United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge
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 Mack Alford Correctional Center in
Stringtown, Oklahoma. He is attacking his convictions and
sentence of life without parole in Bryan County District
Court Case No. CF-2011-175 for Trafficking in Methamphetamine
(Count 1), After Former Conviction of Two or More Violations
of the Uniform Controlled Dangerous Substances Act; Unlawful
Possession of a Firearm, After Former Felony Conviction
(Count 2); and Possession of Drug Paraphernalia (Count 3). He
sets forth the following grounds for relief:
I. Insufficient evidence to prove Petitioner had dominion and
control, or even any knowledge whatsoever, of the trafficking
quantity of methamphetamine found in Ms. Maxey's lingerie
II. Petitioner's mandatory sentence of life without
parole for Count 1 is excessive and violates his protection
under both the federal and state Constitutions against cruel
and unusual punishment.
III. Insufficient evidence to prove Petitioner was guilty of
Unlawful Possession of a Firearm, After Former Felony
IV. The trial court committed plain error by denying
Petitioner's request for a mistrial, thereby preventing
him from receiving a fair and impartial jury trial.
V. Petitioner was prejudiced by ineffective assistance of
VI. The trial court committed plain error by failing to give
Oklahoma Uniform Jury Instruction 9-6A, advising the jury
that they were required to give separate consideration to
each of the three counts charged.
VII. The trial court erred by failing to follow the
statutorily-mandated procedures when the jury had questions
both during the first stage and second stage of
Petitioner's jury trial.
VIII. The cumulative effect of all the cited errors deprived
Petitioner of a fair trial and warrants relief.
concedes that Petitioner has exhausted his 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. Petitioner's reply brief.
D. Summary Opinion affirming Petitioner's judgment and
sentence. Key v. State, No. F-2012 (Okla. Crim. App.
July 25, 2013).
E. State court record.
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;
(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).
Oklahoma Court of Criminal Appeals (OCCA) set forth the facts
of the case in its Opinion affirming Petitioner's
Judgment and Sentence:
On March 25, 2011, members of the Bryan County Sheriff's
Department, the District 19 Drug Task Force, the Oklahoma
Highway Patrol and the Durant Police Department executed a
search warrant on the mobile home located at 303 Martin Lane,
Colbert, Oklahoma. Lori Maxey owned the mobile home and
shared the residence with Appellant.
When the officers approached the mobile home, they discovered
Shane St. Clair in the front yard. St. Clair was texting
Appellant's cell phone asking: “I'm outside if
ur up or at home?” (State's Ex. No. 20). The
officers knocked on the door and announced their presence
three times to no avail. They breached the door and found
Appellant and Maxey lying in bed in the master bedroom. Both
were clothed with a T-shirt. The officers permitted Appellant
and Maxey to fully cloth [sic] themselves and then placed
them in the living room.
The officers searched the home and found 26.44 grams of
crystalline methamphetamine, 2 glass pipes, aluminum foil,
and a digital scale that looked like a pack of Marlboro
cigarettes in a dresser drawer filled with female
undergarments. The methamphetamine was in both a clear baggie
and red zipit baggies. The officers found a ball cap on the
dresser. The ball cap contained Appellant's billfold,
cell phone, cash, and a baggie containing .22 grams of
powdered methamphetamine. In the floor next to the bed the
officers located a propane torch frequently used by drug
users to heat and smoke methamphetamine.
The door to the closet in the bedroom was open. Officers
found a loaded pistol on the shelf and a rifle in its case.
Several vehicles were parked in the yard of the residence. A
red Dodge Stratus four-door and a faded blue Chevrolet pickup
were parked in front of the home. Appellant's truck was
parked next to the mobile home and had a stock trailer
hitched to it. A green Jeep Grand Cherokee was also parked on
the side of the home. The officers searched the vehicles.
Inside Appellant's stock trailer the officers found
numerous items associated with the manufacture of
methamphetamine. The officers located coffee filters, straws,
a glass mason jar, a yellow bucket, hydrogen peroxide, used
rubber gloves, and a Gatorade bottle with two pieces of black
tubing and electrical tape on it. The Gatorade bottle had
been transformed into a hydrogen chloride gas generator used
to powder-out methamphetamine in the final processes of
making the drug. The bottle was tested and determined to
The Jeep Grand Cherokee was registered to Constance Clites.
