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Urquiza v. Allbaugh

United States District Court, N.D. Oklahoma

June 17, 2019

ALEJANDRO URQUIZA, Petitioner,
v.
JOE ALLBAUGH, Respondent.

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE.

         Before 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 petition.

         I. Background

         Petitioner's 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.

         The 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.[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.

         Petitioner 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 relevant here:

(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.

         Thereafter, 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 Dkt. 11-7.

         Petitioner, 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 relief:

(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.

         On June 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 briefed.

         II. Exhaustion and Procedural Default

         The 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).

         “The 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).

         A 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).

         Federal 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).

         A. Grounds 1 and Portions of Ground 2 are Procedurally Defaulted

         Ground 1 (ineffective assistance of counsel) and Ground 2 (prosecutorial misconduct) each contain various subparts. In ...


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