Opinion
Case No. CIV-05-934-R.
May 26, 2006
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition) [Doc. #1] and a Brief in Support [Doc. #8]. Additionally, Petitioner has filed an Amendment to Petitioner's Federal Habeas Corpus (Amendment to Petition) [Doc. #18]. Respondent has filed a Response to Petition for Writ of Habeas Corpus (Response) [Doc. #12] to which Petitioner replied. See Rebuttal to State's Response [Doc. #19]. Respondent has also filed a Response to Amended Petition for Writ of Habeas Corpus (Response to Amendment) [Doc. #21]. Petitioner has replied. See Final Rebuttal to the State's Response to the Amended Portion of the Petitioner's Habeas Corpus [Doc. #25]. The matter has been referred for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that the petition be denied.
I. Procedural Background
Petitioner was convicted after a jury trial in the District Court of Beckham County, State of Oklahoma, Case No. CF-2001-227, of Unlawful Possession of Methamphetamine with Intent to Distribute (Count I) and Possession of Drug Paraphernalia (Count III). Petitioner was sentenced to fifty-four years imprisonment and a $9,000 fine on Count I and one year in the county jail and a $1,000 fine on Count III. See Original Record (OR) at 187-189, Record of Proceedings in Open Court.
Count II was dismissed by the State.
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (OCCA) raising the following issues:
(1) the evidence did not support the jury's finding that Petitioner had prior convictions under the Uniform Controlled Dangerous Substances Act, nor did it support the trial court's sentencing of Petitioner under the Act;
(2) Petitioner's trial counsel was ineffective in (a) failing to object to prejudicial hearsay; (b) failing to request an instruction on the theory of the defense; (c) failing to use impeachment evidence; and (d) failing to object to improper enhancement evidence.
Response Ex. 1, Brief of Appellant at 4-13. The OCCA affirmed Petitioner's conviction by opinion filed January 6, 2004. See Response Ex. 3, Summary Opinion.
Petitioner then filed an application for post-conviction relief in the state district court raising the following issues:
(1) appellate counsel was ineffective;
(2) the police unlawfully stopped the vehicle in which Petitioner was a passenger and the evidence seized should have been suppressed;
(3) Officer Glancy's testimony was perjured;
(4) prosecutorial misconduct deprived Petitioner of a fair trial;
(5) trial counsel was ineffective (eight unspecified subpropositions);
(6) Petitioner's sentence was excessive;
(7) cumulative errors affected the trial;
(8) the evidence does not support a finding of previous convictions under the Uniform Controlled Dangerous Substance Act;
(9) trial counsel was ineffective in (a) failing to object to prejudicial hearsay; (b) failing to use impeachment evidence; and (c) failing to object to improper enhancement evidence.
Response to Amendment Ex. 1, Application for Post-Conviction Relief. The trial court denied the post-conviction application. See Response, Ex. 4, Post-Conviction Findings. The OCCA affirmed the denial of post-conviction relief on July 11, 2005. See Response, Ex. 5, Order Affirming Denial of Post-Conviction Relief. Petitioner then filed the instant Petition for Writ of Habeas Corpus.
II. Relevant Facts
Petitioner's convictions were based on the testimony of an arresting officer and two drug task force investigators, on evidence seized during a traffic stop from a car in which Petitioner was a passenger, and on evidence seized from Petitioner's apartment during a subsequent search for which a warrant had been issued.
Chester Lee Glancy IV, an Elk City police officer, testified that at approximately 1:00 a.m. on December 19, 2001, he had stopped a vehicle which did not have a working tag light. Transcript of Proceedings Volume I, Case No. CF-2001-227 District Court of Beckham County (TR I) at 124-125. The driver of the car, Jacky Golden, did not have a valid driver's license. Id. at 126. Officer Glancy testified that he asked Mr. Golden to exit the vehicle. Id. Petitioner, a passenger, was talking on a red cell phone when the vehicle was stopped. Id. at 131. Officer Glancy testified that with the aid of his flashlight, the spot light from his vehicle, a street light, and the dome light of the vehicle, he had a clear view of the inside of the vehicle. Inside the vehicle lying on the floorboard on the driver's side of the vehicle, Officer Glancy saw a plastic baggy within which were other, smaller plastic baggies filled with tan powder. Officer Glancy stated that the substance inside the small baggies appeared to be a controlled dangerous substance. Id. at 127. Officer Glancy testified that he saw Petitioner put a red and white flip-top cigarette box under the driver's seat. Id. at 129-130. When he retrieved the red and white cigarette box from under the driver's seat, Officer Glancy found inside the box seven additional small, corner-cut, heat-sealed baggies containing a tan powdery substance. Id. at 133. Field tests indicated that the substances in all the baggies contained methamphetamine. Id. at 133-134. Officer Glancy arrested Petitioner on an outstanding Beckham County warrant and seized his red cell phone which was in a black case. Id. at 130-131. When Officer Glancy removed the red cell phone from its black case, a razor blade fell from the case. Id. at 131. Officer Glancy testified that razor blades are "commonly used by users and distributors of illegal drug substances that are powders to chop it up and also to mix what's called a cutting agent which gives them a certain amount of actual drug and a cutting agent to make it weigh out to be more than it is." Id. at 135-136.
During the search of the vehicle, an additional gold and white cigarette box was removed from under the driver's seat. It contained one corner-cut, heat-sealed baggy of methamphetamine. Id. at 134. Officer Glancy also found a blue pill container within which were pills and two additional baggies containing methamphetamine. Under the dash cover on the passenger side of the vehicle, Officer Glancy found a white cloth sack containing syringes and a spoon with a cotton ball. According to Officer Glancy's testimony, the cotton ball had residue on it. Id. at 134-135. Behind the driver's seat, Officer Glancy found a plastic baggy with a substance that proved to be marijuana. Id. at 140. Some Zigzag rolling papers were inside the baggy with the marijuana. Id. at 152-153. Officer Glancy testified that Petitioner possessed $1,057 when he was booked into the jail. Id. at 135.
