Opinion
No. CIV-19-694-G
03-27-2020
DAVID ALLEN KNIGHT, Petitioner, v. JIMMY MARTIN, Warden, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1 ("Petition"). Petitioner is challenging his convictions of Robbery by Force or Fear and Endangering Others While Eluding a Police Officer in the District Court of Pottawatomie County, Case No. CF-2015-222. Respondent has responded to the Petition and filed the relevant state court records. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
I. Background
In 2017, Petitioner was tried before a jury on Robbery by Force or Fear and Endangering Others While Eluding a Police Officer, both crimes after two or more former convictions of a felony. Petition at 1; Doc. No. 17 ("Response") at 1; Oklahoma State Courts Network, Pottawatomie County District Court, Case No. CF-2015-222. The jury found him guilty on both counts. Id. The trial court sentenced Petitioner to twenty years imprisonment on Robbery by Force or Fear and three years imprisonment on Endangering Others While Eluding a Police Officer. Id. The trial court ordered that the sentences run consecutively. Id.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pottawatomie&number=CF-2015-222
This case arose from an incident that occurred on the afternoon of February 28, 2015. On that date, Tyler Hodges drove his wife's 2002 Chevrolet Tahoe to the Kickapoo Market in Shawnee, Oklahoma. Tr. Vol. I 22-23. It was a little before 2:00 p.m. and the roads were icy as there had been a recent winter storm. Id. at 23. Prior to turning into the Kickapoo Market parking lot, he noticed two individuals, a male and a female, walking along the road. Id. at 23-24. When he pulled up to the store, he left his vehicle running with the keys inside because it was cold and he knew that he was going to just be in and out. Id. at 24.
As Mr. Hodges was standing at the register, he saw the male individual he had previously seen on the road walking toward his car. Id. The male individual began getting into Mr. Hodges' car and Mr. Hodges ran out of the store and straight to his car. Id. at 24-25. Mr. Hodges began fighting the individual for his vehicle. Id. at 25. Petitioner was already in the driver's seat of the vehicle when Mr. Hodges reached it. Id. at 26. Mr. Hodges "tried to jump in with him and, like, grab him, pull him out, like, I - swinging, whatever I could do." Id. Petitioner threw the car into drive and pushed Mr. Hodges out of the vehicle with his hand and his foot, causing Mr. Hodges to fall out on his back and slide across the ice. Id. at 26-28, 45-46. Mr. Hodges testified that during the altercation he was scared, he was worried Petitioner had a weapon, and he was worried about how he would transport his four kids without his vehicle. Id. at 36-37. At trial, Mr. Hodges identified Petitioner as the male individual in his vehicle. Id. at 27.
Mr. Hodges immediately called the police, providing them with a description of the vehicle and the direction it was headed. Id. at 28-29. Shawnee Police Officer David Gonzalez arrived at 1:59 p.m., within eight minutes of receiving the radio advisement, and Mr. Hodges reported to him what had occurred. Id. at 29-30, 40-43. Officer Gonzalez put out a Be On the Lookout ("BOLO") order for Mr. Hodges' vehicle. Id. at 30, 43, 45-46. Mr. Hodges contacted a family member who lived nearby who took him to his house and he and his wife went to the police station to file a report. Id. at 30, 46-47.
Officer Daniel Lazar, with the McLoud Police Department, heard the BOLO over dispatch issued by Officer Gonzalez. Id. at 47, 54-56. At approximately 2:00 p.m., Officer Lazar saw a vehicle matching the BOLO description on the side of the road on Highway 270. Id. at 55-57. As he passed by the vehicle, Officer Lazar could see a male individual sitting in the driver's seat. Id. at 57. He identified that person at trial as Petitioner. Id. at 58. Officer Lazar noticed a female standing outside the vehicle who appeared to be taking photographs of the vehicle with her cell phone. Id. at 58-59. When she sees Officer Lazar, she heads back toward the vehicle and appears to be getting inside. Id. at 59.
At trial, Officer Gonzalez testified that when the weather is clear, it takes "a little over 14 minutes" to drive from Kickapoo Market to Highway 270 and East West 110 where Officer Lazar first saw the stolen vehicle. Id. at 47-48.
