United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
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
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.
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.
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).
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
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).
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
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).
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).
filed the instant petition for writ of habeas corpus and a
supporting brief on December 9, 2015 (Dkt. ## 1, 2).
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.
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;
(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).
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 ...