United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Ajejandro Urquiza's habeas corpus
petition under 28 U.S.C. § 2254 (Dkt. 1). Petitioner
challenges his Tulsa County District Court convictions for
possessing and distributing cocaine, No. CF-2011-893. Dkt. 1
at 1. For the reasons below, the Court will deny the
convictions stem from a narcotics investigation in 2011. Dkt.
12-7 at 151. Narcotics officers were conducting surveillance
when they observed a relative, Moises Bustos, emerge from
Petitioner's Tulsa residence and drive away. Id.
at 152; see also Dkt. 12-8 at 8-9. A nearby patrol
unit stopped Bustos, who consented to a search of his
vehicle. Dkt. 12-7 at 154, 169-170. The patrol officers
discovered a kilo of cocaine in the trunk. Id. at
171-172. Narcotics officers then searched Petitioner's
apartment, where they found more cocaine and digital scales
in his bedroom. Dkt. 12-8 at 45. Sergeants Wolthuis and Uhren
visited Petitioner's workplace and questioned him about
the cocaine. Id. at 20; see also Dkt. 12-7
at 232-239. According to Wolthuis and Uhren, Petitioner
admitted he owned the cocaine in Bustos' trunk.
Id. Petitioner disagrees.
State charged Petitioner with: (Count I) trafficking in
illegal drugs, Okla. Stat. tit. 63, § 2-415; (Count II)
possession of a controlled dangerous substance without tax
stamp affixed, Okla. Stat. tit. 63, § 450.1; (Count III)
unlawful possession of drug paraphernalia, Okla. Stat. tit.
63, § 2-405; (Count V) unlawful possession of a
controlled drug, Okla. Stat. tit. 63, § 2-402. Dkt. 11-3
at 1. Petitioner retained Brian Martin as
defense counsel. Dkt. 3 at 3. A jury trial commenced on June
12, 2012. Dkt. 12-5. However, the state court declared a
mistrial after a prosecutor questioned Petitioner regarding a
prior felony conviction. Dkt. 12-6 at 165. The state court
held a second trial, and on November 29, 2012, the jury
convicted Petitioner of all charges. Dkt. 12-8 at 104-105. In
accordance with the jury's recommendation, the state
court sentenced Petitioner to a total term of 48 years
imprisonment. Dkt. 11-3 at 1.
perfected a direct appeal to the Oklahoma Court of Criminal
Appeals (“OCCA”). Dkt. 11-1. His appellate
counsel (Lisbeth McCarty) raised eleven propositions of
error. Id. at 2-3. The following propositions are
(Proposition I): Petitioner's confession was involuntary;
(Proposition V): Double jeopardy violations;
(Proposition VI): Insufficient evidence; and
(Proposition VII): Prosecutorial misconduct. By a Summary
Opinion entered January 10, 2014, the OCCA affirmed
Petitioner's conviction and sentence. Dkt. 11-3.
Petitioner, through his current counsel (Stanley Monroe),
filed an application for post-conviction relief in the state
court. Dkt. 11-4. He argued trial counsel rendered
ineffective assistance due to personal problems and made
other errors both before and during trial. Id. at
3-5. The post-conviction application also cited additional
instances of prosecutorial misconduct that were not raised on
appeal. Id. at 6-8. The state court denied
Petitioner's application - based in part on a procedural
bar - and the OCCA affirmed. Dkt. 11-6; see also
through counsel, filed the instant § 2254 Petition (Dkt.
1) along with a supporting brief (Dkt. 3) on April 28, 2016.
The § 2254 Petition identifies the following grounds for
(Ground 1): Ineffective assistance of trial counsel;
(Ground 2): Prosecutorial misconduct;
(Ground 3): Involuntary confession;
(Ground 4): Double jeopardy; and
(Ground 5): Insufficient evidence.
Dkt. 1 at 5-17.
23, 2016, Respondent filed a Response (Dkt. 11) along with
copies of the state court record (Dkt. 12). Respondent
concedes, and the Court finds, that Petitioner timely filed
his federal habeas petition. See 28 U.S.C. §
2244(d)(1). However, Respondent contends certain portions of
Grounds 1 and 2 are procedurally barred, and the remaining
claims lack merit. Dkt. 11 at 2. Petitioner filed a Reply
(Dkt. 16) on August 11, 2016, and the matter is fully
Exhaustion and Procedural Default
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
this Court's review of petitioner's habeas claims.
See 28 U.S.C. § 2254. Relief is only available
under the AEDPA where the petitioner “is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). “Before
addressing the merits of [a habeas] claim, [the petitioner]
must show that he can satisfy [certain] procedural
requirements” including the exhaustion of state
remedies. U.S. v. Greer, 881 F.3d 1241, 1245 (10th
Cir. 2018); see also 28 U.S.C. § 2254(b)(1)(A).
exhaustion requirement is satisfied if the federal issue has
been properly presented to the highest state court, either by
direct review of the conviction or in a postconviction
attack.” Dever v. Kansas State Penitentiary,
36 F.3d 1531, 1534 (10th Cir. 1994).
corollary to the exhaustion requirement is the procedural bar
doctrine. See Davila v. Davis, 137 S.Ct. 2058, 2064
(2017). If the state court denied a habeas claim “based
on an adequate and independent state procedural rule, ”
the claim is procedurally defaulted for purposes of federal
habeas review. Davila, 137 S.Ct. at 2064. A state
procedural rule “is independent if it is separate and
distinct from federal law, ” and “is adequate if
it is ‘strictly or regularly followed' and applied
‘evenhandedly to all similar claims.'”
Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir.
1998) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263
(1982)). “Once the state pleads the affirmative defense
of an independent and adequate state procedural bar, the
burden to place that defense in issue shifts to the
petitioner.” Hooks v. Ward, 184 F.3d 1206
(10th Cir. 1999). “To satisfy this burden, petitioner
is, at a minimum, required to set forth specific factual
allegations as to the inadequacy of the state
procedure.” Smallwood v. Gibson, 191 F.3d
1257, 1268 (10th Cir. 1999).
courts also lack authority to review claims that are not
exhausted (and not yet defaulted), but would be procedurally
barred if petitioner returned to state court. See
Anderson v. Sirmons, 476 F.3d 1131, 1139 (10th Cir.
2007); Grant v. Royal, 886 F.3d 874, 891-92 (10th
Cir. 2018). This doctrine is called “anticipatory
bar.” Id. To determine its applicability, the
Court must consider whether exhaustion would be futile, and
the state court would refuse to consider the merits of the
federal claim, based on an adequate and independent state
procedural rule. See Anderson, 476 F.3d at 1139. If
a procedural bar or an anticipatory bar applies, a federal
court will not review the claim unless the petitioner can
show “cause for the default and actual prejudice as a
result of the alleged violation of federal law” or that
a “fundamental miscarriage of justice” will
result from dismissal of the claim. Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
Grounds 1 and Portions of Ground 2 are Procedurally
1 (ineffective assistance of counsel) and Ground 2
(prosecutorial misconduct) each contain various subparts. In