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Ersland v. Bear

United States District Court, W.D. Oklahoma

September 26, 2017

JEROME ERSLAND, Petitioner,
v.
CARL BEAR, WARDEN, JOSEPH HARP CORRECTIONAL CENTER, Respondent.

          MEMORANDUM OPINION

          JOE HEATON, CHIEF U.S. DISTRICT JUDGE.

         Petitioner, who is represented by counsel, has filed a petition for writ of habeas corpus challenging his first degree murder conviction in Oklahoma County District Court Case No. CF-2009-3199. Doc. 1. Petitioner appealed his conviction and life sentence to the Oklahoma Court of Criminal Appeals (hereinafter “OCCA”). The OCCA affirmed in an unpublished opinion. Ersland v. State, No. F-2011-638 (Okla. Crim. App. June 20, 2013). Petitioner also sought post-conviction relief, which the OCCA denied. Ersland v. State, No. PC-2015-94 (Okla. Crim. App. Apr. 30, 2015). Copies of the OCCA's opinions are attached to the response as Exhibits 5 and 7.

         Petitioner presents two grounds for relief. Both are based on newly discovered evidence and both were raised on post-conviction. See Appellant's Brief, No. PC-2015-94 (Resp't's Ex. 6). In his first ground, petitioner asserts that because the OCCA denied him relief based on this new evidence, he was denied a fair trial and his right to present a defense. In his second ground, petitioner asserts that his trial counsel was ineffective for not discovering and presenting the evidence at trial. For the following reasons, the court concludes that neither ground warrants relief.[1]

         THE FACTS

         The facts are largely undisputed. On May 19, 2009, Antwun Parker and Jevontai Ingram attempted to rob the Reliable Pharmacy in Oklahoma City. Ingram was armed. Petitioner, who was working that day along with two female employees, shot and killed Parker. The question at trial was whether petitioner shot Parker in self-defense.

         Petitioner first shot Parker in the head. Parker immediately fell to the ground. Ingram then fled and petitioner pursued him. When petitioner came back inside, Parker was still lying on the floor. He was alive but unconscious. Petitioner walked past Parker to go behind the counter. With a second gun, petitioner then reapproached Parker and shot him five more times. These shots were close range cluster shots to Parker's chest and abdomen. After the second shots, petitioner called 911.

         Video surveillance cameras captured the event.[2] At trial, the State conceded that petitioner's first shot to Parker was lawful.

         GROUND ONE

         In California v. Trombetta, 467 U.S. 479, 485 (1984), the Supreme Court held that the constitutional right to a fair trial under the Due Process Clause includes “a meaningful opportunity to present a complete defense.” See also Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.”). In his first ground for relief, petitioner asserts that the OCCA denied him this right when it failed to grant him relief in the form of new trial or an evidentiary hearing based on newly discovered evidence. In denying petitioner relief, the OCCA concluded that the evidence is not new evidence. It additionally held that even if the evidence had been presented at trial, it would not have affected the outcome of petitioner's trial. Ersland, No. PC-2015-94, slip op. at 4-5.

         Because the OCCA addressed the merits of petitioner's claim, review is governed by 28 U.S.C. § 2254(d). Pursuant to this section of the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”), in order for petitioner to obtain relief, he must show that the OCCA's adjudication of his claim either

(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.

See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that “[t]he petitioner carries the burden of proof”). The very focus of this statutory provision is the reasonableness of the OCCA's decision. “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). In other words, “[i]t is not enough that [this] court, in its independent review of the legal question, is left with a firm conviction that the [OCCA] was erroneous.” What is required is a showing that the OCCA's decision is “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citation omitted).

         The Supreme Court has repeatedly acknowledged that Section 2254(d) “‘erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court[, ]'” and that “[i]f [it] is difficult to meet, that is because it was meant to be.” White v. Wheeler, 577 U.S. ___, 136 S.Ct. 456, 460 (2015) (quoting Burt v. Titlow, 571 U.S. ___, 134 S.Ct. 10, 16 (2013)); Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d) “stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102. What remains, then, is a very narrow avenue for relief, one that permits ...


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