Officer Glancy testified that he prepared an affidavit for a search warrant to search Petitioner's apartment. The warrant was granted, and Officer Glancy took a door key from Petitioner's property and searched the apartment. Id. at 154-155. Two investigators from the District 2 Drug Task Force, Joey Bales and Lary Damron, assisted Officer Glancy during the search. Id. at 155. The two investigators conducted the search, and Officer Glancy logged the items seized. In a trash can, Investigator Bales discovered fifteen Ziplock sandwich baggies, the corners of which had been cut off. Id. at 156, 162. Officer Glancy explained that the corners of plastic baggies can be filled with controlled dangerous substances and then heat-sealed so that the drugs can be transported and distributed. Id. at 162. Investigator Damron found a Direct TV bill with Petitioner's name on it on a coffee table in the living room of the apartment. Officer Glancy testified that the Direct TV bill indicated that Petitioner resided in the apartment. Id. at 156-157. The searchers also found a yellow legal pad with a note reading, "Big John," with a telephone number and the notation, "$160.00 nooner." Below the notation was written, "DEA or DOA." Officer Glancy testified that "DEA" stands for "Drug Enforcement Administration," and "DOA" stands for "dead on arrival." Id. at 157-158. Investigator Damron found a plate with a green leafy residue that appeared to be marijuana and a small plastic baggy with a small amount of powdery substance. Id. at 159.
Although the transcript records the name of this investigator as "Larry Damron," documents in the Original Record indicate that the name of this investigator is actually "Lary Damron." See Subpoena, OR 77.
Investigators Bales and Damron testified briefly, identifying the items they had found during the search of Petitioner's apartment. Id. at 180-182; 182-189. Investigator Damron explained the significance of the note about "Big John:"
Well, [the note] suggests that someone owes this individual $160 and they have a choice of either by certain time noon, whatever date that would be, of paying up or suffering the consequences. The consequences being reporting to the police, DEA, or the other consequence of DOA.Id. at 186. No witnesses were called by the defense.
III. Grounds for Relief
In his original Petition before this Court, Petitioner raises six grounds for relief:
(1) the traffic stop was unlawful, and the evidence seized during the unlawful stop should have been suppressed;
(2) the testimony of the police officer who made the traffic stop was fabricated;
(3) prosecutorial misconduct deprived Petitioner of a fair trial;
(4) trial counsel was ineffective in (a) failing to investigate, (b) failing to do forensic tests such as fingerprinting and hand writing analysis, (c) failing to include Petitioner in the trial process, (d) failing to make use of two peremptory challenges, (e) failing to challenge the State's witnesses and the evidence presented and (f) failing to call witnesses on Petitioner's behalf;
(5) the sentence Petitioner received is illegal because his sentence was enhanced under the wrong statute; and
(6) cumulative errors deprived Petitioner of his right to a fair trial. In the Amendment to Petition, Petitioner adds two additional grounds:
(7) appellate counsel was ineffective; and
(8) the OCCA unfairly applied a procedural bar to claims raised for the first time in Petitioner's application for post-conviction relief.
In his Brief in Support, Petitioner briefs the first six grounds for relief raised in his original Petition. In Proposition IV of his Brief in Support, however, Petitioner lists the following instances of alleged ineffectiveness of trial counsel, some of which are raised for the first time in this action:
(1) trial counsel was ineffective for waiving the fourth and fifth peremptory challenges, against Petitioner's wishes;
(2) trial counsel was ineffective in failing to insure the trial was a joint trial as there was a co-defendant or in failing to subpoena Jacky Golden;
(3) trial counsel's assistant was ineffective in failing to object to hearsay at the preliminary hearing;
(4) trial counsel was ineffective as she failed to reasonably function as an assistant to Petitioner, failed to advocate Petitioner's cause and failed to reasonably communicate with Petitioner;
(5) trial counsel was completely inept and did not bring to bear such skill as was necessary to properly cross-examine witnesses and to challenge the credibility of witnesses;
(6) trial counsel was ineffective in failing to allow Petitioner to take the stand in his own defense;
(7) trial counsel was ineffective in failing to challenge or object to evidence presented by the state and in failing to make the adversarial testing process of the trial function;
(8) trial counsel was ineffective as she failed to prepare for trial, failed to investigate, failed to get fingerprinting and handwriting analysis, failed to request videotapes of the stop and failed to subpoena key defense witnesses;
(9) trial counsel was ineffective in that she confused the jury as to the range of punishment and in that she did not know the proper range of punishment;
(10) trial counsel was ineffective for not objecting to prejudicial hearsay at trial;
(11) trial counsel was ineffective for not using impeachment evidence;
(12) trial counsel was ineffective for failing to object to improper enhancement evidence.
Brief in Support at 17-18.
IV. Analysis A. Grounds for Relief Raised on Direct Appeal
Of the eight grounds for relief raised in his original Petition and his Amendment to Petition, only Ground Five, Petitioner's challenge to the enhancement of his sentence, was raised on direct appeal. Of the twelve allegations of ineffective assistance of trial counsel listed in Petitioner's Brief in Support (Ground Four), only subpropositions Ten, Eleven and Twelve were raised on direct appeal. These claims are properly before this Court. This Court must, however, review the merits of these claims under the standard of review set forth in the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Pursuant to AEDPA, a petitioner is not entitled to habeas corpus relief if his claim has been adjudicated on the merits by the highest state court unless the state court's adjudication 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 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)(1), 2254(d)(2).
The Supreme Court has analyzed and explained the meaning of the relevant portions of the statute:
A state-court decision is contrary to . . . clearly established precedents if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result. A state-court decision involves an unreasonable application of [the Supreme] Court's clearly established precedents if the state court applies [the Supreme] Court's precedents to the facts in an objectively unreasonable manner.Brown v. Payton, 544 U.S. 133, 141 (2005) (internal citations omitted). A state court's determinations of fact are presumed to be correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
1. Ground Five: Sentence Enhancement
On direct appeal, Petitioner argued that his sentence was improperly enhanced under the provisions of the Uniform Controlled Dangerous Substances Act, see Response Ex. 1, Brief of Appellant at 4-7, an argument that Petitioner repeats in this action. See Petition at 8; Brief in Support at 36-39. The OCCA determined on direct appeal that the jury was "improperly instructed that the range of punishment was six (6) years to life imprisonment when it should have been instructed that the range of punishment was twenty (20) years to life imprisonment." Response Ex. 3, Summary Opinion at 2, n. 2. Citing state law, the OCCA determined that neither reversal nor sentence modification was required because, if anything, the error benefitted Petitioner.
To grant habeas relief on the basis of an erroneous jury instruction, this Court must find that the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation and citation omitted); see also Parker v. Scott, 394 F.3d 1302, 1319 (10th Cir. 2005). On habeas review, "the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle v. McGuire at 71-72 (citations omitted). Furthermore, the state courts' interpretation of state law is binding on this Court. See Parker v. Scott at 1319; see also Missouri v. Hunter, 459 U.S. 359, 368 (1983) ("We are bound to accept the [state] court's construction of that State's statutes.").
