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Haak v. Whitten

United States District Court, N.D. Oklahoma

March 18, 2019

CHRISTOPHER LEE HAAK, Petitioner,
v.
RICK WHITTEN, [1] Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL. CHIEF JUDGE

         Petitioner, Christopher Lee Haak, a state inmate appearing pro se, brings this 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1), to challenge the constitutional validity of the judgment and sentence entered against him in the District Court of Creek County (Bristow Division), No. CF-2011-257. In that case, a jury convicted Petitioner of first-degree burglary and knowingly concealing stolen property, and the trial court imposed consecutive 35-year and 5-year prison terms. Petitioner claims (1) he is being punished twice for the same crime in violation of his constitutional right to be free from double jeopardy, (2) he was deprived of a fair trial due to various trial errors and the cumulative effect of those errors, (3) the trial court abused its discretion by imposing consecutive, rather than concurrent sentences, and (4) he was denied his Sixth Amendment right to the effective assistance of trial and appellate counsel. Respondent filed a response (Doc. 8) urging this Court to deny the petition and provided the state court record (Docs. 8, 9) necessary to adjudicate Petitioner's claims. Petitioner filed a reply (Doc. 10). For the reasons discussed below, the Court denies the habeas petition.

         BACKGROUND

         Early in the morning on August 23, 2011, three or four men broke into the rural Depew home of Joey and Nicole Moore after Joey left for work. Doc. 9-2, Tr. Trial, vol. 1, at 104-12.[2] One of the men blindfolded Nicole and stood watch over her and two of the Moore's children while the other men searched for items in the house. Id. at 105-12. After the men left, Nicole removed the blindfold, surveyed the damage, and noticed that several items were missing, including her Hummer that had been parked outside. Id. at 112, 119-20. Because the men had either taken or disabled the Moore's phones and stolen her vehicle, Nicole walked down the road with her children and flagged down a passing driver so she could use the driver's phone to contact the Creek County Sheriff's office. Id. at 120-21.

         Following an investigation, the State of Oklahoma filed a second amended information in the District Court of Creek County (Bristow Division), No. CF-2011-257, charging Petitioner with first-degree burglary, in violation of Okla. Stat. tit. 21, § 1431 (Count 1); larceny of an automobile, in violation of Okla. Stat. Tit. 21, § 1720 (Count 2); knowingly concealing stolen property, in violation of Okla. Stat. tit. 21, § 1713 (Count 3); and possession of a firearm after former conviction of a felony, in violation of Okla. Stat. tit. 21, § 1283 (Count 4). Doc. 9-8, Orig. Rec., at 66-67. The State alleged that Petitioner committed the crimes in concert with Richard Robert Haak, [3]Caleb Wayne Bush, and Allen Lee Locust.[4] Id. at 66. In a supplement to the second amended information, the State further alleged that Petitioner committed these crimes after former conviction of two felonies. Id. at 68. Petitioner's case proceeded to a bifurcated jury trial in September 2012.[5] Id. at 87. The following facts were developed during the guilt stage of his trial.[6]

         In mid to late August 2011, Locust told Petitioner and Richard that Locust's ex-girlfriend knew about a jeweler who lived in rural Depew and kept jewels and money in a home safe. Doc. 9-2, Tr. Trial vol. 1, at 143, 173, 197; Doc. 9-3, Tr. Trial vol. 2, at 6-7, 48-49. The three men discussed breaking into the jeweler's home. Doc. 9-2, at 143, 173, 197; Doc. 9-3, at 6-7, 48-49. Three people overheard those discussions: (1) Jessica Campbell, Richard's girlfriend, Doc. 9-2, at 170-73, (2) Robert Hamilton, Richard's teenage son, id. at 193-97, and (3) Caleb Wayne Bush, a man who had recently met Richard and agreed to help him move from Bristow to Campbell's house in Depew, id. at 140-43.

