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Turner v. Farris

United States District Court, E.D. Oklahoma

March 29, 2017

JIM FARRIS, Warden, Respondent.



         This 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 closing arguments.
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 methamphetamine.
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.

         Respondent 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 this matter:

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 sentence.
E. Petitioner's petition for rehearing.
F. Order denying rehearing.
G. Mistrial and trial transcripts. H. Trial exhibits.
I. Original record.

         Standard of Review

         Under 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; 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).

         Ground I: Sufficiency of the Evidence

         Petitioner 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).

         The 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. 1987)).

         “[W]here 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 Cir. 1999)).

         To 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); (O.R. 216).

         Petitioner 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).

         Under 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 accomplished”).

         Murray 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).

         Deputy 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).

         Kirby 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).

         Before 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)

         It is 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).

         Although 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).

         After 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.

         Ground II: Chain of Custody

         Petitioner 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.

         Respondent 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).

         Under 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 complete.” Id.

         Respondent 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).

         Although 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, 156).

         Because 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.

         Ground III: ...

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