United States District Court, W.D. Oklahoma
HEATON, CHIEF U.S. DISTRICT JUDGE
Mitchell Amelieus Clark, a state prisoner appearing pro
se, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. §2254 for relief from his state court
conviction and sentence. The matter was referred to U.S.
Magistrate Judge Suzanne Mitchell for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Judge
Mitchell has issued a Report and Recommendation (the
"Report") recommending that the petition be denied.
Petitioner has filed an objection to the Report, which
triggers a de novo review by this court of proposed
findings or recommendations to which objection has been made.
in Jackson County convicted Petitioner of one count of
possession of a controlled substance with intent to
distribute after former conviction of two or more felonies.
In accordance with the jury's recommendation, the court
sentenced petitioner to forty-five years of imprisonment.
Petitioner's conviction and sentence were affirmed on
appeal by the Oklahoma Court of Criminal Appeals
("OCCA"). Petitioner raised four grounds for relief
in his direct appeal, which the OCCA reviewed and rejected in
a summary opinion. Petitioner then filed a post-conviction
application, in which he raised ineffective assistance of
appellate counsel and three new claims. The trial court
determined Petitioner had failed to support his allegation of
ineffective assistance of appellate counsel and procedurally
defaulted on the other claims. The OCCA affirmed that
habeas petition, Petitioner lists five grounds for
relief-each of which was raised on direct appeal or in his
post-conviction application. Because the OCCA addressed the
merits of petitioner's claims, review is governed by 28
U.S.C. § 2254(d). 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." Burt v.
Titlow. 571 U.S. __, 134 S.Ct. 10, 16 (2013). Relief may
only be granted "where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with this Court's precedents."
Harrington v. Richter. 562 U.S. 86, 102 (2011). What
is required is a showing that the state court's decision
is "objectively unreasonable." Lockyer v.
Andrade, 538 U.S. 63, 75 (2003) (citing Williams v.
Taylor, 529 U.S. 362, 409 (2000)).
first objection argues that Judge Mitchell failed to
adequately consider two affirmations that were attached to
his application for post-conviction relief and that the
evidence failed to support his constructive possession of the
controlled substance. As the Report thoroughly and adequately
discusses, Petitioner raised his insufficient evidence claim
on direct appeal, and the OCCA denied relief on the merits.
When viewed in the light most favorable to the prosecution, a
rational trier of fact could have found all essential
elements of possession with intent to distribute beyond a
reasonable doubt. Nor would such a decision be based on an
unreasonable determination of the facts in light of the
evidence presented. Further, Judge Mitchell did consider the
affirmations when addressing Petitioner's claim of
ineffective assistance of appellate counsel for failure to
present an ineffective assistance of trial counsel argument.
She correctly determined that the OCCA's conclusion that
Petitioner did not demonstrate a reasonable probability that
the result of his trial would have been different if the
first affirmation or similar testimony had been presented by
his trial counsel was a reasonable application of federal
law. Likewise, she correctly determined that the OCCA's
conclusion that Petitioner's trial would have ended with
the same result even if the jurors had heard Ms. Hocker's
affirmation or similar testimony was also a reasonable
application of federal law. Petitioner's argument that
constructive possession could not be established when the
affirmations are considered is unavailing.
second and third objections to the Report reiterate his
arguments that 21 Okla. Stat. § 51.1 is
unconstitutional. As noted in the Report, this claim was not
raised on direct appeal, was found to have been waived by the
district court in ruling on Petitioner's application for
post-conviction relief, and the OCCA affirmed this decision
on appeal. This ruling is based on an adequate and
independent procedural rule and habeas review is procedurally
remaining objections are all directed to the Report's
disposition of the ineffective assistance of appellate
counsel claim. After de novo review, the court
concludes the Report correctly determined that Petitioner
cannot rely on ineffective assistance of appellate counsel as
cause for his state-court procedural default and that the
OCCA's application of Strickland was reasonable.
fourth and fifth objections also seem to be directed at his
fourth ground for relief-that Oklahoma law enforcement
personnel engaged in a criminal conspiracy with a private
citizen with the private citizen when conducting controlled
purchases of marijuana. Like Petitioner's argument that
the Oklahoma sentencing statute is unconstitutional, this
this claim was not raised on direct appeal, was found to have
been waived by the district court in ruling on
Petitioner's application for post-conviction relief, and
the OCCA affirmed this decision on appeal. This ruling is
based on an adequate and independent procedural rule and
habeas review is procedurally barred. Further, the Report
appropriately addresses this claim when analyzing
Petitioner's ineffective assistance of appellate counsel
the Report [Doc. #14] is ADOPTED and the
petition for writ of habeas corpus [Doc. #1] is
DENIED. A certificate of appealability is