Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Millsap v. Allbaugh

United States District Court, E.D. Oklahoma

March 21, 2019

TOMMY JAMES MILLSAP, Petitioner,
v.
JOE ALLBAUGH, Director, Respondent.

          OPINION AND ORDER

          HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. [Doc. 1]. Petitioner, a pro se prisoner in the custody of the Oklahoma Department of Corrections, is currently incarcerated at the Davis Correctional Facility in Holdenville, Oklahoma. Petitioner is attacking his conviction and sentence in Carter County District Court No. CF-2012-138 for Manslaughter in the First Degree, After Former Conviction of Two or More Felonies (Count 1), Felonious Possession of a Firearm, After Former Conviction of Two or More Felonies (Count 2), and Possession of a Controlled Dangerous Substance, After Former Conviction of Two or More Felonies (Count 3).[1] Petitioner sets forth the following grounds for relief:

I. Petitioner had an absolute right to use lethal force to repel an unlawful intruder. Therefore, Petitioner should have been immune from prosecution and his conviction for manslaughter must be vacated and dismissed.
II. The evidence was insufficient to support a conviction for manslaughter in the first degree by resisting criminal attempt because the evidence failed to prove beyond a reasonable doubt that Petitioner did not act in self-defense.
III. Petitioner's conviction for possession of a controlled dangerous substance (methamphetamine) must be vacated because the evidence was insufficient to prove his guilt beyond a reasonable doubt.
IV. The evidence was insufficient to prove Petitioner was guilty of possession of a firearm after former felony conviction as the possession of the firearm was justified and should have been excused.
V. Counts One and Three were improperly joined at Petitioner's trial in violation of his right to a fair trial and due process of law under the Fourteenth Amendment to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.
VI. Petitioner's rights to due process and a fair trial under the Fourteenth Amendment to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution were violated by the improper admission of bad character evidence.
VII. The failure to provide a complete record of the proceedings constitutes a violation of Petitioner's rights under the Fourteenth Amendment to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.
VIII. 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 transactions, or occurrence or series of events closely related in time and location.
IX. Petitioner was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.
X. Petitioner's sentences are excessive and should be modified.
XI. The accumulation of error violated Petitioner's rights under the Fourteenth Amendment to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

         Respondent filed a response on May 12, 2017. [Doc. 20]. Respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. [Id. at 2]. The eleven grounds for relief asserted by Petitioner herein were also presented to the Oklahoma Court of Criminal Appeals (“OCCA”). [Id. at 3]. The following have been submitted to the court for consideration in this matter:

A. Petitioner's direct appeal brief.
B. State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's judgment and sentence.
D. Transcripts of preliminary hearing and jury trial proceedings.
E. DVD of interview of Petitioner.
F. Motion to dismiss filed in state court, and the minute order of 09/26/2012 showing motion to dismiss withdrawn.
G. Relevant jury instructions.

         Standard of Review

          Under the Antiterrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         As a preliminary matter, Petitioner has included claims specifically based upon the Oklahoma Constitution within Grounds V, VI, VII, IX and XI. Those portions of Petitioner's claims are denied. Claims grounded in a state's constitution are not cognizable on federal habeas corpus review. The Supreme Court has explained “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Davis v. Reynolds, 890 F.2d 1105, 1109 n. 3 (10th Cir.1989) (“Alternative state claims, whether grounded in state statutes or the State Constitution, are not cognizable under 28 U.S.C. § 2254(a).” (citation omitted)).

         Factual Background

         The OCCA set forth the facts of the case as follows:

