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Terry v. Bear

United States District Court, N.D. Oklahoma

September 23, 2019

PATRICK JOSEPH TERRY, Petitioner,
v.
CARL BEAR, [1] Respondent.

          OPINION AND ORDER

          TERENCE C. KERN, United Slates District Judge.

         This matter is before the Court on the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. 1) filed by Petitioner Patrick Joseph Terry, a state prisoner appearing pro se. Respondent filed a response in opposition to the petition (Dkt. 11) and provided copies of the state court record (Dkt. 12) necessary to adjudicate Petitioner’s claims. Petitioner filed a reply brief (Dkt. 24) and provided an Appendix that includes portions of the state court record (Dkts. 2, 3, 4).[2] On consideration of these materials, and for the reasons that follow, the Court finds Petitioner is not entitled to federal habeas relief and denies his habeas petition.

         BACKGROUND

         Petitioner seeks federal habeas relief from the judgment and sentence entered against him in the District Court of Ottawa County, No. CF-2012-242. Following review of the state court record, the Court finds the following factual summary from the Oklahoma Court of Criminal Appeals’ decision in Terry v. State, 334 P.3d 953 (Okla. Crim. App. 2014), accurately and adequately describes the events leading to Petitioner’s convictions.[3] Therefore, the Court adopts the following summary as its own:

In June 2012, the Ottawa County District Attorney’s Office received a tip that [Petitioner], a parolee, was manufacturing methamphetamine in his apartment. As a condition of parole, [Petitioner] signed Rules and Conditions of Parole that stated in part: “I understand that at any time or place, I am subject to search. In addition, my vehicle and any property under my control is subject to search.” Acting pursuant to [Petitioner’s] parole agreement, a district attorney investigator accompanied by several police officers conducted a warrantless search of his apartment three weeks after receipt of the tip. Officers found in [Petitioner’s] bedroom marijuana, baggies, small plastic containers containing methamphetamine residue, syringes, pills, a scale, a glass lid with white powder residue, a razor blade, and a plastic bag containing leftover “mush” from cooking methamphetamine. In the kitchen, police found lighter fluid and drain opener, chemicals commonly used to manufacture methamphetamine.
A closet in [Petitioner’s] apartment was secured by a combination padlock. [Petitioner] said the closet did not belong to him and claimed that the building’s maintenance man used the closet to store tools. Police cut off the lock and found more lighter fluid, bottles containing two-layer liquids, a large container of lye, two jugs of muriatic acid, hoses, and several empty boxes of pseudoephedrine pills. In the refrigerator of an unoccupied apartment accessible from a door in [Petitioner’s] kitchen, police found a bag containing five reaction vessels recently used for manufacturing methamphetamine.
[Petitioner], who was outside when the officers arrived, objected to the search, but was reminded by the investigator that under the terms of his parole agreement his person and property were subject to search.

Dkt. 11-4, OCCA Op., at 2-3 (footnotes omitted).

         On July 13, 2012, the State charged Petitioner, in the District Court of Ottawa County, No. CF-2012-242, with two felonies-manufacturing a controlled dangerous substance (methamphetamine) within 2, 000 feet of a school, in violation of Okla. Stat. tit. 63, § 2-401(G) (Count 1), and possessing controlled dangerous substances (methamphetamine and marijuana) within 1, 000 feet of a school, in violation of Okla. Stat. tit. 63, § 2-402(C) (Count 2)-both after former conviction of two or more felonies. Dkt. 12-6, O.R., at 5. The State also charged Petitioner with misdemeanor possession of drug paraphernalia, in violation of Okla. Stat. tit. 63, § 2-405 (Count 3). Id. In addition, the State alleged Petitioner had previously been convicted of ten felony offenses in six separate cases. Id. at 7-8. The State filed an amended information on May 31, 2013, omitting the allegation that Petitioner possessed drugs within 1, 000 feet of a school and charging Petitioner in Count 2 with simple possession of controlled dangerous substances (methamphetamine and marijuana), after former conviction of two or more felonies. Dkt. 12-6, O.R., at 122-23.[4]

