United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE
a state prisoner appearing pro se, has filed this Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. Petitioner is challenging his conviction for Rape in
the First Degree, entered in the District Court of Oklahoma
County, Oklahoma, Case No. CF-2014-3229. Respondent has
responded to the Petition and filed the relevant state court
records, including the transcript of Petitioner's trial
(hereinafter "TR __"). The matter has been referred
to the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B). For the
following reasons, it is recommended that the Petition be
celebrate their impending graduation, Emily Long and some of
her sorority sisters rented a party bus on the evening of
April 18, 2014, to take them from Norman, OK, to Bricktown in
Oklahoma City. They invited some male friends, including
Tanner Chance, to accompany them. They arrived at Club Candy
in Bricktown around 10:30 p.m. Ms. Long and Mr. Chance, both
intoxicated at this point, were seen kissing at the bar.
Ms. Long was escorted out of the Club Candy by its bouncers,
and Mr. Chance left with her in case she needed help. They
walked around Bricktown several minutes before arriving at
Crabtown. Mr. Chance started to go inside to get another
beer, but when he saw Ms. Long talking to a man he did not
know, he went back outside. As Ms. Long and Petitioner walked
to the other side of Bricktown, Mr. Chance followed. The
three sat down on a ledge, and Ms. Long began kissing
Petitioner. Mr. Chance left when he got a text that the party
bus was about to depart for Norman. He tried to get Ms. Long
to go back with him, but she refused. Mr. Chance left Ms.
Long with Petitioner.
Carson, Ryan Farris and two girls they had met that evening
left the Wormy Dog bar in Bricktown through the back door
into the alley around 2:00 a.m. Mr. Carson went behind a
dumpster in the alley to urinate. He later testified he saw a
man and a woman, later identified as Ms. Long and Petitioner,
who appeared to be engaged in sexual intercourse. He told his
friends about the encounter. Mr. Carson testified at trial
that Ms. Long was lying on her back with her head against the
fence, and Petitioner was on top of her with his left hand
over her mouth. Petitioner's pants were down, and he was
lying between her legs, apparently having sex with Ms. Long.
Petitioner slowly got up when he saw Mr. Carson, pulled up
his pants, and walked away. TR vol. II, 214.
Carson approached Ms. Long and she looked "dazed, "
"glazed-eyed, " and "halfway
conscious/unconscious." Ms. Long mumbled "he's
raping me" after she got up. TR vol. II, at 218. As she
walked out from behind the dumpster, she also said,
"Help me." TR vol. II, at 189. Ms. Long was not
wearing shoes, and her body suit had been ripped open,
exposing her crotch.
Petitioner casually walked past Mr. Carson as if nothing had
happened, he began to run. Mr. Carson and Mr. Farris ran
after him, but they could not catch up with him. Mr. Farris
had attracted the attention of a police officer, however, and
reported the possible rape.
Scott Sanders was in his patrol car when Mr. Farris ran by
and said a guy had just raped a girl. Sgt. Sanders saw
Petitioner run by and recognized him as a man he was familiar
with from the Bricktown area who was frequently seen jogging
there at night. When he lost sight of Petitioner, Sgt.
Sanders released a radio description of the man he was
pursuing as "our jogger" because most of the police
officers who worked in Bricktown knew who he was.
Jonathan Lapuzza heard the call that Petitioner was a suspect
in a rape in Bricktown. He and his partner drove to the area
of the Deep Deuce section of Oklahoma City north of
Bricktown. The two found Petitioner, detained him, and took
him back to the scene of the Bricktown crime for questioning.
Lt. Balderrama asked Petitioner what happened, and the
Petitioner told him:
[h]e was walking down the alley and saw our victim. She was
squatting down trying to urinate. She had dirt all over her
and she fell to the ground. [Petitioner] tried to help her up
and she started to scream. He then, [Petitioner], saw the
victim yelling at him. Then the police got there, and he got
scared and ran basically.
TR vol. Ill. at 32.
consulting with the supervisor for the sex crimes unit, Lt.
arrested Petitioner. He was incarcerated in the Oklahoma
County Detention Center. Several days later, Petitioner was
questioned a second time through a translator. Before the
questioning began, Petitioner was advised of his
Miranda rights in Spanish, his native language. He
was questioned only after signing a form written in Spanish,
specifically stating he was waiving his rights under
Miranda. TR vol. I, at 14.
told police he had met Ms. Long and a man he referred to as
the Italian earlier in the evening. He asked Ms. Long if he
could help her, but he did not say why he thought she needed
help. Petitioner said he and Ms. Long began kissing, and she
bit him on the neck. Petitioner said Mr. Chance got jealous,
began kissing Ms. Long and penetrated Ms. Long's vagina
with his finger. Later, according to Petitioner, Mr. Chance
got mad, made an obscene gesture and left. Petitioner said he
stayed with Ms. Long and tried to help her urinate. He said a
couple arrived and asked what was happening. At that point,
he and Ms. Long stood up. Petitioner said something happened
that caused the couple to call the police, and because he did
not want any trouble with the police, he ran. When asked what
happened to cause the men to call the police, Petitioner said
maybe they heard what was going on. Petitioner stated he did
not know if Ms. Long's DNA would be found on his penis,
and he said he did not know whether his penis touched her
2015, Petitioner was tried before a jury on one count of
first degree rape arising from the sexual assault of Ms.
Long. Consistent with the jury's recommendation,
Petitioner was sentenced to thirty years imprisonment.
appeal, Petitioner raised three grounds for relief from the
conviction, asserting first that the admission into evidence
of his first statement to police violated his right to due
process and privilege against self-incrimination in violation
of the federal and state constitutions. Second, Petitioner
asserted that insufficient evidence was presented at his
trial to convict him of the crime of first degree rape.
Finally, Petitioner alleged the trial ...