Opinion
No. CIV-18-962-R
03-26-2019
SETH HARVEY SPEED, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his conviction for Conspiracy to Traffic a Controlled Dangerous Substance (Methamphetamine), After Former Conviction of Two or More Felonies ("AFCF") in the District Court of Oklahoma County, Case No. CF-12-4723. Respondent has responded to the Petition and filed the relevant state court records, and Petitioner has replied. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
I. Background
In 2014, Petitioner was tried before a jury on one count of Conspiracy to Traffic a Controlled Dangerous Substance AFCF. At trial, the State presented evidence that Petitioner bought methamphetamines from a local supplier by the pound and employed runners to resell it. The jury found him guilty and he was sentenced, consistent with Oklahoma statutory mandate at that time, to life imprisonment without the possibility of parole.
In 2011, Oklahoma Bureau of Narcotics ("OBN"), led by Agent Dennis Garza and working with Homeland Security Investigations, began investigating Jesus Mora-Herrera, also known as Tweety, in connection to his drug trafficking organization, specifically methamphetamine. Doc. No. 13-10 at 42, 104. As part of that investigation, OBN investigators obtained authorization for a wiretap on the telephone number being used by Mr. Mora-Herrera, (405) 882-7016. Id. at 44. A communication recorded by a wiretap would be either a telephone conversation or a text message. Id. at 51. Agent Garza had the wiretap in place on Mr. Mora-Herrera's telephone number for approximately three weeks in March 2012. Id. at 48. Through the wiretap, OBN agents heard individuals contact Mr. Mora-Herrera requesting certain amounts of methamphetamine. Id. at 59. Mr. Mora-Herrera would then contact one of his his employees, or runners, via a different telephone or a walkie-talkie telephone to meet the individual and exchange money for methamphetamine. Id. at 59, 95-96.
1. First Recorded Transaction
On March 1, 2012, Petitioner called Mr. Mora-Herrera from telephone number (580) 215-2097. Id. at 66-67. In that phone call, Petitioner spoke to Mr. Mora-Herrera about arranging a meeting for Petitioner to deliver drug proceeds. Id. at 67-69, 72-77. Petitioner had been arrested in Lawton earlier that day and wanted Mr. Mora-Herrera to know that he remained trustworthy. Id. Petitioner indicated he had $17,000.00 that he had already collected prior to that day in drug sales, or proceeds, for Mr. Mora-Herrera. Id. at 72-73. Agent Garza testified that based on the content of the conversation, he concluded Petitioner and Mr. Mora-Herrera already had an established relationship regarding methamphetamine transactions. Id. at 73-74.
The following day, March 2, 2012, Petitioner called Mr. Mora-Herrera from the same phone number to make further arrangements for Petitioner to deliver drug proceeds to him. Id. at 78-80. Petitioner indicated he was going to bring $15,000.00 to Mr. Mora-Herrera and leave $2,500.00 with his mother in case he was arrested again. Id. at 79-82. Agent Garza testified that $15,000.00 indicates Petitioner was purchasing approximately one pound of methamphetamine. Id. at 82-83. Petitioner also indicated that he was going to change telephone numbers soon. Id. at 80-81. Agent Garza testified that it is common for someone involved in drug trafficking to change telephone numbers frequently and/or to do so after being arrested in an attempt to avoid law enforcement detection. Id.
Later in the day on March 2, 2012, Petitioner called Mr. Mora-Herrera from a new telephone number, (580) 483-5625, to finalize plans to meet. Id. at 83-85, 107-08. Petitioner indicated he was going to have someone follow him so that he would have two cars. Id. at 84-85. Agent Garza testified that often the owner of the methamphetamine will not ride in the same car as the drug in case the vehicle gets pulled over. Id. In that instance, the owner would not go to jail because he is in a different vehicle. Id.
Agent Garza testified that, based on his experience in investigating drug trafficking, Petitioner and Mr. Mora-Herrera were meeting in order to exchange drug proceeds for more drugs. Id. at 86. Petitioner and Mr. Mora-Herrera exchanged several more phone calls on that date prior to meeting. Id. at 89-90, 93-95, 98-99, 106-07. Based on the captured communications, Agent Garza was able to set up surveillance of the meeting in which drugs and proceeds were exchanged. Id. at 88, 99-100, 103.
Petitioner drove away from the transaction in a trail car following the first car, which was carrying Petitioner's methamphetamine. Id. Agent Garza surmised Petitioner paid for one pound of methamphetamine that Mr. Mora-Herrera had previously fronted to Petitioner and then obtained more methamphetamine up front. Id. at 87. Agent Garza testified that Mr. Mora-Herrera fronting Petitioner one pound of methamphetamine further indicated this was not the first transaction between the two and clearly they had established a relationship of great confidence and trust. Id. at 87-88.
2. Second Recorded Transaction
Within two days, Petitioner contacted Mr. Mora-Herrera from a new telephone number. Id. at 150-51. Petitioner indicated he had already sold almost ten ounces of the methamphetamine from what he obtained from Mr. Mora-Herrera on March 2, 2012, and had collected $10,0000.00. Id. at 154. Mr. Mora-Herrera informed Petitioner that he had a shipment of new methamphetamine. Id. at 152-53. The two spoke again on March 6, 2012, and on March 7, 2012, during which Mr. Mora-Herrera stated that he was getting a new telephone number and they planned to meet again soon. Id. at 157-61. Petitioner stated that he had $11,500.00 and planned to have $17,500.00 soon. Id. at 158. Mr. Mora-Herrera did obtain a new telephone number and Agent Garza was not able to intercept any more communications regarding this transaction. Id. at 162-63.
