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Mills v. Byrd

United States District Court, N.D. Oklahoma

July 23, 2018

RAYMOND BYRD, Warden, [1] Respondent.


         Now before the Court is the petitioner's 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1). For the reasons below, the petition will be denied.


         On November 8, 2010, Roy William Mills (petitioner) was charged with using a vehicle to discharge a weapon in violation of Okal. Stat. tit. 21, § 652(B). See Dkt. # 13-4 at 3. Glenn Davis, the regional contractor for the Oklahoma Indigent Defense System (OIDS), was appointed as counsel. Id. at 28; see also Dkt. # 13-1 at 125. The case was later assigned to attorney Burl Estes. See Dkt. # 13-1 at 128. Estes previously represented Danny Schroeder, a co-defendant in the shooting incident, during his plea negotiations with the state. Id. at 116. However, Estes did not perceive a conflict of interest because he understood that Schroeder would not testify at petitioner's trial. Id. at 120.

         The trial commenced on January 25, 2011 in Osage County District Court. See Dkt. # 13-4 at 73. After voir dire but before the trial began, the state court ruled that Schroeder could testify as a late-endorsed witness. Id. at 74; see also Dkt. # 13-1 at 124. Estes raised the potential conflict, although he did not personally believe any conflict prevented him from representing petitioner. See Dkt. # 13-1 at 124, 130. After consulting with OIDS contractor Davis, who was also present in the courtroom, petitioner elected to waive any conflict and proceed with the trial. Id. at 126-31. The state court questioned petitioner, determined the decision was knowing and voluntary, and approved the waiver. Id.

         The trial evidence consisted of testimony from the officers and investigators, victims Kevin and Teri Lynn Surrett, and Schroeder. Kevin Surrett testified that, on the night of the incident, he was in the kitchen and heard a series of rapid gunshots outside. See Dkt. # 13-1 at 165. When he glanced through the window, he saw a blue SUV turning the corner on his street. Id. The Surretts reported the incident to police and disclosed that an unidentified neighbor witnessed petitioner and Jones shooting at the residence while Schroeder drove the SUV. Id. at 157-58. The investigating officers discovered an empty shell casing in Schroeder's car and the relevant guns at a residence belonging to Jones' brother. Id. at 152-54, 159.

         The jury convicted petitioner of using a vehicle to discharge a weapon. See Dkt. # 13-4 at 95. On March 25, 2011, the state court sentenced petitioner to 50 years imprisonment. Id. at 121. Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), asserting seven propositions of error. See Dkt. # 12-1 at 2-3. By a summary opinion entered March 25, 2013, the OCCA affirmed. See Dkt. # 12-4. Petitioner then filed an application for post-conviction relief in state court, which was denied. See Dkt. # 12-5 and 12-6. Petitioner filed the instant federal § 2254 petition (Dkt. # 1) on April 22, 2015. He raises four grounds for relief:

Ground I: Estes had a conflict of interest.
Ground II: The testimony of petitioner's accomplice was not sufficiently corroborated to support the conviction.
Ground III: The state court erred by admitting evidence of prior crimes and bad acts.
Ground IV: The state court erred in instructing the jury.

See Dkt. # 1 at 4, 6, 7, and 9.

         On October 6, 2015, respondent filed a response (Dkt. # 12), along with copies of the state court record (Dkt. # 13). 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). See Dkt. # 12 at 2. Respondent asserts, however, that petitioner's request for habeas relief fails on the merits. See Dkt. # 12.


         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court's review of petitioner's habeas claims. See 28 U.S.C. § 2254. Relief is only available under the AEDPA where the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). However, because the OCCA already adjudicated petitioner's claims, this Court may not grant habeas relief unless he demonstrates that the OCCA's ruling: (1) “resulted in a decision that was contrary to . . . clearly established Federal law as determined by Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1);[2] (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. at § 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) (quotations omitted). 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. (quotations omitted). Significantly, an “unreasonable application of” clearly established federal law under § 2254(d)(1) “must be objectively unreasonable, not merely wrong.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quotations omitted). “[E]ven clear error will not suffice.” Id. 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 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).

         Essentially, 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). A state prisoner ultimately “must show that the state court's ruling ... 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.

         1. Conflict of Interest (Ground I)

         Petitioner first argues, as he did on direct appeal, that Estes had a conflict of interest. See Dkt. # 1 at 4. Petitioner points out that Estes “negotiated [Schroeder's] plea agreement, ” and “Schroeder testified against [him] at trial.” Id. Based on the record, the Court liberally construes these arguments as a challenge to petitioner's conflict waiver.

         “The Sixth Amendment right to effective assistance of counsel encompasses the correlative right to representation that is free from conflicts of interest.” Hale v. Gibson, 227 F.3d 1298, 1312 (10th Cir. 2000) (quoting Selsor v. Kaiser, 81 F.3d 1492, 1496-97 (10th Cir.1996)). The “typical conflict of interest case giving rise to a claim of ineffective assistance of counsel involves multiple representation of co-defendants at a single trial.” Id. Conflicts “may also arise where a lawyer's self-interest is adverse to the interest of his client.” Id.

         “[A] court may avoid a conflict of interest problem by securing a waiver of a defendant's right to conflict-free representation.” United States v. Gallegos, 108 F.3d 1272, 1281 (10th Cir. 1997). See also United States v. Burney, 756 F.2d 787, 791 n. 2 (10th Cir. 1985) (“A defendant may waive the right to assistance of counsel unhindered by conflicts of interest.”). However, the waiver must be a “voluntary, . . . knowing, [and] intelligent act ‘done with sufficient awareness of the relevant circumstances and likely consequences.'” Gallegos, 108 F.2d at 1281 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). See also Edens v. Hannigan, 87 F.3d 1109, 1118 (10th Cir. 1996) (denying habeas relief after determining petitioner's conflict waiver was knowing, voluntary, and intelligent). “The trial court bears the duty to ensure that the defendant understands the nature of the conflicts and their effects on counsel's representation before waiving them.” Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003).

         Relying on Gallegos, the OCCA found that petitioner “knowingly and voluntarily waived his right to conflict-free counsel and that the trial court took appropriate measures to evaluate the possible risks before accepting that waiver.” Dkt. # 12-4 at 2. Having reviewed the record, the Court agrees.

         The state court conducted a hearing to discuss any potential conflicts, and how petitioner might perceive those conflicts, before the trial began. Estes indicated it may reflect badly on petitioner that Estes negotiated a favorable deal for Schroeder while petitioner faced life imprisonment. See Dkt. # 13-1 at 124. Davis further opined that Estes may not press Schroeder as zealously on cross examination, and ...

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