United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
the Court is the 28 U.S.C. § 2254 habeas corpus petition
(Doc. 2) filed by Petitioner Bridgette Rogers, a state inmate
appearing through counsel. Rogers challenges the
constitutional validity of the judgment and sentence entered
against her in Washington County District Court, Nos.
CF-2009-45 and CM-2009-90. In those cases, a jury convicted
Rogers of one felony, trafficking in illegal drugs after
former conviction of two or more drug felonies; and two
misdemeanors, operating a defective vehicle and improper tag
display. She is currently serving a sentence of life without
the possibility of parole. Rogers seeks habeas relief on five
grounds. Respondent filed a response to the petition (Doc.
16), and provided the state court records necessary to
adjudicate Rogers' claims (Docs. 16, 17). Rogers filed a
reply (Doc. 24). For the reasons discussed below, the Court
finds and concludes the habeas petition shall be denied.
28 U.S.C. § 2254(e)(1), a state court's factual
findings are presumed correct unless the habeas petitioner
rebuts that presumption “by clear and convincing
evidence.” Following review of the record, trial
transcripts, trial exhibits, and other materials submitted by
the parties, the Court finds the factual summary from the
Oklahoma Court of Criminal Appeals' decision is adequate
and accurate. Therefore, the Court adopts the following
summary as its own:
On February 4, 2009, at approximately 2:30 a.m., Officer Adam
Walker of the Bartlesville Police Department stopped a car
being driven by Rogers because he noticed that the car's
license tag was not illuminated as required by State law.
After stopping Rogers' car, and as he approached the car
on foot, Officer Walker noticed a clear plastic covering over
Officer Walker had a brief conversation with Rogers through
the d r i v e r ' s s i d e car window, obtained her
driver's license and insurance verification, and then
stepped away to run a check on the license. Less than one
minute later, Officer Walker's supervisor, Sergeant Glen
McClintock arrived and began a drug sweep of the outside of
Rogers' car with his drug dog. One minute later, the dog
alerted at the driver's side window.
After the dog alert, Rogers was removed from the car and
Officer Walker began a search of the passenger compartment.
He found an off-white rock-like substance in the driver's
seat, on the driver's side floor, and on the front
While Officer Walker was searching Rogers' car, Officer
Denise Silva arrived and performed a pat down search on
Rogers, who was wearing a long winter coat. Rogers told
Officer Silva she was wearing two sanitary napkins and
Officer Silva felt a “crinkle” in that area, but
did not check it further. Officer Silva did not find anything
incriminating, but did find approximately $500.00 in cash in
one of Rogers' pants pockets. After Officer Walker found
the rock-like substances, Rogers was arrested and Officer
Silva transported her to the Bartlesville jail.
During the ride to the jail, Officer Silva heard
“rustling of paper and crunching in the backseat”
(Tr. Vol. 2 at 84). She told Rogers that if there was
something in the backseat or anywhere on [Rogers']
person, she would find it. She noted that even though
Rogers' hands were handcuffed behind her back, there was
a lot of movement, “pushing around, moving
around” (Tr. Vol. 2 at 85).
After Rogers was delivered to the jail, Officer Silva
searched her patrol car and found a white banking envelope
stuffed in the corner of the rear seat where Rogers had been
sitting. Officer Silva searched the patrol car at the
beginning of her shift and had not transported anyone since
Officer Silva summoned Officer Walker, and Walker retrieved
the envelope. Inside the envelope, he found two plastic
baggies containing off-white rock-like substances similar to
the substances he found in Rogers' car. Later, when
Officer Walker searched Rogers' purse, he found envelopes
similar to the one found in the back of Officer Silva's
vehicle. The envelopes from Rogers' purse were the same
size and color and had identical bank-related printing in the
top and bottom left-hand corners as the envelope containing
the substance found in Officer Silva's car.
A criminalist from the Oklahoma State Bureau of Investigation
analyzed the rock-like substances found in the envelope in
Officer Silva's vehicle. His analysis showed that the
substance was cocaine base (crack), and that its total weight
was 20.7 grams, a weight well above the five grams necessary
for a trafficking conviction.
Six months after Rogers' car was seized, [Sergeant] Steve
Gardella examined the car in the daylight at the police
impound lot. He discovered that the light bulb that should
have illuminated the tag was not in its holder but was
instead in a socket outside the socket hole for the tag.
Photographs Gardella took showed the socket suspended from
the car outside the opening. Gardella said, however, that the
bulb did light up “a little bit” (Tr. Vol. 2 at
15). Gardella also took photographs of the rear license tag
showing that it was covered by a transparent plastic cover.
Doc. 16-3, Rogers v. State, No. F-2010-509 (Okla.
Crim. App. 2012) (unpublished) (hereafter, “OCCA
Op.”), at 3-5.
