United States District Court, N.D. Oklahoma
BRIAN E. BRECKENRIDGE, Petitioner,
JIMMY MARTIN, Warden,  Respondent.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE.
Brian Breckenridge, a state inmate appearing pro se, brings
this 28 U.S.C. § 2254 petition for writ of habeas corpus
(Dkt. 3) to challenge the judgments and sentences entered
against him following a jury trial in Tulsa County District
Court Case No. CF-2010-3882. Respondent filed a response
(Dkt. 11), and provided the state court records necessary to
adjudicate Petitioner's claims (Dkts. 11, 12, 13).
Petitioner did not file a reply. For the reasons discussed
below, the Court finds and concludes the petition for writ of
habeas corpus should be denied.
October 2, 2010, Bobby Lewis and Vincent Lieb kicked in the
front door of Larry Ryan's Tulsa home, held him at
gunpoint, demanded money, and threatened to kill him. Dkt.
12-4, Tr. vol. 2, at 133-42, 164; Dkt. 12-5, Tr. vol. 3, at
160-62, 168-70. Ryan fought back. Dkt. 12-5 at 170-71. As
Ryan struggled with Lewis for control of Lewis's gun,
Lieb pistol-whipped Ryan in the back of the head. Dkt. 12-4
at 141-42. Ryan pushed both men out the front door, and all
three men ended up in Ryan's front yard. Dkt. 12-4 at
140-42; Dkt. 12-5 at 169-70. Ryan held Lewis down in the
driveway, pulled the trigger of Lewis's gun, and shot
Lewis's finger. Dkt. 12-4 at 140-42; Dkt. 12-5 at 209-10,
231. Lieb ran away. Dkt. 12-5 at 170. About a minute later,
Ryan saw a white four-door car pull up over the curb and
across the end of his driveway. Dkt. 12-4 at 145-147. A young
black man with a gun got out of the front passenger side of
the car and ran toward Ryan. Id. Ryan shot at the
young man twice, and he ran back to the car. Id. at
146. Ryan then “looked at” the driver of the car
and “started to shoot him.” Id. at
146-47, 162-63. The young man got into the car, and he and
the driver drove away. Id. at 146. Several of
Ryan's neighbors heard the commotion, two neighbors saw a
white car drive off, and one neighbor called the police.
Id. at 195-97, 207-10. Ryan held Lewis down at
gunpoint until the police arrived. Id. at 153.
an investigation, the State of Oklahoma charged Petitioner,
Vincent Lieb, and Bobby Lewis in the District Court of Tulsa
County, Case No. CF-2010-3882, with attempted robbery with a
firearm (Count 1), first degree burglary (Count 2), and
assault and battery with a dangerous weapon (Count
Dkt. 12-10, O.R. vol. 1, at 42-43. The State further alleged
that Petitioner had three former felony convictions.
Id. at 45.
November 22, 2010, Lewis pleaded guilty to Counts 1, 2, and
3, and the trial court imposed three concurrent 15-year
prison sentences. Dkt. 12-10 at 78-95. That same day, Lieb
and Ryan testified at Petitioner's preliminary hearing.
Dkt. 12-1, Tr. P. Hr'g (Nov. 22, 2010), at 2. After the
hearing, the State filed an amended information to add a
charge against Petitioner for possession of a firearm after
former conviction of a felony (Count 5). Dkt. 12-10 at
case proceeded to a five-day, three-phase jury trial in May
2012. See Dkt. 12-3, Tr. vol. 1; Dkt. 12-7, Tr. vol.
5, at 2. At the conclusion of the first phase, the jury found
Petitioner guilty as to Counts 1, 2, and 3. Dkt. 12-7 at 73.
During the second phase, the jury considered evidence
presented during the first phase as well as evidence that
Petitioner had been convicted of a felony in 1993.
Id. at 85-87. At the conclusion of the second phase,
the jury found Petitioner guilty as to Count 5. Id.
at 93. Finally, during the third phase, the State introduced
evidence that Petitioner had two additional previous felony
convictions for offenses he committed in 2005. Id.
at 104-05. At the conclusion of the third phase, the jury
found Petitioner committed Counts 1, 2, 3, and 5 after former
conviction of two or more felonies and recommended a life
sentence and $10, 000 fine for each of his four convictions.
Id. at 127-28.
4, 2012, the trial court adopted the jury's
recommendations, sentenced Petitioner to life imprisonment
and imposed a $10, 000 fine for each conviction, and ordered
the life sentences to be served consecutively to each other
and consecutively to Petitioner's sentence in Case No.
