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 filed pursuant to 28 U.S.C. §
2254. Petitioner, a pro se inmate in the custody
of the Oklahoma Department of Corrections, currently is
incarcerated at Lexington Correctional Center in Lexington,
Oklahoma. He is attacking his conviction and sentence in
Choctaw County District Court Case No. CF-2011-150 for
Aggravated Manufacture of a Controlled Dangerous Substance.
He sets forth the following grounds for relief:
I. The evidence was insufficient to prove the elements of the
crime beyond a reasonable doubt.
II. The trial court erred in not giving jury instruction
OUJI-CR (2d) 9-13 concerning corroboration of confessions.
III. The trial court erred in failing to sustain
Petitioner's request for a mistrial based on the mistaken
verdict form first submitted by the jury.
IV. Petitioner's state and federal rights to due process
were violated by improper destruction of evidence important
to his defense.
V. The trial court erred in failing to conduct a
Daubert hearing regarding expert testimony violated
[sic] due process and the right to avoid unnecessary
prejudice, resulting in a fundamentally unfair and tainted
trial and jury.
VI. Prosecutorial misconduct denied Petitioner his right to
due process of law and a fair trial.
VII. The district court misapplied the sentencing guidelines
by including both the weight of the wastewater and
extractable methamphetamine in determining the base offense
level, in violation of the U.S. Sentencing Guidelines.
VIII. The cumulative effect of all the errors addressed above
deprived Petitioner of a fair trial.
IX. Petitioner received ineffective assistance of trial
X. Petitioner received ineffective assistance of appellate
respondent concedes that Petitioner has exhausted his state
court remedies for the purpose of federal habeas corpus
review. The following records have been submitted to the
court for consideration in this matter:
A. Petitioner's direct appeal brief
B. The State's brief in Petitioner's direct appeal
C. Summary Opinion affirming Petitioner's judgment and
D. Order Denying Post-Conviction Relief
E. Petitioner's post-conviction brief
F. Order Affirming Denial of Application for Post-Conviction
G. State court record
addition, Petitioner has filed a reply to Respondent's
response to the petition (Dkt. 11).
the Anti-Terrorism and Effective Death Penalty Act, 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).
record shows that Officer B.J. Hedgecock, an investigator
with the Choctaw County District Attorney's Office,
obtained a search warrant for Petitioner's residence in a
shed behind Petitioner's mother's house in Boswell,
Oklahoma (Tr. I 61, 65-67). Officers Hedgecock, Chester
Marzek, and Josh Williams executed the search on July 2, 2011
(Tr. I 67-67, 158, 161-62). The officers entered the small
shed with two rooms and found Petitioner asleep on a bed in
the east room (Tr. I 67, 162). The officers removed
Petitioner from the residence, and Officer Marzek read
Petitioner's Miranda rights to him (Tr. I
told Officer Williams that he lived in the shed (Tr. I 168).
During the search of the shed, the officers found
Petitioner's ID card, male clothing, a methamphetamine
pipe, numerous two-liter pop bottles, salt, a coffee filter,
a jar with a funnel, camp fuel, and other items required for
the manufacture of methamphetamine (Tr. I 68, 70-77). These
items were later tested for the presence of methamphetamine
at the OSBI laboratory (Tr. I 144). A container of liquid
(Exhibit 1B) and a glass smoking device with residue (Exhibit
1K) tested positive for the substance (Tr. I 144-45, 151;
State's Exhibit 37). The container that tested positive
for methamphetamine contained approximately 1, 000
milliliters of liquid with a net weight of 650 grams (Tr. I
144-45; State's Exhibit 37).
I: Sufficiency of the Evidence
alleges in Ground I of the petition that the evidence was
insufficient to prove beyond a reasonable doubt that he had
dominion and control over a controlled dangerous substance
upon which the manufacturing charge was based. Respondent
asserts the decision by the Oklahoma Court of Criminal
Appeals (OCCA) on this issue was not contrary to, or an
unreasonable application, of Supreme Court law. The OCCA
analyzed the claim and denied relief on direct appeal:
[W]e find that the State presented sufficient evidence,
viewed in a light most favorable to the State, to prove that
Vansickle committed the essential elements of aggravated
manufacture of a controlled dangerous substance,
methamphetamine, beyond a reasonable doubt. Easlick v.
State, 90 P.3d 556, 559 (Okla. Crim. App. 2004). Where
there is competent evidence in the record to support a
conviction, this Court will not interfere with the verdict.
Gilson v. State, 8 P.3d 883, 910 (Okla. Crim. App.
To satisfy the elements of aggravated manufacture of a
controlled dangerous substance, the State must prove that
Vansickle knowingly/intentionally manufactured or attempted
to manufacture a controlled dangerous substance by, in this
case, having fifty (50) grams or more of methamphetamine, its
salts, its isomers, and salts of its isomers or 500 grams or
more of a mixture or substance containing a detectible amount
of methamphetamine, its salts, its isomers, or salts of its
isomers. Okla. Stat. tit. 63, § 2-401(G)(3)(h) (2005).
Evidence that Vansickle was in possession of the
paraphernalia associated with methamphetamine manufacturing
allows for the inference that Vansickle was knowingly
involved in the manufacturing process taking place in the
shed. Possession may be proved through circumstantial
evidence. Carolina v. State, 839 P.2d 663, 664-65
(Okla. Crim. App. 1992). In the absence of physical
possession, if an accused has exclusive access to the
premises where contraband was found, dominion and control, or
constructive possession, may be inferred. Doyle v.
State. 759 P.2d 223, 224 (Okla. Crim. App. 1988). If the
accused does not have exclusive access, “constructive
possession may be proven if there are additional independent
factors which show his knowledge and control of the
drugs.” Carolina, 839 P.2d at 665. Such
factors include incriminating conduct or other circumstances
allowing for such an inference. Id.
In the present case, the State presented sufficient evidence
from which the jury inferred that Vansickle had dominion and
control over the manufacturing process. Appellant lived in a
shed on his mother's property. The shed, which was
comprised of two rooms, was littered with the tools and
materials necessary to manufacture methamphetamine.
Vansickle's ID and some articles of clothing were found
in the shed. Vansickle admitted that he lived in the shed.
Moreover, nothing in the record suggests anyone else had
entered or used the shed, which would allow for a reasonable
inference by the jury that Vansickle had exclusive access.
The conviction is further justified by the fact whenever
Vansickle entered the shed to go to his bedroom, he had to
pass through the room containing most of the evidence of the
manufacturing process. In his bedroom, there was also a
basket hanging from the ceiling containing items readily
associated with both the manufacture and consumption of
methamphetamine. This case is analogous to Brumfield v.
State, 155 P.3d 826 (Okla. Crim. App. 2007), wherein
this Court held that when the defendant's “home and
property were littered with the essential ingredients for
methamphetamine manufacture--or evidence that essential