Opinion
CIV-20-594-G
03-10-2022
JOEY ELIJIO ADAMES, Petitioner, v. SCOTT CROW, Director, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PUURCELL UNITED STATES MAGISTRATE JUDGE
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. Petitioner is challenging his convictions for Conspiracy to Distribute a Controlled Dangerous Substance and Unlawful Possession of a Firearm After Former Conviction of a Felony (“AFCF”) in the District Court of Canadian County, Case No. CF-2017-256. 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. Procedural Background
Petitioner was charged in state court with Conspiracy to Distribute a Controlled Dangerous Substance and Unlawful Possession of Firearm AFCF. Doc. No. 21-1 at 1. Following a jury trial, he was convicted on both counts in April 2018. Doc. No. 1 at 1.
Following his convictions, Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (“OCCA”). Therein, he raised three propositions of error: (1) the prosecutor's improper comments on silence deprived Petitioner of the right to a fundamentally fair trial; (2) the prosecutor's improper comments on future crimes deprived Petitioner of a fundamentally fair sentencing proceeding; and (3) the trial court lost jurisdiction to revoke Petitioner's suspended sentences because of a violation of the “20-Day Rule.” Doc. No. 21-2. On June 27, 2019, the OCCA affirmed his convictions. Doc. No. 21-1.
Petitioner filed the instant action on June 22, 2020. Liberally construed, the Petition and Brief in Support before this Court challenge the effectiveness of Petitioner's appellate counsel based on three underlying issues: (1) appellate counsel's failure to challenge the chain of custody regarding the firearm supporting his conviction for Unlawful Possession of a Firearm AFCF, Doc. No. 1 at 5; Doc. No. 2 at 2-6; (2) appellate counsel's failure to assert that the trial court erred in not providing certain impeachment instructions to the jury, Doc. No. 1 at 6; Doc. No. 2 at 6-7; and (3) appellate counsel's failure to challenge the sufficiency of the evidence supporting Petitioner's conviction of Unlawful Possession of a Firearm AFCF. Doc. No. 1 at 9; Doc. No. 2 at 7-9. On August 12, 2020, Respondent filed a Motion to Dismiss based on Petitioner's failure to exhaust state court remedies prior to seeking habeas relief. Doc. No. 9.
Although Petitioner does not preface every claim in the Petition with “appellate counsel was ineffective,” the structure of his brief indicates his clear intention to assert a claim for ineffective assistance of counsel with three subparts.
On September 21, 2020, Petitioner filed an application for post-conviction relief in state court raising the claims that he was attempting to raise in the present case. Doc. No. 21-4. On October 19, 2020, the undersigned recommended denying Respondent's Motion to Dismiss and administratively closing this case in order to allow Petitioner to exhaust his state court remedies. Doc. No. 12. On December 18, 2020, the state district court denied Petitioner's application for post-conviction relief. Doc. No. 21-6. Petitioner appealed to the OCCA, which affirmed the district court's denial on March 5, 2021. Doc. No. 21-9.
Between March 19, 2021 and October 18, 2021, Petitioner filed four documents requesting the Court reopen this matter. Doc. Nos. 13-16. On November 9, 2021, Judge Goodwin adopted the previous Report and Recommendation insofar as it recommended denial of Respondent's Motion to Dismiss and noted that because Petitioner had exhausted his state court remedies, the Court could now “properly give further consideration to the habeas claims.” Doc. No. 17 at 2.
The factual background is taken primarily from Respondent's Response to the Petition for Writ of Habeas Corpus, Doc. No. 21 at 5-15, which Petitioner does not dispute or contradict.
In 2017, Investigator Bradley Neff, a narcotics investigator for the Canadian County Sheriff's Office Narcotics Unit, had information that drugs were being dealt out of a particular residence on West Perry (“Perry home”) in Mustang, Oklahoma, located in Canadian County. Doc. No. 21-10 at 2, 3-4. On February 9, 2017, Investigator Neff conducted surveillance, watching the residence for foot traffic and vehicle traffic that “comes and stays a short amount of time and leaves.” Id. at 4-5, 41-42. Investigator Neff testified that a regular feature of a narcotics transaction is that it is very short. Id. at 5. Within about an hour of watching the Perry home, Investigator Neff saw one person arrive on foot and leave within a few minutes and saw another person arrive in a vehicle and leave within a few minutes. Id. at 6. A third visit occurred, this one again via a vehicle, with two male subjects exiting the car and entering the house; the vehicle left shortly thereafter. Id. at 6-7. Investigator Neff joined in a traffic stop of the vehicle, which was occupied by Kendra Williams. Id. at 7-8. Investigator Neff was asked to join in the traffic stop because Williams wanted to cooperate, had narcotics, and was leaving a house that he suspected was a drug house. Id. Investigator Neff took what he learned from Williams and used the information to obtain a search warrant for the Perry home. Id. at 8-10.