CF-2010-3793. Dkt. 12-9, Tr. Sent. Hr'g (June 4, 2012),
at 6. That same day, Lieb pleaded guilty to Counts 1, 2, and
3, and the trial court imposed concurrent prison terms of 25
years on Count 1, 10 years on Count 2, and seven years on
Count 3. Dkt. 12-11, O.R. vol. 2, at 67-83.
filed a direct appeal with the Oklahoma Court of Criminal
Appeals (OCCA), asserting 12 propositions of error. Dkt.
11-1, Pet'r App. Brief, at 2-3. By unpublished summary
opinion filed October 3, 2013, the OCCA affirmed
Petitioner's convictions and sentences. Dkt. 11- 3,
Breckenridge v. State, No. F-2012-544, (Okla. Crim.
App. 2013) (unpublished) (hereafter, “OCCA Op.”),
November 19, 2013, Petitioner filed an application for
post-conviction relief in state district court, asserting 10
propositions of error. Dkt. 11-4, Pet'r. PC Brief, at 9.
He later filed a “supplemental” application
asserting three propositions of error. Id. at 23.
The state district court denied post-conviction relief in two
separate orders, filed December 12, 2013, and December 23,
2013. Id. at 3, 16. The OCCA affirmed the denial of
post-conviction relief by unpublished order issued February
21, 2014. Dkt. 11-5, Breckenridge v. State, No.
PC-2014-0030 (Okla. Crim. App. 2014) (unpublished), at 1-2.
filed the instant habeas petition (Dkt. 3) on February 17,
2015. He seeks habeas relief the following grounds:
Ground 1: The identification of [Petitioner] by Larry Ryan
should have been suppressed.
Ground 2: The evidence was not sufficiently corroborated to
support the convictions because the eyewitness testimony is
Ground 3: The trial judge erred by admitting the preliminary
hearing transcripts into evidence at trial.
Ground 4: The trial court erred by not redacting from the
preliminary hearing transcript a biased, personal comment
made by the preliminary hearing Judge.
Ground 5: [Petitioner] was deprived of effective assistance
Ground 6: Unfair surprise deprived [Petitioner] of a fair
Ground 7: Cumulative error deprived [Petitioner] of a fair
at 9, 12, 14, 16, 18, 20-21.
concedes, and the Court finds, that Petitioner timely filed
his federal habeas petition, see 28 U.S.C. §
2244(d)(1), and exhausted state remedies by presenting these
claims to the OCCA in his direct appeal, see Id.
§ 2254(b)(1)(A). Dkt. 11 at 2. Respondent asserts, however,
that § 2254(d) precludes this Court from granting
Petitioner's request for habeas relief. See Dkt.
Antiterrorism and Effective Death Penalty Act (AEDPA) guides
this Court's review of Petitioner's habeas claims.
See 28 U.S.C. § 2254. Under the AEDPA, a
federal court may grant habeas relief to a state prisoner
“only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.” Id. § 2254(a). However, because
the OCCA adjudicated Petitioner's claims on the merits,
this Court may not grant habeas relief unless Petitioner
demonstrates that the OCCA's adjudication of those claims
either (1) “resulted in a decision that was contrary to
. . . clearly established Federal law as determined by
Supreme Court of the United States, ” id.
§ 2254(d)(1); (2) “resulted in a decision that .
. . involved an unreasonable application of, clearly
established Federal law, ” id.; or (3)
“resulted in a decision that was based on an
unreasonable determination of the facts” in light of
the record presented to the state court, id. §
determine whether a particular decision is ‘contrary
to' then-established law, a federal court must consider
whether the decision ‘applies a rule that contradicts
[such] law' and how the decision ‘confronts [the]
set of facts' that were before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 182 (2011)
(alterations in original) (quoting Williams, 529
U.S. at 405, 406). When the state court's decision
“‘identifies the correct governing legal
principle' in existence at the time, a federal court must
assess whether the decision ‘unreasonably applies that
principle to the facts of the prisoner's
case.'” Id. (quoting Williams,
562 U.S. at 413). Significantly, an “unreasonable
application of” clearly established federal law under
§ 2254(d)(1) “must be ‘objectively
unreasonable, ' not merely wrong; even clear error will
not suffice.” White v. Woodall, 134 S.Ct.
1697, 1702 (2014) (quoting Lockyer, 538 U.S. at
75-76). Likewise, under § 2254(d)(2), “a
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). The Court must also
presume the correctness of the OCCA's factual findings
unless Petitioner rebuts that presumption “by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
the standards set forth in § 2254 are designed to be
“difficult to meet, ” Harrington v.