Petitioner argued on direct appeal that his fifty-four year sentence should be modified "to something close to the minimum." Response Ex. 1, Brief of Appellant at 6. Federal habeas review of allegedly excessive sentences is, however, limited. "Generally . . . appellate review of a sentence ends once it is determined that the sentence is within the limitations set by statute." Vasquez v. Cooper, 862 F.2d 250, 255 (10th Cir. 1988). Therefore, to obtain federal habeas relief based on an excessive sentence, Petitioner must show that his sentence "exceeds or is outside the statutory limits, or is wholly unauthorized by law." Munn v. Ward, No. 98-6207, 1998 WL 764651, at *2 (10th Cir. Oct. 28, 1998) (unpublished op.) ( citing Haynes v. Butler, 825 F.2d 921, 923-24 (5th Cir. 1987)). Petitioner's enhanced sentence is within the range provided under Oklahoma law. See Okla. Stat. tit. 21, § 51.1(B) (2001). The OCCA's decision on this issue is neither contrary to, nor an unreasonable application of Supreme Court law, nor is it based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Therefore, Petitioner is not entitled to habeas relief on this issue.
This ground was also raised in Petitioner's Application for Post-Conviction Relief as Proposition Six.
Unpublished Tenth Circuit opinions are cited for their persuasive value in accordance with Tenth Circuit Rule 36.3(B).
2. Ground Four/Subproposition Ten: Ineffective Assistance of Counsel in Failing to Object To Hearsay
On direct appeal, Petitioner claimed that his trial counsel rendered constitutionally ineffective assistance in failing to object to certain hearsay testimony. See Response Ex. 1, Brief of Appellant at 8-10. Although he omitted this issue from his Petition, Petitioner included this ground for relief in his Brief in Support at 32-33. Petitioner states that his defense theory was that it was not he who was the drug dealer, but rather Mr. Golden. Petitioner's trial counsel questioned Officer Glancy concerning the claimed ownership of one of the cigarette boxes seized during the search of the vehicle:
Q. Okay. Officer Glancy, all of these drugs were found where?
A. The small one in your right hand —
Q. Exhibit 9.
A. — was found in the Marlboro Light cigarette box.
Q. Anyone claim ownership of this?
A. Yes ma'am.
Q. Who?
[after a hearsay objection by the prosecutor was overruled]
A. Jacky Golden.
TR I at 170. The fact that Mr. Golden claimed some of the drugs found in the vehicle was, of course, favorable to Petitioner. On redirect examination, however, the following exchange took place between the prosecutor and Officer Glancy:
Q. In response to counsel's questions about this gold Marlboro cigarette pack, I believe that your answer was that it was claimed by Jacky Golden. Was it also claimed where it came from, this gold cigarette pack?
A. Yes.
Q. Where?
A. He said it was under the seat.
Q. Okay. But was it claimed as to where it came from?
A. Yes.
Q. Where?
A. He stated that that was his payment from Mr. Palmer for giving him a ride.
TR I at 179.
Claims based on the alleged ineffective assistance of counsel are analyzed under Strickland v. Washington, 466 U.S. 668 (1984), which provides a two-part test for determining whether a petitioner's Sixth Amendment right to effective assistance of counsel has been violated. First, a petitioner must establish that counsel's performance fell below an objective standard of reasonableness. Id. at 687. Second, the petitioner must establish prejudice — that but for counsel's errors, the outcome of the proceedings would have been different. Id. In assessing prejudice, the court examines the totality of the evidence, not just the evidence helpful to the petitioner. See Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). In analyzing an ineffective assistance of counsel claim, the court "may address the performance and prejudice component in any order, but need not address both if [petitioner] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-1293 (10th Cir. 1998).
Mr. Golden did not testify at trial. The statements attributed to Mr. Golden by Officer Glancy were hearsay, and the record shows that Petitioner's trial counsel did not object to the admission of the latter statement. The latter statement could have been construed by the jury as evidence that Petitioner had, in fact, possessed and distributed the small baggies filled with methamphetamine found within the gold-colored cigarette pack. Even if trial counsel's failure to object to the hearsay statement fell below an objective standard of reasonableness, however, Petitioner cannot show that but for trial counsel's error, the outcome of the proceedings would have been different. In addition to the hearsay statement, Officer Glancy testified that he saw the second cigarette package, which contained even more illegal drugs, in Petitioner's possession. He also testified as to the drugs and paraphernalia seized during the search of Petitioner's apartment. Perhaps most telling was Investigator Bales' discovery of the fifteen Ziplock baggies, the corners of which had been cut off. Even without the hearsay statement attributed to Mr. Golden regarding the source of the drugs in the gold-colored cigarette pack, the jury had sufficient evidence to conclude that the missing corners cut from the baggies found in Petitioner's apartment had been used to package the methamphetamine found in the vehicle.
The first hearsay statement was actually elicited by Petitioner's trial counsel.
On direct appeal, the OCCA found upon review of the entire record that "trial counsel was not ineffective." See Response Ex. 3 Summary Opinion at 2. The OCCA also cited Strickland and stated that "[a]ssuming trial counsel's performance was deficient, [Petitioner] does not establish prejudice nor can we find any as the evidence against [Petitioner] was overwhelming." Id. at 2, fn. 3. The OCCA's adjudication of this issue did not result in a decision that is contrary to or an unreasonable application of Strickland, nor is it a decision based on an unreasonable determination of the facts in light of the evidence presented. 3. Ground Four/Subproposition Eleven: Counsel's Failure to Use Impeachment Evidence
On direct appeal, Petitioner asserted that trial counsel was ineffective in failing to impeach Officer Glancy with information that Jacky Golden had "worked for the same Drug Task Force that Glancy worked with." Response Ex. 1, Brief of Appellant at 11. According to Petitioner, this association "would provide a motive for Glancy to remember events in such a way as to implicate [Petitioner] rather than Golden." Id. Rather than argue that the evidence would show bias, trial counsel attempted to introduce the evidence by arguing that the evidence should be admitted to prove that Jacky Golden possessed the drugs. Id. at 12.
