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Holman v. Braggs

United States District Court, N.D. Oklahoma

March 9, 2018

JEORLD BRAGGS, JR., Warden, [1] Respondent.


          James H. Payne United States District Judge

         Petitioner, a state inmate proceeding pro se, brings this 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1) to challenge his convictions in the District Court of Tulsa County, Case No. CF-2010-2933, for felony murder, attempted robbery with a dangerous weapon, and attempted first degree rape. Petitioner claims he is entitled to federal habeas relief because he was deprived of his Sixth Amendment right to the effective assistance of trial counsel. Respondent filed a response (Dkt. # 10) to the petition and provided the state court record necessary to adjudicate Petitioner's claim (Dkt. ## 10, 11, 12). Petitioner did not file a reply. For the reasons discussed below, the Court shall deny the petition for writ of habeas corpus.


         In the District Court of Tulsa County, Case No. CF-2010-2933, the State of Oklahoma charged Petitioner with first degree felony murder (Count I), first degree burglary (Count II), attempted robbery with a dangerous weapon (Count III), and attempted first degree rape (Count IV). O.R., 15-16. Petitioner was tried by a jury, and the following facts were developed at trial.

         Around 3:30 a.m. on July 15, 2010, Petitioner and Derreon Carter walked from the Windsor Village apartment complex to the Brighton Park apartment complex. Tr. IV, 170, 172-74. Both apartment complexes are located near 51st and Yale in Tulsa, Oklahoma. Tr. III, 7; Tr. IV, 170-71. Petitioner followed Carter up some stairs and entered into Elizabeth Craig's second-floor apartment through her unlocked front door. Tr. III, 12; Tr. IV, 173-74. Craig was in her living room when the two men walked in. Tr. III, 16-17. She testified she had just returned from a trip to Taco Bell and Walgreens and the men entered her apartment “within probably 20 seconds” of her return. Id. at 11-19. Carter “shoved something cold and sharp against [Craig's] neck, ” and shoved her onto the couch. Id. at 20-21. He then asked Craig where she kept her money, and Craig screamed. Id. at 22. Carter threatened to kill her if she screamed again, and repeated his demand for money. Id. Craig testified she directed Carter's attention to her purse, and Petitioner picked up the purse and “started carrying it around the apartment.” Id. at 22-23. At some point, Petitioner “dropped” the purse near the television. Id. at 29. Craig testified Petitioner also discovered that her boyfriend, Shannon Chambers, was asleep in the bedroom and “yelled out to Carter, ‘Hey, she's got somebody in here.'” Id. at 11, 30. Carter continued to hold a weapon against Craig's throat and drug her into the bedroom. Id. at 31. For a few seconds, Carter, Craig, and Petitioner “stood at the foot of [her] bed” and “just kind of looked at” Chambers while Chambers continued sleeping. Id. at 31-32.

         Carter then drug Craig back to the couch and ordered her to take off her clothes. Tr. III, 32-33. When Craig resisted, he tried to pull off her sweat pants. Id. at 33-35. According to Craig, Petitioner was “kind of watching, but not participating.” Id. at 33. When Craig noticed her purse was on the floor in front of the television, she told Carter, “Please, just let me get you my money.” Id. at 35-36. Carter continued holding a weapon against her throat and allowed her to crawl to her purse. Id. at 37. Craig testified she reached inside her purse, located her handgun, pointed it in the general direction of both men, and pulled the trigger. Id. at 36-38. Both men jumped on Craig, a struggle ensued, and Craig fired two more rounds. Id. at 38-41; Tr. IV, 193-94. Chambers, Craig's boyfriend, testified he awoke to the sound of gunshots and emerged from the bedroom. Tr. III, 124-25. While Chambers wrestled with both men, Craig stood up and waited for “two clear shots.” Tr. III, 42-44, 126-27; Tr. IV, 194. Craig ultimately shot Carter in the back of the head, rendering him unconscious, and shot Petitioner in the forehead. Tr. III, 47-48, 85. Craig kept her gun trained on Petitioner while she called 911. Id. at 129-30. Each man sustained two gunshot wounds and both were taken to a nearby hospital. Tr. III, 176-79, 183-85; Tr. IV, 182-87. Carter died from his injuries; Petitioner survived. Tr. III, 163; Tr. IV, 108-11.

         Craig testified she had never seen either Carter or Petitioner before the home invasion and that they entered her apartment suddenly and without her consent. Tr. III, 16-20, 49-50. In contrast, Petitioner testified Craig was sitting on her living room floor when the men entered her apartment, Carter walked in and sat down near Craig, and it appeared to Petitioner that the two knew each other. Tr. IV, 174-76. Petitioner testified Carter and Craig began to argue at some point, he heard a gunshot, and the two men began struggling with Craig in an attempt to gain control of the gun. Id. at 177-78. He denied that he had any weapons when he entered Craig's apartment and testified he did not enter the apartment with the intent to rob or sexually assault Craig. Id. at 187-89.

         The jury found Petitioner guilty as charged. Tr. V, 118-19. At sentencing, the state district court dismissed the burglary conviction because it merged with the felony murder conviction. S. Tr., 17, 19-20. Consistent with the jury's sentencing recommendations, the court imposed concurrent prison sentences of life for the murder conviction, 15 years for the attempted robbery conviction, and 2.5 years for the attempted rape conviction. Id. at 19-20.