Officer Lazar, who was driving an unmarked Chevrolet Tahoe, activated his emergency equipment and made a U-turn back toward the vehicle. Id. at 59-60. The vehicle pulled away and passed Officer Lazar, driving in the opposite direction. Id. at 60. Officer Lazar then did another U-turn and activated his sirens. Id. at 60-61. The vehicle refused to stop and Officer Lazar pursued it for three to four miles at speeds of approximately 50 to 60 miles per hour. Id. at 61. The roads at that time were "solid ice" and Officer Lazar described the chase as "a little nerve-wracking at those speeds in a top heavy SUV," especially in light of the fact that Petitioner's vehicle was kicking up ice and debris hindering Officer Lazar's visibility. Id. at 61-62. At one point, Officer Lazar was going approximately 45 to 50 miles per hour and Petitioner pulled away from him, traveling at approximately 60 to 70 miles per hour. Id. at 62. A safe speed on the same roads in the described weather conditions would have been approximately 20 to 25 miles per hour. Id.
At some point, Petitioner's vehicle came to a stop in a private drive. Id. at 62-63. Officer Lazar saw the female occupant walking and he ordered her to stop. Id. at 63. Officer Lazar took her into custody. Id. She was identified as Melinea Harrelson. Id. Officer Lazar saw footprints in the snow leading from the vehicle driver's side to a field and saw the suspect running southbound across the field. Id. at 64. Officer Lazar drove his vehicle through an access point to the field and stopped his vehicle approximately 100 feet from the suspect. Id. at 65. Officer Lazar exited his vehicle with his gun drawn and ordered Petitioner to stop. Id. at 65-66. Petitioner had his left hand in his pocket and Officer Lazar ordered him to the ground. Id. at 66. Instead, Petitioner ran away and Officer Lazar reholstered his weapon and pursued Petitioner on foot. Id. When he got close enough to Petitioner, Officer Lazar drew his taser while still ordering Petitioner to stop and get on the ground. Id. at 66-67. Petitioner refused and Officer Lazar used his taser several times, finally immobilizing Petitioner and placing him under arrest. Id. at 67-69. Officer Marion Harris also arrived on the scene at that point. Id. at 69.
Officer Gonzalez had received notification at approximately 2:11 p.m. that a McLoud police officer had just passed the stolen vehicle. Id. at 47. While at the police station, Mr. Hodges was informed officers had located the vehicle. Id. at 30-31. Mr. Hodges estimated that was about 15 to 20 minutes from the time it was stolen. Id. at 31. Officer Gonzalez asked Mr. Hodges to go to McLoud to identify his vehicle. Id. at 31, 48. Mr. Hodges described the road where his car was located as "horrible," having high snow and being icy and slushy. Id. at 31. When he arrived, Mr. Hodges identified the vehicle as belonging to his wife. Id. at 31-32.
The officer present asked Mr. Hodges whether the individual in the back of an officer's vehicle was the same man that stole his vehicle from the Kickapoo Market parking lot. Id. at 32. Mr. Hodges informed the police officer that it was the same individual. Id. At trial, Mr. Hodges identified Petitioner as the individual in the police car that had stolen his vehicle. Id. at 32-33.
Petitioner chose to testify at trial. Id. at 78-81, 85-86. Petitioner testified that in February 2015, when the incident underlying this case occurred, he had an addiction to heroin that had started with an addiction to prescription drugs. Id. at 89. On February 28, 2015, Petitioner was feening, which he described as trying to get his fix and/or experiencing withdrawal. Id. at 89, 100-01. He was staying with friends at the time and his brother, Timothy Minyard, arrived in a 2002 Chevrolet Tahoe and told Petitioner that he had stolen it. Id. at 90-91, 125-26. His brother let him take the vehicle in order to obtain drugs. Id. at 91. Petitioner picked up his child's mother, Ms. Harrelson, five or six houses down from his, got gas, and was heading to the "the city" to meet his dealer when he noticed an unmarked SUV turn around and saw lights on the grill. Id. at 91-92, 103, 107, 109-11, 115-17. Petitioner testified that because he knew the vehicle he was driving was stolen, he tried to outrun the SUV. Id. at 91. He testified that he knew it was "real dangerous" but he went down a dead-end road and thought he could then outrun the police officer on foot. Id. Petitioner did not see any other vehicles on the road when he was trying to get away from the SUV. Id. at 92.