On the morning of February 10, 2017, officers executed the search warrant (“First Search”) and detained Brock Laurent and Eric Julian who were in the house. Id. at 10. Petitioner was not present. Id. at 11. On the floor in the living room, officers found a blue bag that contained a spoon, several syringes, snorting tubes, a metal tin, and a baggie containing what officers suspected was heroin. Id. at 14-17. The items were one of the first things one would see if one walked through the front door and signified to Investigator Neff that everyone in the house was aware of them. Id. at 16-17. On a chair in the living room, officers found a little plastic container that contained brown cotton swabs or cigarette butts that had heroin in them from a previous drawing of heroin, in addition to a spoon that had brown reddish residue on it that Investigator Neff testified could be either blood or heroin. Id. at 17-19. In the living room, officers found approximately 4.5 grams of heroin and 0.8 grams of methamphetamine. Id. at 29.
The Court will refer to Brock Laurent as “Laurent.” Laurent's father, David Laurent, referenced for the first time below, will be referred by both first and last name to avoid confusion.
On cross-examination, Investigator Neff testified a search was performed later in the day on February 10, 2017, on a “Green Gate house” and that Petitioner was arrested in a traffic stop somewhere in the neighborhood of the Green Gate house after Investigator Neff saw Petitioner's vehicle leaving that house. Id. at 43-44.
In the far back bedroom (“Bedroom One”), there was a large speaker with an orange ribbon or tourniquet and a syringe with some white residue on it, as well as a gray shaving bag holding several bags of heroin, a spoon used to hold heroin, a syringe, and Julian's driver's license. Id. at 19-22, 23, 35-37. Officers found Laurent and Julian in Bedroom One. Id. at 21-22, 27. Subsequently, at trial, Julian testified that the tourniquet, syringe, and heroin in Bedroom One were his and that he got the heroin from Petitioner. Id. at 56. Officers found 8.25 grams of heroin in one of the bags and 3.75 grams in the rest of the bags. Id. at 24. Also in Bedroom One, officers found a large black duffle bag that contained a letter or envelope with “Joey A.” written on it, along with Petitioner's Social Security card and birth certificate. Id. at 27-29.
Investigator Neff testified that the typical use weight of heroin for one injection is one tenth of a gram. Id.
After Laurent was in custody, Investigator Neff had conversations with him about the organization of Petitioner's drug distribution and about additional heroin in the house that was missed during the First Search. Id. at 33. Laurent testified he was the primary resident of the Perry house in February 2017, and that his grandfather owned it but did not live there. Id. at 58. Laurent gave Investigator Neff consent to search the Perry house again, and Investigator Neff returned to the house on February 12, 2017, to conduct a second search (“Second Search”). Id. at 30. Laurent was present during the Second Search along with his father, David Laurent, who had a key to get into the house. Id. Investigator Neff had information there was heroin in a shoe in the back closet, and Investigator Neff found a white Nike Air Max shoe in a closet in Bedroom One. Id. at 31. The shoe contained between approximately 35 and 39 grams of heroin in a plastic baggie, which was wrapped in a purple bandana. Id. at 32. A wallet containing Petitioner's ID was also in that closet on a shelf. Id. at 38. Investigator Neff estimated the street value of the heroin seized from the Perry house was approximately $5,000 and characterized it as a “very large amount” Id. at 34.
Laurent testified Petitioner was regularly present at the Perry house. Id. Laurent had been friends with Petitioner for most of his life and testified Petitioner began to supply him with heroin in approximately October 2016. Id. at 60-61. Although Laurent considered himself an addict, he did not consider Petitioner an addict. Id. at 69. Laurent never saw Petitioner use heroin but occasionally Petitioner would use other drugs for fun. Id.
Initially, Petitioner would bring heroin to Laurent's house in return for money. Id. at 62. Eventually, Laurent became involved as more than simply a customer. Id. Laurent would drive Petitioner to Dallas or to the WinStar Casino near the state line to pick up heroin. Id. at 62, 63. Laurent testified that when he went with Petitioner, they would pick up approximately three to five ounces of heroin at a time and take it to Laurent's house for the purpose of selling it. Id. at 63. Laurent testified he never went to Dallas or the WinStar Casino without Petitioner, but Petitioner would go without him. Id. at 63-64. Laurent knew Petitioner had gone without him because Petitioner would show up to his house with the heroin when Petitioner returned. Id. at 63.
Laurent had discussions with Petitioner about the source of his supply. Id. When they went to the WinStar Casino, the source of supply was Petitioner's uncle, Danny, and when they met in Dallas, the source of supply was Petitioner's father. Id. Laurent testified that Petitioner would pay his father or his uncle $700 for an ounce, which was a substantial discount from the amount for which it sold. Id. at 74. Laurent testified that in early 2017, there were typically three to twelve ounces in the Perry house, depending on how many times Petitioner went and picked up more. Id. Laurent and Petitioner would go resupply about once or twice a week from approximately November/December until February. Id. Laurent also saw Petitioner “cut” the heroin by adding a powder to make it weaker and add more weight to it. Id. at 74-75.
