United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne, United State District Judge.
matter comes before the court on petitioner's petition
for writ of habeas corpus, filed pursuant to 28 U.S.C. §
2254. Petitioner an inmate currently incarcerated at the Dick
Conner Correctional Center located in Hominy, Oklahoma,
attacks his conviction in the District Court of Muskogee
County, Case No. CF-2012-749 for the following crimes: Count
I, Murder in the First Degree in violation of Okla. Stat.
tit. 21, § 701.7 and Count II, Assault and Battery with
a Deadly Weapon in violation of Okla. Stat. tit. §
was convicted by a jury on March 12, 2014. The jury
recommended life imprisonment on Count I and and five years
on Count II. The trial court judge sentenced petitioner
accordingly and ordered the sentences to be served
concurrently followed by a two-year post imprisonment
community supervision upon release. Petitioner timely
appealed his conviction to the Oklahoma Court of Criminal
Appeals (OCCA), raising the following issues:
1) whether the instructions issued by the trial court were
whether he was prejudiced by prosecutorial misconduct;
3) whether he received the effective assistance of
whether the cumulative effect of all the errors deprived
him of a fair trial.
August 5, 2015, the OCCA denied relief. Cone v.
State, No. F-2014-477, slip op. at 1-2 (Okla. Ct. Crim.
App. 2015). (Dkt. # 1, at pp. 13-14). Petitioner did not seek
certiorari. Further, Petitioner never sought any
post-conviction relief in state court.
September 9, 2017, petitioner filed the instant petition for
writ of habeas corpus. A liberal construction of the petition
reveals petitioner is claiming the following errors entitle
him to release from custody: (1) ineffective assistance of
trial counsel for failing to consult and call an expert
witness to testify about the multiple drugs contained in the
victim's system at the time of the crime and the effects
those drugs would have had on the victim; (2) ineffective
assistance of trial and appellate counsel for failing to
“properly” object to and appeal the
“fundamentally defective” jury instructions; (3)
ineffective assistance of trial and appellate counsel for
failing to object to alleged instances of prosecutorial
misconduct which prejudiced petitioner; (4) ineffective
assistance of trial and appellate counsel violated his Fifth
Amendment right to a fundamentally fair trial and his Sixth
Amendment right to effective assistance of counsel; and (5)
ineffective assistance of appellate counsel for not raising a
claim of cumulative error.
October 11, 2016, respondent filed a motion to dismiss (Dkt.
# 9) and a brief in support thereof (Dkt. # 10) claiming the
petition is a mixed petition, or in other words that not all
claims contained within said petition have been exhausted in
state court. In her brief, respondent detailed how petitioner
had exhausted some claims of ineffective assistance of trial
counsel but had not exhausted any claims of ineffective
assistance of appellate counsel.
28, 2017, this court advised petitioner that his petition was
subject to dismissal for failure to exhaust all of his claims
in state court. Petitioner was given an opportunity to
dismiss unexhausted claims or continue with his original
petition. On August 16, 2017, petitioner advised the court he
intended to continue with his original petition, but he
“asks that the Court dismiss only the unexhausted
claims and proceed on the merits of the exhausted
claims.” Dkt. # 13, at p. 1.
extent petitioner never raised any claims of ineffective
assistance of appellate counsel in state court, this court
finds those claims are unexhausted. Further, based upon the
pleadings, the only claims of ineffective assistance of
counsel raised in state court dealt with trial counsel's
failure to request appropriate jury instructions and/or
failure to object to alleged prosecutorial misconduct.
See, Brief of Appellant, Dkt. 10-1, at pp. 25-27. As
a result, this court finds those two allegations of
ineffective assistance of trial counsel are the only
ineffective assistance of counsel claims which have been
exhausted. Accordingly, after liberally construing the
petition, see Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991), this court finds petitioner will
be allowed to proceed on the following claims for relief:
1) Trial counsel was ineffective for failing to object to
allegedly defective instructions;
2) Trial counsel was ineffective for failing to object to
alleged incidences of prosecutorial misconduct; and
3) Cumulative error deprived petitioner of a fair trial.
result, this court hereby denies
respondent's motion to dismiss (Dkt. # 9) and directs
respondent to file a response to ...