The keys to the vehicle were found inside the residence. The
officers had last observed this vehicle when they conducted
an inventory search of the vehicle before it was impounded
from the courthouse parking lot on the day that Clites went
to prison for manufacturing methamphetamine. A search of the
Jeep also revealed numerous items associated with the
manufacture and use of methamphetamine. The officers located
acetone, digital scales, an empty Gatorade bottle with black
tubing and electrical tape on it, red zipit baggies, and a
broken methamphetamine pipe. One of the baggies contained a
cutting agent used to dilute methamphetamine for resale.
Officers also found a box of .32 caliber automatic ammunition
that matched the pistol found in the closet. None of these
items were in the vehicle on the day that Clites went to
Officers obtained a search warrant for Appellant's cell
phone and extracted information from the device. The incoming
and outgoing text messages revealed Appellant's ongoing
personal and business relationship with Maxey. Appellant used
Maxey's mobile home as his residence when it suited his
purposes. Appellant and Maxey had a twelve-month-old daughter
together. Appellant interacted extensively with Maxey's
young son. Both Appellant and Maxey helped each other sell
methamphetamine. They shared money and some bills. However,
Appellant's relationship with Maxey was not totally
exclusive. Appellant spent time in the home of Charla
Carbaugh as well. Appellant's choice to spend consecutive
nights with Carbaugh angered Maxey and caused her to lash out
at him in the text messages. Ultimately, Maxey accepted
Appellant's behavior. The day before the officers
executed the search warrant on her mobile home, Maxey asked
Appellant to come with her to check the quality of some
methamphetamine. When Appellant failed to timely respond,
Maxey complained that Appellant knew that she did not have
any methamphetamine but that she didn't know why she
would expect anything different from him.
Key v. State, No. F-2012-211, slip op. at 2-4 (Okla.
Crim. App. July 25, 2013) (unpublished) (Dkt. 10-4). The
OCCA's factual findings are entitled to a presumption of
correctness, unless Petitioner produces clear and convincing
evidence to rebut the presumption. 28 U.S.C. §
I: Sufficiency of the Evidence (Count 1)
alleges in Ground I that the evidence was insufficient to
sustain his conviction for Trafficking, as alleged in Count
1, because the evidence did not demonstrate his knowledge of
or control over the methamphetamine found in Ms. Maxey's
lingerie drawer in her home. Respondent asserts the
OCCA's determination of this claim was not contrary to,
or an unreasonable application of, Supreme Court law, nor was
it based on an unreasonable determination of the facts
presented on direct appeal.
Sufficiency of the evidence is a mixed question of law and
fact. We ask whether the facts are correct and whether the
law was properly applied to the facts, which is why we apply
both 28 U.S.C. § 2254(d)(1) and (d)(2) when reviewing
sufficiency of the evidence on habeas.
Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006)
(citations omitted), cert. Denied, 549 U.S. 1285
OCCA analyzed and denied relief on this claim as follows:
In his first proposition of error, Appellant challenges the
sufficiency of the evidence supporting his conviction for
trafficking in methamphetamine. We review to determine
whether, after reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime charged
beyond a reasonable doubt. Easlick v. State, 90 P.3d
556, 559 (Okla. Crim. App. 2004); Speuhler v. State,
709 P.2d 202, 203-204 (Okla. Crim. App. 1985). The requisite
elements of trafficking in methamphetamine are:
Third, twenty (20) grams or more of methamphetamine.
Lewis v. State, 150 P.3d 1060, 1062 (Okla. Crim.
App. 2006); Okla. Stat. tit. 63 § 2-415(C)(4)(a) (Supp.
2007); Inst. No. 6-13, OUJI-CR(2d) (Supp. 2010).
does not dispute that the officers discovered 26.44 grams of
crystalline methamphetamine in the mobile home but instead
contends that the evidence fails to show that he knowingly
possessed the drug. As he did at trial, Appellant contends
that it was Maxey's home and that she solely possessed
the methamphetamine. The State contends that sufficient
evidence was presented to establish that Appellant was in
constructive possession of the methamphetamine.
It has been frequently held in this State that the possession
prohibited by the drug laws need not be actual physical
custody of the controlled substance; it is sufficient that
the State prove the accused to have been in constructive
possession of the contraband material by showing that he had
knowledge of its presence and the power and intent to control
its disposition or use. Further, possession need not be
exclusive; a person may be deemed to be in joint possession
of a drug which is in the physical custody of a companion, if
he willingly and knowingly shares with the other the right to
control the contraband. We have, however, repeatedly held
that proof of mere proximity to a prohibited substance is
insufficient. Whether the case is tried on the theory of sole
or joint possession, proof that the accused was present at a
place where drugs were being used or possessed is, in and of
itself, insufficient to justify a finding of possession.