Laurent testified that if Petitioner was not around and someone called Petitioner and “needed something, it was all kept at my house, so [ Petitioner] would call me and I would go meet him or they would come over depending on if I knew them or not. Just more at his discretion; do whatever he wanted me to do.” Id. at 7071. If Petitioner wanted Laurent to get cash from the customer or if Petitioner was going to give them drugs “on front” and get the money later, Laurent would do what Petitioner said to do. Id. at 71. Laurent testified that more than once per day, Petitioner would direct him to either meet someone to distribute heroin or someone would come over to Laurent's house to buy heroin. Id. at 71. Laurent testified that on a typical day, one to two ounces of heroin were sold out of his house. Id. at 76. Most of the customers were Petitioner's customers, and approximately fifteen to twenty percent of the customers were Laurent's customers. Id. Laurent got his supply of heroin from Petitioner. Id. Laurent testified that Petitioner had no regular employment around February 2017 but frequently had cash around the house from selling drugs. Id. at 64-65.
Laurent explained that to give a customer the heroin “on front” meant to give it to them without any money, and Petitioner would later get the money from the customer. Id. at 7677. Laurent explained that the purpose of giving a heroin addict the drugs “on front” was to give them a little bit of heroin so the addict was not “sick” or having withdrawal symptoms and could then go find a way to get the money. Id. at 77. Laurent testified this was a fairly common practice for Petitioner's customers. Id.
Around the time of the First Search, Petitioner had been staying at Laurent's house regularly for a couple of months. Id. at 65. Petitioner's room was Bedroom One, the very back room with the large square black speaker. Id. at 65-66. Laurent testified that Petitioner had a black duffle bag and a little safe, but that the safe was in Laurent's room at the time of the First Search because Julian was spending the night, although it normally would have been in Petitioner's room. Id. at 66. Laurent testified that he had opened the safe more than once and that it typically contained diabetic syringe needles, which belonged to Laurent because he used them for shooting up heroin, and papers, such as court papers, driver's licenses, and Petitioner's Social Security card. Id. at 66-68. Laurent also testified that the black duffle bag belonged to Petitioner and that all of his clothes were in the bag along with “I'm sure there was some papers with [Petitioner's] name on it in there somewhere.” Id. at 68-69. The black duffle bag was normally kept in Bedroom One where Petitioner stayed. Id. at 68-70.
The day before the First Search, Petitioner sent Laurent a text message asking Laurent “where's my shit?” - - referring to Petitioner's heroin. Id. at 79-80. Petitioner again texted, “Where's my shit, dude? I'm at your house.” Id. Laurent replied, “You told me to give Eric three a couple of nights ago, and last night you told me to give him another two, so if you had 38, that would be 32 now. That's five grams total you had me give him.” Id. at 80-81. The next text Petitioner sent asked Laurent to bring a Dr. Pepper home. Id. at 81-82. Laurent testified that Petitioner would normally call him, and if Laurent did not answer, Petitioner would text him “what's up?” and Laurent would call him back. Id. at 83. Laurent would then receive instructions about what drugs to distribute and to whom. Id.
Laurent testified that the night before the First Search, Williams, Petitioner's customer, dropped off Petitioner and Julian at the house, and “picked up a little heroin, I think even a little bit of meth, and left.” Id. at 72. The large package of heroin, which Laurent estimated at thirty-two grams, was in the living room at that time. Id. at 72-73. When Williams left, Laurent saw Petitioner conceal it in his shoe in the closet. Id. at 73.
Julian testified for the State that his father's cousin raised Petitioner, and he acquired heroin from Petitioner approximately one-hundred times, typically at Laurent's house. Id. at 48, 49. Julian testified that Laurent was a facilitator for Petitioner. Id. at 49. Julian would call Petitioner to see if he could get heroin, and Petitioner would either meet him or direct Julian to Laurent's house. Id. at 50. Julian observed Petitioner give or sell heroin to Laurent and personally observed Petitioner “in distribution activity” hundreds of times. Id. at 50, 53-54. Julian testified that Petitioner would keep the majority of his heroin supply in the safe at Laurent's house. Id. at 50. Julian was at Laurent's house approximately every other day to obtain heroin, and Petitioner would frequently be there as well. Id. at 51. Julian did not know Petitioner to have a regular job but had reason to believe Petitioner had substantial amounts of money and also saw him receive money for heroin. Id. Petitioner told Julian the heroin came from his uncle in Dallas, and Julian testified Petitioner would acquire heroin from his uncle about once a week. Id. at 52. Petitioner typically relied on other people for transportation, and Julian gave Petitioner rides around town to drop off heroin and transported Petitioner to Laurent's house to make a sale. Id. at 54-55.