Mr. Minyard passed away prior to Petitioner's trial. Id. at 126.
In confusing and sometimes contradictory testimony, Petitioner testified that another brother, Terry, had called and said that he was stuck in McCloud, Oklahoma in a small vehicle and Petitioner was going to help him before going to meet his dealer but at some point, his brother called again and said that he was fine and did not need Petitioner's assistance. Id. at 111-12, 116-17.
Petitioner asserted Ms. Harrelson did not know the vehicle Petitioner was driving was stolen. Id. at 107.
On cross-examination, Petitioner testified that when Officer Lazar initially saw him, he was stopped on the side of Highway 102 instead of Highway 270 as Officer Lazar testified, and that he was pulled over because he thought he had a flat. Id. at 112-14. Ms. Harrelson got out to check the front passenger side tire, which was not flat. Id. at 113-14. After Petitioner saw the police SUV, he decided to run because he was scared and knew that he had messed up. Id. at 117-18. Petitioner admitted that once he got on the dead-end road, he was probably going 45-50 miles per hour. Id. at 119. He denied driving faster than that. Id. at 119-20. He decided to stop the car and run away on foot. Id. at 120. He testified that allowing Ms. Harrelson to be in a stolen car put her in danger and that going 50 miles per hour on snow-packed roads could also put her in danger. Id. 120-21. Petitioner admitted to running away from Officer Lazar as the officer was directing him to stop. Id. at 121-22. Petitioner testified that he told Officer Lazar the day that he was arrested that his brother stole the vehicle. Id. at 126-27. Officer Lazar denied the same. Id. at 141.
On the same day he testified, Petitioner also offered a notarized affidavit purportedly from his late brother, Mr. Minyard, that Petitioner claimed to have recently found and that supported his version of events. The State called the notary, Erin Shaw, who testified that her notary stamp was missing and that she did not notarize the offered affidavit. Id. at 129-39, 142-45.
Following his convictions, Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals ("OCCA") raising each of the grounds he raises herein. Response, Ex. 1. As discussed in more detail below, the OCCA affirmed Petitioner's convictions. Response, Ex. 4.
Petitioner filed the instant action seeking habeas relief and asserting three grounds for relief. See generally Petition. First, Plaintiff contends the State presented insufficient evidence to support the elements of the two crimes for which he was convicted. Id. at 3. Second, he argues the trial court deprived him of his fundamental right to present a defense by refusing to instruct the jury on his defense theory. Id. Finally, Petitioner asserts that he was denied effective assistance of trial counsel. Id. at 3-4.
II. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) 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) "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). The AEDPA directs courts to "ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if "a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of "clear error will not suffice." White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
"[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004) (citations omitted). Consequently, federal habeas "review is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
III. Sufficiency of the Evidence
In Petitioner's first ground for relief, he alleges insufficient evidence was presented at trial to support his convictions. Petition at 3. Specifically, he argues the State failed to prove each element of the charged crimes. Id.
For habeas review, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996). Both direct and circumstantial evidence is considered in determining whether evidence is sufficient to support a conviction. Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). In applying this standard, the court "may not weigh conflicting evidence nor consider the credibility of witnesses," but must "'accept the jury's resolution of the evidence as long as it is within the bounds of reason.'" Messer, 74 F.3d at 1013 (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
1. Robbery by Force or Fear
In this case, the sufficiency of the evidence inquiry is based on Oklahoma law, which defines the substantive elements of the crime. Jackson, 443 U.S. at 309, 324 n.16. In Oklahoma, the elements of the crime of Robbery by Force or Fear are:
(1) Wrongful;Okla. Stat. tit. 21, § 791. Oklahoma law requires the force or fear to "be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery." Okla. Stat. tit. 21, § 792. The trial court instructed the jury in accordance with Oklahoma law and the State's proffered evidence with regard to the elements of this crime. O.R. 121-22.
(2) Taking;
(3) Carrying away;
(4) Personal property;
(5) Of another;
(6) From the immediate presence of another;
(7) By force or fear.
