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Henry v. Dowling

United States District Court, N.D. Oklahoma

September 3, 2019

MICHAEL DUANE HENRY, Petitioner,
v.
JANET DOWLING, Warden, Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         This 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 at 182-185.

         The 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.

         Henry 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; and
(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. Dkt. 9-4.

         Thereafter, 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 and 9-13.

         Henry filed the instant § 2254 Petition (Dkt. 1) on July 20, 2016. The Petition identifies the following grounds for relief:

(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.

         On 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.

         II. Exhaustion and ...


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