United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge
matter is before the Court on Petitioner's petition for a
writ of habeas corpus filed pursuant to 28 U.S.C. Â§ 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
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.
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
E. State court record.
direct appeal, the State set forth the facts of the case as
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.
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, ). 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).
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;
(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).
Assistance of Trial Counsel
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.
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
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,