On February 27, 2012, members of the Carter County Sheriff's Office and Ardmore Police Department executed a search warrant on Millsap's home at 86 Clover Lane. Millsap was not present at the time. The structure was a two bedroom residence; one bedroom contained adult male clothing and the other contained small children's clothes. In the closet of the children's bedroom, officers found a lockbox containing prescription pill bottles bearing Millsap's name. Also in the lockbox were cystalline flakes that were tested to be methamphetamine. In the master bedroom, an OG&E bill dated January 2012 and bearing Millsap's name for 86 Clover Lane was found on the dresser.
On March 28, 2012, a group of people congregated at Millsap's home at 86 Clover Lane. Among those present were Toby Albin, the victim and long-time friend of Millsap, Susie Gorman, Taylor Burkett, and Karlie Barbour. The group drank and used drugs into the night. At one point, Millsap allowed Albin to use his vehicle to drive to Texas to get some money from Albin's father. On Albin's return, Millsap allowed Albin and Barbour to spend the night at his home while he spent the night at Burkett's apartment.
On the morning of March 29, 2012, Millsap and Burkett went to a store called 580-To Go where they traded Albin's iPhone for another phone. Millsap used methamphetamine that morning and appeared to be under the influence at the time. When they returned to Millsap's house, Albin was angry because his phone, money, and some drugs were missing. Although not directed at anyone in particular, Albin threatened to “take care” of anyone who was involved with taking his property.
Albin received information that his phone was at 580-To Go. Driving Millsap's car, Albin and Burkett picked up Gorman and the three went to the store to try to locate the phone. At the store, Albin identified his phone and store employees pointed to Burkett and advised that she and a man had traded it that morning. Albin told Gorman that he wanted to talk to Millsap before confronting anyone about taking his phone. Although flatly disputed by Gorman, Burkett testified that before returning to Millsap's house, Albin stopped at another house where he asked someone if they had a gun; at that time, Burkett called Millsap to warn him that Albin was trying to obtain a weapon.
When the call came in from Burkett, Millsap “started freaking out” and told Barbour that Albin was upset about his missing property. Millsap sent his children to his mother's house next door and returned with a gun. Barbour asked why he needed the gun to which Millsap responded, “In case something gets out of hand.”
Millsap was standing outside with the shotgun when Albin pulled up to the house. Albin got out of the car and stated that he was not armed. Albin asked if the gun was for him and Millsap responded that it was not. The two men talked; at times the conversation got heated but would calm back down. During the conversation, Albin repeatedly tried to convince Millsap to go with him to confront Keith Dean, a man who was at the party the night before and whom Albin suspected of stealing his property. Albin remarked that he was not leaving until Millsap came with him to find Dean. As they talked, both Albin and Millsap moved in and out of the house. At one point they got into the car to go confront Dean but never left. As they talked by the car, Barbour saw a phone between the seat and armrest. She reached to get the phone and Albin held her by the hair, brandished a knife, laughed, and winked at her. Barbour explained that Albin was simply trying to get Millsap's attention and that she never felt threatened.
Millsap told Albin to come inside the house to talk. Millsap went into the house, sat down in the living room, and propped the shotgun up on his leg. Burkett followed and sat beside him. Before Albin went inside, Gorman said something to him which prompted him to say “Oh hell no.” Albin went into the house with Barbour following a few steps behind. As he entered, Albin accused Millsap of taking his property. Millsap fired one shot striking Albin in the stomach. From the time Albin entered until the time he was shot, only a matter of seconds passed. Millsap hid the shotgun in a wooded area until police arrived. No. weapons were found on or near Albin. The knife the victim brandished earlier was found outside near the car.
In a Mirandized interview given on March 30, 2012, Millsap told Detective Rick Batt of the Carter County Sheriffs Office, that he shot Albin out of panic and fear. He stated that he feared Albin would “jump him” and, because of prior back and shoulder injuries, he would not be able to adequately defend himself. However, Millsap explained that it was his understanding that under the “Make My Day” law he had to shoot Albin inside his home in order for it to be legal; it was his belief that if the shooting occurred outside, it would be illegal. So, according to Millsap, he went inside, sat down in the living room, positioned the weapon on his leg pointing in the direction of the hallway, and waited for Albin to come down the hall. Millsap admitted that he never saw Albin with a gun or anything in his hands when Albin entered the house. Millsap further described the manner in which Albin entered the house as walking “kind of fast” and demonstrated Albin's gait for Detective Batt.

Millsap v. State, No. F-2012-1107, slip op. at 3-6 (Okla. Crim. App. Feb. 26, 2014) (unpublished). [Doc. 20-3]. The OCCA's factual findings are entitled to a presumption of correctness, unless Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

