United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...