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Shepherd v. Bolt

United States District Court, N.D. Oklahoma

October 12, 2017

MIKE BOLT, Warden, [1] Defendant.



         Before the Court is Petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1). Respondent filed a response (Dkt. # 13) and provided the state court record (Dkt. # 14). Petitioner did not file a reply. For the reasons discussed below, the Court denies the petition for writ of habeas corpus.[2]


         In March 2012, Petitioner was the driver and sole occupant of a 2000 Dodge Durango. Petitioner failed to yield at an intersection south of Skiatook, Oklahoma and nearly hit a vehicle being driven by Sergeant Michael Fish, of the Osage Nation Police Department. Sergeant Fish initiated a traffic stop. Sergeant Fish ultimately arrested Petitioner on an outstanding arrest warrant. Based on the arrest, Sergeant Fish decided to tow the Durango. Petitioner told Sergeant Fish that he was in the process of purchasing the Durango but that he did not yet own it. Before towing the vehicle, Sergeant Fish performed an inventory search. Deputy Kevin Burke, of the Osage County Sheriff's Department, arrived on scene after Petitioner's arrest but before Sergeant Fish began the inventory search.

         On the passenger side floorboard, Sergeant Fish found a document case containing an envelope addressed to Anthony Shepherd and a pink pencil case that held two syringes. One syringe was empty; the other was filled with a liquid that field-tested positive for methamphetamine. Sergeant Fish also found items associated with drug use, including spoons burned on the underneath side, hemostatic clips with burned ends used to smoke marijuana cigarettes, and red straws with a white powdery residue. Additionally, inside a plastic gasoline can, Sergeant Fish and Deputy Burke found plastic tubing, coffee filters with pink residue, aluminum foil, Heet packages, small plastic baggies, and a plastic sack containing an empty pill bottle, two razor blades, and a receipt reflecting the recent purchase of two cans of carburetor cleaner. Sergeant Fish also found two cans of carburetor cleaner in the Durango near an empty plastic two-liter bottle.

         The State charged Petitioner with three drug offenses: Count 1, endeavoring to manufacture methamphetamine in violation of Okla. Stat. tit. 63, § 2-408; Count 2, possession of a controlled dangerous substance (methamphetamine) in violation of Okla. Stat. tit. 63, § 2-402; and Count 3, unlawful possession of drug paraphernalia in violation of Okla. Stat. tit. 63, § 2-405. See Dkt. # 14-5 at 3. The State later filed a supplemental information alleging that Petitioner had 10 prior felony convictions; six of those convictions were for drug offenses. See Dkt. # 14-5 at 7-8. Petitioner was tried by a jury in a two-stage trial (guilt phase and sentencing phase).

         During the guilt phase, Sergeant Fish and Deputy Burke testified regarding the circumstances of the traffic stop and the items recovered during the search of the Durango. Deputy Burke testified that he was certified as a clandestine methamphetamine lab officer and that the items found inside the plastic gasoline can, the two cans of carburetor cleaner, and the plastic two-liter bottle were consistent with items used to manufacture methamphetamine. Anthony Goldman, a crime analyst with the Oklahoma State Bureau of Investigation (OSBI), testified that he analyzed the residue on the coffee filters and the contents of the liquid-filled syringe found in the Durango. Goldman confirmed that the syringe contained methamphetamine and testified that the coffee filters contained residue from either ephedrine or pseudoephedrine, both of which are precursor substances for manufacturing methamphetamine.

         Petitioner did not testify during the guilt phase, but he called one defense witness: Jacqueline Griesbaum. Griesbaum testified that she had known Petitioner for five years and that Petitioner and his girlfriend, Lisa Beauvais, lived with Griesbaum and her husband from February 2010 until sometime in 2011. Griesbaum had no knowledge of Petitioner using or attempting to manufacture methamphetamine in her home during that time period. But Griesbaum testified that she and her husband threw Beauvais out of their house after Griesbaum's husband found Beauvais attempting to manufacture methamphetamine. Griesbaum also testified that Beauvais took some of the Griesbaums' property when she left, including the plastic gas can found in the Durango. The jury acquitted Petitioner of endeavoring to manufacture methamphetamine (Count 1), but convicted him of possessing the methamphetamine in the syringe (Count 2) and possessing drug paraphernalia, i.e., the empty syringe (Count 3).

         During the sentencing phase of Petitioner's trial, the State introduced evidence of Petitioner's 10 prior felony convictions. Petitioner testified on his own behalf, effectively urging the jury to consider his need for drug treatment in determining his sentence. The state district court instructed the jury that because Petitioner committed the offenses of conviction after two former convictions for felony drug offenses, the permissible sentencing range for Count 2 was 6 years to life imprisonment. See Dkt. # 13-13 at 13 (Instr. No. 25); see also Okla. Stat. tit. 21, § 51.1(C) (providing enhanced punishment for certain repeat offenders). Consistent with the jury's sentencing recommendations, the trial court imposed a 21-year prison sentence for Count 2 and a 1-year jail sentence for Count 3.

         Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA). He raised only one proposition of error: the evidence was insufficient to sustain his convictions (Dkt. # 13-2 at 7). On July 1, 2014, in an unpublished summary opinion, the OCCA rejected Petitioner's sufficiency challenge and affirmed the Judgment and Sentence of the trial court (Dkt. # 13-4).

         Proceeding pro se, Petitioner then sought post-conviction relief in state district court, asserting that (1) appellate counsel was ineffective for failing to investigate and raise “stronger” issues on direct appeal, (2) the prosecution prejudiced his defense by failing to provide discovery until 3 or 4 days before trial, (3) trial counsel was ineffective for refusing to allow Petitioner to testify, and (4) trial counsel was ineffective for failing to object to an erroneous jury instruction on the range of punishment. See Dkt. # 13-5 at 2, 6-9. On February 12, 2015, the state district court denied relief. See Dkt. # 13-9 at 3, 7. Petitioner appealed from the denial of his application for post-conviction relief, and the OCCA affirmed (Dkt. # 13-10).

         Petitioner filed the instant petition for writ of habeas corpus and a supporting brief on December 9, 2015 (Dkt. ## 1, 2).


         Petitioner asserts that he is entitled to federal habeas relief on five grounds: (1) appellate counsel deprived him of his Sixth Amendment right to effective assistance of counsel by failing to raise three issues on appeal, (2) the prosecution deprived him of his Fifth Amendment right to due process, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), by failing to timely provide discovery, (3) trial counsel deprived him of his Sixth Amendment right to effective assistance of counsel by refusing to allow him to testify at trial, (4) trial counsel deprived him of his Sixth Amendment right to effective assistance of counsel by failing to object to an erroneous jury instruction, and (5) the state deprived him of his Fourteenth Amendment right to due process by failing to prove his guilt beyond a reasonable doubt. See Dkt. # 2 at 4, 9, 11, 16, 19.

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs federal habeas review of constitutional claims brought by state prisoners. See 28 U.S.C. § 2254. Respondent concedes, and the Court finds, that Petitioner (1) timely filed his habeas petition, see id. § 2244(d), and (2) exhausted available state remedies as to all five claims, see id. § 2254(b)(1)(A). See Dkt. # 13 at 2. Because the OCCA adjudicated each of Petitioner's claims on the merits, the Court may grant habeas relief only if Petitioner demonstrates that the OCCA's adjudication of those claims

(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).

         In applying § 2254(d)'s “highly deferential standard, ” the Court must give the OCCA's decision the “benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 ...

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