Petitioner argues the State failed to prove the seventh element, by force or fear. Petition at 3. Specifically, Petitioner argues the following:
. . . [T]he vehicle in question was in front of a store, running, with no one inside. The accused did not have to force anyone out of this vehicle because there was no one in the vehicle. If Mr. Hodges was in fear that he was going to get injured, he would not have approached the situation in the manner that he did. There is nothing to support the claims that the accused pushed, punched, kicked or even laid a hand on Mr. Hodges while attempting to steal this vehicle.Id. Petitioner raised this sufficiency of the evidence argument on direct appeal and the OCCA denied relief on the merits.
Our review of the record shows there was ample competent evidence from which any rational jury could conclude beyond a reasonable doubt that Knight used force to overcome the victim's resistance in the taking of the vehicle and to retain possession of it. See Carter v. State, [], 725 P.2d 873, 875-76 [Okla. Crim. App. 1986)]. Moreover, Knight's jury was properly instructed on the elements of robbery by force or fear and the requirements of Section 792.Response, Ex. 4 at 4.
This Court's task "is limited by AEDPA to inquiring whether the OCCA's application of Jackson was unreasonable." Matthews v. Workman, 577 F.3d 1175, 1183 (10th Cir. 2009); accord Hooks v. Workman, 689 F.3d 1148, 1167 (10th Cir. 2012). To the extent Petitioner's challenge presents a mixed question of fact and law, review is also governed by 28 U.S.C. § 2254(d)(2), and the Court "ask[s] whether the facts are correct" in determining whether the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hooks, 689 F.3d at 1163, 1165 (quotations omitted).
The question in habeas review is not whether Petitioner presented evidence that could have supported an acquittal. Instead, the appropriate inquiry is whether it was objectively unreasonable for the OCCA to conclude the State presented sufficient evidence at Petitioner's trial that the jury could have found Petitioner guilty beyond a reasonable doubt of the seventh element of employing force or fear. The Tenth Circuit has explained:
[I]n a sufficiency challenge, the pertinent question is whether the evidence introduced at the trial resulting in the defendant's conviction is sufficient to allow a rational trier of fact to convict. Of course, defense counsel was free to attempt to impeach [a witness] at the second trial by pointing to inconsistencies between her testimony then and at the first trial. And, the jury was free to disbelieve [the witness] on account of those putative inconsistencies. But all that proves is that a rational juror might not accept [the witness's] testimony at the second trial; it doesn't show that a rational juror could not accept it, which is the question on which a sufficiency challenge necessarily must focus.Matthews, 577 F.3d at 1185 (emphasis in original).
As indicated by the OCCA in its Summary Opinion, there was ample evidence Petitioner employed force or fear in the wrongful taking of Mr. Hodges' vehicle. Mr. Hodges specifically testified that he tried to prevent Petitioner from taking his vehicle, essentially jumping in with Petitioner and trying to prevent him from getting control of the vehicle. Tr. Vol. I 25-27. During the ensuing struggle, Petitioner threw Mr. Hodges out and away from the car with his hand and foot, causing Mr. Hodges to fall on his back and slide across the ice. Id. at 25-27, 45-46. This is clear evidence Petitioner used force to take Mr. Hodges' vehicle.
Considering the testimony and evidence presented, and viewing all reasonable inferences therefrom in the State's favor, the OCCA's conclusion that the evidence was sufficient to find Petitioner used force to overcome Mr. Hodges' resistance to the taking of the vehicle was not an unreasonable application of Jackson and was not based upon an unreasonable determination of the facts. Accordingly, Petitioner's request for habeas relief as to his conviction for Robbery by Force or Fear based on his sufficiency of the evidence argument should be denied.
2. Endangering Others While Eluding Police Officer
Petitioner also argues the State failed to prove all elements of Endangering Others While Eluding Police Officer. Petition at 3. By statute, the crime of eluding a police officer occurs when, after having been signaled to stop, the driver "willfully increases the speed or extinguishes the lights of the vehicle in an attempt to elude such peace officer, or willfully attempts in any other manner to elude the peace officer, or who does elude such peace officer." Okla. Stat. tit. 21, § 540A(A). Eluding under this subsection is a misdemeanor. Under subsection (B), however, eluding becomes a felony if a person eludes "in such manner as to endanger any other person." Okla. Stat. tit. 21, § 540A(B). In accordance with Oklahoma law and the State's proffered evidence, the trial court instructed the jury that the elements of Endangering Others While Eluding Police Officer that the State must prove were:
First, a driver of a motor vehicle;O.R. 124. The trial court also instructed the jury that if it had reasonable doubt of Petitioner's guilt as to this crime, it must consider the lesser included offense of merely eluding a police officer. O.R. 129. As noted, the jury returned a guilty verdict against Petitioner on the crime of Endangering Others While Eluding Police Officer. O.R. 86.