State's witness Dale Crookshanks met Petitioner in the Canadian County Jail in October 2017 following Petitioner's arrest. Id. at 84, 86. Petitioner told Crookshanks that Williams left Laurent's house, got pulled over with a couple of pills, and Williams told police about the heroin in the Perry home trying to get herself out of trouble. Id. at 87. Petitioner told Crookshanks that Laurent often took him to Dallas or to WinStar to pick up the heroin and that Laurent was helping him distribute it throughout Canadian County. Id. at 87-88. Petitioner told Crookshanks he was getting the heroin from his uncle and sometimes his dad in Dallas. Id. at 88. Petitioner also asked Crookshanks to hire a different attorney for him as Petitioner intended to fire his current attorney. Id. at 90. Crookshanks explained to Petitioner that if he got out, he was not going to have the money to hire an attorney for Petitioner. Id. at 91. To resolve that problem, Petitioner gave Crookshanks a recipe explaining how to make methamphetamine and said that if the recipe did not work, to call Petitioner's uncle in order to be “hooked up with heroin.” Id. at 90-92. Petitioner told Crookshanks a phone number and instructed him to write down “Gotti” as the name, but Crookshanks believed the number was for Petitioner's uncle, Daniel. Id.
Finally, relevant to Petitioner's charge of Unlawful Possession of a Firearm AFCF, during the Second Search of Laurent's house, Investigator Neff also retrieved a Bernardelli .380-caliber handgun from the trunk of the car belonging to David Laurent. Id. at 95-98. Investigator Neff removed the magazine from the gun, examined the rounds, and noted the maker of the ammunition was PMC and the rounds were also .380-caliber. Id. at 99-100. Investigator Neff testified that during the First Search, the black duffle bag found in Bedroom One contained a box of .380-caliber ammunition, made by PMC. Id. at 100-01. The black duffle bag also contained a leather pouch with numerous papers with Petitioner's name on them. Id. at 102. Officers also found Petitioner's Oklahoma DOC identification card in Bedroom One Id. at 103-07.
Laurent testified he saw Petitioner in possession of a handgun almost every day. Id. at 108. Laurent could not pronounce the kind of gun but testified that it was something like “Bertaloni,” and he recalled it was a .38-caliber. Id. Laurent recognized the gun at trial as one of the guns he saw in Petitioner's possession. Id. Petitioner told Laurent he bought the gun from his friend, Robert Hughes, in exchange for $500 cash and $500 of heroin. Id. at 108-09. Laurent testified Petitioner kept the ammunition for the gun in his black duffle bag in Bedroom One with all of his clothes. Id. at 109-10. Crookshanks testified Petitioner told him that he had a .380-caliber handgun and Petitioner was hoping he would not be charged with possession of the gun because it was found after he was arrested. Id. at 111-12.
Crookshanks testified Petitioner told him that he obtained the gun from Shane Warden and did not mention Robert Hughes with regard to obtaining the gun. Id. at 112-13. Julian testified that he transported Petitioner to Warden's house on one occasion to sell heroin. Id. at 54-55.
The Court will refer to other evidence of record and testimony as necessary for a thorough discussion and analysis of Petitioner's grounds for relief.
III. 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. Section 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).
IV. Ineffective Assistance of Appellate Counsel
Petitioner asserts three bases to argue that he received ineffective assistance of appellate counsel. First, he asserts appellate counsel was ineffective based on his failure to challenge “chain of custody” regarding the gun, a .380-caliber Bernardelli pistol, underlying his conviction for Unlawful Possession of a Firearm AFCF. Doc. No. 1 at 5; Doc. No. 2 at 3-6. Second, he complains appellate counsel failed to challenge trial counsel's failure to request jury instructions related to impeachment of certain witnesses. Doc. No. 1 at 6; Doc. No. 2 at 6-7. Third, Petitioner contends appellate counsel was ineffective based on his failure to raise an insufficient evidence challenge to his conviction for Unlawful Possession of a Firearm AFCF. Doc. No. 1 at 8; Doc. No. 2 at 7-8.
Petitioner raised each of these bases in his post-conviction appeal and the OCCA denied relief, stating:
[The state district judge] denied Petitioner's claims of ineffective assistance of appellate counsel on their merits. Judge Hesse determined that appellate counsel's performance was not objectively unreasonable and that Petitioner failed to demonstrate a reasonable probability that due to the alleged errors the outcome of the appeal would have been different. We agree.
Except as related to his ineffective assistance of appellate counsel claim, consideration of Petitioner's claims for relief are
procedurally barred. Id.; Fowler v. State, [] 896 P.2d 566, 569 [(Okla. Crim. App. 1995)]; Walker v. State, [] 826 P.2d 1002, 1004 [(Okla. Crim. App. 1992)]. Petitioner's remaining claim is that his appellate counsel was ineffective because appellate counsel inadequately raised or did not raise the grounds for relief he now raises in his application for post-conviction relief.
