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Morgan v. Allbaugh

United States District Court, N.D. Oklahoma

August 3, 2017

JERLON DEMONT MORGAN, Petitioner,
v.
JOE M. ALLBAUGH, Director, Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE

         This is 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 is denied.

         BACKGROUND

         On May 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.

         The 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.

         As a 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.[1]

         Represented 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 Oklahoma Constitution.
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.

         Petitioner 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.

         ANALYSIS

         A. Exhaustion

         As an 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, ...


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