United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE.
action is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
as barred by the statute of limitations. (Dkt. 7). Petitioner
is a prisoner in the custody of the Oklahoma Department of
Corrections who is incarcerated at Davis Correctional
Facility in Holdenville, Oklahoma. He is attacking his
convictions and sentences in McCurtain County District Court
No. CF-1995-258 for First Degree Murder (Count 1) and Second
Degree Murder (Count 2).
is represented by counsel and, therefore, is not entitled to
the same liberal construction of his pleadings as those of a
pro se litigant. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) ("A pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
lawyers”); Sullivan v. Rios, No. CIV-15-67-M,
2015 WL 4926475, at *4 (W.D. Okla. June 12, 2015)
(unpublished) (refusing to give liberal construction
"[b]ecause the petition is counsel's work-product,
[and] it must be read as written”).
grounds for habeas corpus relief are raised in the petition:
Ground I: The petitioner's
newly-discovered evidence undermines the jury verdict and is
exculpatory to First Degree Malice Murder, as the state court
decision is unreasonable in light of prevailing norms and in
light of the evidence.
Ground II: The state court made an
unreasonable determination of facts in light of the evidence
demonstrating that Petitioner was a juvenile at the time of
the offenses, further making an unreasonable determination
that the intervening change in law recognized in
Montgomery v. Louisiana is not applicable to
Oklahoma Court of Criminal Appeals (OCCA) set forth the facts
of Petitioner's case in its order affirming his Judgments
Steven Morgan was killed over an electrical generator. He had
a campsite in the Wright City vicinity in the woods, close to
the Glover River. In September 1995, he and a friend, Orville
Lewis Bullard, went camping.
Morgan had several conveniences at the site: he had converted
a bread van into a camper, and had a pair of bunk beds at the
rear of the van. He had also rigged up some propane stoves
for cooking, and had several ice chests full of squirrel and
fish he had caught. He also had a 4, 000-watt Coleman
generator which produced electricity for lights in the
Four hundred yards from the Morgan campsite, [Petitioner] and
some friends were staying at another campsite. The first
night they arrived, [Petitioner] and his friends heard the
generator in the distance. One of the company, Michael
Delozier,  commented on the generator and mentioned
they should steal it. Nothing else was done or said about it
that night. The next day the group rode four-wheelers in the
area. That second night, they again heard the generator
running; and again, Delozier mentioned it. The next day, the
group rode over to the nearby camp, visited with those
present, and saw the generator and other items present.
That night, Delozier again mentioned stealing the generator,
adding they should go to the campsite, kill everyone present,
and take everything in the camp. [Petitioner] and his cousin,
Nathaniel Madison, agreed. A fourth party, James Oliver,
refused to go along with the idea. As Oliver went to bed,
[Petitioner] and Delozier grabbed some weapons and,
accompanied by Nathaniel, walked over to the Morgan camp.
Once there, Delozier and [Petitioner] approached the camper.
Delozier opened the camper door, took one step in, pointed
his 12-gauge shotgun toward the back of the camper, and fired
[Petitioner] then stepped in, pointed his .22 rifle toward
the back, and fired once. The group then retreated to a
nearby pickup, where [Petitioner] fired approximately seven
more shots through the front window of the camper. The .22
rifle he was carrying was a single-shot bolt rifle, and
[Petitioner] had to reload before firing each time.
Nathaniel, at Delozier's request, shouted several times
for the camper's occupants to come out. After
approximately 10 to 15 minutes, Morgan appeared at the door
with a flashlight. Delozier ordered him to turn off the
flashlight. When Morgan did so, Delozier shot him in the
Morgan said "Oh, God," and fell to the ground. As
he was lying there, [Petitioner] and Delozier approached him.
Delozier took the rifle from [Petitioner], pointed it at
Morgan's face, and fired.
The trio then took a number of items, including the generator
and some shotguns, from the Morgan camp back to their camp,
using a pickup at the Morgan camp. On the way back to the
campsite for a third load, the trio saw vehicle headlights at
the Morgan camp. Delozier, who was driving, stopped the
pickup and ran into the woods. [Petitioner] and Nathaniel did
likewise. As [Petitioner] and Nathaniel made their way back
to their own campsite, they saw a fire where the pickup had
been left. A short time later, they saw a fire where the
Morgan campground was.
The cause of death to Morgan was determined to be both the
shotgun wound to the chest and the rifle wound to the head.
Bullard was killed as he lay in the camper during the initial
attack: he received a .22 bullet in his brain, and pellets
from the shotgun blast penetrated his heart. Both wounds were
fatal, although the medical examiner said Bullard was still
alive when he received the shot to the head. Although both
bodies were badly burned, this did not contribute to the
cause of death.
Morgan v. State, No. F-1996-1064, slip op. at (Okla.
Crim. App. Oct. 29, 1997) (Dkt.8-1 at 1-2). 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. §
I: Newly-Discovered Evidence
alleges newly-discovered evidence of Michael Delozier's
clemency hearing undermined Petitioner's conviction for
First Degree Murder. Petitioner argues that Delozier's
admission in the hearing of his guilt in killing the two
victims, when contrasted with Delozier's previous denial
of responsibility, undermines confidence in Petitioner's
verdict. He further asserts DeLozier's statements in the
clemency hearing created an issue of Petitioner's factual
innocence, leaving the jury's verdict unreliable.
19, 2017, Petitioner presented this claim to the state
district court in an application for post-conviction relief.
State v. Madison, No. CF- 1995-258-B, slip op. at 1
(McCurtain County Dist. Ct. Aug. 1, 2017) (Dkt. 8-2).
Petitioner argued that "DeLozier admitted before being
executed [in the clemency hearing recording] that he was the
person that murdered the two victims and that he was solely
responsible for the crimes of murder, which is a fact that he
had previously denied." (Dkt. 2-2 at 12). An evidentiary
hearing was held on July 11, 2017, where a recording of