3. Third Recorded Transaction
On March 9, 2012, Agent Garza sought and subsequently received a wiretap on Mr. Mora-Herrera's new telephone number. Id. at 162-64. On March 13, 2012, Agent Garza intercepted a phone call between Petitioner and Mr. Mora-Herrera on the latter's new telephone number. Id. at 162-63, 167. Petitioner indicated he had $16,000.00 in new drug proceeds. Id. at 168-69. Petitioner referenced runners that he had working for him to sell the methamphetamine and that he was down to the last five ounces of his current supply. Id. at 169-70. Petitioner anticipated having $30,000.00 in drug proceeds for Mr. Mora-Herrera. Id. at 170.
Petitioner and Mr. Mora-Herrera had a similar conversation later wherein Petitioner indicated that he had $20,000.00 in drug proceeds, seven ounces that he had given to individuals who still owe him for the same, and he would have $30,000.00 for Mr. Mora-Herrera. Id. at 173-76. Petitioner also stated that he had "three onions," which Agent Garza testified that Petitioner was conveying that he still had three ounces of methamphetamine yet to sell. Id. at 175-76.
On March 15, 2012, Petitioner told Mr. Mora-Herrera that he had $26,000.00 and had two ounces of methamphetamine left. Id. at 177-79. He indicated his intention to bring Mr. Mora-Herrera $30,000.00 in drug proceeds. Id. at 179. Petitioner stated that he intended to pay Mr. Mora-Herrera for one pound that Mr. Mora-Herrera fronted him, then purchase one pound, and then have Mr. Mora- Herrera front him another pound. Id. at 179, 181. This transaction occurred on March 16, 2012. Id. at 184-90.
4. Fourth Recorded Transaction
On March 21, 2012, Petitioner informed Mr. Mora-Herrera by telephone that he had $20,000.00 in drug proceeds thus far and had ten more ounces to sell. Id. at 197-99. The two of them planned to meet the following day. Id. at 199-200.
Based on information obtained throughout the investigation, Agent Garza determined that Mr. Mora-Herrera planned to leave soon for Las Vegas, Nevada. Id. at 201. As a result, Agent Garza decided to terminate the wiretap on Mr. Mora-Herrera's telephone and move to arrest him rather than risk him leaving town and avoiding arrest. Id. Agent Garza and other investigators obtained and executed search warrants for Mr. Mora-Herrera's apartment as well as the apartment out of which Mr. Mora-Herrera was distributing his methamphetamine at that time. Id. at 202-07. During the execution of the search warrant at Mr. Mora-Herrera's apartment, Agent Garza obtained Mr. Mora-Herrera's cellular telephone. Id. at 207.
Agents also found large amounts of cash at Mr. Mora-Herrera's residence, as well as methamphetamines and drug paraphernalia at the other apartment. Id. at 207-08, 260-69.
Based on Agent Garza's knowledge of the anticipated meeting between Petitioner and Mr. Mora-Herrera, Agent Garza, using Mr. Mora-Herrera's telephone and posing as the same, contacted Petitioner. Id. at 213-16. Agent Garza text Petitioner, asking Petitioner to bring him the drug proceeds that Petitioner had at that time because he was planning on going out of town. Id. at 216-17. They subsequently engaged in multiple telephone conversations in which Petitioner agreed to meet Agent Garza, posing as Mr. Mora-Herrera, at a convenience store and bring Mr. Mora-Herrera the drug proceeds he had at that time. Id. at 219-23. During their conversation, Petitioner described the two cars he would bring to their meeting place for the transaction. Id. at 221-22. Petitioner subsequently showed up at the meeting place with the described vehicles, as well as $22,000.00 in total between the two vehicles, and was arrested. Id. at 224-28, 257-58.
5. Conviction and Appeal
As previously noted, Petitioner was subsequently charged and convicted by a jury of Conspiracy to Traffic a Controlled Dangerous Substance AFCF. On appeal, Petitioner raised two grounds for relief. See generally Response, Ex. 2. In his first ground, Petitioner asserted that his sentence of life imprisonment without the possibility of parole was disproportionate to the crime for which was he was convicted and must be modified. Response, Ex. 2 at 15-23. In his second ground, Petitioner asserted the trial court erred by refusing to instruct the jury as to the lesser- included offenses of Possession of Controlled Dangerous Substances and Receiving Unlawful Proceeds. Id. at 24-30.
The Oklahoma Court of Criminal Appeals ("OCCA") reviewed and rejected each of Petitioner's grounds for relief. Response, Ex. 1 (Speed v. State, No. F-2015-35) (Okla. Crim. App. March 22, 2016). The OCCA noted that at the time of Petitioner's conviction, state law mandated a sentence of life imprisonment without the possibility of parole. Id. at 2 (citing Okla. Stat. tit. 63, §2-415(D)(3). The court noted that the sentence, while harsh, was "neither cruel nor unusual in the sense prohibited by our constitutions." Id. at 3 (quotations omitted).
The court also noted Petitioner's reliance on the Oklahoma Legislature's amendment, subsequent to Petitioner's conviction, to the statute under which Petitioner was sentenced. Id. The statute now allows for a new punishment range set from twenty years to life imprisonment or life imprisonment without the possibility of parole. Id. The court found the amendment was not retroactive and regardless, his sentence still fell within the accepted statutory range. Id. at 3-4. As to the lesser included offenses relied on by Petitioner, the court found neither of them were lesser included offenses to conspiracy and were therefore, not warranted. Id. at 4-5.
6. Post-Conviction and Appeal
In an application for post-conviction relief filed with the state district court, Petitioner raised three grounds of ineffective assistance of appellate counsel. See generally Response, Ex. 6. In his first two grounds, Petitioner argued appellate counsel was ineffective by failing to raise ineffective assistance of trial counsel based on trial counsel's allegedly erroneous legal advice that resulted in Petitioner rejecting the State's plea offer of 15 years imprisonment and trial counsel's decision to abandon the defense of insufficient evidence. Id. at 3-9. In his third ground, Petitioner argued appellate counsel was ineffective by failing to raise prosecutorial misconduct based on the State's admission of other crimes evidence, specifically his March 1, 2012 Lawton arrest. Id. at 9-11. The district court denied Petitioner's post-conviction application, see Response, Ex. 7, and the OCCA affirmed the same on July 30, 2018. Response, Ex. 9.
II. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §2254(d). The AEDPA directs courts to "ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if "a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of "clear error will not suffice." White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
"[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004) (citations omitted). Consequently, federal habeas "review under § 2254(d)(1) 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, 181 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
III. Disproportionate Sentence
Petitioner challenges his sentence of life imprisonment without the possibility of parole as violative of the Eighth Amendment. According to Petitioner, his sentence was disproportionate to the crime for which he was convicted. In support of this contention, Petitioner relies on the fact that his co-defendants received considerably lesser sentences. Petition at 7. Petitioner argues:
The information charged thirty-two (32) defendants along with Petitioner. Of importance is the fact that [] Jesus Mora-Herrera, the kingpin on the charged conspiracy, is currently serving an 18-year sentence for "conspiracy to traffic;" Mauricio Cruz, Mora-Herrera's primary runner, is serving concurrent 7-year terms for trafficking and "conspiracy to traffic;" Tasha Ballard is serving concurrent 20-year terms for "conspiracy to traffic" and trafficking; Steven Hunter is serving 10 years for "conspiracy to traffic."Id. Petitioner also relies on the fact that, prior to trial, the State offered him a plea deal of 15 years imprisonment as evidence that his ultimate sentence is disproportionate to his crime. Id.
On appeal, the OCCA determined Petitioner's sentence was not constitutionally excessive, explaining:
. . . Appellant asserts that his mandatory sentence of life without parole is disproportionate and unconstitutionally harsh. Title 63 U.S.2011, §2-415(D)(3) imposes a mandatory sentence of life imprisonment without the possibility of parole for a defendant convicted of trafficking who has two or more prior felony convictions under the Uniform Controlled Dangerous Substances Act. Appellant has three such prior
felony convictions.Response, Ex. 1 at 2-3.
This same argument was rejected in Dodd v. State, [] 879 P.2d 826-27 [(Okla. Crim. App. 1994)]. Like Appellant, Dodd was convicted of Conspiracy to Traffic. After distinguishing Solem v. Helm, 463 U.S. 277 [] (1983) (now relied upon by Appellant) and its progeny, this Court found the life imprisonment without the possibility of parole sentence did not violate either the Eighth Amendment or Article 2, Section 9 of the Oklahoma Constitution. See also Randolph v. State, [] 231 P.3d 672, 683 [(Okla. Crim. App. 2010)]; Dufries v. State, [] 133 P.3d 887, 891 [(Okla. Crim. App. 2006)] (in both cases this Court upheld mandatory sentences of life imprisonment without the possibility of parole for trafficking in illegal drugs, after former conviction of two prior drug related convictions). As we stated in Randolph, Appellant's sentence "is indeed harsh, but it is neither cruel nor unusual in the sense prohibited by our constitutions." [Randolph], 231 P.3d at 683.
In a habeas review, this Court "applies a 'narrow proportionality principle' in analyzing non-capital sentences under the Eighth Amendment." United States v. Munro, 394 F.3d 865, 872 (10th Cir. 2005) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring)). According to this principle, a sentence is unconstitutional only if, "based generally on a review of the gravity of the offense and comparing sentences imposed on other criminals and for other crimes in the jurisdiction," the court finds "'extreme circumstances . . . [that] leads to an inference' that the sentence is grossly disproportionate to the crime." Munro, 394 F.3d at 872-83 (quoting Harmelin, 501 U.S. at 1006). Notably, in Harmelin, the Supreme Court upheld a mandatory minimum life sentence, without the possibility of parole, for cocaine possession. Harmelin, 501 U.S. at 994-95.
As an initial matter, the Tenth Circuit has specifically rejected Petitioner's argument that the sentences of his co-defendants are determinative as to the constitutionality of his own. See U.S. v. Ratlaff, 160 F. App'x 721, 725 (10th Cir. 2005) ("[T]he Eighth Amendment governs the proportionality of sentences generally, with respect to all similarly situated defendants, not specifically as to individual co-defendants."). Moreover, as noted, Petitioner's sentence was not only within the statutory limitations of state law at that time, it was the sentence mandated by state law based upon his conviction. Okla. Stat. 2011 tit. 63, § 2-415(D)(3). A federal habeas court should be reluctant to "interfere with the legislative determination of an appropriate sentence range." Hawkins v. Hargett, 200 F.3d 1279, 1285 (10th Cir. 1999). A habeas court affords "wide discretion to the state trial court's sentencing decision, and challenges to that decision are not generally constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits or unauthorized by law." Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). Federal habeas review generally ends "once we determine the sentence is within the limitation set by statute." Id.
Additionally, as the State noted, the Court "lacks insight into how these co-defendants arrived at their various sentences." Response at 27. The Court does note, however, that each of Petitioner's identified co-defendants accepted a plea deal rather than proceeding to trial and none of the identified individuals were charged as having two or more prior felony convictions. See Oklahoma State Courts Network, District Court of Oklahoma County, Case No. CF-2012-4723, http://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2012-4723.