Even if trial counsel had succeeded in introducing the impeachment evidence, there is no indication that the outcome of the trial would have been different. Officer Glancy testified that Mr. Golden had, in fact, claimed some of the drugs in the car. Additionally, the evidence found during the search of Petitioner's apartment strongly tied him to the small, corner-cut baggies of methamphetamine found in the cigarette box Officer Glancy saw in Petitioner's possession. To have made a difference, the impeachment evidence would have had to persuade the jury to reject all of Officer Glancy's testimony. In view of the other evidence pointing to Petitioner's guilt, there is simply not a reasonable probability that introduction of the impeachment evidence would have changed the outcome of this case. The OCCA's decision on this issue is neither contrary to, nor an unreasonable application of Strickland, nor is it a decision based on an unreasonable determination of the facts in light of the evidence presented. 4. Ground Four/Subproposition Twelve: Counsel's Failure to Object to Improper Enhancement
As discussed supra at 10-11, the OCCA determined that the erroneous jury instruction on sentence enhancement under state law was, if anything, beneficial to Petitioner. Having been improperly instructed that the minimum enhancement was six years instead of twenty years, the jury could have recommended a much shorter sentence. Petitioner was sentenced to fifty-four years imprisonment. It is counterintuitive to suppose that, had the jury been properly instructed that the minimum enhancement was twenty years instead of six years, Petitioner's sentence would have been lighter. Even if trial counsel's failure to object to the incorrect instruction fell below an objective standard of reasonableness, Petitioner cannot show that but for the erroneous instruction he would have received a more favorable sentence. The OCCA's decision on this issue is neither contrary to, nor an unreasonable application of Strickland, nor does it represent a decision that was based on an unreasonable determination of the facts in light of the evidence presented.
B. Grounds for Relief First Raised in Application for Post-Conviction Relief
Grounds One, Two and Three, certain aspects of Ground Four, and Grounds Six and Seven were raised for the first time in Petitioner's application for post-conviction relief. The trial court applied a procedural bar to all but one of these grounds for relief, finding that Petitioner could have raised these claims on direct appeal. See Response, Ex. 4, Post Conviction Findings at 2. The trial court considered the merits of Petitioner's ineffective assistance of appellate counsel claim (Ground Seven) and rejected it:
Ineffective assistance of appellate counsel is properly before the Court of Criminal Appeals. However, from the trial court's perspective it appears that appellate counsel raised all of the issues possible under the record of this case and was not ineffective.Id. at 2. The OCCA affirmed, finding that Petitioner had procedurally defaulted all but one of the claims asserted in his post-conviction application. See Response Ex. 5, Order Affirming Denial of Post-Conviction Relief at 2 n. 1. The OCCA found no merit to Petitioner's ineffectiveness of appellate counsel claim:
After a review of the record and argument presented by Petitioner, we FIND Petitioner has not established appellate counsel's performance was deficient or that the result of his appeal was not reliable and fair.Id. at 2 (emphasis in original).
On federal habeas review, the merits of a claim will not be considered if the claim has been defaulted in State court on an independent and adequate state procedural ground, unless the petitioner 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); English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). The Tenth Circuit Court of Appeals has long held that the procedural bar applied by Oklahoma courts pursuant to Okla. Stat. tit. 22, § 1086 is both independent and adequate. See Odum v. Boone, 62 F.3d 327, 331 (10th Cir. 1995); Steele v. Young, 11 F.3d 1518, 1521-1522 (10th Cir. 1993).
In Ground Eight, Petitioner asserts that the OCCA unfairly applied a procedural bar to claims raised for the first time in Petitioner's application for post-conviction relief. As discussed herein, however, the procedural bar in Okla. Stat. tit. 22, § 1086 has long been recognized as adequate to bar review of claims raised for the first time in a post-conviction action. The Tenth Circuit Court of Appeals has never indicated that the procedural bar is "unfair" or unconstitutional, except in cases where a petitioner, having been represented by the same counsel at trial and on direct appeal, raises ineffective assistance of trial counsel claims for the first time in a post-conviction proceeding. See English v. Cody, 146 F.3d at 1263 (10th Cir. 1998). In this case, Petitioner was represented by new counsel on direct appeal. Therefore, this ground for relief is without merit and need not be further addressed by this Court.
In Ground Seven, Petitioner asserts ineffective assistance of appellate counsel as a substantive claim and as cause for failing to raise Grounds One through Four and Ground Six on direct appeal. See Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) ("A showing that a defendant received ineffective assistance of counsel will establish cause excusing a procedural default.").
Where, as in this case, ineffective assistance of appellate counsel is raised as cause for excusing a procedural default, see Amendment to Petition at 6, application of Strickland requires the Court to look to the merits of the omitted issue. Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir. 2002); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (to determine if appellate counsel provided ineffective assistance by failing to raise an issue on appeal "we examine the merits of the omitted issue"). If the omitted issue is meritless, counsel's failure to appeal it is not a Sixth Amendment deprivation. Id. at 392-393. It is therefore necessary for this Court to review the merits of the grounds for relief first raised in Petitioner's application for post-conviction relief to determine whether appellate counsel was ineffective in failing to raise those grounds for relief on direct appeal. 1. Ground One: The Traffic Stop
Petitioner contends that Officer Glancy violated his Fourth Amendment right to be free of unlawful search and seizure when he stopped Mr. Golden's car. Officer Glancy testified that he stopped Mr. Golden's car because a light, which should have illuminated the tag, was not working. Officer Glancy's testimony is undisputed. Petitioner now contends, however, that the tag light was, in fact, working, that the traffic stop was, therefore, unlawful, and that all evidence seized as a result of the traffic stop should have been suppressed. Petition at 7.
In his Brief in Support, Petitioner states that he has received information that the camera systems in the vehicles of the Elk City Police Department are automated and that the tapes are kept by the Police Department for a period of ten years. Brief in Support at 4. Petitioner states,
If the tape shows that the tag light was out, then the stop was perfectly legal and the court can easily dismiss this proposition. However, if the tag light was not out, as the petitioner [persistently] claims, then the traffic stop was illegal and the petitioner would request an Order of Dismissal because the Fourth Amendment prohibits Officers from stopping vehicles without a reasonable or founded suspicion of criminal conduct at the time of the stop.
Petitioner also requests that an evidentiary hearing be held so that the videotape from the police car can be viewed. As explained in detail below, no ground for an evidentiary hearing is presented here as Petitioner lacks standing to assert a Fourth Amendment challenge to the vehicle search which yielded the evidence against him.
Brief in Support at 5.
Petitioner misapprehends the scope of the protection of the Fourth Amendment as it pertains to vehicle searches. Fourth Amendment rights are "personal rights" which "may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." Rakas v. Illinois, 439 U.S. 128, 138 (1978) (internal quotation and citation omitted). The Tenth Circuit Court of Appeals has held that "without a possessory or property interest in the vehicle searched, passengers lack standing to challenge vehicle searches." United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (internal citation and quotation omitted). At trial, no evidence was introduced to show that the vehicle stopped by Officer Glancy belonged to Petitioner. In his Brief in Support, Petitioner states that "the vehicle was owned by Jacky Golden, and he was driving it the night of the stop." Brief in Support at 20. Because Petitioner did not have the requisite possessory interest in the vehicle, he has no standing to challenge the legitimacy of the search. Neither trial nor appellate counsel was ineffective in failing to raise this meritless claim.
