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Key v. Harvanek

United States District Court, E.D. Oklahoma

September 29, 2017

SAMMY LYNN KEY, Petitioner,
v.
KAMERON HARVANEK, 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 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 drawer.
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 Conviction.
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 counsel.
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.

         Respondent 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).
D. Transcripts
E. State court record.

         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 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 contain methamphetamine.
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 prison.
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. § 2254(e)(1).

         Ground I: Sufficiency of the Evidence (Count 1)

         Petitioner 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 (2007).

         The 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:
First, knowingly;
Second, possessed;
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).

         Appellant 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 inferred. Id.
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 omitted).[1]

         In 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).

         “[W]here 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 Cir. 1999)).

         Here, 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.

         Ground II: Excessive Sentence

         Petitioner 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 ...


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