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Breckenridge v. Martin

United States District Court, N.D. Oklahoma

March 26, 2018

JIMMY MARTIN, Warden, [1] Respondent.



         Petitioner 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.


         On 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.

         Following 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 3).[2] Dkt. 12-10, O.R. vol. 1, at 42-43.[3] The State further alleged that Petitioner had three former felony convictions. Id. at 45.

         On 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 117-18.

         Petitioner's 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.

         On June 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.

         Petitioner 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.”), at 10.

         On 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.

         Petitioner 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 suspect.
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 of counsel.
Ground 6: Unfair surprise deprived [Petitioner] of a fair trial.
Ground 7: Cumulative error deprived [Petitioner] of a fair trial.

         Dkt. 3 at 9, 12, 14, 16, 18, 20-21.

         Respondent 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.[4] Respondent asserts, however, that § 2254(d) precludes this Court from granting Petitioner's request for habeas relief. See Dkt. 11.


         The 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)[5]; (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. § 2254(d)(2).

         “To 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).

         In sum, 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.

         I. Admission of Ryan's eyewitness identification (Ground 1)

         Petitioner first asserts that “the identification of [Petitioner] by Larry Ryan should have been suppressed.” Dkt. 3 at 9.[6] 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.[7] Id. at 9-10.[8]

         The “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)).

         This 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[9] 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.

         Here, 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.

         Ryan 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.

         On 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.

         Before 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.

         At 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.

         On 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.

         The 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 unreliable.[10] Id.

         Respondent 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 ...

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