Petitioner also contends, however, that the Oklahoma Legislature's amendment to the sentencing statute, subsequent to his conviction, supports his position. The OCCA addressed the amendment and Petitioner's same argument on appeal, stating:
Appellant further argues "the Legislature has implicitly deemed [his] sentence disproportionate by ameliorating the range of punishment for individuals in [his] circumstance." In 2015, the Legislature retained the mandatory life imprisonment without the possibility of parole sentence for defendants convicted of trafficking with two prior trafficking convictions. For defendants like Appellant who committed a trafficking offense with two prior drug related offenses, the new punishment range was set at twenty years to life or life imprisonment without the possibility of parole. See 63 O.S.Supp.2015, § 2-415(D)(3). That the Legislature has amended the punishment range does not necessarily render the prior range of punishment inappropriate or illegal. The Legislature has the authority to change the law and we grant substantial deference to their determination of sentencing limits. Maxwell v. State, [] 775 P.2d 818, 820 [(Okla. Crim. App. 1989)]. We must not substitute our judgment for that of the sentencing court as to the appropriateness of a particular sentence. Id.
Further, the amended range of punishment does not apply to Appellant as a change in the law is applied prospectively from its effective date, unless the Legislature has specifically declared that the law has retroactive effect. Nestell v. State, [] 954 P.2d 143, 144 [(Okla. Crim. App. 1998)]. See also State v. Salathiel, [] 313 P.3d 263, 266 [(Okla.
Crim. App. 2013)]. Here, the Legislature has retained the life imprisonment without the possibility of parole sentence, just making it no longer mandatory, and has indicated its intention to leave the prior range of punishment in place for crimes committed prior to November 1, 2015. As Appellant's sentence was within the statutory range of punishment and was neither cruel nor unusual in the sense prohibited by our constitutions, we find no legal reason to modify his sentence or remand the case for resentencing under the amended range of punishment.Response, Ex. 1 at 3-4.
The OCCA's opinion was not contrary to, nor an unreasonable application of clearly established federal law. As noted by the OCCA, Petitioner's sentence remains within the statutory limitations set by the amended statute. Okla. Stat. tit. 63, § 2-415. Thus, even presuming the statutory amendment had any bearing on the constitutionality of Petitioner's sentence, and it does not, his sentence remains authorized by state legislative pronouncement. Petitioner has failed to set forth any basis to find that his sentence, while harsh, constitutes cruel and unusual punishment under the Eighth Amendment.
IV. Lesser Included Offenses
In his second habeas ground, Petitioner challenges the OCCA's decision affirming the trial court's refusal to instruct the jury on what he argues are the lesser included offenses of Possession of Controlled Dangerous Substances and Receiving Unlawful Proceeds. On appeal, the OCCA explained:
. . . Appellant contends the trial court erred in refusing his requested jury instructions on what he calls the lesser related offenses of Possession of Controlled Dangerous Substances (CDS) and Receiving Unlawful Proceeds. The proper test for determining whether instructions on a lesser included offense involves a two part analysis which first requires courts to make a legal determination about whether a crime constitutes a lesser included offense of the charged crime. Davis v. State, [] 268 P.3d 86, 115 [Okla. Crim. App. 2011) [(]citing Shrum v. State, [] 991 P.2d 1032, 1035 [(Okla. Crim. App. 1999))]. The court then must determine whether prima facie evidence of the lesser offense has been presented. Id. Sufficient evidence to warrant a lesser included offense is evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater. Id. We review the district court's rulings on requested instructions for abuse of discretion. [Davis,] 268 P.3d at 119.Response, Ex. 1 at 4-5.
Here, Appellant was charged with conspiracy to traffic in methamphetamine. The elements of a conspiracy are (a) an agreement to commit the crime(s) charged, and (2) an overt act by one or more of the parties in furtherance of the conspiracy, or to effect its purpose. [Okla. Stat. tit. 21], §§ 421 & 423; Hackney v. State, [] 874 P.2d 810, 813 [(Okla. Crim. App. 1994)]; State v. Davis, [] 823 P.2d 367, 369-370 [(Okla. Crim. App. 1991)]. Possession of CDS involves the knowing and intentional possession of a controlled dangerous substance, while Receiving Unlawful Proceeds involves the knowing and intentional receiving or acquiring of proceeds known to be derived from an illegal activity and knowingly concealing the proceeds or engaging in transactions involving the illicit proceeds. See [Okla. Stat. tit. 63], § 2-402(A); [Okla. Stat. tit.] 21, § 2001. These are entirely separate crimes from the crime of conspiracy, and are crimes with which Appellant was not charged. Therefore, as the requested jury instructions concerned crimes which were not lesser included or lesser related to the crime of conspiracy, the trial court did not abuse its discretion in refusing to give the instructions.
Respondent argues that this basis for habeas relief involves a matter of state law and therefore, this Court should decline to entertain it. Response at 31-32. Specifically, Respondent argues that under 28 U.S.C. § 2254(a), the power of a federal habeas corpus court is expressly limited to violations of federal law; questions of state law are not cognizable issues. Id. (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (reaffirming that habeas relief is not meant for errors of state law); Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017)). Moreover, Respondent argues that neither the Supreme Court nor the Tenth Circuit has held that there is any constitutional right to a lesser included offense instruction in a non-capital case. Response at 33-34 (citing Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004)). The Court agrees.
Neither the United States Supreme Court nor the Tenth Circuit Court of Appeals has ever recognized a federal constitutional right to a lesser included offense instruction a non-capital case. Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988). Indeed, as Respondent notes, the Tenth Circuit Court of Appeals has held that such claims are not cognizable in a federal habeas action. Dockins, 374 F.3d at 938 ("Our precedents establish a rule of automatic non-reviewability for claims based on a state court's failure, in a non-capital case, to give a lesser included offense instruction." (quotations omitted)); Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) ("[A] petitioner in a non-capital case is not entitled to habeas relief for the failure to give a lesser-included offense instruction, even if in our view there was sufficient evidence to warrant the giving of an instruction on a lesser included offense." (quotations omitted)); Harding v. Bear, No. CIV-16-1309-R, 2019 WL 490351, at *5 (W.D. Okla. Feb. 7, 2019) (same). Petitioner has thus failed to assert a cognizable claim for habeas relief on this basis.