There must be additional evidence of knowledge and control.
Staples v. State, 528 P.2d 1131, 1133 (Okla. Crim.
App. 1974) (internal citations omitted). Circumstantial
evidence which shows that a controlled dangerous substance
was found on premises possessed by the accused and under his
exclusive control, permits an inference of knowledge and
control of that substance. Id. Absent exclusive
access, use, or possession of the premises, it may not be
inferred that the accused had knowledge and control of the
substance unless there are additional independent factors
showing the accused's knowledge and control of the
substance. Id. at 1134. Additional independent
factors showing knowledge and control may consist of
incriminating statements made by the defendant, incriminating
conduct by the accused, prior police investigation, or any
other circumstance from which possession may be fairly
Taking the evidence in the present case in the light most
favorable to the State, we find that any rationale [sic]
trier of fact could have found that Appellant was in
constructive possession of the 26.44 grams of methamphetamine
beyond a reasonable doubt. The officers found the
methamphetamine on premises that were not solely possessed or
under the exclusive control of a single individual. The
evidence was such that the jury could have reasonably
concluded that Appellant maintained Maxey's mobile home
as a residence. See Black's Law Dictionary 1335
(Eighth Edition 2004) (“bodily presence as an
inhabitant in a given place”). The text messages
introduced into evidence illustrated that Appellant
frequented the mobile home. Appellant received mail at the
residence. The officers found Appellant in bed with Maxey in
the mobile home on the day that they discovered the
methamphetamine. Appellant's twelve-month-old daughter
with Maxey was also inside the home. Appellant took
Maxey's son to little league baseball practice. He
received messages updating him as to practice and game times.
Maxey sent Appellant angry text messages when he failed to
“come home” on consecutive nights. (State's
Ex. No. 20; Tr. 223).
Appellant's act of listing his grandfather's home as
his address on his Driver's License as well as the
overnights he spent with Carbaugh do not prevent the mobile
home from being considered Appellant's residence.
“A person  may have more than one residence at a time
but only one domicile.” Id. We note that both
Maxey and St. Clair referred to the mobile home as
Appellant's “home.” (State's Ex. No. 20).
Appellant declared under oath on his Application for
Appointed Counsel that he resided with Maxey in the mobile
home with their daughter and Maxey's other children.
Reviewing the evidence in its entirety and accepting all
reasonable inferences and credibility choices that tend to
support the jury's verdict, we find that there were
additional independent factors from which the jury could
rationally conclude that Appellant had knowledge of the
methamphetamine in the dresser drawer and shared the intent
to control the drug with Maxey. Bland v. State, 4
P.3d 702, 713 (Okla. Crim. App. 2000).
The bulk of the drugs were found in a closed dresser drawer.
The officers found 26.44 grams of crystalline methamphetamine
inside clear plastic baggies and red colored zipit baggies.
The baggies, foil, pipes, and scales were in a dresser drawer
containing women's underwear, some dress socks and tube
socks. However, the officers found a propane torch lying on
the floor next to the bed. Methamphetamine users commonly use
such torches to smoke methamphetamine. The officers could not
think of any other reason for the torch to be in the floor
next to the bed. This was the same bed in which the Officers
found Appellant and Maxey partially clothed.
The officers also found .22 grams of powdered methamphetamine
in Appellant's ball cap along with his billfold and cell
phone. They found items associated with the manufacture of
methamphetamine in Appellant's stock trailer including a
Gatorade bottle converted into a hydrogen chloride gas
generator. Testing of the substance found inside the
container confirmed the presence of methamphetamine.
Though the 26.44 grams of methamphetamine was in a
crystalline form most often associated with importation from
Mexico and the methamphetamine and items found in
Appellant's cap and stock trailer were more commonly
associated with locally manufactured powdered
methamphetamine, the jury could have rationally concluded
that Appellant had been selling crystalline methamphetamine.
Some of the text messages on Appellant's phone indicated
attempts by Appellant and others to establish meeting
opportunities. In the weeks before the officers' search,
Appellant openly solicited the sale of methamphetamine by
means of text message. On February 23rd, Appellant had
offered to sell an eighth of an ounce of methamphetamine to
an unidentified individual for $275.00. On February 24th, he
had offered to sell an eighth of an ounce of methamphetamine
for $280.00. (State's Ex. No. 20). This figure was the
going rate for crystalline methamphetamine. This price was
much too low for locally manufactured powdered
methamphetamine as the locally produced powder form was much
more favored. (Tr. 133, 195-202).
