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Burney v. Aldridge

United States District Court, E.D. Oklahoma

September 19, 2017

PATRICIA BURNEY, Petitioner,
v.
DEBBIE ALDRIDGE, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. White, United States District Judge.

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Mabel Bassett Correctional Center in McLoud, Oklahoma. She is attacking her conviction in Wagoner County District Court Case No. CF-2011-88B for First Degree Murder. She sets forth the following grounds for relief:

I. The uncorroborated testimony of accomplices Michelle Burney and Michael Richardson was insufficient to convict Petitioner of First Degree Malice Aforethought Murder.
II. The State failed to disclose exculpatory impeachment evidence for the State's key witness and failed to correct the witness's false testimony.
III. Petitioner's rights to due process and a fair trial were violated by the admission of improper character evidence.
IV. The admission of gruesome photographs deprived Petitioner of her right to a fair trial and due process of law.
V. The trial court abused its discretion by failing to issue defense counsel's proposed instruction on witness credibility.
VI. The accumulation of errors deprived Petitioner of a fair trial.

         The respondent concedes that Petitioner has exhausted her 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. Opinion affirming Petitioner's judgment and sentence. Burney v. State, No. F-2012-409 (Okla. Crim. App. Mar. 31, 2014).
D. Findings of Wagoner County District Court in response to questions from the Oklahoma Court of Criminal Appeals.
E. State court record.

         In addition, Petitioner filed a reply to the Respondent's response to the petition.

         Standard of Review

         Under 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; or
(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).

         Facts

         The Oklahoma Court of Criminal Appeals (“OCCA”) set forth the facts of this case in Petitioner's direct appeal:

Burney was married to Arthur Burney, and lived in a rural area near Coweta, Oklahoma, in a triple-wide manufactured home. Their daughter, Michelle, was fourteen years old at the time of the crime. Burney began an affair with Jeff Wilke in 2010. Although Arthur was alive, Burney told Wilke that Arthur had died earlier that year. After Arthur took a bad fall in September 2010 Burney and Michelle began to say they wished Arthur was dead. Over the next few months, they attempted unsuccessfully to poison Arthur and began offering to pay if someone would kill him. Through a website, Michelle met seventeen-year-old Michael Richardson, who lived in Oklahoma City. On February 15, 2011, Burney and Michelle met Richardson near his Oklahoma City school. Richardson gave Michelle three morphine pills, to be used to murder Arthur. The women returned to Coweta. Although Arthur took the pills, the murder attempt was unsuccessful. On February 17, 2011, Michelle called Richardson and offered him $6, 000, plus marijuana and sexual intercourse with her, if he and two friends, Zach Hardin and Wesley Slemp, would kill Arthur.
Burney drove to Oklahoma City on February 18, 2011, with Michelle in a black rented Chevy Aveo. They picked Richardson up, and got more pills from Slemp and Hardin. The Burneys and Richardson returned to the Burneys' trailer house near Coweta that afternoon. Burney gave Richardson a .22 rifle, and he and Michelle went out on the property to practice shooting. Shortly before 5:00 p.m. Burney texted Michelle “Hes here” [sic]. Michelle locked Richardson in the barn tack room to wait for Arthur. She returned briefly with Richardson's cell phone, telling Richardson that if he did not kill Arthur, Arthur would kill him, and Michelle would kill Arthur; she locked him in the tack room and left. When Arthur entered the barn, unlocked the tack room, and opened the door, Richardson shot him in the face. Arthur fell down and died on the tack room floor. The cause of death was a small caliber gunshot wound to the head.
Richardson communicated with Michelle by phone. He returned to the locked and deserted house, slid the rifle under the trailer skirting, and met the Burneys at the end of the driveway. He told them Arthur was dead. Burney drove the teenagers to a mall and had dinner with Wilke; at about 7:30 p.m. Burney and the teenagers returned to her house. Burney went to the barn, found Arthur, and called 911 shortly after 8:00 p.m. Horton, a Wagoner County Sheriff's Deputy, responded. Burney had moved Arthur's body, at the direction of the 911 operator, when she attempted to revive him. There was a great deal of blood on and near Arthur, but no injury was immediately apparent. The gunshot wound to Arthur's head was discovered during the autopsy. At 9:00 p.m. on February 18, while emergency responders were still with Arthur, Burney texted Wilke, “I love you.” She also called him about 1:00 a.m. on February 19th.
Burney was told on February 19 that Arthur's death was a homicide. In a voluntary interview with police, she said she told Arthur the morning of the 18th that she and Michelle were picking up Richardson in Oklahoma City and she would take the kids to the mall in Tulsa. Burney said that she and the teenagers returned to the house at about 5:00 p.m. She said Richardson stayed in the car while she talked to Arthur, saying they would be home at 8:00 p.m. Arthur planned to meet a friend, Alvin Leonard. Burney said she took the teenagers to the mall, met Wilke for dinner, picked up the kids, and got home shortly before 8:00 p.m. After Burney called Leonard she ...

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