Second, received a red light and siren from a peace officer[;]
Third, showing the officer's vehicle to be an official police vehicle and directing the driver to bring his vehicle to a stop;
Fourth, willfully attempted to elude the officer by increasing his speed (in any manner); and,
Fifth, while eluding the officer;
Sixth, the driver endangered another person.
Petitioner's challenge to the sufficiency of the evidence presented is that the State did not show beyond a reasonable doubt that he endangered another person. Petition at 3. Specifically, he argues the following:
The record is silent of there being any accident, of there being any cars made to swerve, or of there being any pedestrians forced to run or take cover in the event of [an] accident. Although the majority of the chase took place on county roads, and or highways is of no excuse. Again, the record is silent as to there being any cars, and or pedestrians in the path of this chase, leaving that the icy roads and the vehicle being driven at a high rate of speed is not enough to convict under felony eluding.Id. Petitioner raised this issue in his direct appeal and the OCCA denied his claim on the merits.
There was [] ample competent evidence from which any rational jury could conclude beyond a reasonable doubt that Knight endangered his passenger by his actions of eluding. The question of whether or not the offense was felony eluding because of the endangerment of another or simple misdemeanor eluding was submitted to the jury. Because the challenged elements were sufficiently proven, we reject Knight's sufficiency of the evidence challenge and deny this proposition.Response, Ex. 4 at 4.
In the present matter, as he did on direct appeal, Petitioner simply ignores the fact that he placed Ms. Harrelson, his passenger, in danger during the police chase. Doc. No. 17-1 at 12-15. Instead, Petitioner's argument focuses solely on the fact that there were no other cars of pedestrians present throughout the police chase that ensued when he attempted to elude Officer Lazar. Petition at 3. However, it is undisputed Ms. Harrelson was in the vehicle with Petitioner and he conceded at trial that he placed her in danger by driving at rates of speed that were not safe given the conditions of the icy roads. Tr. Vol. I 120-21.
Q. You don't think that going 50 miles an hour on snow packed roads is putting [Ms. Harrelson] in danger?Id.
A. I mean, yeah, it could.
Q. It put her in danger?
A. I mean, just letting her be in a stolen car was dangerous too.
Q. You agree that your conduct put her in danger[,] right?
A. Yes. Yes.
During closing arguments, the State argued that the evidence established the element of endangering another person because it showed that Petitioner placed Ms. Harrelson in danger by attempting to elude Office Lazar. Tr. Vol. II 169-71. The State specifically drew a distinction between endangering others while eluding a police officer based upon Ms. Harrelson's presence and the lesser included offense of merely eluding a police officer. Id. The jury's verdict indicates it agreed that based upon Ms. Harrelson's presence, Petitioner was guilty of endangering others while eluding a police officer. The undersigned finds the OCCA's conclusion that the evidence was sufficient to find Petitioner "endangered his passenger by his actions of eluding," see Response, Ex. 4 at 4, was not an unreasonable application of Jackson and was not based upon an unreasonable determination of the facts. Accordingly, Petitioner's ground for relief based upon his contention the State presented insufficient evidence to convict him for Endangering Others While Eluding Police Officer should be denied.
IV. Jury Instructions
In his second ground for relief, Petitioner contends he was deprived of his fundamental right to present a defense because "he should have been able to request of the court, a version of the jury instruction that would align with that defense. The defendant is entitled to have the jury instructed on his defense if found possible and that is supportive the record." Petition at 3. Petitioner does not further explain or specify a jury instruction of which he claims he was deprived. However, in his brief on direct appeal, Petitioner asserted the trial court erred by denying his request for a jury instruction for the lesser included offense of Possession of a Stolen Vehicle. Tr. Vol. II 156. The trial court denied his request explaining:
Count 1, I don't think a lesser included would be appropriate of Possession of a Stolen Vehicle. That charge, perhaps, would have been appropriate at the scene of the stop, or the - - out in McLoud, but, at the point the vehicle was taken, it was obviously a taking and not a possession of a stolen vehicle at that point. And the Defendant has denied being at the scene at that location, so I've denied the Defendant's
request for a lesser included on Count 1.Id. at 157.