The text messages from Appellant's phone showed the
financial arrangement between Appellant and Maxey. Within the
texts, Maxey complained to Appellant that he still had not
given her any money and explained that she had recently given
him $1, 200.00. Although Appellant had paid court costs and
bought food for the kids with some of the money, Maxey was
upset because Appellant had gone out and spent the rest of
the money having a good time despite the fact that he knew
that she needed the money for a lawyer. The text messages
further revealed that less than 24 hours before the officers
searched the mobile home, Maxey had asked Appellant to check
on some money that she was owed by another individual. Later
that same day, Maxey asked Appellant to come with her to
check out the quality of some “shit, ”
i.e., methamphetamine, to make sure that it was
good. (State's Ex. No. 20). When Appellant failed to
timely respond to her text, Maxey complained that it was
“[a]bout par” for Appellant to turn off his phone
when he knew that she did not “have no shit.”
(State's Ex. No. 20). Less than 24 hours later, the
officers found Maxey and Appellant in bed together a few feet
from the 26.44 grams of methamphetamine with the propane
torch in [sic] the floor.
Taking the evidence in the light most favorable to the State,
we find that any rationale [sic] trier of fact could have
found that Appellant knowingly possessed twenty grams or more
of methamphetamine beyond a reasonable doubt. This
proposition is denied.
Key, No. F-2012-211, slip op. at 4-10 (footnote
federal habeas review of a state court conviction, “the
relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). The Supreme Court repeatedly has
emphasized the deference the reviewing court owes to the
trier of fact and “the sharply limited nature of
constitutional sufficiency review.” Wright v.
West, 505 U.S. 277, 296 (1992) (citing Jackson,
443 U.S. at 319). “[A] federal habeas corpus court
faced with a record of historical facts that supports
conflicting inferences must presume--even if it does not
affirmatively appear in the record--that the trier of fact
resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.” Jackson, 443
U.S. at 326. The court must “accept the jury's
resolution of the evidence as long as it is within the bounds
of reason.” Grubbs v. Hannigan, 982 F.2d 1483,
1487 (10th Cir. 1993) (citing United States v.
Edmondson, 962 F.2d 1535, 1548 (10th Cir. 1992)).
“To be sufficient, the evidence supporting the
conviction must be substantial; that is, it must do more than
raise a mere suspicion of guilt.” Beachum v.
Tansy, 903 F.2d 1321, 1332 (10th Cir.) (citing
United States v. Troutman, 814 F.2d 1428, 1455 (10th
Cir. 1987)), cert. denied, 498 U.S. 904 (1990).
a sufficiency challenge was resolved on the merits by the
state courts, . . . AEDPA adds an additional degree of
deference, and the question becomes whether the OCCA's
conclusion that the evidence was sufficient constituted an
unreasonable application of the Jackson
standard.” Diestel v. Hines, 506 F.3d 1249,
1267 (10th Cir. 2007) (citations and internal quotation marks
omitted), cert. denied, 553 U.S. 1079 (2008). This
standard is called “deference squared.” Hooks
v. Workman, 689 F.3d 1148, 1166 (10th Cir. 2012 (quoting
Young v. Sirmons, 486 F.3d 655, 666 n.3 (10th Cir.
2007)). “Even if a state court resolves a claim in a
summary fashion with little or no reasoning, [this court]
owe[s] deference to the state court's result.”
Paine v. Massie, 339 F.3d 1194, 1198 (10th Cir.
2003). A state court's summary disposition must be upheld
unless a federal habeas court is persuaded, after conducting
an independent review of the record and pertinent federal
law, that the state court's result “unreasonably
applies clearly established federal law.” Id.
(quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th
the Court finds there is no question that a rational trier of
fact could have found beyond a reasonable doubt that
Petitioner knowingly possessed twenty (20) grams or more of
methamphetamine to satisfy the elements of Trafficking in
Methamphetamine. See OUJI-CR(2d) 6-13 (Dkt. 11-9 at
100). The Court further finds the OCCA's determination of
this claim did not result in a decision that was contrary to,
or involved an unreasonable application of Supreme Court law.
See 28 U.S.C. § 2254(d)(1). The Court also
finds the OCCA's decision was not based on an
unreasonable determination of the facts presented in the
State court proceeding. See 28 U.S.C. §
2254(d)(2). Ground I of this habeas petition is meritless.
II: Excessive Sentence
claims in Ground II that his mandatory sentence of life
imprisonment without the possibility of parole for
Trafficking in Methamphetamine (Count 1), after two
drug-related convictions, is excessive and violates the