V. Ineffective Assistance of Appellate Counsel
Petitioner contends the OCCA erred in affirming the district court's denial of the ineffective assistance of appellate counsel claims in his application for post-conviction relief. To be entitled to habeas corpus relief on a claim of ineffective assistance of counsel, Petitioner must demonstrate the OCCA's adjudication of his claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). 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 688. In making this determination, a court must "judge . . . [a] counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Moreover, review of counsel's performance must be highly deferential. "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
To establish the second prong, a defendant must show that this deficient performance prejudiced the defense, to the extent "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Significantly, conclusory allegations that counsel was ineffective are not sufficient to warrant habeas relief. Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir. 2001). If Petitioner is unable to show either "deficient performance" or "sufficient prejudice," his claim of ineffective assistance fails. Strickland, 466 U.S. at 700. Thus, it is not always necessary to address both Strickland prongs.
Additionally, application of Strickland to an ineffective assistance of appellate counsel claim requires the Court to "look to the merits of the omitted issue." Wood v. Carpenter, 907 F.3d 1279, 1304 (10th Cir. 2018) (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.Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (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).
In the present case, Petitioner contends appellate counsel was ineffective by failing to assert claims of ineffective assistance of trial counsel primarily based upon trial counsel's allegedly erroneous legal advice to Petitioner that caused him to reject the State's plea offer of 15 years imprisonment and trial counsel's abandonment of an insufficient evidence defense. Petition at 12-27.
1. Plea Negotiations
The Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). Thus, "effective assistance of counsel includes counsel's informed opinion as to what pleas should be entered." United States v. Carter, 130 F.3d 1432, 1442 (10th Cir. 1997). A defendant is prejudiced by counsel's deficient performance during plea negotiations if there is "a reasonable probability that but for incompetent counsel [the] defendant would have accepted the plea offer and pleaded guilty." Id.; see also Missouri v. Frye, 566 U.S. 134, 147 (2012).
Petitioner's claim that counsel was ineffective during plea negotiations fails because he cannot establish that but for counsel's erroneous advice, he would have accepted a plea offer. Prior to trial, the State's final plea offer to Petitioner was 15 years to do. Doc. No. 13-10 at 19. In this action, Petitioner explains that prior to trial, his attorney failed to inform him of the mandatory sentence he faced of life imprisonment. Petition at 13. He contends he did not understand the mandatory sentence until the first day of trial and at that point, there was no longer a plea deal offered from the State and no guarantee the State would have offered the plea deal again. Id. at 13-15.
The record shows, however, that not only did the State offer to discuss plea negotiations at the beginning of trial and Petitioner refused, Petitioner explicitly stated on the record that he would have rejected the State's 15-year plea deal even if he had been aware of the mandatory sentence. The following excerpt from the record, though lengthy, illustrates the plea negotiations that occurred during Petitioner's criminal proceedings and his refusal to accept the same:
The Court: . . . So if Mr. Speed was convicted then what would be the range of punishment for that?
Mr. McGoldrick [Assistant District Attorney]: Presumably if he got convicted with the finding of two prior felony drug convictions it would be a mandatory life without parole sentence.
The Court: All right. So you understand what that means, Mr. Speed, that if convicted of the one count, which is Count 1; is that correct, of the Information?
Mr. McGoldrick: Yes, your Honor.
Mr. Hull [Defense Counsel]: Yes.
The Court: And that is conspiracy to traffic a controlled dangerous substance. If, Mr. Speed, you were convicted of that count with two or more prior felony convictions then that would be the - - the punishment that jury could give you. Do you understand that?
The Defendant: Yes, sir.
The Court: And I'm not commenting one way on whether the State
could prove it, not prove it, anything else. I just want to make sure that you understand that that's a possibility of range and apparently that's what the State of Oklahoma is going to be searching for, I guess, in this case.
The Defendant: What is the minimum on that?
The Court: Life without parole.
The Defendant: That's the minimum that the jury can give me if I'm found - - convicted?
The Court: If you're found guilty with two or more Title 63 drug convictions then that would be the punishment. It's a little different than most cases where most cases it's you know, two years to life or zero to ten, or something like that. The Legislature has been very specific with the drug trafficking cases when you have two or more prior felony drug convictions. And that's the punishment if convicted, and if the jury believes you have two or more felony convictions.
The Defendant: Even if - - even though they're non-violent marijuana convictions?
The Court: Well, I haven't really even looked at what they are. But if they're - - if they're prior felony drug convictions and the jury believes beyond a reasonable doubt that that's you and those are your convictions and they're not on appeal and certain legal elements the State has to prove, and they convict you of the conspiracy to traffic CDS then that would be the - - that would be the punishment they could give. I just want to make sure you understand that.
The Defendant: I was under the impression that if - - if they - - if the after former convictions didn't contain the intent to distribute on a Title 63 then it should be only one after former conviction on that page 2 chart right there. Should be only one - - only one of those charges contains with the intent to distribute. The other ones are all just simple possessions.
The Court: Well, this page 2 says possession on the 6th, which was a felony. Possession with intent was a felony. A possession and a possession of drugs in a penal institution. All those are felony convictions is your understanding?
Mr. McGoldrick: Yes, sir.
The Court: Or at least that's what you're alleging?
Mr. McGoldrick: And there's two I believe simple possession felonies that we'd - - we wouldn't be moving forward on the drugs in a penal institution because I think that's Title 57. The two other felony possessions and possession with intent is what would get him to mandatory life without parole.
The Court: Mr. Hull, let me ask you, is that your understanding of the law that it doesn't make a difference for the punishment range, that it's possession with intent prior verses a felony possession prior?
