United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL. CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court is the 28 U.S.C. § 2254 petition for writ of
habeas corpus (Doc. 1) filed by Petitioner Kim Lynn Mason, a
state prisoner appearing pro se. Respondent filed
a response (Doc. 9) in opposition to the petition and
provided the state court records (Docs. 9, 10) necessary to
adjudicate Petitioner's claims. Petitioner filed a reply
(Doc. 14). For the reasons discussed below, the Court denies
the habeas petition.
an arrest and eventful booking process in February 2007, the
State charged Petitioner, in the District Court of Craig
County, No. CF-2007-33, with bringing a controlled substance
into a penal institution, in violation of Okla. Stat. tit.
57, § 21 (2001), after former conviction of two or more
felonies (Count 1); assault and battery on a peace officer,
in violation of Okla. Stat. tit. 21, § 649(B) (2001),
after former conviction of two or more felonies (Count 2);
and attempting to destroy evidence, in violation of Okla.
Stat. tit. 21, § 42 (2001) (Count 3). Doc. 10-5, Orig.
Rec. vol. 1, at 152-55. On the second page of the amended
information, the State alleged that Petitioner had eight
prior felony convictions. Id. at 154.
case proceeded to a jury trial in June 2009. See Doc.
10-2, Tr. Trial vol. 1, at 1. The following facts were
developed at trial. On February 6, 2007, Jeff Prack, a patrol
officer with the City of Vinita Police Department, arrested
Petitioner and transported him to the Craig County Jail. Doc.
10-2, Tr. Trial vol. 1, at 130-32. As Officer Prack prepared
to leave the jail, he heard a “scuffle break out in the
bathroom.” Id. at 132-33. Jailer Marvin Asche
had taken Petitioner into the bathroom so Petitioner could
change into jail-issued clothing. Id. at 132-33,
145, 148. According to Asche, the scuffle ensued after a
“package” consisting of “white paper
wrapped in [red] tape” fell out of Petitioner's
shoe. Id. at 148-49. Asche called out for a second
jailer and told Petitioner to back away from the package.
Id. at 149, 151. Petitioner did not comply.
Id. at 149. Instead, he grabbed the package and
threw it into the nearby toilet. Id. As Petitioner
dropped the package into the water, Asche grabbed
Petitioner's left hand. Id. Petitioner
“turned around and punched” Asche in the chest.
Id. at 149-50. Petitioner then tried, but failed, to
flush the package. Id. Asche yanked Petitioner away
from the toilet and subdued him on the ground. Id.
Officer Prack entered the bathroom, he saw that Asche had
Petitioner “in a controlled position on the
floor.” Doc. 10-2, Tr. Trial vol. 1, at 134-35. Asche
told Prack that Petitioner attempted to flush contraband down
the toilet. Id. at 135. Prack heard the toilet
“still running” and saw the “package
floating.” Id. at 134-35. Asche retrieved the
package and placed it into a drawer of a desk in the booking
area. Id. at 152-53. After he secured Petitioner in
a jail cell, Asche opened the package and saw “a green
leafy substance” and “a couple of baggies”
containing “a whiteish color” powder.
Id. at 154. Asche contacted Craig County
Sheriff's Deputy Merle Clack to field test the
substances. Id. at 154; Doc. 10-3, Tr. Trial vol. 2,
his arrival at the Craig County Jail, Deputy Clack took
Asche's statement about the incident and spoke with
Officer Prack about Petitioner's arrest. Doc. 10-3, Tr.
Trial vol. 2, at 7-9. Clack then field tested the substances
from the package Petitioner attempted to flush. Id.
at 9-10. The white powder tested positive for
methamphetamine. Id. at 10-12. Both substances were
sent to the Oklahoma State Bureau of Investigation (OSBI) for
further testing. Id. at 13-14. Jason McGinnis, a
criminalist with the OSBI's drug identification unit,
received three items for testing which he described as
“one bag with a green leafy substance and two bags
containing a residue.” Id. at 31, 41. McGinnis
performed a series of tests and determined the green leafy
substance was marijuana and the residue was methamphetamine.
