United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
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. For the reasons
set forth below, the undersigned recommends the court deny
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.
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. 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.
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.
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.
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).
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.
State court history.
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.” 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. 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.
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.
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.
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
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.
second proposition, Plaintiff alleged appellate counsel was
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.
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.
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.
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