DeLuca further held that a defendant/passenger "may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal detention." Id. ( quoting United States v. Nava-Ramirez, 210 F.3d 1128 (10th Cir. 2000)). In this case Petitioner was arrested (seized), but his arrest was admittedly pursuant to an outstanding warrant. See Brief in Support at 8 ("It should be noted that petitioner had a warrant out on him for a public intoxication charge he failed to show up to court for and pay a fine."). Therefore, Petitioner's detention was not illegal, and suppression of the evidence was not warranted.
2. Ground Two: Testimony of Arresting Officer
In his second ground for relief, Petitioner contends that Officer Glancy's testimony was perjured in that this witness could not have seen Petitioner slide a red and white cigarette box under the seat. According to Petitioner, he was the first person removed from the automobile. Brief in Support at 7-8.
Petitioner's conclusory allegations are wholly unsupported by the evidence. See Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir. 1996) (presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible). The only evidence at trial regarding the order of arrest is the testimony of Officer Glancy. Nevertheless, Petitioner again urges this Court to procure and watch the videotape that allegedly recorded the traffic stop from Officer Glancy's patrol car. Brief in Support at 9-10.
On habeas review, it is not the purpose of a federal court to gather evidence and retry the facts of the case. "Conclusory allegations will not suffice to warrant a hearing." Andrews v. Shulsen, 802 F.2d 1256, 1266 (10th Cir. 1986) (citations omitted). Moreover, AEDPA restricts the circumstances under which a federal district court may grant an evidentiary hearing in a habeas action. Section 2254(e)(2) provides that "[i]f the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant" can satisfy one of the two exceptions listed in § 2254(e)(2)(A) and (B). "If, however, the habeas petitioner did not `fail to develop the factual basis of a claim in State court,' then § 2254(e)(2) is not applicable and [the court] must analyze whether a hearing is required under the pre-AEDPA standard." Parker v. Scott, 394 F.3d 1302, 1324 (10th Cir. 2005) (internal citations omitted).
Section 2254(e)(2) reads in its entirety:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Under the pre-AEDPA standard, a habeas petitioner must first make allegations which, if proved, would entitle him to relief. If the petitioner does that[,] the court must then determine whether petitioner is entitled to an evidentiary hearing to resolve any disputed facts underlying his claims. No hearing is necessary if [the court] can resolve the petitioner's claims on their merits based solely on the record before [it].Id. (internal quotations and citations omitted).
Before a federal court can order an evidentiary hearing in a habeas action, the court must first decide whether the petitioner failed to develop his factual claim in state court. "[A] failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). A habeas petitioner acts diligently where he "sought to develop the factual basis underlying his habeas petition . . . but a state court prevented him from doing so." Smallwood v. Gibson, 191 F.3d 1257, 1266 (10th Cir. 1999).
In this case, Petitioner first raised this claim in his post-conviction application. There is no evidence that Petitioner sought an evidentiary hearing, but he did state in his application that he could prove that Officer Glancy's testimony was false with the alleged videotape and with the testimony of assisting officers. See Response to Amendment Ex. 1 at 5. These statements do not establish Petitioner's diligence in developing the factual basis of his claim. But even if these statements are considered reflective of due diligence on the part of Petitioner, Petitioner does not satisfy the pre-AEDPA standard for an evidentiary hearing. Petitioner challenges Officer Glancy's testimony based on Petitioner's recollection that Officer Glancy removed Petitioner from the vehicle before Mr. Golden was removed from the vehicle. Even if Petitioner's recollection were proved correct, however, that would not mean that Petitioner is entitled to relief. Officer Glancy could have seen Petitioner hide the red and white cigarette box at any point before he was removed from the car. Moreover, there was sufficient evidence collected from Petitioner's apartment from which the jury could conclude that most of the illegal drugs found in the vehicle belonged to Petitioner. On this same evidentiary record, it is clear that appellate counsel was not ineffective in failing to raise this claim on appeal.
3. Ground Three: Prosecutorial Misconduct
Petitioner claims that prosecutorial misconduct deprived him of a fair trial in that (1) the prosecutor elicited testimony about Petitioner's possession of $1,057 on the night of his arrest without introducing the money into evidence; (2) the prosecutor failed to send evidence to be fingerprinted as defense counsel requested; (3) the prosecutor improperly bolstered Officer Glancy's testimony and credibility; (4) the prosecutor made inflammatory remarks to the jury to "be the conscience of the community," and to "send a message," (5) the prosecutor failed to submit the correct jury instructions regarding the habitual offender statute and (6) the prosecutor introduced information about the Habitual Offender's Act in closing arguments. Petition at 8. These grounds for relief were raised in Petitioner's Application for Post-Conviction Relief. Response to Amendment Ex. 1, Application for Post-Conviction Relief at 6. In his Brief in Support, Petitioner complains for the first time that the prosecutor elicited improper hearsay evidence at the preliminary hearing. Brief in Support at 11. This claim, raised for the first time in this action, is procedurally barred. See discussion infra at 36-39.
As discussed above at pp. 10-11, the error in jury instructions was actually advantageous to Petitioner. This ground for relief requires no further discussion.
A review of the transcript reveals that Petitioner's trial was properly divided into two stages. The prosecutor did not address Petitioner's prior convictions until the second stage of the trial. See Closing Arguments TR II.
Prosecutorial misconduct gives rise to federal habeas corpus relief only when such misconduct either violated a specific constitutional right or "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In this case, none of the allegations of prosecutorial misconduct rise to the level of denial of due process.
First, an error in the admission of evidence is a matter of state law not ordinarily remediable on habeas review. Where, as here, no particular constitutional guarantees are implicated, an evidentiary objection is cognizable in a federal habeas case only if the alleged error "was so grossly prejudicial [that it] fatally infected the trial and denied the fundamental fairness that is the essence of due process." Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (quotation omitted; alteration in original). Admitting testimony about the amount of money Petitioner had on the night of his arrest without introducing the money itself cannot be viewed as "grossly prejudicial." In fact, introducing the money into evidence would have been a powerful visual reminder to the jury that Petitioner was carrying a substantial amount of cash at the time of his arrest.
Petitioner complains that the prosecutor failed to run fingerprint analysis on evidence removed from the vehicle. Petitioner's trial counsel informed the judge that she had asked the State to do a fingerprint analysis on the red and white Marlboro cigarette box. She stated, "And had they been — you know, we were going to see what came back on them depending on how we proceeded." TR I at 146. Petitioner contends that failing to run fingerprint tests on the seized evidence approached a violation of Brady v. Maryland, 373 U.S. 83 (1963) which provides that the State's suppression of "evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment." "[T]o establish a Brady violation, a habeas petitioner must show that (1) the prosecutor suppressed evidence; (2) the evidence was favorable to the defendant as exculpatory or impeachment evidence; and (3) the evidence was material." Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir. 2002) (citation and internal quotation omitted). In this case, however, there is no indication that the prosecutor suppressed fingerprint evidence. The prosecutor did not have a duty to procure a fingerprint analysis on the basis that the result might be helpful to the defense. Whether a fingerprint analysis would have yielded useful information and been favorable to Petitioner is pure speculation. Given the evidence seized in the search of Petitioner's apartment, the absence of Petitioner's fingerprints on the evidence would not have conclusively proved his innocence.
