United States District Court, N.D. Oklahoma
OPINION AND ORDER
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.
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.
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.
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
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
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.
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.
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) “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
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).
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.
Conflict of Interest (Ground I)
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.
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.
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).
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.
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 ...