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Wolfe v. Bryant

United States District Court, N.D. Oklahoma

April 4, 2017

MARK LEE WOLFE, Petitioner,
v.
JASON BRYANT, Warden, [1]Respondent.

          OPINION AND ORDER

          James H. Payne United States District Judge

         Before the Court is the petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner Mark Lee Wolfe, a state prisoner appearing pro se. Petitioner also filed a supporting brief (Dkt. # 2). Respondent filed a response (Dkt. # 6) and provided the state court records (Dkt. ## 6, 7, 11) necessary for adjudication of Petitioner's claims. Petitioner filed a reply (Dkt. # 8). For the reasons discussed below, the Court denies the petition for writ of habeas corpus.

         BACKGROUND

         The facts of the case, as determined by the Oklahoma Court of Criminal Appeals (OCCA) in an unpublished opinion, Case No. F-2011-582, see Dkt. # 11-1, are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Petitioner fails to make the necessary showing. Therefore, the following factual summary by the OCCA is presumed correct:

On April 19, 2005, Sapulpa Police Officer John Harris stopped Appellant Wolfe during afternoon rush hour for a traffic violation in Sapulpa, Oklahoma. There was some question as to whether Wolfe's car came to a stop within the city limits of Sapulpa, but the evidence was undisputed that the traffic violation occurred within the city limits.
Officer Harris ran a check of Wolfe's driver's license, found it suspended, and learned there was a misdemeanor warrant for his arrest. He placed Wolfe under arrest and Officer Trey Pritchard, who was assisting Officer Harris, searched the driver's area of Wolfe's car incident to arrest. Officer Pritchard noticed the dashboard had been tampered with and overlapped in the wrong direction. He lifted the dash and inside the air conditioner duct was a dark-colored leather bag with several small plastic bags inside, each containing a white powdery substance. There was no drug tax stamp on the packages or bag. The white powdery substance was tested and found to contain methamphetamine with a total weight of 36.2 grams.

(Dkt. # 11-1 at 2 (footnote omitted)).

         Based on those events, the State charged Petitioner with Trafficking in Illegal Drugs, After Former Conviction of Two Felonies (Count 1); Failure to Obtain a Drug Tax Stamp, After Former Conviction of Two Felonies (Count 2); Driving Under Suspension (Count 3); and Failure to Signal a Turn (Count 4), in Tulsa County District Court, Case No. CF-2005-1911. See id. at 1; Dkt. # 6-1 at 1. On June 7, 2007, a jury acquitted Petitioner of Count 4 but convicted Petitioner of Counts 1-3, see Dkt. # 7-14, Tr. Vol. 4 at 38-39, and recommended sentences as follows: life imprisonment without the possibility of parole and a $25, 000 fine (Count 1), ten (10) years imprisonment and a $5, 000 fine (Count 2), and one (1) year imprisonment and a $500 fine (Count 3), id. at 80. That same day, the trial judge sentenced Petitioner in accordance with the jury's recommendation and ordered the sentences to run consecutively. Id. at 84-85. Attorney C. Rabon Martin represented Petitioner at trial. See id. at 1.

         After being granted a direct appeal out of time, Petitioner perfected a direct appeal to the OCCA. See Dkt. # 6-1. Attorney Lisbeth L. McCarty represented Petitioner on appeal. Id. Petitioner raised fifteen (15) propositions of error, as follows:

Proposition 1: The stop was unlawful due to jurisdiction; accordingly, all evidence stemming from that stop should have been suppressed.
Proposition 2: The trial judge erred by failing to recuse himself.
Proposition 3: The trial judge erred by denying a continuance and thereby forcing counsel to be ineffective in arguing the motion to suppress.
Proposition 4: Appellant's convictions should be reversed because the trial court's lectures produced invalid verdicts and denied Appellant his right to fair trial by jury.
Proposition 5: The search was unlawful; thus, evidence obtained as a result of that search must be suppressed.
Proposition 6: The admission of other crime evidence deprived Appellant of a fair trial.
Proposition 7: The trial judge abused his discretion by refusing to allow Appellant to waive the bifurcated proceeding.
Proposition 8: The jury's acquittal on Count V [sic], failure to signal, negates the other verdicts of guilty due to the fruit of the poisonous tree doctrine.
Proposition 9: Ineffective assistance of counsel cost Appellant a fair trial and a fair appeal.
Proposition 10: The lack of a full and complete record on appeal has deprived Mr. Wolfe of a fair hearing and due process of law.
Proposition 11: The admission of information about the outstanding warrant was irrelevant and unduly prejudicial.
Proposition 12: The prosecution failed to prove the second-stage former felonies.
Proposition 13: Prosecutorial misconduct deprived Appellant of a fair trial.
Proposition 14: The sentences are excessive as imposed.
Proposition 15: Cumulative errors deprived Appellant of a fair trial.

Id. In an unpublished opinion, entered July 12, 2013, in Case No. F-2011-582, the OCCA affirmed the trial court's Judgment and Sentence. See Dkt. # 11-1.

         On November 27, 2013, Petitioner filed a third application for post-conviction relief.[2] See Dkt. # 6-4. On December 13, 2013, the trial court denied the application. See Dkt. # 6-5. Petitioner appealed to the OCCA. In his post-conviction petition in error, Petitioner raised five (5) propositions of error, as follows:

Proposition 1: The stop was unlawful due to jurisdiction; accordingly, all evidence stemming from that stop should ...

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