         After sentencing, Petitioner moved for a new trial. O.R., 185. He alleged he had newly discovered, material evidence that he could not have discovered before trial, namely, evidence that Craig and Carter knew each other before the home invasion. Id. at 185-86. In support of his motion, Petitioner attached an affidavit from Ernest Johnson. Id. at 189-90 (Johnson Aff., May 10, 2012). In the affidavit, Johnson swore he knew Petitioner, Carter, and Craig. Id. at 189. Johnson stated he accompanied Carter to Craig's apartment several times and, on one occasion about one week before the home invasion, Johnson heard Craig threaten to kill Carter. Id. Johnson described Craig as a “pill lady” who was known to sell “tabs” and “bars” and stated that Craig would sometimes give Carter free pills because she and Carter were dating. Id. Johnson also stated he was incarcerated shortly after the home invasion, but he was released sometime before signing his affidavit. Id.

         In August 2012, the state district court held a hearing on the motion for new trial. Mot. Hrg. Aug. 27, 2012, Tr., 1. Petitioner presented testimony from two witnesses: Alan Holman and Anthony Jones. Id. at 2. Holman, Petitioner's father, testified he attempted to gather information after the trial that might help Petitioner establish a connection between Craig and Carter. Id. at 8-9. Petitioner's friend, Tasha Jones, told Holman to speak with Ernest Johnson. Id. at 8-9. Holman spoke with Johnson over the phone and sent him a photo of Craig. Id. at 9-10. Johnson said he had information about Craig and he would be willing to testify. Id. at 9-11. Holman made arrangements for Johnson to meet with the attorney who filed Petitioner's motion for new trial. Id. at 10-11. Anthony Jones testified he heard shortly after the home invasion that Carter had been killed by “some girl named Veronica.” Mot. Hrg. Aug. 27, 2012, Tr., 14-15. Before Petitioner's trial, Jones learned it was Craig who shot Carter. Id. at 15-16. Jones testified he attended the trial, heard Craig's testimony, knew Craig was lying about knowing Carter, and waited until after the trial to tell trial counsel that Craig and Carter knew each other. Id. at 18-19, 21, 24-25.

         At the end of the hearing, the court denied Petitioner's motion for new trial. Mot. Hrg. Aug. 27, 2012, Tr., 32. The court found evidence of a pre-existing relationship between Craig and Carter “would certainly be material” and “important” to support Petitioner's trial testimony. Id. at 30-31. However, because that evidence came from three people Petitioner knew before trial-Ernest Johnson, Anthony Jones, and Tasha Jones-the court found “the evidence could have been discovered prior to trial with due diligence.” Id. at 31. The court further found, in light of Anthony Jones' friendship with Petitioner, that Petitioner failed to show a “reasonable probability that had [the] newly discovered evidence been introduced at trial it would have changed the outcome.” Id. at 31-32.[2]

         Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA). O.R., 193. In his appellate brief, Petitioner asserted one proposition of error: he was deprived of his Sixth Amendment right to the effective assistance of trial counsel. Dkt. # 10-1 at 10. He specifically alleged trial counsel (1) failed to adequately investigate whether there was a pre-existing relationship between Craig and Carter, (2) presented an incoherent defense strategy by suggesting that the men entered Craig's apartment by mistake, and (3) failed to use readily available evidence recovered from Craig's apartment-i.e., an empty taco wrapper from Taco Bell-to impeach Craig's testimony that the home invasion occurred “less than twenty seconds” after she returned to her apartment. Id. at 10-16.

         Petitioner also filed an application for an evidentiary hearing on his Sixth Amendment claim. Dkt. # 10-2. In support, Petitioner provided a second affidavit from Ernest Johnson. Dkt. # 10-2 at 9-11 (Johnson Aff. Nov. 27, 2012). In an unpublished order, the OCCA granted the application, finding “sufficient evidence . . . showing a strong possibility counsel was ineffective for failing to utilize” evidence that may have impeached Craig's credibility and supported Petitioner's testimony. Dkt. # 10-5 at 1-2; see Rule 3.11(B)(3)(b)(I), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (requiring applicant seeking remand for evidentiary hearing to show “by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence”). As a result, the OCCA remanded the case to the state district court for an evidentiary hearing. Dkt. # 10-5 at 2.

         The state district court held the evidentiary hearing in August 2013. Evid. Hrg. Aug. 28, 2013, Tr., 1. Petitioner presented testimony from three witnesses: (1) Corporal Terrence Campbell from the Tulsa Police Department, (2) Ernest Johnson, and (3) trial counsel. Id. at 1-2, 5. The State presented testimony from Elizabeth Craig. Id. at 2. Following the hearing, the state district court issued written findings of fact and conclusions of law (Dkt. # 10-6) based on the evidence presented at the hearing on the motion for new trial and the evidentiary hearing.[3]

         As relevant to Petitioner's ineffective-assistance-of-counsel claim, the court found Petitioner's father conducted a post-trial investigation, obtained Ernest Johnson's name from Petitioner's friend, and arranged for Johnson to provide an affidavit. Dkt. # 10-6 at 3. At the evidentiary hearing, Johnson, a convicted felon, testified he knew Petitioner and Carter for a few years before the home invasion, he recorded music with Petitioner, and he lived in the same apartment complex as Carter. Id. at 4. Johnson heard about the shooting right after it happened, went to prison on an unrelated matter some time after the shooting, and was released from prison in August 2011. Id. No one contacted Johnson on Petitioner's behalf until after the trial. Id.

         Johnson also identified Craig from a photograph admitted at trial and testified he recognized Craig as one of Carter's girlfriends. Dkt. # 10-6 at 4. Johnson testified he had seen Craig and Carter together on three occasions before the home invasion: once at a convenience store near Craig's apartment and twice when he accompanied Carter to Craig's apartment. Id. He also testified he and Carter would go to Craig's apartment to obtain Xanax and Lortab from Craig. Id. At the ...

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