Washington County District Court, Nos. CF-2009-45 and
CM-2009-90, a jury convicted Rogers of trafficking in illegal
drugs, in violation of Okla. Stat. tit. 63, § 2-415
(2007 Supp.), after former conviction of more than two drug
felonies; operating a defective vehicle, in violation of
Okla. Stat. tit. 47, § 13-101 (2001 Supp.); and improper
tag display, in violation of Okla. Stat. tit. 47, § 1113
(2008 Supp.). Doc. 16-3, OCCA Op., at 1; Doc. 17-7, Tr.
vol. 2, at 200-02. Consistent with the jury's
recommendations, the trial court sentenced Rogers to life
without the possibility of parole and imposed a $100, 000
fine for the drug trafficking conviction, and imposed a $100
fine for each misdemeanor conviction. See Doc. 17-7
at 225; Doc. 17-9, Tr. Sent. Hr'g (May 24, 2010), at
filed a direct appeal with the Oklahoma Court of Criminal
Appeals (OCCA), raising 17 propositions of error. Doc. 16-1,
Pet'r App. Br., at 2-4. In an unpublished opinion filed
September 21, 2012, the OCCA affirmed Rogers convictions and
sentences. Doc. 16-3, OCCA Op, at 1, 35. The United States
Supreme Court denied Rogers' petition for a writ of
certiorari on March 4, 2013. See Doc. 2 at 4. Rogers
filed an application for post-conviction relief in state
district court. Doc. 16-4. The state district court denied
Rogers' application for post-conviction relief by order
filed November 25, 2014. Doc. 16-5. Rogers did not file a
post-conviction appeal with the OCCA. See Doc. 16 at
filed the instant federal habeas petition (Doc. 2), along
with a supporting brief (Doc. 13) on February 9, 2015.
Limited scope of federal habeas review
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
federal court may grant habeas relief to a state prisoner
“only on the ground that [s]he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). In addition,
before a federal court may grant habeas relief, a state
prisoner must exhaust available state-court remedies,
id. § 2254(b)(1)(A), by “fairly
present[ing] the substance of h[er] federal habeas claim[s]
to state courts, ” Hawkins v. Mullins, 291
F.3d 658, 668 (10th Cir. 2002). A state prisoner is not
required to cite “book and verse on the federal
constitution” to fairly present a federal claim.
Picard v. Connor, 404 U.S. 270, 278 (1971) (quoting
Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.
1958)). However, the prisoner “cannot assert entirely
different arguments from those raised before the state
court.” Bland v. Sirmons, 459 F.3d 999, 1011
(10th Cir. 2006).
state court adjudicates the merits of a state prisoner's
federal claims, a federal court may not grant relief on those
claims unless the prisoner demonstrates that the state
court's adjudication of those claims either (1)
“resulted in a decision that was contrary to . . .
clearly established Federal law as determined by the 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. § 2254(d)(2). As used in
§ 2254(d)(1), the phrase “clearly established
Federal law” means “the governing legal principle
or principles” stated in “the holdings, as
opposed to the dicta, of [the Supreme Court's] decisions
as of the time of the relevant state-court decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)
(quoting Williams v. Taylor, 529 U.S. 362, 412
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,
529 U.S. at 413). 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). As previously stated,
the federal court must also presume the correctness of the
state court's factual findings unless the state prisoner
rebuts that presumption “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
standards set forth in § 2254 are “difficult to
meet” by design, 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, as a precondition to obtaining federal habeas
relief a state prisoner “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.
a state prisoner overcomes § 2254(d)'s
“formidable barrier, ” Burt v. Titlow,
571 U.S. 12, 16 (2013), federal habeas relief is not
automatic. Instead, overcoming that barrier permits the
federal court to review the state prisoner's
constitutional claims de novo, rather than through
AEDPA's deferential lens. See Milton v. Miller,
744 F.3d 660, 670-71 (10th Cir. 2014) (explaining that
satisfaction of § 2254(d)'s standards
“effectively removes AEDPA's prohibition on the
issuance of a writ” and “requires [federal habeas
court] to review de novo” petitioner's claims-
without deference to state court's decision-to determine
whether petitioner is entitled to habeas relief). And, even
if the federal court finds constitutional error on de
novo review, it “must assess the prejudicial
impact of [that] constitutional error . . . under the
‘substantial and injurious effect' standard set
forth in Brecht [v. Abrahamson, 507 U.S.
619 (1993)], whether or not the state appellate court
recognized the error and reviewed it for harmlessness.”
Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Under
the Brecht standard, “when a habeas court is
in grave doubt as to the harmlessness of an error that
affects substantial rights, it should grant relief.”
O'Neal v. McAninch, 513 U.S. 432, 445 (1995).
seeks federal habeas relief on five grounds:
Ground 1: The district court refusing to disqualify the trial
judge denied Petitioner due process of law under the United
States Constitution and the Oklahoma State Constitution.
Ground 2: The traffic stop of Petitioner was improper and
violated Petitioner's rights under the Fourth Amendment
of the United States Constitution and therefore all ...