         Petitioner waived his right to a jury trial and his case proceeded to a non-jury trial on June 10 and June 11, 2013. Dkt. 12-6, O.R., at 143, 147. Before and during trial, Petitioner moved to suppress evidence obtained during the search of his apartment. Dkt. 12-6, O.R., at 45, 52, 96, 141. The trial court denied Petitioner’s motions and admitted the evidence at trial over Petitioner’s objections. Dkt. 12-1, Tr. Prelim. Hr’g, at 71-93; Dkt. 12-2, Tr. Mot. Hr’g, at 2-9; Dkt. 12-3, Tr. Trial vol. 1, at 7-8. At the conclusion of the two-day trial, the trial court found Petitioner guilty as charged. Dkt. 12-4, Tr. Trial vol. 2, at 127-133.

         After finding Petitioner had six prior felony convictions, the trial court honored the State’s request to sentence him under the Habitual Offender Act, Okla. Stat. tit. 21, § 51.1, and imposed a 30-year prison term and a $10, 000 fine for the manufacturing conviction (Count 1), a six-year prison term and a $1, 000 fine for the drug possession conviction (Count 2), and a one-year jail term and $200 fine for the paraphernalia possession conviction (Count 3). Dkt. 12-4, Tr. Trial vol. 2, at 133-34; Dkt. 12-6, O.R., at 144-45. The court ordered the sentences to be served concurrently, with no credit for time served. Dkt. 12-4, Tr. Trial vol. 2, at 135, 137; Dkt. 12-6, O.R., at 144. Pursuant to Okla. Stat. tit. 22, § 991a-21, the court imposed a one-year term of post-imprisonment supervision. Dkt. 12-4, Tr. Trial vol. 2, at 135; Dkt. 12-6, O.R., at 145.

         Represented by counsel, Petitioner filed a direct appeal asserting one claim: that the warrantless search of his apartment violated his Fourth Amendment right to be free from unreasonable searches. Dkt. 11-1, Pet’r App. Br., at 10. In a published opinion filed September 18, 2014, in No. F-2013-607, the OCCA found no Fourth Amendment violation and affirmed Petitioner’s convictions and sentences. Dkt. 11-4, OCCA Op., at 2, 10-11. Petitioner, represented by counsel, sought further direct review of his Fourth Amendment claim by filing a petition for writ of certiorari in the United States Supreme Court. Dkt. 2, App’x vol. 1, at 59-65; Dkt. 3, App’x vol. 2, at 1-16. The Supreme Court denied his petition. Dkt. 11-5, at 1.

         Petitioner also sought postconviction relief in state court on two occasions. First, on September 26, 2014, Petitioner filed a pro se application for suspended sentence, alleging “the complaining officers perjured themselves at trial” when they testified about their pre-search contact with the local parole office. Dkt. 12-7, PC O.R., at 7-10. The state district court denied Petitioner’s application on October 10, 2014. Dkt. 2, App’x vol. 1, at 57.

         Second, on February 25, 2016, Petitioner filed a pro se application for postconviction relief, asserting seven propositions of error:

Proposition One: The State knowingly relied on perjured evidence at trial to obtain a conviction in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution
Proposition Two: Ineffective assistance of appellate counsel, Sixth and Fourteenth Amendments to the Constitution of the United States
Proposition Three: The district court erred by imposing an unauthorized penalty of post-imprisonment supervision at sentencing when such law providing this penalty was not in effect at the time the crime was alleged to have been committed
Proposition Four: The district court erred and imposed an unauthorized fine enhancement on Petitioner at sentencing when such sentence was first enhanced as a habitual offender
Proposition Five: Because the State failed to prove all elements of the offense charged in Count I of the information, trial court erred in entering a finding of guilt for the crime of manufacturing a controlled dangerous substance (methamphetamine) within 2000 feet of a school-63 O.S. § 2-401(G)
Proposition Six: Petitioner was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution
Proposition Seven: Trial court erred in not permitting the Petitioner to confront the informant, who was not a confidential informant.