         On the evening of August 22, 2011, Petitioner, Bush and Locust were helping Richard move his furniture into Ms. Campbell's house. Doc. 9-2, Tr. Trial vol. 1, at 143-45, 173-75. Campbell and Hamilton were also at Campbell's house. Id. at 144, 174. Sometime before 10:00 p.m., Petitioner, Richard, Locust and Bush left in Richard's white car. Id. at 144-46; Doc. 9-3, Tr. Trial vol. 2, at 50. Bush drove the car. Id. Petitioner, Richard and Locust were dressed in dark or black clothing, and Petitioner carried a black bag. Doc. 9-2, at 146, 198-99; Doc. 9-3, at 7, 49. Campbell thought the men were going to Bristow to retrieve more of Richard's belongings. Doc. 9-2, at 174-75.

         As they drove, Locust told Bush to drop the men off on a dirt road between Depew and Bristow. Id. at 147. The men told Bush to have his phone ready so he could return later to pick them up. Id. After dropping the men off, Bush “scraped up some change” and bought gas at a Kum and Go in Bristow.[7] Id. at 147-48. Bush then drove back to Campbell's house, alone, and waited for a couple of hours but did not receive any phone calls. Doc. 9-2, at 149-50. Campbell woke up sometime around midnight, walked to the bathroom, and saw Bush sitting on the couch in Campbell's living room couch. Id. at 175. Campbell did not see Petitioner at that time.[8] Id. at 175, 189-90. Hamilton went to bed around 1:00 a.m. Id. at 200. Hamilton saw Bush return to the Campbell's house before he went to bed, but did not see Petitioner. Id. At some point, Bush drove Campbell's purple Chrysler to the drop-off location, honked the horn and waited for about 15 minutes. Id. at 150-51. Seeing no one, he returned to Campbell's house. Id.

         Meanwhile, Richard, Locust and Petitioner approached the Moore's house, [9] waited until they saw a vehicle leave the driveway, and broke into the Moore's home through the front door.[10] Doc. 9-3, Tr. Trial vol. 2, at 8-9, 21-24, 50-51.

         Sometime after 4:30 a.m., when her husband left for work, Nicole Moore “awoke to a strange feeling that something wasn't right or someone was there . . . .” Doc. 9-2, Tr. Trial vol. 1, at 105. When she opened her eyes, Nicole saw a silhouette of a person next to her bed. Id. at 105-06. She jumped up and screamed but a man “immediately blindfolded” her, covered her mouth, and told her to “be quiet.” Id. at 105, 107. She then heard “multiple voices” that she interpreted as “three to four” male voices. Id. at 108. The men asked Nicole where they could find the safe, jewelry and money. Id. at 109. Nicole repeatedly told the men that there was no safe in the home. Id. Two of Moore's children woke up, ran into her room, and jumped on her bed.[11] Id. The man standing by Nicole's bed told the children to cover their eyes and placed a cover over them. Id. When the men asked Nicole about two specific items-a .22 caliber rifle and a Toshiba laptop-she told the men where to find those items, hoping the men would hurry up and leave.[12] Id. at 110. Nicole heard items crashing to the floor throughout the house. Id. at 111-12. At one point, she heard a voice say, “hurry up, Chris. Hurry up, Chris, ” and “Hurry up, Tyrone.” Id. at 112. Nicole remained blindfolded throughout the incident. Id.

         Back at Campbell's house, Bush decided to drive Campbell's gold Malibu to the drop-off location. Doc. 9-2, Tr. Trial vol. 1, at 151. This time, he saw Petitioner in the middle of the road. Id. Petitioner flagged Bush down and told him “to scoot over” because Petitioner “had to get back to where they were.” Id. at 152. Bush dozed off while Petitioner drove. Id. When Bush awoke, Petitioner was gone. Id. Bush saw a house about 150 yards away and walked toward it. Id. at 152-53. When he got close to the house, he saw Richard and Locust “at the door.” Id. at 153. They told him to hurry up and get inside, so he entered the house through the back door, near the laundry room. Id. Bush saw that “[t]he house had been totally trashed” with “stuff thrown everywhere.” Id. He saw “a pile of stuff behind the couch” in the living room and “a silhouette of somebody covered up in a blanket” in a bedroom. Id. at 153-54. Bush saw Petitioner, Richard and Locust “going through drawers and dressers and still trying to find stuff to take.” Id. at 155. He heard Richard and Locust say, “[h]urry up, Chris. Hurry up. We've got to go.” Id. After a few minutes, Bush told the men that what they were doing was “wrong, ” and walked out the front door. Doc. 9-2, at 155. As he walked toward the Malibu, Bush saw Richard and Locust drive by in a Hummer. Id. at 156. Petitioner, who was holding a Toshiba laptop, told Bush to get into the Malibu and drove back to Campbell's house. Id. at 156-57.

         When the four men arrived at Campbell's house, they unloaded items from the Hummer. Doc. 9-2, Tr. Trial vol. 1, at 157-58, 176; Doc. 9-3, Tr. Trial vol. 2, at 29-30. Richard told Campbell to wake Hamilton so that Hamilton could help move items into the house. Doc. 9-2, at 157-58, 176; Doc. 9-3, at 30. Hamilton helped one of the men carry a large television into the house. Doc. 9-2, at 176, 204. Campbell and Hamilton both saw Petitioner holding onto and using a Toshiba laptop. Id. at 177-78, 213-14. After all the items were unloaded, Richard and Locust drove away in the Hummer. Id. at 159, 179; Doc. 9-3, at 13-14, 39. Shortly thereafter, Petitioner received a phone call from Richard and Locust. Doc. 9-2, at 159. Petitioner and Bush then left in Richard's car. Id. at 159, 179, 206. Following Petitioner's directions, Bush drove for about ten miles and found Richard and Locust. Id. at 160. Someone set the Hummer on fire, and all four men “got into [Richard's car] and Richard drove back” to Campbell's house. Id. at 160-61, 179-80; Doc. 9-3, at 39-40.[13]

         When law enforcement officers arrived at the Moore's home to investigate the break-in, Nicole identified several items that were missing, including: a 72-inch flat-screen television, a Toshiba laptop, several tools, and a .22 caliber rifle. Doc. 9-2, Tr. Trial vol. 1, at 121-22. She also reported that her Hummer, which contained a checkbook and cash, had been stolen. Id. at 122. A few hours later, officers found the Hummer in a wooded area of Creek County. Id. at 121-24, 235-36. The Hummer had been set on fire; only the steel frame remained intact. Id.; see also Doc. 9-5, at 5-6 (State's Exhibits 31 & 32-photographs of Hummer).

         After receiving a tip about some of the stolen property, law enforcement officers executed a search warrant at Campbell's house. Doc. 9-2, Tr. Trial vol. 1, at 170, 181-84, 231-38. There, officers found the Moore's television and several hand tools. Id. at 231-37. They found more tools in Richard's car which was parked outside Campbell's house. Id. at 237. Five days after the break-in, Petitioner called the Creek County Sheriff's office and met with deputies to turn over the Moore's Toshiba laptop. Id. at 242-43. He reported that Richard gave him the laptop and that it was from the home invasion. Id. at 243.

         At the end of the guilt stage, the jury found Petitioner guilty of first-degree burglary and knowingly concealing stolen property. Doc. 9-3, Tr. Trial vol. 2, at 104-05. The jury found him not guilty as to the charge of larceny of an automobile.[14] Id. at 104. At the end of the penalty stage, the jury found Petitioner had two prior felony convictions, recommended a 35-year prison term for the burglary conviction, and recommended a 5-year prison term for the concealment of property conviction. Id. at 116-18. The trial court sentenced Petitioner accordingly, denied Petitioner's request for concurrent sentences, and ordered the sentences to be served consecutively. Doc. 9-6, Tr. Sent. Hr'g, at 2-4.

         Petitioner perfected a timely direct appeal, raising six propositions of error. Doc. 8-1, Pet'r App. Br., at 2-3. By unpublished summary opinion, filed December 5, 2013, the Oklahoma Court of Criminal Appeals (OCCA), rejected each proposition on the merits and affirmed Petitioner's judgment and sentence. Doc. 8-3, Haak v. State, No. F-2012-1028 (Okla. Crim. App. 2013) (unpublished) (hereafter, “OCCA Op.”), at 1-10. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Doc. 1, at 3.