Claims of ineffective assistance of appellate counsel may be raised for the first time on post-conviction as it is usually a petitioner's first opportunity to allege and argue the issue. As set forth in Logan [v. State], [] 293 P.3d [969,] 973 [(Okla. Crim. App. 2013)], postconviction claims of ineffective assistance of appellate counsel are reviewed under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 289 (2000) (“[Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel.”). Under Strickland, a petitioner must show both (1) deficient performance, by demonstrating that his counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-89. And we recognize that “[a] court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).
We set forth in Logan that in reviewing a claim of ineffective assistance of appellate counsel under Strickland, a court must look to the merits of the issues that appellate counsel failed to raise. Logan, [] 293 P.3d at 973-74. Only an examination of the merits of any omitted issues will reveal whether appellate counsel's performance was deficient and also whether the failure to raise the omitted issue on appeal prejudiced the defendant; i.e., whether there is a reasonable probability that raising the omitted issue would have resulted in a different outcome in the defendant's direct appeal. Id.
We find no merit in the claim that Petitioner was denied effective assistance of appellate counsel as alleged in his post-conviction application.Doc. No. 21-9 at 2-4.
To be entitled to habeas corpus relief on a claim of ineffective assistance of appellate counsel, Petitioner must demonstrate the OCCA's adjudication of his claim was an unreasonable application of Strickland. Under Strickland, a defendant 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 defendant 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 the reasonableness of 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 defendant must show that this deficient performance resulted in prejudice, 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; Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).
Application of Strickland to an ineffective assistance of appellate counsel claim requires the Court to “look to the merits of the omitted issue.” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quotations omitted).
[I]n analyzing an appellate ineffectiveness claim based upon the failure to raise an issue on appeal, we look to the merits of the omitted issue, generally in relation to the other arguments counsel did pursue. If the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance; if the omitted issue has merit but is not so compelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance.Id. (citations and quotations omitted); accord, Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004). Unless there is a reasonable probability that the omitted claim would have resulted in Petitioner obtaining relief on appeal, there is no ineffective assistance of appellate counsel under the Sixth Amendment. Neill v. Gibson, 278 F.3d 1044, 1057 n.5 (10th Cir. 2001).
A. Chain of Custody
In Petitioner's first ground for relief, he asserts his appellate counsel was ineffective based on his failure to raise an issue on appeal regarding the chain of custody for the firearm underlying his conviction for Unlawful Possession of a Firearm. Doc. No. 1 at 5; Doc. No. 2 at 3-6. There are a number of problems with Petitioner's assertion of this ground for relief.
First, it appears Petitioner misunderstands the basis for a chain of custody challenge. In challenging a piece of evidence's chain of custody, a petitioner is alleging that the circumstances of its custody by law enforcement provide reasonable certainty it has been altered or tampered with while in custody. See Bagby v. Jones, No. CIV-10-1086-D, 2011 WL 7746438, at *5 (W.D. Okla. Dec. 30, 2011) (“The purpose of the chain of custody rule is to guard against substitution of or tampering with the evidence between the time it is found and the time it is analyzed.”). Here, Petitioner does not allege the gun was altered or tampered with once in the custody of law enforcement. Instead, Petitioner essentially challenges the sufficiency of the evidence underlying his conviction, arguing the gun was not sufficiently tied to him to support his conviction for unlawful possession of the same.
Second, “[c]hain of custody issues . . . turn on interpretations of state law and are generally not cognizable under 28 U.S.C. § 2254.” Thomas v. Patton, No. CIV-13-578-F, 2015 WL 2131228, at *9 (W.D. Okla. May 6, 2015) (quoting Campbell v. Workman, No. CIV-09-174-C, 2010 WL 1372540, at *12 (W.D. Okla. Jan. 28, 2010), report and recommendation adopted, 2010 WL 1372538 (W.D. Okla. Mar. 31, 2010). Petitioner's challenge to the trial court's admission of the evidence based only on state evidentiary law does not justify habeas corpus relief unless he demonstrates that his trial was rendered fundamentally unfair by the alleged error.
To the extent Petitioner intended to argue that his appellate counsel should have challenged the gun's chain of custody on appeal, it is clear from the trial record this claim is without merit and the OCCA's ruling denying the same was reasonable. At trial, Investigator Neff testified that he retrieved the Bernardelli handgun from the trunk of David Laurent's vehicle. Doc. No. 21-10 at 95-96. Investigator Neff removed the magazines from the gun and placed the gun in a storage box. Id. at 9697, 99-100. He labeled the box, “Received from 641 West Perry, B. Laurent, by B. Neff, 2/12/17, 2145 hours, Bernardelli model .80, serial number 13313, .380 caliber, country of origin US, Italy, importer Interarms, case number 1700140, offense, possession of a firearm after former conviction.” Id. at 97. At trial, Investigator Neff examined the label and identified the handwriting as his own. Id. He also identified the Bernardelli handgun inside the box and presented at trial as the same gun he retrieved from David Laurent's car on February 12, 2017. Id. at 97-98.