On appeal, the OCCA affirmed the trial court's decision. Reviewing the trial court's ruling for an abuse of discretion, the OCCA explained:
Knight argues the district court erred in denying his requested instruction on possession of a stolen vehicle. This ruling, he claims, prevented the jury from considering his theory of defense. He contends the instruction was warranted because of (1) his testimony that he did not steal the vehicle but simply received it from his brother; and (2) a purported notarized affidavit, bearing a notary's stamp but no signature, supposedly from Knight's brother, attesting that he stole the vehicle. . . . .
A defendant is entitled, as a matter of law, to have the jury instructed on the law governing his theory of the case if it finds possible support in the evidence even if the evidence is discredited. A theory of defense instruction must embrace a defense recognized in law, which either exonerates guilt or reduces the charge to a lesser included offense. Such an instruction should be given when prima facie evidence meeting the legal criteria for the defense is presented regardless of its source and without the evidence being weighed by the district court. A theory of defense instruction, however, need not be given if there is insufficient evidence to support it. Furthermore, an instruction on a lesser offense need not be given when the defendant asserts his or her innocence to the charged crime.
Knight's requested instruction was not warranted based on his testimony that he did not steal the truck and/or the affidavit purportedly from his brother taking responsibility for the robbery. Knight maintained his innocence to the charged offense, testifying that he obtained possession of the vehicle from his brother shortly before his arrest. He admitted knowing the truck was stolen and offered an excuse, rather than a defense to the charged offense, for his possession of the truck when arrested. Contrary to Knight's claim, the absence of the instruction did not deny him the right to present a defense. Knight presented evidence through his testimony and the affidavit that he did
not steal the truck and the jury rejected his evidence. We find on this record that the district court did not abuse its discretion in rejecting Knight's proposed instruction and deny this claim.Response, Ex. 4 at 5-7 (citations, quotations, and footnote omitted).
Under 28 U.S.C. § 2254(a), the power of a federal habeas corpus court is expressly limited to violations of federal law. Johnson v. Mullin, 505 F.3d 1128, 1141 (10th Cir. 2007); Shipley v. Oklahoma, 313 F.3d 1249, 1251 (10th Cir. 2002); Ellis v. Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002)). Neither the Supreme Court nor the Tenth Circuit has held that there is any constitutional right to a lesser related offense instruction in a non-capital case. Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); Tiger v. Workman, 445 F.3d 1265, 1268 (10th Cir. 2006); Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988). Indeed, the Tenth Circuit Court of Appeals has held that such claims are not cognizable in a federal habeas action. Ward v. Allbaugh, 793 F. App'x 712, 716 (10th Cir. 2019) (explaining that the Tenth Circuit has held " that 'a petitioner in a non-capital case is not entitled to habeas relief for the failure to give a lesser-included offense instruction even if in our view there was sufficient evidence to warrant the giving of an instruction on a lesser included offense.'" (quoting Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (additional quotations omitted)); Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) ("The Supreme Court has never recognized a federal constitutional right to a lesser included offense instruction in non-capital cases, and neither has [the Tenth Circuit]. Our precedents establish a rule of 'automatic non-reviewability' for claims based on a state court's failure, in a non-capital case, to give a lesser included offense instruction. Petitioner therefore cannot raise a debatable claim that he is entitled to habeas relief on this ground." (citations omitted)); Speed v. Allbaugh, No. CIV-18-962-R, 2019 WL 1805021, at *7 (W.D. Okla. March 26, 2019) (explaining that in non-capital cases, there is no constitutional right to an instruction based upon the lesser related offense and therefore, habeas relief is not available). Accordingly, Petitioner has failed to assert a cognizable claim for habeas relief on this basis.