         Petitioner filed an application for postconviction relief in state district court on February 18, 2015, alleging his Sixth Amendment rights were violated because both trial counsel and appellate counsel were ineffective. Doc. 8-4, Pet'r PC App, at 4-6. On March 26, 2015, the state district court filed partial postconviction findings. Doc. 8-6, at 1. The court (1) denied relief as to Petitioner's ineffective-assistance-of-appellate counsel claim, (2) denied relief as to all but one part of his ineffective-assistance-of-trial-counsel claim, and (3) granted Petitioner's request for an evidentiary hearing to determine whether trial counsel refused to allow Petitioner to testify at trial. Id. at 1-4. On June 1, 2015, following the evidentiary hearing, the state district court filed final postconviction findings and denied relief on the remaining part of Petitioner's ineffective-assistance-of-trial-counsel claim. Id. at 6-9. By order filed November 18, 2015, the OCCA affirmed the denial of Petitioner's application for postconviction relief. Doc. 8-8, Haak v. State, No. PC-2015-593 (Okla. Crim. App. 2015) (unpublished) (hereafter “OCCA PC Order”), at 1-5.

         Petitioner filed the instant federal habeas petition (Doc. 1) on December 4, 2015.

         DISCUSSION

         Petitioner seeks federal habeas relief on the same grounds he presented to the OCCA through his direct and postconviction appeals. He claims his continued custody violates federal law because (1) his convictions for first-degree burglary and knowingly concealing stolen property violate “constitutional and statutory protections against double punishment and double jeopardy, ” (2) judicial bias deprived him of a fair trial, (3) the trial judge violated his due process rights by defining reasonable doubt during voir dire, (4) prosecutorial misconduct deprived him of a fair trial, (5) the trial court abused its discretion by imposing consecutive sentences, (6) the cumulative effect of trial errors deprived him of a fair trial, (7) trial counsel was ineffective, and (8) appellate counsel was ineffective. Doc. 1, at 5, 7-8, 10, 12-15.

         I. Timeliness and exhaustion

          In most cases, a state prisoner must file a federal habeas petition within one year of the date on which his state judgment became final. 28 U.S.C. § 2244(d)(1)(A). In addition, before seeking federal habeas relief, a state prisoner must exhaust available state-court remedies, id. § 2254(b)(1)(A), by “fairly present[ing] the substance of his federal claim[s] to state courts, ” Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002).

         Respondent concedes, and the Court finds, that Petitioner timely filed his habeas petition and exhausted each of his claims by presenting them to the OCCA through direct and postconviction appeals. Doc. 8, at 2. Respondent contends, however, (1) that Claim Five alleges only an error of state law and, therefore, is not a cognizable habeas claim, and (2) that 28 U.S.C. § 2254(d) bars relief as to the remaining claims.[15] Id. at 8-36.

         II. Cognizability

         In his fifth claim, Petitioner alleges that the trial court abused its discretion and violated his right to due process when the court imposed consecutive sentences based on the court's “policy” of “always impos[ing] the jury's verdicts consecutive” when a case goes to trial. Doc. 1, at 12.

         The OCCA rejected this claim. Doc. 8-3, OCCA Op., at 8-9. The OCCA found that Petitioner failed to establish that the trial court's refusal to grant his request for concurrent sentences was “based upon a policy of denying concurrent sentences to defendants that go to jury trial.” Id. at 9. The OCCA further found that the trial court did not abuse its discretion in failing to impose concurrent sentences because Petitioner “did not show any positive basis for imposition of concurrent sentences.” Id. Finally, the OCCA found that Petitioner's “sentences, both individually and in their totality, are within the applicable statutory range and when considered under all the facts and circumstances of the case, are not so excessive as to shock the conscience of the [c]ourt.” Id.