Petitioner presents no evidence or argument that proper chain of custody evidence was so deficient, or deficient at all, as to render his trial fundamentally unfair. The testimony presented at trial demonstrates the Bernardelli gun was boxed, labeled, and identified in a manner sufficient to assure the chain of custody. Thus, Petitioner has not established that appellate counsel was deficient for failing to raise this issue, nor that there is a reasonable probability that asserting this claim would have resulted in Petitioner obtaining appellate relief. Neill, 278 F.3d at 1057 n.5.
To the extent Petitioner intended to argue his appellate counsel was deficient based on the failure to raise an insufficient evidence challenge against his unlawful possession conviction, this claim also fails. Petitioner argues the evidence was not sufficient to link him to the Bernardelli gun. He notes that the gun was not found inside the Perry home during the First or Second Search but instead, in the trunk of David Laurent's vehicle. He also argues that David Laurent was an interested party as his son was implicated in criminal activity based on the First and Second Search, his son “turned State's evidence,” his father (Laurent's grandfather) owned the Perry home, and David Laurent was not available to testify at trial. Doc. No. 1 at 5; Doc. No. 2 at 3-5. He complains the State did not present any forensic evidence linking him to the gun. Doc. No. 2 at 3-4. He notes that Laurent testified against him, including that the gun belonged to Petitioner, pursuant to a plea deal providing leniency in his own criminal sentences. Id. at 4. Finally, Laurent's testimony regarding how Petitioner came to own the gun differed from that of Crookshanks. Id.
As previously noted, considering an ineffective assistance of appellate counsel claim requires the Court to “look to the merits of the omitted issue[.]” Cargle, 317 F.3d at 1202 (quotations omitted). Generally, when considering a sufficiency of the evidence challenge, “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).
[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 v. Workman, 577 F.3d 1175, 1185 (10th Cir. 2009).
Here, there was ample evidence presented at trial to allow a reasonable juror to conclude the Bernardelli gun belonged to Petitioner. Laurent testified that he saw the gun in Petitioner's possession almost daily. Crookshanks testified that Petitioner told him that he owned a .380-caliber handgun but was hoping he would not be charged with unlawful possession because it was found after he had already been arrested. Laurent testified that the ammunition in Bedroom One belonged to Petitioner, and this ammunition matched the ammunition for the gun.
Petitioner argues that the testimony and evidence presented at trial allow for a different interpretation.
Brock Laurent and Eric Julian were found inside the bedroom containing the black dufflebag [sic] and ammunition during the execution of the search warrant by Brad Neff. The circumstances objectively indicate the reasonable probability Brock Laurent retreated to bedroom 1 in order to place the ammunition inside of the black dufflebag [sic] in the same manner he had placed his heroin and paraphernalia inside the black safe which contained Petitioner's documentation.Doc. No. 2 at 5. The Court agrees that a reasonable juror could have interpreted the evidence and testimony in this manner. However, the question is not whether the evidence and testimony could have supported an acquittal. Instead, the appropriate inquiry 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.” Matthews, 577 F.3d at 1185. As illustrated above, the State presented ample evidence to support Petitioner's conviction. Thus, the undersigned concludes that there was not a reasonable probability that raising this issue on appeal would have resulted in Petitioner obtaining appellate relief.
Finally, Petitioner also asserts that appellate counsel was ineffective based on his failure to raise a Confrontation Clause claim on appeal with regard to his conviction. Specifically, he contends his Sixth Amendment Confrontation Clause rights were violated because David Laurent was not available to testify at trial. However, “[t]he Confrontation Clause applies only to testimonial hearsay.” Thompson v. Allbaugh, 750 Fed.Appx. 736, 752 (10th Cir. 2018) (quoting Davis v. Washington, 547 U.S. 813, 823-24 (2006)). In the present case, the State did not present any out of court statements from David Laurent via another witness. Indeed, while Investigator Neff was testifying about receiving the Bernardelli gun, the trial court sustained defense counsel's hearsay objection thereby preventing Investigator Neff from testifying to any statements made by David Laurent. Doc. No. 21-10 at 95-96. Thus, the record does not support Petitioner's claim that his rights under the Confrontation Clause were violated. There is not a reasonable probability that had Petitioner's appellate counsel raised such an issue on appeal, it would have resulted in appellate relief. Accordingly, Petitioner's request for habeas relief on these grounds should be denied.