Mr. Hull: Yes, your Honor, that is. And I believe, Judge, for the record - - I want to make this real clear - - I think what - - the way that I have described it to Mr. Speed is - - I have always told him it's up to life without parole. So I left him with the impression, Judge, and I think it's - - my explanation is wrong. I left him with the impression of up to life without parole, but we've always talked about life without parole is what a jury could return a verdict on him in this case, Judge. And I was looking at a chart that I had, Judge and I - - I was considering whether or not other priors would come in or not. But I left it with up to life without parole. I believe that's what I have explained to Mr. Speed and I'm wrong in that regard, Judge.
The Court: Well, obviously if - - if the State can't meet it's burden as to page 2 then the punishment range changes.
Mr. McGoldrick: Correct.
The Court: So - -
The Defendant: Furthermore, your Honor, may I speak? I put a motion in on Friday for injunction due to the fact that Mr. Hull came to see me last week for one time in the last four months. And he said that he will not be able to beat my case at trial. And Officer - - Sergeant Carter was a witness and will testify to - - subpoena the Court saying that he made the prejudice and bias statement in front of Officer Carter over at the facility, which she said that she will be - - if subpoenaed to come testify saying that he said he will not be able to beat my case at trial. And I don't feel comfortable - - I don't feel comfortable moving forward today with Mr. Hull as my counsel. I'd like to point that out on record because he made the statement that he would not be able to beat my case at trial.
And he's lead me to believe that - - what he just said was that I would be facing up to life minimum. You know what I'm saying? He said that - - he's been leading me to believe all the time that my charges were - - like he said, were going to up to life without parole. He's been looking at the wrong guideline therefore making me go against - -
The Court: All right. Let me stop you. I understand what you're saying. I'll give you a couple of minutes to process that. Mr. Hull's not totally incorrect that if the State did not prove the two prior felony convictions then it wouldn't be a life without parole necessarily. That's still something the State of Oklahoma would have to prove.
Now as far as any communications you had with your attorney, you bring that out here in open court, attorneys all the time give their advice to their clients based on their experience, based on what they know the evidence is going to be. And so there's nothing improper or means that Mr. Hull is not going to perform his ethical obligation to zealously advocate on your behalf. But attorneys do and have an obligation to give their advice to persons charged with crimes. So there's nothing improper about that at all if he gave you his opinion about your case and your chances or anything else.
But in any event, I'll give you a few minutes to discuss that. I don't know if there was a plea offer in this case or if there still is or not.
Mr. Hull: Judge, if I may make a record on that briefly. There was an offer that was communicated. I believe it was two weeks ago Friday. I went and saw Mr. Speed last Tuesday. The offer from the State at that point was 15 to do. I communicated that to Mr. Speed. He indicated that he was not interested in a 15 to do. And as the court has been aware we have made a record previously. Initially there was an offer of 20 to do. We went to the Harjo hearing and following the Harjo hearing the offer was made of 25 to do. The State made the offer of 15 to do and was communicated to Mr. Speed. Mr. Speed rejected that, Judge.
The Court: Okay.
The Defendant: And I asked him about if I made a blind plea in front of you today or in front of you in the future would I be eligible for a year review being that the primary case - - primary guy on the case they were going after, he's up for - - eligible for a year review next month on the 31st of October.
The Court: Well, you'll have to discuss that - - the Court doesn't ever make anybody any promises about anything on any kind of blind pleas or anything else. So I'm not going to answer your questions of what might happen or could happen if you entered a blind plea.
The Defendant: But if I did enter a blind plea today I would be eligible for a one-year review?
The Court: Well, you need to discuss that with your lawyer.
The Defendant: All right.
The Court: All right. I'll give you a few minutes to - - I guess I cut you off. Is there still an offer or not an offer?
Mr. McGoldrick: Judge, at this point there's no offer, however, I told them I'd be receptive if they wanted to talk to Mr. Speed about possibly resolving this case. I'd be happy to engage them in discussions.Doc. No. 13-10 at 13-22.
* * *
Mr. Hull: Judge, if I may? I've talked with Mr. Speed about the range on that. And if I may ask him some questions about that, Judge, so that - - to make sure he understands?
The Court: Sure.
Mr. Hull: Mr. Speed, I indicated to you that the penalty with two prior felony convictions is only life without parole. And I told you that if the Court is - - that if knowing - - now knowing that that is the only range of punishment, life without parole with two prior felony convictions of CDS, would you have accepted the offer of 15 years to do?
The Defendant: No.
The Court: All right. So, Mr. Speed, are you ready to proceed with trial?
The Defendant: Yes, sir.
* * *
Mr. Hull: And, Judge, if I may make one point.
The Court: Sure.
Mr. Hull: Because of the way I phrased it to Mr. Speed before, your Honor, I want the record to be clear that I was incorrect in that way that I described it to him. His only option was life without parole. And that's what I specifically made clear to Mr. Speed this morning.
Thus, the record shows that trial counsel did initially offer Petitioner ambiguous advice regarding the sentence Petitioner faced if convicted. However, it is equally clear Petitioner was properly advised as to the mandatory sentence prior to trial and the State said, at that time, it would be receptive to plea discussions, but Petitioner refused. Moreover, after being made aware of the mandatory sentence, Petitioner explicitly stated on the record that he would have rejected the plea deal even if he had known the precise sentence faced.
The undersigned finds that under these facts and circumstances, Petitioner has failed to show a substantial likelihood of a different outcome of his appeal had appellate counsel chosen to raise an issue that clearly was contravened by the trial record. Accordingly, Petitioner is not entitled to habeas corpus relief on this claim.