Richter, 562 U.S. 86, 102 (2011), and require federal
habeas courts to give state-court decisions the
“benefit of the doubt, ” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). Thus, to obtain
federal habeas relief a state prisoner ultimately “must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.
Admission of Ryan's eyewitness identification (Ground
first asserts that “the identification of [Petitioner]
by Larry Ryan should have been suppressed.” Dkt. 3 at
Petitioner argues Ryan's identification was unreliable
because Ryan told police “he could not identify the
driver because of distance and stuff, ” and he could
not “pick [Petitioner] out of a six man photo line
up.” Id. He also appears to argue the
identification was tainted because Ryan saw Petitioner's
face on the news and in the newspaper before he testified at
the preliminary hearing and at trial. Id. at
“admission of evidence in state trials is ordinarily
governed by state law, and the reliability of relevant
testimony typically falls within the province of the jury to
determine.” Perry v. New Hampshire,
565 U.S. 228, 232 (2012). However, “a due process check
on the admission of eyewitness identification” is
necessary “when the police have arranged suggestive
circumstances leading the witness to identify a particular
person as the perpetrator of the crime.” Id.
This due-process check “requires courts to assess, on a
case-by-case basis, whether improper police conduct created a
‘substantial likelihood of
misidentification.'” Id. at 239 (quoting
Neil v. Biggers, 409 U.S. 188, 201 (1972)).
case-specific assessment involves a two-part inquiry. First,
the trial court asks whether the eyewitness identification
was “procured under unnecessarily suggestive
circumstances arranged by law enforcement.”
Id. at 248. If, and only if, the answer to that
question is yes, the trial court applies the factors set out
in Biggers and determines whether the identification
has sufficient indicia of reliability
“[n]otwithstanding the improper procedure.”
Id. at 238-40; see also Id. at 241
(“The due process check for reliability . . . comes
into play only after the defendant establishes improper
police conduct.”). This is so because “[t]he
admission of testimony concerning a suggestive and
unnecessary identification procedure does not violate due
process so long as the identification possesses sufficient
aspects of reliability.” Manson v. Brathwaite,
432 U.S. 98, 106 (1977). If the court determines “the
indicia of reliability are strong enough to outweigh the
corrupting effect of the police-arranged suggestive
circumstances, the identification evidence ordinarily will be
admitted, and the jury will ultimately determine its
worth.” Perry, 565 U.S. at 231.
the state-court record demonstrates that on the morning of
the attempted robbery, Ryan told police that the driver of
the white car was a “black male.” Dkt. 12-5 at
227. Ryan was not asked to identify Petitioner from a photo
line up. Dkt. 12-4 at 175; Dkt. 12-5 at 227. At the
preliminary hearing, Ryan testified that as he held Lewis
down at gunpoint, he saw a white car pull up in front of his
house. Dkt. 12-1 at 36-37. He saw two people in the car.
Id. Ryan testified he recognized one person in the
car as “a guy named Brian Breckenridge.”
Id. at 37. When asked how he knew that man's
name, Ryan testified he saw the name “in the paper
after” the robbery. Id. Defense counsel moved
to strike the answer, and the court advised the prosecutor to
ask Ryan to clarify his testimony. Id. at 37-38.
testified that he “glanced over at” the driver of
the white car from “the length of a driveway, 30 feet,
25 feet, something like that.” Id. at 38-39.
He testified it “was 6:30 in the morning” and
“pretty dark.” Id. at 39. Ryan described
the driver as “a guy with glasses on, ” and an
“older fellah.” Id. He testified that
the information he obtained from the newspaper was
“just the name” of the man he had seen driving
the car. Id. When asked if he could recognize the
driver again, Ryan said, “Probably.” Id.
Then, when asked if the driver was in the courtroom, Ryan
testified the driver was “[s]itting over there”
and “wearing orange.” Id. at 40. The
prosecutor asked that the record reflect Ryan had identified
Petitioner as the driver, and defense counsel objected.
Id. at 40-41. Defense counsel argued Petitioner was
the only man in the courtroom wearing orange. Id.
The court noted the objection but overruled it, reasoning
that Ryan's identification of Petitioner could be tested
at trial. Id. at 41.
cross-examination, defense counsel elicited testimony that
Ryan took “hard blows” to his head before he saw
the driver, Ryan observed the driver in the dark as he
continued to struggle with Lewis, and his observation of the
driver was brief because the car's passenger got out and
began running toward Ryan with a gun. Dkt. 12-1 at 42-46.