Petitioner next claims that the prosecutor improperly bolstered Officer Glancy's testimony and credibility by making the following remarks in closing argument:
Now you'll remember [Officer Glancy] testified also how he has to pay attention because, you know, when you're working that late at night your life is on the line. Imagine for a second you're a police officer, a professional officer, and you're stopping somebody and you don't know who they are. The first thing you do is you see drugs in the floorboard and you see the driver pick up a knife. Your senses are totally tuned in to what's going on. Because why? Your life depends on it. A trained police officer, an eyewitness, an officer that you heard testify from this witness stand — and I have to tell you, ladies and gentlemen, he remembered well. He remembered this evidence. Happened a long time ago. He knew his case. An officer that based upon his testimony we could be proud of, doing his job.
TR II at 214.
While it is true that a prosecutor cannot vouch for the credibility of his witnesses, see Moore v. Gibson, 195 F.3d 1152, 1173 (10th Cir. 1999), argument is "impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony." United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990) (citations omitted). The above-cited remarks do not approach impermissible vouching. The prosecutor said nothing to indicate his personal belief in Officer Glancy's testimony, and he did not indicate that other information not presented to the jury supported Officer Glancy's testimony.
Finally, Petitioner claims that the prosecutor made inflammatory remarks during closing argument:
And, ladies and gentlemen, you are — Now listen to me. You are the conscience of this community. You decide what kind of standards we're going to uphold in this community. You decide what we're going to tolerate in Beckham County. You tell this defendant sitting right over there, this guy right over there that we don't put up with people who have methamphetamine and trying to sell it. We don't put up with that. No sir. You get caught, you get convicted. That's what you tell this defendant.
TR II at 236.
As the Supreme Court has stated with regard to closing arguments, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). "The relevant question is whether the prosecutor's comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. at 643). Having reviewed the remarks of the prosecutor in this case and weighed them against the strength of the evidence presented at trial, the Court finds that Petitioner has not established that his trial was rendered fundamentally unfair. Compare Spears v. Mullin, 343 F.3d 1215, 1245-1247 (10th Cir. 2003) (petitioner's trial was not rendered fundamentally unfair by prosecutor's attempts to evoke sympathy for the victim, present victim impact evidence, "dehumanize" petitioner, comment as to the brutality of the crime, and telling jurors they had a moral duty to convict). This claim is without merit.
In sum, none of the cited examples of alleged prosecutorial conduct implicate a constitutional right or rise to the level of a due process violation. Appellate counsel was not ineffective in failing to raise these issues on direct appeal.
4. Ground Four: Ineffective Assistance of Trial Counsel
Petitioner's appellate counsel raised an ineffective assistance of counsel claim on direct appeal alleging that trial counsel had (1) failed to object to prejudicial hearsay; (2) failed to request an instruction on the theory of the defense; (3) failed to use impeachment evidence; and (4) failed to object to improper enhancement evidence. See Response, Ex. 1, Brief of Appellant at 8-13. The claims of ineffectiveness of counsel stated in the original habeas Petition, however, were apparently the ineffective assistance of counsel claims raised for the first time in Petitioner's Application for Post-Conviction Relief. Petitioner did not precisely state all of the ineffective assistance of trial counsel claims in his Application for Post-Conviction Relief. Rather, he stated that he was raising eight "subpropositions of Ineffective Assistance of Counsel," and refers the trial court to his "brief in support" which has not been provided to this Court. See Response to Amendment Ex. 1, Application for Post-Conviction Relief at 7. Respondent asserts, however, that Petitioner has exhausted his state court remedies. Response at 2. Further, Respondent states that the claims of ineffective assistance of trial counsel stated in the Petition were first raised in Petitioner's post-conviction application. Response at 7-8. This Court accepts Respondent's statement. Therefore, these claims, too, will be reviewed under Strickland to determine whether their omission on direct appeal constitutes ineffective assistance of appellate counsel. a. Failure to Investigate; Failure to Call Witnesses; Failure to Challenge State's Witnesses; Failure to Include Petitioner In the Trial Process
Petitioner states that an investigator working for his trial counsel had interviewed witnesses who were willing to testify for Petitioner. According to Petitioner, one witness, Lou Sibold, would have testified that Jacky Golden "had sold drugs the night of the stop." Brief in Support at 23. According to Petitioner, another witness, Teresa Talbert, would have testified that she had been in Petitioner's apartment on the evening before the early morning traffic stop, that Jacky Golden was in the apartment, that Mr. Golden had taken sandwich baggies out of Petitioner's cabinet and that Mr. Golden had gone into Petitioner's bedroom and closed the door. Id. According to Petitioner, Ms. Talbert would have further testified that Mr. Golden told Petitioner that he had "bagged up some dope," that Petitioner got angry and told Mr. Golden "never to bring dope in his house again," and that "he [Petitioner] did not even want to be around that stuff." Id. Petitioner states that either the investigator was lying about the information he had discovered, or his trial counsel "concealed evidence exculpatory in nature." Id. at 28. Petitioner further states that his trial attorney never consulted him about the trial until thirty minutes before it began. Id. at 23. He states that trial counsel urged him to accept an offer from the State and plead guilty. Id.
Petitioner states that he was already incarcerated and facing five years imprisonment for his DUI conviction.
Petitioner has offered no evidence, in the form of affidavits or otherwise, to support the existence of the two witnesses allegedly found by the investigator or what their testimony might have been. Attached to Petitioner's Amendment to Petition is a detailed letter from Petitioner to his appellate counsel. The letter outlines Petitioner's chronology of events and specifies questions which Petitioner thinks should have been asked on cross-examination to challenge the State's witnesses. Appellate counsel vigorously raised an ineffective assistance of trial counsel claim on direct appeal, but Petitioner could not establish prejudice.
The OCCA found on direct appeal that "[Petitioner] does not establish prejudice nor can we find any as the evidence against [Petitioner] was overwhelming." OCCA Summary Opinion at 2, footnote 3.
