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Loftis v. McCollum

United States District Court, E.D. Oklahoma

August 21, 2017

EMBRY JAY LOFTIS, Petitioner,
v.
TRACY McCOLLUM, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. White, United States District Judge.

         Petitioner, a pro se prisoner currently incarcerated at Oklahoma State Reformatory in Granite, Oklahoma, is challenging his convictions and sentences in Carter County District Court Case No. CF-2009-112 for Unlawful Possession of a Controlled Dangerous Substance, After Former Conviction of Two or More Felonies, and Case No. CM-2009-193 for Reckless Driving, Attempting to Elude a Police Officer, and Driving with License Suspended. On March 12, 2015, the Court dismissed Petitioner's § 2254 habeas corpus petition as time-barred (Dkt. 21).

         The Tenth Circuit Court of Appeals reversed and remanded for further proceedings, finding this Court should have granted Petitioner's request for equitable tolling of the statute of limitations. Loftis v. Chrisman, 812 F.3d 1268, No. 15-7017 (10th Cir. Feb. 10, 2016) (Dkt. 32). At the direction of the Court, Respondent has responded to the petition (Dkt. 41).

         Petitioner raises the following grounds for relief:

I. Absolute exclusion of the defense witnesses was unwarranted and denied Mr. Loftis of a meaningful opportunity to present a complete defense.
II. Mr. Loftis represented himself at trial without the trial court's determining if he was competent to do so, or that his decision to represent himself was voluntary.
III. The trial court erred by permitting the jury to enhance punishment with two prior convictions which were part of the same transaction.
IV. Because the written second stage jury instructions are missing from the district court file, and are not part of the record on appeal, Mr. Loftis has been deprived of his right to fully appeal the second stage of his trial, therefore his sentences must be modified.
V. Prosecutorial misconduct during closing arguments deprived Mr. Loftis of a fair trial.
VI. The evidence presented at trial was insufficient to support the conviction for possession of cocaine, as there was insufficient proof of possession.
VII. Mr. Loftis should be granted relief based upon cumulative error.
VIII. The trial court erred when it ordered Mr. Loftis' convictions to be run consecutively.
IX. Petitioner was deprived of his Sixth and Fourteenth Amendment rights to the effective assistance of counsel during the pretrial phase of his criminal proceedings.
X. A. Trial counsel committed reversible error by ordering Petitioner to appear just minutes before trial for a hearing to determine if he wanted to represent himself, predicated on ex parte advice of defense counsel, where the record is void of any affirmative showing ...

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