         Petitioner contends the OCCA's decision on this claim is “clearly flawed, ” “clearly contrary to state and federal law and based on a[n] unreasonable determination of the facts.” Doc. 1, at 12; Doc. 10, at 4. The Court, however, agrees with Respondent that Claim Five does not present a cognizable habeas claim. See Doc. 8, at 31-33. A federal court may grant habeas relief to a state prisoner only on the ground that the prisoner's conviction or sentence was obtained or is being enforced “in violation of the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”). As a general rule, matters pertaining to sentencing are state law issues. Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). As a result, a federal habeas court's “review of a sentence [generally] ends once [the court] determine[s] the sentence is within the limitation set by statute.” Id.

         Petitioner was convicted of first-degree burglary and knowingly concealing stolen property, both after former conviction of two or more felonies. Doc. 9-3, Tr. Trial vol. 2, at 116-18. Petitioner's sentences for those crimes, a 35-year prison term and a 5-year prison term, fall within the range of permissible punishment for an offender with two prior felony convictions. Doc. 9-8, Tr. Sent. Hr'g, at 2-3; see Okla. Stat. tit. 21, §§ 51.1(C), 1436, 1713. Because Oklahoma law authorizes the sentences Petitioner received, he fails to state a cognizable habeas claim.

         Moreover, to the extent his claim focuses solely on the imposition of consecutive sentences, that too is a question of state law. Dennis, 222 F.3d at 1258; Handley v. Page, 398 F.2d 351, 352 (10th Cir. 1968). Oklahoma law provides that a trial court may impose consecutive sentences “[i]f the defendant has been convicted of two or more offenses, ” but retains discretion to impose concurrent sentences. Okla. Stat. tit. 22, § 976. Ordinarily, federal courts will not disturb a state court's discretionary decision to impose concurrent or consecutive sentences. Handley, 398 F.2d at 352. Because Claim Five fails to state a cognizable habeas claim, the Court denies relief.

         III. Claims adjudicated on the merits in state court proceedings

         Petitioner's remaining claims are cognizable habeas claims, and the OCCA rejected each claim on the merits. As a result, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits this Court's review of those claims. Under the AEDPA, when a state court adjudicates the merits of a state prisoner's federal claims, a federal court may not grant habeas relief unless the prisoner shows 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, ” 28 U.S.C. § 2254(d)(1); (2) “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, ” id.;[16] 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); see Kernan v. Hinojosa, 136 S.Ct. 1603, 1604 (2016) (per curiam) (reiterating that “[i]f the state courts adjudicate the prisoner's federal claim ‘on the merits,' § 2254(d), then AEDPA mandates deferential, rather than de novo, review, prohibiting federal courts from granting habeas relief” unless the prisoner makes the requisite showings under 2254(d)).

         When a petitioner alleges the state court's decision on a federal claim rests on a legal error, § 2254(d)(1) applies and the federal court's first task is to identify the Supreme Court precedent governing that claim. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” Id. If clearly established federal law governs the claim, the federal court must “ask whether the state court decision is either contrary to or an unreasonable application of such law.” Id. “A state-court decision is only contrary to clearly established federal law if it ‘arrives at a conclusion opposite to that reached by' the Supreme Court, or ‘decides a case differently' than the [Supreme] Court on a ‘set of materially indistinguishable facts.'” Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (quoting Terry Williams, 529 U.S. at 412-13). Critically, “[s]o long as the state-court's reasoning and result are not contrary to the [Supreme] Court's specific holdings, § 2254(d)(1) prohibits [federal courts] from granting relief.” Id.

         A state-court decision involves an unreasonable application of clearly established federal law “if the decision ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.'” Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015) (quoting Terry Williams, 529 U.S. at 407-08). An unreasonable application of clearly established federal law may also arise “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Terry Williams, 529 U.S. at 407. Nonetheless, in either situation, an unreasonable application must be “objectively unreasonable”, id. at 409, “not merely wrong, ” White v. Woodall, 572 U.S. 415, 419 (2014); see also Wood, 907 F.3d at 1289 (“[A] state court's application of federal law is only unreasonable if ‘all fairminded jurists would agree the state court decision was incorrect.'” (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014))).

         Finally, “when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, ” the federal court must determine, under § 2254(d)(2), whether the state-court decision rests on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Burt v. Titlow, 571 U.S. 12, 18 (2013).[17] “[A] state-court decision unreasonably determines the facts if the state court ‘plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim.'” Wood, 907 F.3d at 1289 (alterations in original) (quoting Byrd v. Workman, 645 F.3d 1159, 1170-72 (10th Cir. 2011)).

         Ultimately, § 2254(d) requires federal habeas courts to give state court decisions the “benefit of the doubt, ” Woodford v. Visciotti, 537 U.S. 19, 24 (2002), with respect to federal claims “already rejected in state proceedings, ” Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d)'s standards are meant to be imposing, because “habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).

         With these standards in mind, the Court turns to Petitioner's remaining claims.[18]

         A. Claim One: Double Jeopardy

         Petitioner claims that his convictions for first-degree burglary and knowingly concealing stolen property violate Oklahoma's statutory prohibition against multiple punishments, as found in Okla. Stat. tit. 21, § 11A, and violate his federal and state constitutional rights to be free from double jeopardy, as found in the Fifth Amendment to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma constitution. Doc. 1, at 5; Doc. 10, at 1-2.

         Petitioner raised this claim on direct appeal, and the OCCA rejected it. Doc. 8-3, OCCA Op., at 2-4. First, the OCCA found that Petitioner's crimes did not arise out of the same act and, therefore, did not violate the statutory prohibition against multiple punishments. Id. at 3. Second, applying the legal principles from Blockburger v. United States, 284 U.S. 299 (1932), the OCCA found that Petitioner's crimes “were separate and distinct offenses each requiring proof of an additional fact, ” and, therefore, did not violate “constitutional prohibitions against double jeopardy. Id. at 3-4.

         Petitioner contends the OCCA's ruling is “clearly contrary to state and federal law and based on a[n] unreasonable determination of the facts.” Doc. 1, at 5. He further contends the OCCA “failed to properly apply” Blockburger. Doc. 10, at 2. For two reasons, the Court disagrees and denies habeas relief on this claim. First, to the extent Petitioner alleges a violation of Oklahoma's statutory or constitutional prohibitions against multiple punishments, he alleges only errors of state law. See Wilson, 562 U.S. at 5; Spradling v. Addison, 367 Fed.Appx. 938, 941 (10th Cir. 2010) (unpublished)[19] (explaining that petitioner's claim arising under Okla. Stat. tit. 21, § 11 presented an issue of state law not cognizable on habeas review).

         Second, to the extent Petitioner alleges a violation of his Fifth Amendment right to be free from double jeopardy, § 2254(d) bars relief. The Double Jeopardy Clause protects against multiple criminal punishments for the same offense imposed in a single proceeding. See Jones v. Thomas, 491 U.S. 376, 380-81 (1989) (discussing scope of Fifth Amendment's double jeopardy protections). But this protection “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). Under the Blockburger test, the reviewing court “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence' and double jeopardy bars additional punishment.” United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger, 284 U.S. at 304).

         The question in this case is whether first-degree burglary and knowingly concealing stolen property, as defined under Oklahoma law, are the same offense. A comparison of the elements of these crimes supports the OCCA's determination that they are not the same offense. To prove a defendant committed the crime of first-degree burglary, the State must establish that the defendant (1) broke into and (2) entered (3) the dwelling (4) of another (5) in which a human being was present (6) with the intent to steal or commit a crime therein. Okla. Stat. tit. 21, § 1431; Oklahoma Uniform Jury Instruction-Criminal (OUJI-CR) (2d) No. 5-12. To prove a defendant committed the crime of knowingly concealing stolen property, the State must establish that the defendant (1) concealed or withheld (2) stolen personal property (3) from the owner, (4) knowing or believing the property had been stolen, (5) with the intent to permanently deprive the owner of that property. Okla. Stat. tit. 21, § 1713; OUJI-CR (2d) No. 5-113. These two crimes share no identical elements. Thus, as the OCCA concluded, Petitioner's convictions for both crimes did not violate his right to be free from multiple punishments for the same offense. Because that conclusion is consistent with guiding Supreme Court precedent, objectively reasonable, and not based on an unreasonable determination of the facts, the Court denies habeas relief on Claim One.

         B. Claim ...


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