There is a strong presumption that Petitioner's appellate counsel raised the strongest arguments on appeal. The Tenth Circuit Court of Appeals has held that an appellate counsel is not ineffective merely because he does not raise every issue suggested by his client:
A defendant does not have a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points. . . . Legal contentions, like the currency, depreciate through overissue. . . . Winnowing out weaker arguments is not a constitutionally deficient practice and, indeed, is the hallmark of effective advocacy.Tapia v. Tansy, 926 F.2d 1554, 1564 (10th Cir. 1991) (internal quotations and citations omitted). Appellate counsel's omission of these issues does not constitute ineffective assistance of counsel.
b. Failure to Conduct Forensic Testing
Petitioner states that trial counsel was ineffective in failing to have fingerprint testing done on the evidence seized during the search and in failing to have a handwriting expert analyze the note concerning "Big John" that had been found in Petitioner's apartment. As discussed above, whether tests would show the presence or absence of Petitioner's fingerprints on the evidence seized from the vehicle is purely speculation on Petitioner's part. Moreover, even the absence of Petitioner's fingerprints from the red and white Marlboro cigarette box would not have established Petitioner's innocence.
It appears that Petitioner hired a handwriting expert after he was imprisoned to analyze the note concerning "Big John." Attached to Petitioner's Brief in Support are letters from Pat Tull, a Certified Document Examiner. Mr. Tull states that he examined State's Exhibit 19, which is identified on the State's list of exhibits as "Page from yellow tablet." Brief in Support at 42. Mr. Tull concluded, "Based on reasonable scientific certainty, it is my conclusion that the person who wrote the DOCUMENT UNDER INQUIRY cannot be identified based on the handwritings that have been submitted." Brief in Support at 54. The letter from Mr. Tull to Petitioner indicates that even if trial counsel had engaged a handwriting expert before trial, no dispositive evidence would have been gained. Petitioner cannot show that but for his trial counsel's failure to order forensic testing, the result of his trial would have been different. Appellate counsel's omission of this issue does not constitute ineffective assistance of counsel.
c. Failure to Make Use of Two Peremptory Challenges
Petitioner states that his trial counsel was ineffective in failing to remove two members of the jury panel, Barbara Fields and Stacie DeLeon, through peremptory challenges.
Ms. Fields worked at Northfork Correctional Institution. TR I at 13, 17. Petitioner states that, because he was an ex-prisoner, he was uncomfortable having Ms. Fields on the jury. Brief in Support at 20. Ms. Fields answered negatively when the trial judge asked her if there was anything in her prior experience or employment that would affect her ability to be fair. TR I at 17.
Ms. DeLeon stated that she was married and had three children. TR I at 24. She indicated that she was hesitant about serving on the jury:
I'm — I don't know if I'm right for this case because I'm really against drugs. I mean really hard against drugs. So I don't know if I'm like —Id. at 38. Nevertheless, Ms. DeLeon stated that she would "try to be a fair person." Id. at 58. When asked if she felt that Petitioner had something to prove to her, Ms. DeLeon responded:
No. But I think that if someone's guilty they need to be guilty. If they're not, then they need to be innocent. I mean I'm just a fair person. I don't think that — but I'm willing to listen to both sides of everything. And I mean I'm just saying that I know a lot about what goes on so there's no tricking me or anything because I know.
TR I at 58-59. Defense counsel attempted to have Ms. DeLeon removed for cause, but the trial judge overruled the motion. Id. at 60. Defense counsel did not use a peremptory challenge to remove either juror.
Defense counsel's failure to attempt to remove from the jury a person who has been established on voir dire to be biased constitutes prejudice under Strickland. See Johnson v. Armontrout, 961 F.2d 748, 755-56 (8th Cir. 1992). To show a juror was biased, however, a petitioner must show that the juror had such a fixed opinion that he or she could not judge impartially. See Patton v. Yount, 467 U.S. 1025, 1035 (1984). Thus, a juror is not shown to have been partial simply because he or she had a preconceived notion as to the guilt or innocence of the accused. See Murphy v. Florida, 421 U.S. 794, 800 (1975). The Supreme Court stated in Irvin v. Dowd, 366 U.S. 717 (1961):
It is not required . . . that the jurors be totally ignorant of the facts and issues involved. . . . To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.Id. at 722-23. To show that Ms. Fields and Ms. DeLeon were biased, Petitioner would have to show that the jurors had such fixed opinions that they could not judge impartially.
In this case, both jurors indicated implicitly or explicitly that they could put their opinions aside and judge the case impartially on the evidence. Neither juror stated affirmatively that she believed Petitioner to be guilty, nor did either juror indicate that she could not put aside her opinions and fairly consider the evidence. See Hale v. Gibson, 227 F.3d 1298, 1320 (10th Cir. 2000) (trial counsel was not ineffective in failing to challenge six jurors, where there was no unequivocal statement by any juror that he or she was firmly convinced of defendant's guilt and could not set aside that opinion). Petitioner has not shown that but for trial counsel's failure to peremptorily challenge Ms. Fields and Ms. DeLeon, the outcome of his trial would have been different. Therefore, appellate counsel's omission of this issue on direct appeal does not constitute ineffective assistance of counsel. 5. Ground Six: Cumulative Error
Petitioner contends that the cumulative effect of trial errors made by the prosecutor and his own trial counsel serves as a basis for relief. The Tenth Circuit Court of Appeals has recently explained that the "`[c]umulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.'" Hamilton v. Mullin, 436 F.3d 1181, 1196 (10th Cir. 2006) (quoting Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003).
Each of Petitioner's claims of trial error have been reviewed. The only actual "errors" established relate to the statutory basis for enhancement of Petitioner's sentence. As discussed earlier, these errors were not only harmless, but they actually worked to Petitioner's benefit. None of the allegations of prosecutorial misconduct were found to constitute error. The only allegation of misconduct that could possibly be considered in a cumulative error analysis relates to the prosecutor's remarks in closing argument which, although perhaps undesirable, were not strongly inflammatory and would have had minimal if any effect on the jury in light of the strong evidence of Petitioner's guilt presented at trial. Moreover, trial counsel's performance has not been shown to be defective or prejudicial in regard to any of the claims raised. See Jones v. Stotts, 59 F.3d 143, 147 (10th Cir. 1995) (habeas claim that cumulative errors of trial counsel denied petitioner a fundamentally fair trial lacked merit where none of the alleged instances of counsel error rose to the constitutional level).
Upon a review of the record and Petitioner's claims in the context of a cumulative error analysis, the Court concludes that Petitioner has failed to demonstrate that the cumulative effect of any individual harmless errors deprived him of a fair trial. Petitioner's claim of cumulative error lacks merit. Therefore, appellate counsel's omission of a claim of cumulative error on direct appeal does not constitute ineffective assistance of appellate counsel.