         Ground I:Stand Your Ground” statute

         Petitioner claims in Ground I that he “had an absolute right to use lethal force to repel an unlawful intruder” and that he “should have been immune from prosecution and his conviction for manslaughter must be vacated and dismissed.” [Doc. 1 at 7]. Relying upon the language found within Okla. Stat. tit. 21, § 1289.25 (2011), Oklahoma's “Stand Your Ground” statute, Petitioner makes a general claim that citizens of the State of Oklahoma “have a right to expect absolute safty [sic] within their own homes.” [Id.]. Petitioner then sets forth his argument that Mr. Albin was not an invited guest at the time of the shooting, claiming “when Mr. Albin the deceased got into the driver's seat to leave[, ] the previous invite into the home was over, ” that Mr. Albin “rushed into the house” in a threatening manner, that Mr. Albin “rushed toward [Petitioner] who was sitting in a chair in his own home” and that Mr. Albin was reaching into his pocket “as if to pull out a weapon.” [Id.]. Petitioner admits that he “fired one time striking Mr. Albin in the stomach” but asserts he is entitled to a full and complete defense under § 1289.25. [Id.].

         In response, Respondent contends “this claim involves the application of a state statute enacted by the state Legislature, which interpretation must be left to the highest court, the OCCA” and that “[t]he OCCA reviewed the merits of Petitioner's claim and determined § 1289.25 was inapplicable to Petitioner.” [Doc. 20 at 11-12]. Respondent also claims the trial “was not fundamentally unfair, and this state law issue is not cognizable on habeas review.” [Id. at 12]. Respondent argues that “the OCCA's determination of this claim was not contrary to, or an unreasonable application, of Supreme Court law, and the decision was not based on an unreasonable determination of the facts presented at trial.” [Id.].

         The OCCA addressed the claim on the merits:

In Proposition I, Millsap argues that he was immune from prosecution and the charges should have been dismissed pursuant to the Stand Your Ground Law codified at Section 1289.25 of Title 21. He further argues that the trial court erred in failing to sua sponte instruct the jury under this statute as a theory of defense. Millsap concedes that a motion to dismiss the charge based upon Section 1289.25 was filed, but later withdrawn by counsel. He further concedes that defense counsel did not request that the jury be instructed on Section 1289.25 as a theory of defense. He has, therefore, waived all but plain error on these claims. Barnard v. State, 2012 OK CR 15');">2012 OK CR 15, ¶ 13, 290 P.3d 759, 764 (failure to object to jury instructions waives all but plain error); Nealy v. State, 1981 OK CR 142, ¶ 4, 636 P.2d 378, 380 (failure to file a demurrer or motion to quash waives any defect in the Information except as it goes to jurisdiction). Plain error is an actual error, that was plain or obvious, that affects a defendant's substantial rights and the outcome of the trial. Barnard, 2012 OK CR 15');">2012 OK CR 15, ¶ 13, 290 P.3d at 764.
Millsap's arguments are plagued by error in their underlying premise that his shooting of Albin was justified under Section 1289.25. Under this provision, a person is justified in using deadly force to defend against the unlawful and forcible entry into a home or business by another. 21 O.S.2011, § 1289.25(B)(1). The evidence here shows that Albin was not unlawfully and forcibly entering Millsap's home at the time he was shot; rather, he was invited to enter. Testimony from both State and defense witnesses established that just prior to the shooting, Millsap and Albin were moving in and out of the house repeatedly as the discussions were occurring about Albin's missing property. Although loud and heated, the discussions were not an argument between the two men but rather revolved around Albin and Millsap going together to confront a third party who was initially suspected of taking the property. More significantly, just before Albin entered the home for the last time, Gorman heard Millsap expressly tell Albin to come inside to continue those discussions. Regardless of whatever weight might be given to the fact that Albin was an invited guest from the night before, the events preceding the shooting show that he was still an invited guest and was not unlawfully and forcibly entering the home when Millsap shot and killed him. Under these circumstances, Section 1289.25(B)(1) has no application.
Turning to each of Millsap's arguments presented in his first assignment of error, there was no plain error. The decision of what charge to bring against a defendant, if any, rests within the discretion of the prosecutor so long as there is probable cause to believe that a crime has been committed. Woodward v. Morrissey, 1999 OK CR 43, ¶ 9, 991 P.2d 1042, 1045. While Section 1289.25 prohibits the criminal prosecution of an individual who has used deadly force which is justified under the Act, 21 O.S. 2011, § 1289.25(F), the facts of the present case establish that Millsap did not fall within the scope of this immunity. Also untenable is Millsap's claim that the trial court erred in failing to instruct the jury pursuant to Section 1289.25. While it is the duty of the trial court to instruct the jury on the salient features of the law raised by the evidence presented, including any theory of defense, there was no plain error in the trial court's failure to instruct the jury of the law in this regard because Albin was not unlawfully and forcibly entering the home when Millsap shot and killed him. Atterberry v. State, 1986 OK CR 186, ¶ 8, 731 P.2d 420, 422. Proposition I is denied.