Dkt. 3, App’x vol. 2, at 19, 27-28 (altered to omit full capitalization); Dkt. 4, App’x vol. 3, at 51 (altered to omit full capitalization).[5] By order filed May 2, 2016, the state district court denied Petitioner’s application for postconviction relief. Dkt. 11-7, DC Order, at 1. With the exception of the ineffective-assistance-of-appellate-counsel (IAAC) claim Petitioner asserted in Proposition Two, the court found Petitioner’s claims were procedurally barred.[6] Id. at 2 & n.1. Applying Strickland v. Washington, 466 U.S. 668 (1984), and Logan v. State, 293 P.3d 969 (Okla. Crim. App. 2013), the latter of which requires courts to examine “the merits of the issues that appellate counsel failed to raise, ” the court rejected the IAAC claim, finding appellate counsel was not ineffective for omitting the issues identified by Petitioner.[7] Dkt. 11-7, DC Order, at 3-4.

         Petitioner filed a timely postconviction appeal. In his postconviction appellate brief, Petitioner reasserted his Proposition Two IAAC claim-which encompassed the claims raised in Propositions One, Four and Five-and, in addition, he alleged ineffective assistance of appellate counsel as cause to overcome the state district court’s application of a procedural bar as to the claims asserted in Propositions One, Four, Five and Seven. Dkt. 11-8, Pet’r PC App. Br., at 9-10, 16-17, 19-20, 22-23.[8] In an unpublished order filed July 21, 2016, in No. PC-2016-0412, the OCCA affirmed the state district court’s order denying postconviction relief. Dkt. 11-9, OCCA PC Order, at 1, 4. The OCCA found the claims asserted in Propositions One, Three, Four, Five, Six and Seven were procedurally barred, citing Petitioner’s failure to raise those claims on direct appeal.[9] Id. at 2. As to the IAAC claim presented in Proposition Two, the OCCA determined that the state district court properly applied Strickland and Logan when it “looked to the merits of the issues raised” and agreed with the state district court’s conclusion “that appellate counsel’s performance was not deficient.” Id. at 4.

         Petitioner filed the instant federal habeas petition on September 19, 2016. Dkt. 1.

         DISCUSSION

         I. Legal Framework

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) guides this Court’s review of a habeas petition filed by a state prisoner. Under the AEDPA, a federal court may grant habeas relief to a prisoner in custody pursuant to a state-court judgment “only on the ground that [the prisoner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In other words, a federal court may not grant habeas relief to a state prisoner on the basis of a state-law error. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”). Even when a state prisoner timely files a federal habeas petition and presents only properly exhausted federal claims, [10] the AEDPA limits a federal court’s ability to grant habeas relief. The limitations vary depending on how the state court disposed of the federal claims.

         If the state court adjudicated the merits of the prisoner’s federal claim, a federal court may not grant habeas relief unless the prisoner demonstrates that the state court’s adjudication of that claim either “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, ” 28 U.S.C. § 2254(d)(1), [11] or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” id. § 2254(d)(2). “As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         If the state court denied the prisoner’s federal claim on procedural grounds, the claim is procedurally defaulted for purposes of federal habeas review. Id. at 103. Ordinarily, “a federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule.”[12] Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). Nonetheless, a federal court may review a procedurally defaulted federal claim if the prisoner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         To demonstrate “cause, ” the prisoner must “show that some objective factor external to the defense impeded . . . efforts to comply with the State’s procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986). In addition to “cause, ” the prisoner must also establish “‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). To demonstrate that a “fundamental miscarriage of justice” will occur absent review of his defaulted claims, the prisoner must show that “a constitutional violation probably has caused the conviction of one innocent of a crime.” McCleskey v. Zant, 499 U.S. 467, 494 (1991); see also Herrera v. Collins, 506 U.S. 390, 404 (1993) (noting that the miscarriage-of-justice exception “is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons” (quoting McCleskey, 499 U.S. at 490)).

