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Leslie v. Bryant

United States District Court, W.D. Oklahoma

March 20, 2018

ANTOINE DARNELL LESLIE, Petitioner,
v.
JASON BRYANT, Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         Petitioner, appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Chief United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Respondent filed a response, Doc. 10, and conventionally filed the jury-trial transcripts (TR), the motion hearing transcript (“M. TR”), and the sentencing transcript (“S. TR”). Petitioner replied, Doc. 17.[1] For the reasons set forth below, the undersigned recommends the court deny habeas relief.

         I. Factual background.

         This case arose from a traffic stop and subsequent search of Petitioner's vehicle during which Oklahoma Bureau of Narcotics, (“OBN”) agents found three pounds of cocaine, leading to Petitioner's arrest and eventual conviction for aggravated trafficking in illegal drugs. Doc. 10, Ex. 1, at 6-8.[2]

         Petitioner was driving his gray Toyota eastbound on Interstate 40 in Canadian County, Oklahoma, when Kyle English, an agent with the OBN, pulled Petitioner over to the side of the road for traffic violations.[3] Id. at 6; TR I, at 67, 73, 77-78. Agent English testified he stopped Petitioner for following another vehicle too closely and making an unsafe lane change without signaling. TR I, at 78, 80, 141-43. After Agent English made the traffic stop, Mike Arnold, another OBN agent, arrived with Scout, his drug-detection dog, and parked behind Agent English. Id. at 94, 161, 164.

         Agent English testified he approached the passenger side of the gray Toyota and asked Petitioner for his driver's license and insurance papers. Id. at 80. Petitioner handed the documents to Agent English who told Petitioner he would issue a warning citation for the traffic violations. Id. at 82. Petitioner complied with the agent's request for him to sit in the patrol car with Agent English while the latter wrote out the warning citation. Id. at 83.

         Agent English verified Petitioner's license was valid, checked to see if Plaintiff had any outstanding warrants and determined Petitioner owned the car. Id. at 90-91. Agent English testified that as the two casually talked, he became suspicious when Petitioner told him he had been to the Grand Canyon and had been driving for thirty hours. Id. at 86. This statement did not comport with Agent English's knowledge of the distance from the Grand Canyon to the point of the traffic stop. Id. at 86. Nevertheless, he completed the warning citation for the alleged traffic violations and handed the citation and other documents back to Petitioner. Id. at 91. As depicted on the DVD recording of the traffic stop, the two men shook hands, and Agent English admonished Petitioner to “be safe.” TR, Ex. 8, at 14:32. As Petitioner opened the door to exit the patrol car, however, Agent English quickly asked if Petitioner would allow him to ask a few more questions. TR I, at 92. Petitioner replied, “Go ahead.” Id. Agent English then asked Petitioner a series of questions about whether certain illegal substances were in the car:

I asked him if there was anything illegal in the vehicle, and he told me no. I then asked him if there was any marijuana in the vehicle. He said-he told me he doesn't smoke, doesn't drink. Then I asked him if there was any methamphetamine in the vehicle, he said, “There's nothing.” Then I asked him if there was any cocaine in the vehicle, and his response was, “I'm drug-free.” Then I asked him if there was any heroine in the vehicle, and he said, “I got nothing.” Then I asked him-I believe I asked him if there was any weapons of any kind, and he answered no. Then I asked him if everything in the vehicle belonged to him, and he said yes. Then I asked him for permission to search his vehicle. He told me no, did not give me permission.

Id. at 92-93. The DVD recording of the traffic stop demonstrates Agent English asked Petitioner three times for permission to search the car. After the first two attempts, Petitioner asked, “Why?” and stated he was ready to go home. Doc. 10, Ex. 1, at 8 (citing TR Ex. 8). After the third time, Petitioner answered, “No.” TR Ex. 8, at 15:44. Agent English then asked, “Okay, let me ask you this, can my partner run his drug dog around your vehicle?” Id. at 15:48-49. Petitioner answered, “I can't stop you from doing it, can I?” Id. at 15:52-53.

         Agent English replied, “Well you can tell me yes or no. You can give me permission to do that or-” at which time Petitioner said, “Go ahead.” Id. at 15:54-58. When Agent English stated, “so that's alright with you, ” Petitioner nodded his head. Doc. 10, Ex. 1, at 8 (citing TR Ex. 8).

