review of the record, the Court finds the evidence
was sufficient under the standard of Jackson v.
Virginia. The Court further finds the OCCA's
decision on this claim was not contrary to, or an
unreasonable application of Supreme Court law, and the
decision was not based on an unreasonable determination of
the facts presented in the state court proceeding.
See 28 U.S.C. § 2254(d). Ground I of this
habeas petition fails.
II: Chain of Custody
alleges in Ground II that the trial court erroneously
admitted the drug evidence seized from his home without
determining where or how it was stored from December 22,
2009, to January 5, 2010. He further claims the testimony
concerning the sample taken from the pitcher was
inconsistent, because the officer testified he mailed the
sample to the OSBI, but the OSBI criminalist testified that
the sample was personally delivered to her. Respondent
asserts this claim relies on mere speculation and is an issue
of state law that presents no basis for federal habeas corpus
relief. The OCCA found no merit in the claim:
[W]e find . . . Turner did not object to the chain of custody
in this case, thus we review for plain error only. Okla.
Stat. tit. 12, § 2104. The record in this case reveals
no error that is plain or obvious, thus there can be no plain
error. Hogan v. State, 139 P.3d 907, 923 (Okla.
Crim. App. 2006). Turner, on appeal, only speculates that
tampering or alteration occurred, which is insufficient for
suppression. McCarty v. State, 904 P.2d 110, 126
(Okla. Crim. App. 1995); Middaugh v. State, 767 P.2d
432, 436 (Okla. Crim. App. 1988).
Turner, No. F-2010-1128, slip op. at 3.
alleges this evidentiary claim is grounded in state law, and
“[f]ederal habeas review is not available to correct
state law evidentiary errors.” Smallwood v.
Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999), cert.
denied, 519 U.S. 980 (1996). “[I]t is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (citing 28 U.S.C. § 2241; Rose
v. Hodges, 423 U.S. 19, 21 (1995) (per curium)).
“Habeas corpus is a civil proceeding and the burden is
upon the petitioner to show by a preponderance of the
evidence that he is entitled to relief.”
Beeler v. Crouse, 332 F.2d 783, 783 (10th
Cir. 1964) (citing Teague v. Looney, 268 F.2d 506
(10th Cir. 1959)). Consequently, this claim is not
cognizable, unless Petitioner demonstrates error “so
grossly prejudicial that it fatally infected the trial and
denied the fundamental fairness that is th essence of due
process.” See Hooks, 689 F.3d at 1180
(citations omitted). In considering the claim, this Court
defers to the state court's interpretation of state law.
See Gonzales v. Tafoya, 515 F.3d 1097,
1126-27 (10th Cir. 2008) (citing Mansfield v.
Champion, 992 F.2d 1098, 1100 (10th Cir. 1993),
cert. denied, 555 U.S. 890 (2008)).
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 occurred, it is
proper to admit the evidence and allow any doubt to go to its
weight rather than its admissibility.
Alverson v. State, 983 P.2d 498, 509 (Okla. Crim.
App. 1999) (internal quotation marks and footnotes omitted),
cert. denied, 528 U.S. 1089 (2000).
Oklahoma law, the requirement that an exhibit be identified
or authenticated before its admission is satisfied through
testimony that the exhibit is what it is claimed to be.
Fixico v. State, 735 P.2d 580, 582 (Okla. Crim. App.
1987) (citing Okla. Stat. tit. 12, § 2105(B). A chain of
custody provides circumstantial evidence supporting such a
proffer. Id. A complete chain of evidence, however,
does not require each link to have personal knowledge of
every other link. Jones v. State, 507 P.2d 1267,
1270 (Okla. Crim. App. 1973). Instead, it “is only
necessary that a reasonable person be able to logically
assume from the testimony of each link that the chain was
alleges Petitioner's argument relies on speculation and
fails to demonstrate grossly prejudicial error which rendered
the trial fundamentally unfair. Because this was a conspiracy
case, testing of the entire contents of the pitcher for the
presence of methamphetamine was not required under Oklahoma
law. Further, the evidence reflects that the contents of the
pitcher, less the sample sent to the OSBI, was seized by
Deputy McClure and stored in a sealed package until trial.
(Tr. I, 123; State's Ex. 12 & 12A). There was no
indication that the bag or its contents had been tampered
with or altered. Finally, the sample taken from the pitcher
and sent to the OSBI was sealed when received by the OSBI
criminalist, and it remained secured until testing. (Tr. I,
149-51; 155-58; State's Exs. 14 & 14A).
there was some inconsistent testimony concerning whether
Deputy McClure mailed the sample or submitted it in person to
the lab, the Court finds the inconsistency did not prevent
admission of the evidence. (Tr. I, 102, 156). There was no
evidence that anyone other that Deputy McClure handled the
evidence before it went to the lab. (Tr. I, 102, 123, 149-50,
the testimony presented at trial was sufficient to complete
the chain of custody, the Court finds Petitioner has failed
to demonstrate the admission of the drug evidence was so
grossly prejudicial that it fatally infected the fairness of
his trial. See Hooks, 689 F.3d at 1180. This ground
for habeas relief fails.