B. Impeachment Instructions
Petitioner contends that his appellate counsel should have raised an issue on direct appeal regarding the trial court's failure to give sufficient jury instructions related to the impeachment of witnesses. Doc. No. 1 at 6; Doc. No. 2 at 6-7. Petitioner raised this issue in his application for post-conviction relief. The district court denied the same, ruling:
The Defendant [] contends that his appellate counsel should have raised the issue that the jury was not properly instructed with instructions OUJI-CR 9-20, 9-21, and 9-22. The jury was instructed with instructions OUJI-CR 9-20 and 9-22. Instruction OUJI-CR 9-20 addressed the prior inconsistent testimony of only Brock Laurent. There was no other witness testimony that warranted this instruction. Instruction OUJI-CR 9-22 addressed the prior convictions of Eric Julian, Brock Laurent, and Dale Crookshanks. This instruction was not warranted for any other witness and the Defendant does not contend otherwise. Instruction OUJI-CR 9-21 was not given to the jury and was not requested by trial counsel. See, Defendant's Submission of Jury Instructions to the Court filed on April 4, 2018. The Defendant contends that this instruction should have been given concerning the drug use by Julian, Laurent, and Crookshanks. Instruction OUJI-CR 9-21 concerns impeachment evidence of a witness' conduct that may affect his credibility. There was no evidence presented about these witness' drug possession or use that warranted this instruction.Doc. No. 21-6 at 2-3. On appeal, as previously set forth, the OCCA affirmed this decision. Doc. No. 21-9 at 3-4.
In this action, Petitioner argues, as he did in state court, that the jury should have received “eleven (11) impeachment instructions under OUJI-CR 9-22” with regard to Dale Crookshanks “for his eleven (11) felony convictions.” Doc. No. 2 at 6. As the state district court referenced, the following instruction was provided to the jury:
INSTRUCTION NO. 21
EVIDENCE - IMPEACHMENT OF A WITNESS BY FORMER CONVICTION
Evidence has been presented that Eric Julian, Brock Laurent, and Dale crookshanks[] have heretofore been convicted of a criminal offense(s). This evidence is called impeachment evidence, and it is offered to show that the witness's testimony is not believable or truthful. if you find that this conviction(s) occurred, you may consider this impeachment evidence in determining what weight and credit to give the credibility of that witness. You may not consider this impeachment evidence as proof of innocence or guilt of the defendant. You may consider this impeachment evidence only to the extent that you determine it affects the believability of that witness, if at all.Doc. No. 21-11 at 62. Thus, the jury received impeachment instructions as to crookshanks' previous convictions. To the extent Petitioner is arguing the jury should have received eleven different copies of this same instruction for each of crookshanks' previous convictions, this argument is not persuasive. The jury was presented with evidence, consisting of direct testimony from crookshanks, that he had these previous convictions. Doc. No. 21-10 at 84-85. Thus, the jury was aware of the previous convictions and received instruction that said convictions could be considered in determining the weight and credibility to give his testimony.
Petitioner next asserts that on appeal, appellate counsel should have raised the trial court's failure to give jury instruction OUJI-CR 9-21 regarding Crookshanks, Laurent, and Julian based on their “prior bad acts” of possession and use of illegal drugs. Doc. No. 2 at 6. Similar to the jury instruction discussed above, OUJI-CR 921 provides:
In considering the merits of the omitted issue, the Court notes that because trial counsel did not request OUJI-CR 9-21, appellate counsel would have been required to meet the plain error standard. To meet this standard, Petitioner was required to “demonstrate: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error was plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.” Parker v. State, 495 P.3d 653, 660-61 (Okla. Crim. App. 2021).
Evidence has been presented that [Name of Witness] has committed conduct that may affect his/her credibility. This evidence is called impeachment evidence, and it is offered to show that the [] witness's testimony is not believable or truthful. If you find that this conduct occurred, you may consider this impeachment evidence in determining what weight and credit to give the credibility of [Name of Witness]. You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the [] witness, if at all.OUJI-CR 9-21.
As Respondent notes, there is a dearth of case law regarding the application of OUJI-CR 9-21. In an unpublished opinion submitted with the State's Response, State v. Le, No. CF-2016-1119 (Okla. Crim. App. Feb. 15, 2018), the court explained that OUJI-CR 9-21 is implicated when evidence is submitted during trial regarding prior bad acts of the defendant or a witness that was admitted as impeachment evidence rather than as part of the res gestae of the crime at issue. Doc. No. 21-12 at 23-25. The court explained, “Evidence is considered res gestae[] when: a) it is so closely connected to the charged offense as to form part of the entire transaction; b) it is necessary to give the jury a complete understanding of the crime; or c) when it is central to the chain of events.” Id. at 14-15 (quoting Eizember v. State, 164 P.3d 208, 230 (Okla. Crim. App. 2007)). In other words, it is evidence that incidentally emerges from the charged crime. Eizember, 164 P.3d at 230.
Petitioner does not cite to any evidence of drug possession or usage on the part of Laurent, Julian, or Crookshanks that was admitted as impeachment evidence. Instead, a review of the record reveals that testimony related to Crookshanks, Laurent, and Julian's drug possession or usage was not offered for impeachment purposes. Laurent and Julian's testimony regarding their own drug possession and usage was offered as explanation for how they knew and were involved with not only Petitioner but the crimes for which he had been charged. Further, Crookshanks testified as to his drug use and possession to explain and/or provide context for how Crookshanks met Petitioner in jail, as well as Petitioner's actions in providing Crookshanks with a recipe to make methamphetamine and giving Crookshanks his uncle's phone number in order obtain and sell heroin. This testimony was clearly incidental to evidence of the charged crimes, “necessary to give the jury a complete understanding of the crime[s],” and “central to the chain of events.” Eizember, 164 P.3d at 230.