2. Conflict of Interest
Petitioner argues that a conflict of interest existed for his trial counsel based on counsel's opinion, shared with Petitioner prior to trial, that he could not get an acquittal. Though primarily addressing Petitioner's argument that trial counsel was ineffective during plea negotiations, in its denial of post-conviction relief the district court explained:
Nothing in the record supports that Mr. Hull ever advised Petitioner to
reject the State's plea offers. Nor is there any indication that Mr. Hull made an unreasonable evaluation of the case or led Petitioner to believe he had a strong chance of acquittal. Cf. Cooper, 566 U.S. at 174 []. In fact, Petitioner expressed concern to the Court on the morning of trial claiming that Mr. Hull had told him 'he will not be able to beat my case at trial.' In light of the overwhelming strength of the State's evidence, such assessment would have been [] reasonable.Doc. No. 13-7 at 9. On appeal, the OCCA affirmed the district court's denial of post-conviction relief based on Petitioner's failure to properly support his ineffective assistance of appellate counsel claims with more than conclusory and vague statements. Doc. No. 13-9 at 5-7.
As an initial matter, the undersigned notes Petitioner never directly presented this ineffective assistance claim regarding a conflict of interest to the state courts, thereby failing to exhaust his available state court remedies prior to raising this as a ground for habeas relief. The law is clear that exhaustion of available remedies is required for § 2254 petitions. 28 U.S.C. § 2254(b)(1)(A). "Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
"Exhaustion requires that the claim be 'fairly presented' to the state court, which 'means that the petitioner has raised the 'substance' of the federal claim in state court.'" Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006)). Fair presentation requires that the "federal issue [be] properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever v, Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) ("[A] federal habeas petitioner [must] provide the state courts with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." (quotations omitted)).
Based on Petitioner's failure to properly present this challenge to the OCCA, the ground would generally be dismissed and Petitioner would be provided an opportunity to return the state court. However, because the basis for this claim was clearly known to Petitioner at the time of his post-conviction appeal, Oklahoma would deem the same claim waived and procedurally barred. King v. State, 29 P.3d 1089, 1090 (Okla. Crim. App. 2001) ("All claims which could have previously been raised [in the direct appeal or in a previous post-conviction proceeding] but were not are waived . . . ."). Accordingly, Petitioner has no prospect of obtaining relief in state court for this claim. In situations such as this, federal courts may apply an anticipatory bar. Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007) ("Anticipatory procedural bar occurs when the federal courts apply [a] procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it." (quotations omitted)).
However, the Court in its discretion can still address the merits of a procedurally barred claim when it believes that doing so will best serve the interests of "judicial efficiency, conservation of judicial resources, and orderly and prompt administration of justice . . . ." United States v. Allen, 16 F.3d 377, 379 (10th Cir. 1994). In considering the merits of Petitioner's ineffective assistance claim based on an alleged conflict of interest, the undersigned agrees with the district court's assessment, supra, and concludes Petitioner is not entitled to habeas relief.
The first requirement under Strickland is that Petitioner show counsel's performance fell below an acceptable standard of reasonableness. Hain, 287 F.3d at 1231. Reviewing the strength of the State's evidence against Petitioner, defense counsel's evaluation of Petitioner's chances of acquittal was quite reasonable. More significantly, in light of the mandatory sentence Petitioner faced if convicted, it could be considered unreasonable if defense counsel had not shared his opinion of Petitioner's chances of acquittal when discussing whether to accept a plea deal. See, cf., United States v. Washington, 619 F.3d 1252, 1259-60 (10th Cir. 2010) ("Knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty. . . . (Commonwealth v. Napper, [] 385 A.2d 521 (1978) (counsel ineffective in giving no advice about desirability of plea offer with three-year maximum sentence when trial risked ten to forty years and defendant's chances of acquittal were slim).") While it is regrettable Petitioner did not heed his counsel's assessment of the case against him, it was neither unreasonable nor inappropriate for counsel to share his assessment of Petitioner's chance of being acquitted at trial.
Mr. Hunter was one of Petitioner's co-defendants who was also arrested and charged as part of Mr. Mora-Herrera's drug trafficking organization. Doc. No. 13-10 at 5; see also Oklahoma State Courts Network, District Court of Oklahoma County, Case No. CF-2012-4723, http://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2012-4723.
Petitioner complains appellate counsel did not raise ineffective assistance based on trial counsel's failure to object to the testimony of Mr. Steven Hunter during Petitioner's trial. Under the Rule of Sequestration, a court, at the request of a party or on its own, shall order witnesses excluded during court proceedings so that they cannot hear the testimony of other witnesses. Okla. Stat. tit. 12, § 2615. Petitioner and Mr. Hunter had a joint preliminary hearing, during which Mr. Hunter's counsel requested the Rule of Sequestration and the trial court granted the same. Doc. No. 13-10 at 5. However, Agent Garza was excused from the court's ruling because he was the State's designated witness. Id. at 6; Okla. Stat. tit. 12, § 2615(b) ("This rule does not authorize the exclusion of an officer or employee of a party which is not a natural person designated as its representative by its attorney . . . ."); see also Dyke v. State, 716 P.2d 693, 697-98 (Okla. Crim. App. 1986) (construing statute to include Oklahoma Bureau of Narcotics agent as exception to rule of sequestration).
Following the completion of the joint preliminary hearing, Mr. Hunter entered a guilty plea to the charges against him. Doc. No. 13-10 at 290-91. Mr. Hunter then subsequently testified for the State in Petitioner's trial. Id. Petitioner complains trial counsel should have objected to Mr. Hunter's testimony because "Mr. Hunter was present (in violation of sequestration rules) during Agent Garza's testimony [at the preliminary hearing] and used specific knowledge that Mr. Hunter could only gain from Agent Garza's testimony to corroborate the State's case against [Petitioner]." Petition at 19, 25.
Petitioner raised a similar claim in his post-conviction application. In denying relief, the district court stated that there was nothing in the record to suggest that Mr. Hunter was present during Agent Garza's trial testimony. Doc. No. 13-7 at 15. However, Petitioner is referencing Mr. Hunter's presence during Agent Garza's preliminary hearing testimony, rather than his trial testimony.
