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Mason v. Martin

United States District Court, N.D. Oklahoma

March 19, 2019

KIM LYNN MASON, Petitioner,
v.
JIMMY MARTIN,[1] Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL. CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Before 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.[2] 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.[3]

         BACKGROUND

         Following 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.[4] On the second page of the amended information, the State alleged that Petitioner had eight prior felony convictions.[5] Id. at 154.

         Petitioner's case proceeded to a jury trial in June 2009.[6] 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.[7] Id. Asche yanked Petitioner away from the toilet and subdued him on the ground. Id. at 150.

         When 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, at 5-7.

         Upon 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.

         The 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.

         Represented 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 modified.

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.

         On 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 the Truth.
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 ...


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