United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Michael Duane Henry's 28 U.S.C.
§ 2254 habeas corpus petition. He challenges his Tulsa
County District Court conviction for endeavoring to
manufacture methamphetamine, No. CF-2011-3607. Dkt. 1 at 4.
For the reasons discussed below, the petition is denied.
case stems from a house fire in 2011. Henry co-owned the
house, along with an adjacent, undamaged house on the same
street in Tulsa. Dkt. 10-3 at 121. Investigators visited the
fire-damaged house on September 18, 2011 and noticed Henry
working on a vehicle in the adjacent driveway. Id.
at 121, 135. They questioned Henry about the fire and, in
particular, a bottle of Roundup herbicide. Id. at
121; see also Dkt. 10-4 at 209. Investigators
searched the adjacent, undamaged house where Henry was
working, which will hereinafter be called the
“Residence.” They testified Henry consented to
the search; Henry contends he only gave a limited, belated
consent after an investigator stepped inside the Residence.
Dkt. 10-3 at 122; see also Dkt. 1 at 6.
Investigators discovered evidence of methamphetamine
manufacture in the Residence and a nearby dumpster. Dkt. 10-3
State charged Henry with endeavoring to manufacture
controlled drugs after two or more felonies (Okla. Stat. tit.
63, § 2-408). Dkt. 10-10 at 15. Henry retained Steven
Vincent as defense counsel. Dkt. 10-2 at 1. The state court
held a four-day jury trial beginning on May 8, 2012. Dkt.
10-2. The defense theory was that other parties manufactured
methamphetamine in the Residence. The jury convicted Henry of
the manufacturing charge and recommended a sentence of 30
years imprisonment. Dkt. 10-5 at 138. The state court
sentenced him in accordance with the jury's
recommendation. Dkt. 10-6.
perfected a direct appeal to the Oklahoma Court of Criminal
Appeals (“OCCA”). Dkt. 9-2. His appellate counsel
(Stuart Southerland) raised seven propositions of error:
(Proposition I): Insufficient evidence;
(Propositions II and V): Instructional error;
(Propositions III and IV): Error in admission/exclusion of
photographs and prior crimes;
(Proposition VI): Ineffective assistance of trial counsel;
(Proposition VII): Cumulative errors.
Dkt. 9-2 at 2-3. By a Summary Opinion entered January 24,
2014, the OCCA affirmed Henry's conviction and sentence.
Henry filed two state applications for post-conviction
relief. Dkts. 9-5 and 9-10. In the first application, he
challenged the search of the Residence and argued his
attorneys should have raised an illegal-search argument. The
state court determined the claims were procedurally barred,
except for ineffective-assistance-of-appellate-counsel, and
rejected that claim on the merits. Dkt. 9-7 at 4-5. Henry
appealed, and the OCCA affirmed. Dkt. 9-9. The second
post-conviction application raised one claim for judicial
bias. Dkt. 9-10. The state court again determined the claim
was procedurally barred, and the OCCA affirmed. Dkts. 9-11
filed the instant § 2254 Petition (Dkt. 1) on July 20,
2016. The Petition identifies the following grounds for
(Ground 1): Illegal search and seizure;
(Ground 2): Trial court error at the preliminary hearing;
(Ground 3): Judicial bias;
(Ground 4): Prosecutorial misconduct;
(Ground 5): Ineffective assistance of trial counsel;
(Ground 6): Ineffective assistance of appellate counsel; and
(Ground 7): Actual innocence.
Dkt. 1 at 2.
October 31, 2016, Respondent filed an answer (Dkt. 9) along
with copies of the state court record (Dkt. 10). Respondent
concedes, and the Court finds, Petitioner timely filed his
federal habeas petition. See 28 U.S.C. §
2244(d)(1). However, Respondent contends all claims are
procedurally barred, except for Ground 7 (actual innocence)
and portions of Ground 6 (appellate counsel's failure to
raise an illegal search argument). Henry filed a Reply (Dkt.
11) on November 29, 2016, and the matter is fully briefed.
Exhaustion and ...