United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL. CHIEF JUDGE
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
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. 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.
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, Caleb Wayne Bush, and Allen
Lee Locust. 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. Id. at 87. The following facts
were developed during the guilt stage of his
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
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.
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. 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. 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
Richard, Locust and Petitioner approached the Moore's
house,  waited until they saw a vehicle leave the
driveway, and broke into the Moore's home through the
front door. Doc. 9-3, Tr. Trial vol. 2, at 8-9,
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. 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. 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.
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.
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.
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).
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.
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. 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.
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.
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.
filed the instant federal habeas petition (Doc. 1) on
December 4, 2015.
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.
Timeliness and exhaustion
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).
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. Id. at 8-36.
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.
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
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
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
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
Claims adjudicated on the merits in state court
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.; 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)).
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.
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
“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). “[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)).
§ 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)).
these standards in mind, the Court turns to Petitioner's
Claim One: Double Jeopardy
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.
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.
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) (explaining that petitioner's claim
arising under Okla. Stat. tit. 21, § 11 presented an
issue of state law not cognizable on habeas review).
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
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.