         Agent Arnold testified that his drug dog, Scout, exhibited behaviors indicating he had detected drugs in Petitioner's car. TR I, at 95, 98, 164-65. Based on the dog's alert, the agents searched Petitioner's car and found nearly three pounds of cocaine hidden under the car's rear seat. Id. at 100-04, 122, 172, 175.

         II. State court history.

         Before trial, Petitioner's trial counsel moved to suppress the evidence obtained during the search. See M. TR, at 1. Trial counsel argued Agent English did not have probable cause to initiate the traffic stop. Id. at 5. Trial counsel argued that Agent English substituted his own opinion, and relied on an element of the crime of following too closely that is not included in the statute-the so called “three second rule.”[4] Id. at 13. The state argued that Agent English's opinion that Petitioner was following too closely to the vehicle in front of him was properly informed, in part, “by the Oklahoma Driver's Manual, ” that sets forth the “three second rule.” Id. at 8-9. But failure to comply with the “three second rule” is not an element of the crime listed in the statute. See Okla. Stat. Ann. tit. 47, § 11-310 (West 2017). According to trial counsel, the traffic stop was not constitutional from the beginning insofar as Agent English relied on the crime of following too closely to the vehicle in front of him.[5] M. TR, at 7. He made a similar argument regarding the length of time Petitioner signaled before he changed lanes. Id. at 6. The district court overruled the motion to suppress the evidence found during the search. Id. at 15.

         Petitioner was tried on one count of trafficking in illegal drugs, in the Canadian County District Court, Case No. CF-2013-589. TR I, at 5. The jury found Petitioner guilty, and the trial court, upon recommendation of the jury, sentenced him to thirty-five years' imprisonment. S. TR, at 6.

         Petitioner appealed to the Oklahoma Court of Criminal Appeals (“OCCA”) in Case No. F-2015-174, challenging the legality of the search based on the alleged extended duration of the stop. The OCCA found no error and affirmed Petitioner's conviction. Doc. 10, at 1.

         After his unsuccessful direct appeal, Petitioner filed an application for post-conviction relief raising four propositions. Id. Ex. 4. First, Petitioner contended his trial counsel was ineffective in:

1. failing to preserve the suppression motion for appeal;
2. failing to call Petitioner to testify at the suppression hearing to establish his “expectation of privacy as regards ‘being free to go'”;
3. failing to adequately contest the State's contention that he consented to letting the drug dog “search” the vehicle;
4. failing to object to the absence of a lab report at the preliminary hearing;
5. failing to voir dire the criminalist as to veracity of the testing mechanisms used to analyze and weigh the alleged cocaine;
6. failing to voir dire the criminalist as to actual net weight of alleged cocaine outside of the packaging to establish the third element of aggravated trafficking;
7. failing to move for directed verdict of not guilty at the close of trial.

Id. at 4-5.

         In his second proposition, Plaintiff alleged appellate counsel was ineffective in:

1. conceding the traffic stop was legal;
2. failing to raise the ineffective assistance of trial counsel claims; and
3. failing to articulate the failure of the State to establish reliability of testing process and weight.

Id. at 6-8.

         According to Petitioner, appellate counsel was also ineffective in failing to raise his third and fourth propositions of errors. Id. at 8. In his third proposition, Petitioner stated the trial court erred in accepting the jury verdict of guilty because the state had failed to prove the crime of aggravated trafficking beyond a reasonable doubt. Id. at 9-15. Petitioner stated in his fourth proposition that improper comments made by the prosecutor in his closing argument deprived Petitioner of a fair trial in violation of the Fourteenth Amendment. Id. at 15-17.

         The trial court found that all of Petitioner's claims, except the ineffective assistance of appellate counsel claim, could have been raised on direct appeal and were not. Doc. 10, Ex. 6, at 2. The trial court found these claims to be procedurally barred. Id. at 3.

         The trial court addressed Petitioner's ineffective assistance of appellate counsel claims on the merits. Id. The trial court considered the merits of the claims appellate counsel did not raise on direct appeal, to determine whether ...


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