United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
a 28 U.S.C. § 2254 habeas corpus action. Respondent
filed a response (Dkt. # 7) to the petition. Petitioner filed
a reply (Dkt. # 9). On December 1, 2016, Petitioner filed a
motion to amend the petition (Dkt. # 10), respondent filed a
response (Dkt. # 11), and petitioner filed a reply (Dkt. #
14). For the reasons discussed below, the petition for writ
of habeas corpus is denied. Petitioner's motion to amend
16, 2010, Marcus Lewis died as a result of multiple gunshot
wounds sustained at Cheyenne Park, located on North Cheyenne
Avenue, in Tulsa, Oklahoma. Two of Lewis's friends,
Jarred Miller and Joseph Thomas, were present at the time of
the shooting and saw their friend gunned down. Before police
arrived at the scene of the shooting, Miller and Thomas
conferred and agreed to lie to police about the shooting.
Tulsa Police Officers Toliver and Scalf were nearby and heard
the shots fired. They arrived at the scene within minutes and
were flagged down by Thomas. Officer Toliver attempted to
render aid but heard Lewis gasp his last breaths and saw his
eyes lose all light. After calling EMSA, Officer Toliver
spoke with both Miller and Thomas at the scene and did not
consider them to be suspects. Miller and Thomas were
transported to the detective division where they were
initially interviewed by Tulsa Police homicide detectives.
While speaking to Officer Toliver and during these first
interviews with detectives, Miller and Thomas lied and stated
that Lewis called them on the phone and told them to come to
Cheyenne Park. They also stated that, as they arrived at the
park, they heard gun shots and saw two unidentified black
males, dressed in all black, run southbound on Cheyenne.
next day, Miller and Thomas decided to “do the right
thing” for their friend, Marcus, and his family and
tell the homicide detectives the truth. Both Miller and
Thomas were interviewed a second time. This time, Miller and
Thomas told detectives that Petitioner Jerlon Morgan and his
cousin William Hurt, III, arrived at Ute Park where several
people, including Lewis, Miller, and Thomas, were playing
dice games. Hurt was driving a white Ford Taurus with dark
tinted windows and a black car bra. Lewis and Petitioner had
had a disagreement approximately two weeks earlier. After
leaving Ute Park, Lewis and Petitioner decided to resolve
their disagreement in a street fight at Cheyenne Park. During
the fight, Lewis grabbed Morgan's genitals. At that
point, Hurt pulled a gun and put it in Lewis's face.
Miller tried to defuse the situation, but Lewis was mad and
said that pulling the gun was “a weak move.” Hurt
then started shooting at Lewis, first towards Lewis's
feet. Then he moved the gun up to Lewis's waist area.
Lewis was hit and dropped to the ground. Hurt ran back to the
white Taurus. Miller heard Petitioner say, “finish
him.” Hurt then returned to Lewis who was lying on his
back in the street, stood over him and shot him two more
times. Hurt got back in the Taurus with Petitioner and drove
away from the scene. Miller and Thomas remained at the scene
and asked neighbors to call the police.
result of those events, Petitioner Jerlon Morgan and his
co-defendant, William Stefvon Hurt, III, were charged, in
Tulsa County District Court, Case No. CF-2010-1963, with
First Degree Murder. Petitioner and Hurt were tried jointly.
At the conclusion of trial, the jury found both defendants
guilty as charged and recommended sentences of life
imprisonment. On November 14, 2011, the trial judge sentenced
Petitioner, in accordance with the jury's recommendation,
to life imprisonment. See Dkt. # 16-1 at 4. Attorney
Kathy Fry represented Petitioner at trial.
by attorney Traci J. Quick, Petitioner perfected a direct
appeal to the Oklahoma Court of Criminal Appeals (OCCA).
Petitioner raised five (5) propositions of error, as follows:
Proposition One: The evidence was insufficient to convict Mr.
Morgan of First Degree Murder.
Proposition Two: Mr. Morgan was denied effective assistance
of counsel in violation of his rights under the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article II, §§ 7, 9 and 20 of the
Proposition Three: The trial court erred when it allowed
irrelevant and unreliable evidence, in the form of cell phone
call logs, to be admitted as evidence against Appellant. The
error denied Appellant a fair trial and the due process of
law secured to him by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article 2,
Sections 7, 19, and 20 of the Oklahoma Constitution.
Proposition Four: Prosecutorial misconduct deprived Appellant
of a fair trial in violation of the Fourteenth Amendment of
the United States Constitution and Article II, §§ 7
and 9 of the Oklahoma Constitution.
Proposition Five: The accumulation of error in this case
deprived Mr. Morgan of due process of law in violation of the
Fourteenth Amendments [sic] to the United States Constitution
and Article II, § 7 of the Oklahoma Constitution.
(Dkt. # 7-1). In an unpublished Summary Opinion, filed May
17, 2013, in Case No. F-2011-1011 (Dkt. # 7-3), the OCCA
denied relief on Petitioner's claims and affirmed the
Judgment and Sentence of the district court. Petitioner did
not seek post-conviction relief in the state courts.
commenced this federal action by filing a pro se petition for
writ of habeas corpus (Dkt. # 1). Petitioner raises three (3)
grounds of error, as follows:
Ground 1: In light of the insufficient evidence presented at
trial, the conviction for First Degree Murder violated
Petitioner's Fourteenth Amendment right to due process.
Ground 2: Trial counsel rendered deficient and ineffective
assistance in violation of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.
Ground 3: Prosecutorial misconduct prevented Petitioner from
receiving a fair trial in violation of the Fourteenth
Amendment to the United States Constitution.
Id. Respondent argues that the OCCA's
adjudication of Petitioner's grounds for relief was not
contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
See Dkt. # 7.
initial matter, the Court must determine whether Petitioner
meets the exhaustion requirements of 28 U.S.C. §
2254(b). Rose v. Lundy, 455 U.S. 509, 510 (1982).
Petitioner presented the claims raised in the petition to the
OCCA on direct appeal. Therefore, ...