Millsap, slip op. at 6-8.

         In short, the OCCA held that Petitioner was not immune from prosecution because he was not justified in shooting Mr. Albin. Petitioner disagrees, claiming immunity from prosecution and that his attorney should have pursued this theory of defense, but the OCCA's ruling on this issue was not unreasonable. Ample evidence showed Mr. Albin was not unlawfully and forcibly entering the home at the time of the shooting. Witnesses for the State and the defense testified that Petitioner and Mr. Albin had been moving in and out of the house repeatedly during the discussions about Mr. Albin's missing property, and in fact, one witness testified that “[Petitioner] told [Mr. Albin] to come in the house to talk” just before the shooting took place. [Doc. 21-2 at 134].

         The OCCA also concluded there was no plain error in the trial court's failure to instruct the jury regarding § 1289.25, and “ ‘[a]s a general rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas corpus proceedings, unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law.' ” Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005) (quoting Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997), cert. denied, 547 U.S. 1166 (2006)). Further, “ ‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.' ” Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). Petitioner has not shown that the omission of the jury instruction regarding § 1289.25 deprived Petitioner of a fair trial and to due process of law.

         The court finds the OCCA's determination of this claim was not contrary to, or an unreasonable application, of Supreme Court law. The court also finds the OCCA's decision was not based on an unreasonable determination of the facts presented at trial. Ground I lacks merit and the court denies habeas relief.

         Ground II: The evidence was insufficient to support a conviction for manslaughter in the first degree by resisting criminal attempt because the evidence failed to prove beyond a reasonable doubt that Petitioner did not act in self-defense; and,

         Ground III: Petitioner's conviction for possession of a controlled dangerous substance (methamphetamine) must be vacated because the evidence was insufficient to prove his guilt beyond a reasonable doubt.

         In Grounds II and III, Petitioner claims there was insufficient evidence to sustain two of his convictions. Petitioner contends in Ground II that the evidence was insufficient to support a conviction for manslaughter in the first degree by resisting criminal attempt in violation of Okla. Stat. tit. 21, § 711(3) (2011), arguing that the evidence failed to prove beyond a reasonable doubt that Petitioner did not act in self-defense. [Doc. 1 at 9]. In Ground III, Petitioner contends the evidence was insufficient to support his conviction for possession of a controlled dangerous substance (methamphetamine) in violation of Okla. Stat. tit. 63, § 2-402 (2011), specifically claiming the home had temporarily been rented to another individual named “Ricky Marshall” before the search warrant was executed. [Id. at 10].

         Respondent contends the OCCA's decision regarding Grounds II and III was neither contrary to, nor based on an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. [Id. at 18-19, 22]. Respondent primarily refers to the trial transcript and DVD of Petitioner's interview to undermine the claims raised in Petitioner's Ground II, asserting as follows:

The jury relied on the evidence presented at trial which showed that when Mr. Albin arrived at Petitioner's house and saw Petitioner outside with a shotgun, Mr. Albin held his hands in the air, told Petitioner he was not carrying anything, and he just wanted to talk (Exhibit 4, 133). Before he would even exit the car, Mr. Albin asked Petitioner if the gun was for him (Exhibit 4, 155-56, 216; Exhibit 5 at 8:20). Instead of warning Mr. Albin that the gun was for him and he needed to leave, actions that a reasonable person in fear would take, Petitioner told him to “chill out” and assured him the gun was not for him (Exhibit 4, 155-56, 216; Exhibit 5 at 8:20).
Petitioner then told Mr. Albin “to come in the house and talk (Exhibit 4, 134), which is also contrary to what a reasonable person would do if they were in fear of great bodily harm or death. By Petitioner's own words, Petitioner went inside not to seek refuge from Mr. Albin, but so his shooting of Mr. Albin would be “legit” under Oklahoma's “Make My Day” law (Exhibit 4, 215-216; Exhibit 5, at 7:58-7:45, 37:43-37:58). A reasonable person would do everything in his power to erect any kind of barrier between himself and the person he felt was about to inflict great bodily harm or kill him, and not specifically invite the potential assailant inside. Had Petitioner truly been afraid of Mr. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.