Additionally, to the extent Crookshanks' drug convictions were admitted for impeachment purposes, the trial court gave the jury OUJI-CR 9-22 regarding the consideration of prior convictions as impeachment evidence. See Doc. No. 21-12 (Le v. State) at 25 (“The jury was instructed under OUJI-CR 2d 9-22 that it could consider the fact of [witness] Rodriguez's conviction for impeachment purposes in determining the weight and credibility to give his testimony. The record does not support giving the additional limiting instruction on prior bad acts.”). Based on this case law and the record before the Court, Petitioner has not established reasonable probability that had appellate counsel raised this issue, the outcome of Petitioner's appeal would have been different. Neill, 278 F.3d at 1057 n.5.
Finally, Petitioner complains appellate counsel erred by not raising the trial court's failure to give OUJI-CR 9-20 regarding prior inconsistent statements. This instruction provides:
Evidence has been presented that on some prior occasion [Name of Witness] [made a statement] inconsistent with his/ her testimony in this case. This evidence is called impeachment evidence and it is offered to show that the [witness's] testimony is not believable or truthful. If you find that [such a statement was made] you may consider this impeachment evidence in determining what weight and credit to give the testimony of [that witness]. You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the [] witness, if at all.OUJI-CR 9-20.
Petitioner bases this claim not on prior inconsistent statements made by a witness, but inconsistent testimony between different witnesses.
Brock Laurent should have been impeached for inconsistent testimony to the effect Kendra Williams “[]picked up a little bit of heroin and methamphetamine, and left”; Crookshanks testified Petitioner stated Williams left Laurent's house and “got pulled over with a couple of pills.” Laurent should have been issued a separate impeachment instruction -OUJI-CR 9-20 for contradicting Crookshanks in reference to whom Petitioner ultimately acquired the pistol used as evidence to convict Petitioner due to the fact Laurent stated Robert Hughes sold Petitioner the gun for five hundred dollars cash ($500) and five hundred dollars worth of heroin.Doc. No. 2 at 6. Clearly, OUJI-CR 9-20 is not implicated by the testimony upon which Petitioner relies.
The OCCA's determination that Petitioner did not establish ineffective assistance of appellate counsel based on a failure to raise impeachment instructions on appeal was neither an unreasonable application of federal law, nor an unreasonable determination of the facts in light of the evidence presented in the lower court proceeding. 28 U.S.C. § 2254(d). Accordingly, the Court should deny habeas relief on this ground.
C. Insufficient Evidence as to Unlawful Possession of a Firearm AFCF
In Petitioner's final ground for relief, he contends appellate counsel was ineffective based on his failure to challenge the sufficiency of the evidence presented to support his conviction for Unlawful Possession of a Firearm AFCF. Petitioner raised this issue in his application for post-conviction relief and the district court denied, stating:
The Defendant finally contends that his appellate counsel should have argued that there was insufficient evidence to convict him of the offense of Possession of Firearm After Felony Conviction. As mentioned above, the .380 handgun was found in the trunk of [Brock] Laurent's father's car loaded with PMC ammunition. This same ammunition was found in a black duffle bag with numerous papers with the Defendant's name during the first [search] of Laurent's residence. Also, both Laurent and Crookshanks testified that the Defendant had a .38 or .380 caliber handgun and Laurent testified that it was a “Bertaloni.” There was sufficient evidence presented to the jury for them to unanimously find the Defendant guilty of this offense.Doc. No. 21-6 at 3. The OCCA affirmed this reasoning. Doc. No 21-9 at 4.
The undersigned has already addressed this issue when finding Petitioner's first ground for relief was without merit and there is no cause to repeat the same reasoning here. However, the Court notes that in asserting this final ground for relief, Petitioner states, “The evidence used to convict Petitioner must be consistent with his guilt, but must be inconsistent with his innocence as well.” Doc. No. 2 at 7. This statement illustrates Petitioner's fundamental misunderstanding of the law related to a sufficiency of the evidence challenge. Whether the evidence presented could be consistent with a defendant's innocence, i.e., support an acquittal, is irrelevant. The only relevant inquiry 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.” Matthews, 577 F.3d at 1185.
As previously established, the State presented ample evidence to support Petitioner's conviction of Unlawful Possession of a Firearm AFCF. Thus, there was not a reasonable probability that raising this issue on appeal would have resulted in Petitioner obtaining appellate relief. Neill, 278 F.3d at 1057 n.5. Accordingly, the Court should deny this request for habeas relief.
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 March 30th , 2022, 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.