6. Ground Seven: Ineffective Assistance of Appellate Counsel
In his Amendment to Petition, Petitioner contends that "[t]he appeal attorney failed to bring to bear the skillfulness and thoroughness guaranteed by the 6th Amendment of the Constitution of the United States and Article II § 20 of the Constitution of the State of Oklahoma." He further asserts that "[t]he appeal attorney failed to raise relevant issues, obvious from the record, and thoroughly communicated to the appeal attorney by the petitioner." Amendment to Petition at 2-3.
Petitioner supports the first contention by criticizing the cases cited by his appellate attorney. Petitioner claims that his appellate attorney "failed to support the propositions brought on direct appeal with case citations relevant to the issues presented." Amendment to Petition at 3. Having reviewed the appellate brief filed on direct appeal with the OCCA, this Court notes that the issues raised on direct appeal are properly supported by relevant case law. Therefore, Petitioner is not entitled to habeas relief on this ground.
The merits of the claims omitted on direct appeal have been reviewed herein under Strickland. Having reviewed Petitioner's claims omitted from the direct appeal and having determined those claims to be without merit, the Court further finds that the OCCA's determination of Petitioner's ineffective assistance of appellate counsel claim was not contrary to or an unreasonable application of clearly established Supreme Court precedent. See Response, Ex. 3, OCCA Order Affirming Denial of Post-Conviction Relief.
C. Additional Grounds Raised in Petitioner's Brief in Support of Petition
As to the additional allegations of ineffective assistance of trial counsel discussed in Petitioner's Brief in Support, there is no indication that these claims have ever been presented to the state courts. Respondent has not addressed these additional allegations.
To reiterate, the additional grounds are: trial counsel was ineffective in failing to insure the trial was a joint trial as there was a co-defendant, or in failing to subpoena Jacky Golden; trial counsel's assistant was ineffective in failing to object to hearsay at the preliminary hearing; trial counsel was inept; trial counsel was ineffective in failing to allow Petitioner to take the stand in his own defense; trial counsel was ineffective in failing to challenge or object to evidence presented by the state, and in failing to make the adversarial testing process of the trial function; and trial counsel was ineffective in that she confused the jury as to the range of punishment.
For a federal court to grant relief to a prisoner under § 2254, the petitioner must demonstrate that he has exhausted available avenues for relief in state court. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) ("In order to obtain federal habeas corpus relief, a state prisoner must first exhaust the remedies available in the state courts."); 28 U.S.C. 2254(b) (1) (A) (requiring exhaustion of remedies available in the state courts). "Fair presentation of a prisoner's claim to the state courts means that the substance of the claim must be raised there." Patton v. Mullin, 425 F.3d 788, 809 n. 7 (10th Cir. 2005). "The prisoner's allegations and supporting evidence must offer the state courts a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." Id. Here, the claims raised for the first time in Petitioner's Brief in Support have apparently not been fairly presented to the state courts, and they are not, therefore, exhausted.
Where, as here, a habeas petition contains both exhausted and unexhausted claims, the petition is deemed a "mixed petition" which ordinarily must be dismissed in its entirety. See Rose v. Lundy, 455 U.S. 509, 510 (1982); see also Brown v. Shanks, 185 F.3d at 1125. If, however, a federal court is faced with a mixed petition and determines that the petitioner's unexhausted claims would now be procedurally barred in the state court, "there is a procedural default for purposes of federal habeas." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). In such a case, "instead of dismissing the entire petition, the court can deem the unexhausted claims procedurally barred and address the properly exhausted claims." Harris v. Champion, 48 F.3d 1127, 1131 (10th Cir. 1995).
Because Petitioner would be procedurally barred from raising these claims before the state courts in a second post-conviction application, see Okla. Stat. tit. 22, § 1086, this Court can deem the claims procedurally barred. See Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002) (declining to reach the merits of an ineffective assistance of counsel claim that had been omitted in the state proceedings, as the "Oklahoma courts would now deem it procedurally barred") ( citing Coleman v. Thompson, 501 U.S. at 735 n. 1); Jackson v. Champion, Nos. 95-5110, 95-5148, 1996 WL 514609 at *1 (10th Cir. Sept. 11, 1996) (unpublished op.) (finding OCCA's consistent application of Okla. Stat. tit. 22, § 1086 to bar claims that could have been raised in earlier post-conviction proceedings both an "independent" and "adequate" state ground and listing Oklahoma cases applying this procedural rule); see also Smith v. State, 546 P.2d 1351, 1354 (Okla.Crim.App. 1976) ("It is clear . . . that all issues known to a Petitioner must be raised in the first application for post conviction relief in the trial court, or they will be deemed to have been waived. . . ."). Petitioner makes no effort to show "cause for the default and actual prejudice as a result of the alleged violations of federal law, or to demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750. As Petitioner neither had counsel nor a constitutional right to counsel in his first post-conviction proceeding, ineffective assistance of counsel cannot serve as "cause" for his default of the additional claims. Coleman v. Thompson, 501 U.S. at 752-53 (holding that ineffective assistance of counsel in state collateral review proceedings cannot constitute "cause" excusing a procedural default because there is no constitutional right to an attorney in state post-conviction proceedings); Pennsylvania v. Finley, 481 U.S. 551, 554 (1987) (prisoners have no Sixth Amendment right to counsel during post-conviction proceedings); Smallwood v. Gibson, 191 F.3d 1257, 1269 (10th Cir. 1999) ("Although attorney error amounting to constitutionally ineffective assistance of counsel constitutes `cause' for a procedural default, petitioner cannot make such a showing here because there is no constitutional right to post-conviction counsel.") (citations omitted); Parkhurst v. Shillinger, 128 F.3d 1366, 1368-69 (10th Cir. 1997) (ineffective assistance of counsel does not constitute cause and prejudice excusing procedural default of post-conviction proceedings).
Having procedurally defaulted the claims not raised in his initial post-conviction action, Petitioner is now precluded from raising these claims in a federal habeas action. See Hain v. Gibson, 287 F.3d 1224, 1240 (10th Cir. 2002) (finding unexhausted claim would be procedurally barred under Oklahoma law if presented to the OCCA and need not be addressed as no cause and prejudice had been alleged and petitioner could not establish fundamental miscarriage of justice would occur if claim was not addressed). Accordingly, Petitioner is not entitled to habeas review on the additional claims first raised in Petitioner's Brief in Support.
RECOMMENDATION
It is recommended that the Petition for Writ of Habeas Corpus as amended [Docs. ##1, 18] be denied.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objections must be filed with the Clerk of the District Court by the 15th day of June, 2006. See Local Civil Rule 72.1. Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation disposes of all issues referred by the District Judge in this matter and terminates the referral.