Id. at 41-47, 49, 61.
jury found Petitioner guilty as charged and recommended a
30-year prison sentence as to Count 1, a 40-year prison
sentence as to Count 2, and a six-month jail sentence and
fine as to Count 3. Doc. 10-3, Tr. Trial vol. 2, at 148-49;
Doc. 10-7, Orig. Rec. vol. 3, at 12-14, 22-24. The trial
court sentenced Petitioner accordingly and ordered the
sentences to be served consecutively. Doc. 10-4, Tr. Sent.,
at 3-4, 6.
by counsel, Petitioner filed a direct appeal with the
Oklahoma Court of Criminal Appeals (OCCA), raising five
propositions of error:
1. Appellant's conviction on count 1-possession of a
controlled dangerous substance in a penal institution-should
be reversed with instructions to dismiss, based on an
inadequate chain of custody.
2. Appellant was prejudiced by improper admission of a prior
conviction in Craig County case number CF-1985-85, which was
not valid for enhancement of Appellant's felony sentences
because (1) more than ten years had elapsed from the term of
the sentence to the date of the current alleged offenses, and
(2) Appellant was not bound over on this prior conviction.
3. The trial court abused its discretion in allowing the
State to allege and to present evidence of separate prior
convictions on cases and counts that arose out of the same
transaction or occurrence or series of events closely related
in time and location.
4. The trial court erred in the instruction and verdict forms
given to the jury on (1) the number of priors valid for
enhancement, (2) a question of law as to whether prior
conviction relied upon for enhancement had arisen out of the
same transaction or occurrence or series of events closely
related in time and location, and (3) the sentencing range
for count 1 after one prior conviction.
5. Appellant was prejudiced in sentencing by the jury being
informed of sentences on prior offenses that had been
Doc. 9-3, Mason v. State, No. F-2009-604 (Okla.
Crim. App. 2010) (unpublished) (hereafter, “OCCA
Op.”), at 1-2. By unpublished summary opinion filed
December 13, 2010, the OCCA affirmed Petitioner's
convictions and sentences. Id. at 1, 2, 5.
November 2, 2011, Petitioner, appearing pro se,
filed an application for post-conviction relief in state
district court alleging:
A. The Affiant in the Application for the Arrest Without
Warrant Which Led to Defendant's Detention Signed an
Affidavit which Contained False Statements. His False
Statements Where [sic] Material; Without the Affiant's
Misrepresentations, the Magistrate would not have Issued the
Arrest Without Warrant for the Petitioner's Detention.
Further, the Misrepresentations were made either with
Knowledge that they were False or with Reckless Disregard for
B. Appellate Counsel's Representation was Rendered
Constitutionally Deficient Because She Failed to Raise on
Direct Appeal that Petitioner was Actually Innocent to the
Charge of Assault and Battery Upon a Peace Officer and that
The Jury was Incorrectly instructed on the Elements of
Assault and Battery Upon a Peace Officer, Mr. Asche was not a
Peace Office [sic] at the Allege [sic] Incident.
C. The State Failed To Prove Each and Every Essential and
Material Element of the Offense of Assault and Battery Upon
Peace Officer Necessary to Constitute the Crime with which
the Petitioner was Charged Beyond A Reasonable Doubt.
D. Appellant [sic] Counsel's Representation Was Rendered
Constitutionally Deficient Because She Failed To Raise On
Direct Appeal That Petitioner Was Actually Innocent To The
Charge Of Second And Subsequent Offender Under 21 O.S. §
51.1(C) And The Prior Convictions That And “On Their
Face” Are Revealed To Be A Continuous Transaction.
E. The Omission of a Direct Appeal Claim Regarding all Eight
Felony Offenses Relied upon Shall not have Arisen Out of the
Same Transaction or Occurrence or Series of Events Closely
Related in Time and Location.
F. Continuing Offenses
Doc. 9-4, at 6-7, 11, 15, 18. Petitioner filed a supplemental
application on February 22, 2013, presenting further
arguments in support of his
ineffective-assistance-of-appellate-counsel claims. Doc. 9-5,
at 1-4. By order filed June 22, 2015, the state district
court denied ...