V. Ineffective Assistance of Counsel
In his final ground for relief, Petitioner argues his trial counsel was ineffective based on her failure to request a jury instruction for the lesser included offense of Unauthorized Use of a Motor Vehicle. Petition at 3-4. Specifically, he contends his trial counsel should have realized that Possession of Stolen Property was not as applicable to his defense theory as Unauthorized Use of a Motor Vehicle and should have requested a jury instruction for the latter. Id. Petitioner raised this argument on direct appeal and the OCCA denied relief, stating:
Knight argues he is entitled to a new trial because of ineffective assistance of counsel. He contends that should the Court find that defense counsel requested an inappropriate lesser offense instruction (i.e., possession of a stolen vehicle), that counsel's failure to request an appropriate instruction on his theory of defense amounts to ineffective assistance of counsel. He maintains that unauthorized use of a motor vehicle was the better instruction because it was more compatible with the defense evidence and he insists that some lesser offense of robbery
should have been submitted.Response, Ex. 4 at 7-8.
This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel's performance was constitutionally deficient; and (2) whether counsel's performance prejudiced the defendant so as to deprive the defendant of a fair trial with reliable results. Strickland v. Washington, 466 U.S. 668, 687 [] (1984). Under this test, Knight must affirmatively prove prejudice resulting from his attorney's actions. Strickland, 466 U.S. at 693 . . . . This court need not determine whether counsel's performance was deficient if the claim can be disposed of based on lack of prejudice. See Malone v. State, [] 293 P.3d 198, 207 [(Okla. Crim. App. 2013)].
Knight cannot show on this record that but for counsel's actions, there is a reasonable probability the result of his trial would have been any different had counsel requested an instruction on unauthorized use rather than possession of a stolen vehicle. This claim is denied.
To be entitled to habeas corpus relief on a claim of ineffective assistance of counsel, Petitioner must demonstrate the OCCA's adjudication of his claim was an unreasonable application of Strickland. Under Strickland, a petitioner must show that his counsel's performance was deficient and establish the deficient performance was prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993).
A petitioner can establish the first prong by showing that counsel performed below the level expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at 687-88. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689. In making this determination, a court must "judge . . . [a] counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Moreover, review of counsel's performance must be highly deferential. "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
To establish the second prong, a petitioner must show that this deficient performance prejudiced the defense, to the extent "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). If Petitioner is unable to show either "deficient performance" or "sufficient prejudice," his claim of ineffective assistance fails. Strickland, 466 U.S. at 700. Thus, it is not always necessary to address both Strickland prongs.
The undersigned agrees with the OCCA's conclusion that Petitioner cannot meet the prejudice prong of this claim. Trial counsel requested an instruction for the lesser included offense of Possession of a Stolen Vehicle. Tr. Vol. II 156-57. The trial court denied that request based upon the fact that Petitioner testified that he was innocent of the crime charged. Id. In light of the trial court's ruling that Petitioner was not entitled to an instruction for the lesser included offense of Possession of a Stolen Vehicle based on his testimony that he was not present at the scene of the crime, it is exceedingly unlikely the trial court would have granted counsel's request for a different lesser included offense instruction. See Strickland, 466 U.S. at 694 (requiring a petitioner to show that "but for counsel's unprofessional errors, the result of the proceeding would have been different.").
As the OCCA explained in more detail, "instruction on a lesser offense need not be given when the defendant asserts his or her innocence to the charged crime." Response, Ex. 4 at 6.
As noted in the preceding section herein, this Court does not address whether the trial court erred under state law in denying Petitioner's request for a lesser included offense instruction. --------
Moreover, Petitioner was not prevented from presenting his defense, and the jury was free to find him not guilty of Robbery by Force or Fear based on his defense theory, i.e., that his brother stole Mr. Hodges' vehicle. Thus, Petitioner was not deprived of a fundamentally fair trial as a result of counsel's failure to request a jury instruction for the lesser included offense, Unauthorized Use of a Motor Vehicle. See Benton v. Addison, No. 14-CV-026-JED-PJC, 2015 WL 4606428, at *10 (N.D. Okla. July 30, 2015) (finding that counsel's failure to request a lesser included offense instruction for Accident and Misfortune did not meet the prejudice prong of Strickland because the petitioner "was not prevented from presenting his defense, and the jury was free to find him not guilty of first degree murder based on his defense theory, i.e., that the victim died as the result of an accident or misfortune."). Accordingly, Petitioner cannot satisfy the prejudice prong of Strickland and his ground for relief based on ineffective assistance of counsel should be denied.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by April 16th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 27th day of March, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE