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James v. Dowling

United States District Court, N.D. Oklahoma

July 30, 2018

MARVIN ALPHANSO JAMES, Petitioner,
v.
JANET DOWLING, Warden Respondent.

          OPINION AND ORDER

          CLAIRE E. HAGAN, UNITED STATES DISTRICT JUDGE.

         This is a 28 U.S.C. § 2254 habeas corpus action. Before the Court are two motions: respondent's motion to dismiss the habeas petition for failure to exhaust state remedies (Dkt. # 7), and petitioner's motion for leave to exhaust state remedies (Dkt. # 9). For the reasons discussed below, the Court shall deny both motions.

         BACKGROUND

         Petitioner challenges the constitutional validity of the judgment and sentence entered against him in the District Court of Tulsa County, Case No. CF-2014-6469. Dkt. # 1 at 1. In that case, a jury convicted petitioner of making a lewd or indecent proposal to a child under age 16, in violation of Okla. Stat. tit. 21, § 1123, and resisting an officer, in violation of Okla. Stat. tit. 21, § 268. Dkt. # 8-1 at 1.[1] In accordance with the jury's recommendations, the trial court imposed a three-year prison sentence on the first count and no incarceration or fine on the second count. Id.

         Petitioner filed a direct appeal with the OCCA, raising five propositions of error:

Proposition 1: The prosecutor's questioning regarding other juvenile prostitution cases in Tulsa amounted to an appeal to societal alarm which violated relevant provisions of the Oklahoma Evidence Code and prejudiced [petitioner], undermining his right to a fair trial under the Fourteenth Amendment to the United States Constitution.
Proposition 2: Defense counsel had not been provided with the background discovery in support of Sergeant Evans testimony regarding the reasons for the “sting” operation in this case. The failure to provide this information prior to jury trial constituted a discovery violation.
Proposition 3: Defense counsel was ineffective in violation of the Sixth and Fourteenth Amendment to the United States Constitution for failing to request sentencing entrapment instructions in this case.
Proposition 4: Under the facts of the case before this Court, [petitioner] was improperly denied credit for time served in the county jail awaiting jury trial. The judgment and sentence must be modified to reflect that he be given credit for time served.
Proposition 5: The crime that [petitioner] was convicted of committing is not an enumerated offense under 21 O.S. 2011, § 13.1. The jury should not have been instructed that the offense of lewd proposal to a person believed to be a child under the age of sixteen required [petitioner] to serve a minimum 85% of his sentence.

Dkt. # 8-2, Pet'r App. Brief, at 2-3.

         By unpublished summary opinion, filed December 20, 2016, in Case No. F-2016-3, the OCCA affirmed the trial court's judgment and sentence. Dkt. # 8-1, OCCA Op., at 7. Petitioner did not seek a writ of certiorari from the United States Supreme Court. Dkt. # 1 at 3.

         On December 12, 2017, petitioner filed the instant habeas petition, identifying six grounds for habeas relief:

Ground 1: The [OCCA] ruled in contrary to clearly established Federal law in adjudication of Petitioner's Prosecutorial Misconduct claim for relief wherein the prosecutor's questioning regarding other juvenile prostitution cases in Tulsa amounted to an appeal to societal alarm which violated relevant provisions of the Oklahoma Evidence Code (and Federal Rules of Evidence) and prejudiced Petitioner, undermining his right to a fair trial under the Fourteenth Amendment to the United States Constitution.
Ground 2: The OCCA ruled in contrary to clearly established Federal law in adjudication of Petitioner's Brady violation claim wherein Defense counsel had not been provided with the background discovery in support of Sergeant Evans testimony regarding the reasons for the “sting” operation in this case constituting a “discovery violation” violative of the Sixth and Fourteenth Amendment to the United States Constitution.
Ground 3: The OCCA ruled in contrary to clearly established Federal law in adjudication of Petitioner's Ineffective Assistance of Counsel claim wherein Defense counsel was ineffective in violation of the Sixth and Fourteenth Amendment to the United States ...

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