Ryan testified he saw the driver for “maybe a minute or
so” before the passenger ran toward him. Id.
at 45. Ryan shot at the passenger a couple of times and
“shot at the car two or three times.”
Id. at 46-48. Ryan further testified that, on the
morning of the robbery, he told police officers that the
passenger was “a young black man, tall, real
skinny.” Id. at 47-48. He testified he did not
provide a description of the driver to the police and that he
was not asked to identify the driver through a photo lineup.
Id. at 47, 51. On redirect, Ryan testified that his
identification of Petitioner as the driver was based on his
observations of the driver during the attempted robbery.
Id. at 53.
trial, Petitioner moved to suppress Ryan's in-court
identification. Dkt. 12-10 at 153-57; Dkt. 12-2, Tr. Mot.
Hr'g (Sept. 1, 2011). Petitioner argued Ryan's first
identification of Petitioner as the driver of the white car
occurred at the preliminary hearing under
“impermissibly suggestive” circumstances. Dkt.
12-2 at 3-5. Petitioner specifically argued he was “the
only defendant in the room wearing prison-issued orange
clothing” and handcuffs. Dkt. 12-10 at 154. He further
argued, under the totality of the circumstances, Ryan's
identification was not reliable. Id. at 155-56; Dkt.
12-2 at 5, 7-10. At the conclusion of the hearing, the state
district court denied the motion. Dkt. 12-10 at 10.
trial, Ryan also identified Petitioner as the driver of the
white car. Dkt. 12-4 at 155-56. Ryan testified he had Lewis
in a choke hold in the driveway when he saw “a white
car pull up.” Dkt. 12-4 at 143-45. Ryan saw a young
black male come out of the car, pointing a gun at Ryan.
Id. at 145. Ryan shot at the male twice, and the
male ran back to the car. Id. at 146. Ryan testified
the white car was sitting across the end of his driveway, and
he “looked at” Petitioner, saw “the light
off his face, ” and “started to shoot him [but]
hit one of the neighbor's houses across the
street.” Id. He testified he had about 20-30
seconds to look at Petitioner. Id. at 147. He also
testified he “got a good view of” Petitioner from
about 21 feet away. Id. at 162-63. Ryan also
testified that he saw broadcast news coverage of
Petitioner's arrest and saw his name in the newspaper.
Id. at 167, 175. He testified when he saw Petitioner
on television he thought, “that's the same guy who
was in my driveway.” Id. at 167.
cross-examination, Ryan again testified that he shot at the
male who came running at him from the car. Id. at
174. He then testified that he took “the gun off of him
and was getting ready to shoot the driver.”
Id. Defense counsel asked, “Let's talk
about that shooting the driver. Today is the first time
you've made that statement; is that not right?”
Id. Ryan replied, “Probably true.” Ryan
also testified it was “dark” when he saw
Petitioner and that he saw him from about 21 feet away.
Id. at 174, 181.
OCCA rejected Petitioner's challenge to the admission of
Ryan's eyewitness identification. Dkt. 11-3, OCCA Op., at
3. It reasoned that Ryan “consistently identified
[Petitioner] at preliminary hearing and [at] trial and
testified in both instances that his identification was based
upon his view of [Petitioner] at the time of the crime and
not any suggestive circumstances.” Id. The
OCCA further reasoned that Ryan's “identification
was not tainted by the victim's pre-trial viewing of
[Petitioner] in the media.” Id. Citing
Perry v. New Hampshire, 565 U.S. 228 (2012), the
OCCA stated, “[a]s this pre-trial view of [Petitioner]
was not arranged by the police or the result of improper law
enforcement activity, no pre-trial screening by the trial
court for reliability was required.” Id. The
OCCA also rejected Petitioner's argument that Ryan's
erroneous description of Lieb as black rather than Native
American rendered his identification of Petitioner
contends Petitioner has not made the requisite showings under
§ 2254(d) to obtain habeas relief on this claim. Dkt. 11
at 11-18. The Court agrees. As the OCCA reasoned,
Petitioner's challenge to the admission of Ryan's
eyewitness identification fails at the first step of the
“due process check.” Neither Ryan's pretrial
exposure to media accounts of Petitioner's arrest nor
Ryan's pretrial identification of Petitioner at the
preliminary hearing were “procured under unnecessarily
suggestive circumstances arranged by law enforcement.”
Id. at 248. Although Petitioner suggests in his
petition that Ryan could not identify Petitioner from a
“six man photo lineup, ” Dkt. 3 at 9, the record
demonstrates that police never asked Ryan to do so. Dkt. 12-4
at 175; 12-5 at 227. Because Ryan's pretrial
identification of Petitioner as the ...