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Cone v. Dowling

United States District Court, E.D. Oklahoma

September 30, 2019

JANET DOWLING, Warden, Respondent.


          James H. Payne United States District Judge

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se state prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Dick Conner Correctional Center in Hominy, Oklahoma. He is attacking his conviction in Muskogee County District Court Case No. CF-2012-749 for First Degree Murder (Count 1) and Assault and Battery with a Deadly Weapon (Count 2).

         Following the Court's determination that Petitioner had filed a mixed petition with exhausted and unexhausted claims (Dkt. 12), Petitioner advised the Court that he would proceed with only his exhausted claims (Dkt. 13). He raises the following exhausted claims, as set forth in the Court's Opinion and Order entered on August 21, 2017 (Dkt. 14 at 4):

(1) Trial counsel was ineffective for failing to object to allegedly defective jury instructions.
(2) Trial counsel was ineffective for failing to object to alleged instances of prosecutorial misconduct.
(3) Cumulative error deprived Petitioner of a fair trial.


         Respondent has filed a response to the exhausted claims (Dkt. 17) and has submitted the following records to the court for consideration in this matter:

A. Petitioner's direct appeal brief.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's judgment and sentence.
D. Transcripts
E. State court record.


         On direct appeal, the State set forth the facts of the case as follows:

This case arises from the defendant's murder of Skylar Brewer and his assault and battery with deadly weapon of Robert Carmans in Muskogee, Oklahoma, on September 6, 2012. Relevant facts are as follows. Tenesha Nunley had known the defendant for a couple of months in September 2012 (Tr. Vol. II, 5). The defendant needed to go to his mother's house on September 6, 2012, and he asked Ms. Nunley if he could borrow her vehicle, an older model blue Tahoe (Tr. Vol. II, 6). Ms. Nunley allowed him to, and the defendant left Ms. Nunley's house.
Skylar Brewer, hereinafter referred to as the victim, and Robert Carmans were over at Letreece [sic] Smith's house that same evening (Tr. Vol. I, 179). Ms. Smith drove the victim and Mr. Carmans over to Ms. Nunley's house to purchase PCP (Tr. Vol. I, 181; Vol. II, 42). When they arrived at Ms. Nunley's house, only the victim went inside to purchase the PCP from Ms. Nunley (Tr. Vol. I, 181; Vol. II, 9, 43). While they were waiting at Ms. Nunley's house, the defendant returned, and the defendant saw the victim leave Ms. Nunley's house and get inside Ms. Smith's car (Tr. Vol. II, 129).
The defendant went inside Ms. Nunley's house to return her keys to her. The defendant then noticed that twenty-five dollars ($25.00) he had placed on Ms. Nunley's dryer was missing (Tr. Vol. II, 8, 192). Ms. Nunley did not know anything about the missing money, but confirmed that the victim was the only person that had been in her house since the defendant had left (Tr. Vol. II, 131). Ms. Nunley helped the defendant attempt to call the victim, but the victim was not answering his phone (Tr. Vol. II, 131). The defendant then decided to drive around and look for the [victim]. However, the defendant was unable to locate the victim and returned to Ms. Nunley's house (Tr. Vol. II, 132-33).
Ms. Nunley was finally able to make contact with the victim (Tr. Vol. II, 133). The victim told the defendant to meet him at the Not-a-Spot Carwash and he would return the money to him (Tr. Vol. II, 135). The defendant again borrowed Ms. Nunley's vehicle to meet the victim and get his money back (Tr. Vol. II, 12). The defendant arrived at the carwash and asked around for the victim. No one knew where he was so the defendant began to “holler” the victim's name aloud (Tr. Vol. II, 46).
Ms. Smith, Mr. Carmans and the victim had returned to Ms. Smith's house. Ms. Smith was unloading groceries and taking them inside while Mr. Carmans and the victim stayed out by Ms. Smith's car parked in the driveway and smoked the PCP the victim had purchased from Ms. Nunley (Tr. Vol. I, 181-82). Ms. Smith's house was close enough to the carwash that she heard someone yelling for the victim. She told the victim someone was looking for him, so he whistled and yelled, “I'm over here.” (Tr. Vol. I, 194; Vol. II, 47, 73).
Travis Dobbins and his wife, Jullie Brittain, lived across the street from Ms. Smith (Tr. Vol. I, 143, 163). They were outside on the evening of September 6, 2012, when they noticed a vehicle pull up and park on their side of the street (Tr. Vol. I, 144, 168). The driver of the vehicle got out and headed across the street towards Ms. Smith's house. As the driver approached the people standing out by Ms. Smith's car, he started yelling, “Where's my money!” (Tr. Vol. I, 146, 169). Mr. Dobbins heard someone [say], “We don't have your money, ” and “You just need to leave.” (Tr. Vol. I, 148).
Ms. Smith observed the defendant park across the street and start to walk towards her house (Tr. Vol. II, 49). The defendant said, “Where's my money!” Ms. Smith told him to “[c]hill out, ” and asked, “What's going on?” (Tr. Vol. II, 50). The defendant was about ten (10) feet away from the victim at the time (Tr. Vol. II, 51). At first the victim was asking, “What are you talking about?” But then the victim reached in his back pocket and handed the defendant some money (Tr. Vol. II, [52]). The defendant took a few steps back, said, “F' this stuff, ” and began shooting at the victim (Tr. Vol. I, 148, 170; Tr. Vol. II, 53). The defendant then got back in Ms. Nunley's vehicle and fled the scene (Tr. Vol. I, 149). The victim received a total [of] four gunshot wounds from which he died, and Mr. Carmans' arm was grazed by a bullet (Tr. Vol. I, 133-35, 184). . . .

(Dkt. 18-2 at 8-11) (footnote omitted).

         Standard of Review

         Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.

28 U.S.C. § 2254(d).

         Ineffective Assistance of Trial Counsel

         Petitioner alleges his trial counsel was ineffective in failing to object to allegedly defective jury instructions and alleged instances of prosecutorial misconduct. “There is a strong presumption that counsel provided effective assistance of counsel and petitioner has the burden of proof to overcome that presumption.” United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988) (citing United States v. Cronic, 466 U.S. 648, 658 (1984)), cert. denied, 489 U.S. 1089 (1989). In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States Supreme Court set forth the two-part test for determining the validity of a habeas petitioner's claim of ineffective assistance of counsel:

. . . First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . .

Strickland, 466 U.S. at 687.

         The Supreme Court has since expanded the application of Strickland in habeas corpus proceedings:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Harrington v. Richter, 562 U.S. 86, 101 (2018) (emphasis in original). When evaluating the state court's resolution of Strickland's performance requirement, the federal courts must “use a ‘doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 189-90 (2011)).

         Jury ...

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