         II. Analysis

         Petitioner seeks federal habeas relief on the same eight grounds he presented to the OCCA through his direct and postconviction appeals:

Ground One: Because the search of Petitioner’s home was improper, the trial Court erred in denying defense Counsel’s Motion [t]o Suppress. Question Presented: Does the Fourth Amendment of the United States Constitution allow a police officer to conduct a warrantless, nonconsensual investigatory search of a parolee’s residence, absent reasonable suspicion, statutory authority, or direction from the parole officer?
Ground Two: The State knowingly relied on perjured evidence at trial to obtain a conviction in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
Ground Three: Ineffective Assistance of Appellate Counsel, Sixth and Fourteenth Amendments to the United States Constitution.
Ground Four: The District Court erred by imposing an unauthorized penalty of post-incarceration supervision at sentencing when such law providing this penalty was not in effect at the time the crime was alleged to have been committed.
Ground Five: The District Court erred and imposed an unauthorized fine enhancement on Petitioner at sentencing when such sentence was first enhanced as a Habitual Offender.
Ground Six: Because the State failed to prove all elements of the offense charged on Count 1 of the Information, Trial Court erred in entering a finding of guilt for the crime of Manufacturing a Controlled Dangerous Substance (Methamphetamine) within 2000 Feet of a School-63 O.S. § 2-401(G).
Ground Seven: Petitioner was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution Ground Eight: Trial Court erred by not permitting the Petitioner to confront the informant, who was not a confidential informant.

Dkt. 1, Petition, at 6-19.

         Respondent contends Stone v. Powell, 428 U.S. 465 (1976), bars habeas relief on the Fourth Amendment claim asserted in Ground One. Dkt. 11, at 10-13. Respondent contends Petitioner procedurally defaulted the claims raised in Grounds Two, Four, Five, Six, Seven and Eight by failing to raise those claims on direct appeal. Id. at 13-17. Respondent urges this Court to overlook the procedural default and analyze each claim on the merits under the doubly deferential standards of 28 U.S.C. § 2254(d) and Strickland. Id. at 17-23. Respondent contends § 2254(d) bars habeas relief on these claims, as well as the IAAC claim asserted in Ground Three, because the OCCA’s application of Strickland was objectively reasonable. Id. at 13, 16-18, 24-40.

         A. Claims adjudicated on the merits

         1. Fourth Amendment Claim (Ground One)

         Petitioner claims he is entitled to federal habeas relief because the Fourth Amendment does not “allow a police officer to conduct a warrantless, nonconsensual investigatory search of a parolee’s residence, absent reasonable suspicion, statutory authority, or direction from the parole officer.” Dkt. 1, Petition, at 6-7; Dkt. 24, Reply, at 77-92.

         Petitioner presented this claim to the OCCA on direct appeal, and the OCCA rejected it. The OCCA framed the issue before it as “whether the warrantless, investigative search of a parolee’s home by law enforcement acting on an unidentified informant’s tip violated his Fourth Amendment rights.” Dkt. 11-4, OCCA Op., at 2. The OCCA discussed a trilogy of United States Supreme Court cases, Samson v. California, 547 U.S. 843 (2006); United States v. Knights, 534 U.S. 112 (2001); and Griffin v. Wisconsin, 483 U.S. 868 (1987), and, applying Samson, found the search of Petitioner’s apartment did not violate the Fourth Amendment “[b]ecause the search was in compliance with [Petitioner’s] parole agreement.” Dkt. 11-4, OCCA Op., at 5-10. The OCCA specifically found that the signed parole agreement contained a “search condition” that “did not limit searches of [Petitioner] to supervisory searches conducted by his parole officer” and that, instead, “unconditionally allowed searches without limitation concerning who may conduct the search, the purpose of the search (investigatory or supervisory), time, place, and the necessity of a search warrant or cause.” Dkt. 11-4, OCCA Op., at 10. The OCCA ultimately concluded (1) that Petitioner, as a parolee, had a diminished expectation of privacy, and (2) that the search of his apartment was reasonable because it “was in compliance with [his] parole agreement” under which Petitioner agreed to be “subject to search at any place or time” without “a search warrant or cause.” Id. at 8-10.

         a.Stone ...


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