In his habeas petition, Petitioner does not identify any portion of Mr. Hunter's testimony influenced by Agent Garza's testimony, nor does Petitioner explain how he was prejudiced by the same. In any event, the trial court properly excluded Agent Garza from the sequestration rule and Mr. Hunter had a right to be present at his own preliminary hearing. Thus, the undersigned cannot conclude trial counsel's performance was less than reasonable, as required by the first prong in Strickland, by failing to object to the testimony of Mr. Hunter based on the fact that he heard Agent Garza's preliminary hearing testimony.
More significantly, presuming, without deciding, trial counsel should have raised such an objection, Petitioner has not established a reasonable probability appellate counsel would have prevailed on direct appeal had he argued trial counsel was deficient by failing to do so. As noted by the OCCA in affirming his post-conviction denial, Petitioner offers nothing beyond conclusory allegations that Mr. Hunter's trial testimony was influenced by Agent Garza's preliminary hearing testimony. Response, Ex. 9 at 6-7. Strickland requires Petitioner establish he was prejudiced by trial counsel's failure to object to the Mr. Hunter's testimony. Strickland, 466 U.S. at 693-94. This Petitioner has not done. See U.S. v. Parada, 555 F. App'x 763, 766 (10th Cir. 2014) ("Like his claims respecting the first co-conspirator, Parada's scattershot attempt to challenge his counsel's handling of this co-conspirator's testimony is insufficient to establish either prong of the Strickland standard, particularly prejudice. Simply put, Parada cannot meet his burden to show that in the absence of his counsel's alleged unprofessional error, the outcome of his trial or appeal would have been different."); Boyle v. McKune, 544 F.3d 1132, 1139-40 (10th Cir. 2008) (denying ineffective assistance claim where the petitioner failed to establish the prejudice prong of Strickland because he offered nothing beyond "speculative assertions" that trial counsel's failure to call a witness "undermine[d] confidence in the outcome of his trial"). Accordingly, Petitioner is not entitled to habeas relief on this claim. See Bromley v. Phillips, 528 F. App'x 956, 959 (10th Cir. 2013) ("Bromley does not specifically explain how these alleged failures caused him prejudice and thus does not state an ineffective assistance claim.").
4. Insufficient Evidence
Petitioner also contends appellate counsel should have raised ineffective assistance of trial counsel based on counsel's alleged "abandonment" of an insufficient evidence defense. Petition at 17. As noted by the OCCA in affirming his post-conviction denial, Petitioner offers nothing beyond conclusory allegations that appellate and trial counsels were ineffective. Response, Ex. 9 at 6-7. Here, Petitioner never specifies any examples nor offers an explanation of how trial counsel "abandoned" such a defense. However, Petitioner does raise arguments in this section of his Petition implying trial counsel should have raised objections to admission of testimony related to his previous Lawton arrest. Petition at 20. Additionally, he contends trial counsel should have argued that the statute setting forth the elements of a trafficking offense requires the defendant to engage in a transaction involving twenty grams or more of methamphetamine, see Okla. Stat. tit. 63, § 2-415, and Petitioner was only caught in possession of 7 grams. Petition at 20-21.
To the extent he intended to imply trial counsel failed to address either of these issues, the record belies his allegations. Both prior to and during trial, defense counsel argued forcefully, in written motion and oral argument, against the admission of evidence related to Petitioner's March 1, 2012 arrest in Lawton, Oklahoma. Doc. No. 13-10 at 25-31, 33-35, 69-72, 74-75, 234, 238-39. While defense counsel's arguments were not successful, he clearly did not fail to raise this argument and counsel's performance did not fall below an objectively reasonable standard, as required by the first prong of Strickland. See Strickland, 466 U.S. at 689 (indicating that merely being unsuccessful in a legal argument does not equate to ineffective assistance, stating, "[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."); King v. Parker, 443 F. App'x 369, 371 (10th Cir. 2011) ("[I]t is not enough for [Petitioner] to show that his attorney's strategy was . . . unsuccessful; he must demonstrate that the actions his attorney took were completely unreasonable." (quotations omitted)).
Similarly, during closing arguments, defense counsel specifically argued the State had failed to establish Petitioner had in his physical possession 20 grams or more of methamphetamine and therefore, the jury should not convict him of trafficking. Doc. No. 10-13 at 357-58, 360-61. Thus, defense counsel did not abandon this defense of insufficient evidence. Id. Again, while counsel was unsuccessful in convincing the jury to acquit Petitioner of the charge against him based on the amount of methamphetamine he trafficked, unsuccessful arguments do not equate to ineffective assistance. See Strickland and King, supra. Accordingly, Petitioner is not entitled to habeas relief on this ground.
VI. Insufficient Evidence
To the extent Petitioner intended to raise insufficient evidence, based on the arguments set forth in the previous section, it must be denied based on Petitioner's failure to exhaust this claim in state court prior to filing this action. Petitioner did not raise an insufficient evidence claim in his direct appeal, nor in his post-conviction application. As previously noted, based on Petitioner's failure to exhaust this claim, the ground would generally be dismissed and Petitioner would be provided an opportunity to return the state court. However, because the basis for this claim was known to Petitioner at the time of his direct appeal, Oklahoma would deem the same claim waived and procedurally barred. King, supra. Accordingly, Petitioner has no prospect of obtaining relief in state court for this claim and this Court will apply an anticipatory bar. Anderson, 476 F.3d at 1140, supra. Further, the Tenth Circuit has affirmed the adequacy of the Oklahoma procedural bar as applied to claims that could have been, but were not, previously raised. Cannon v. Gibson, 259 F.3d 1253, 1266 (10th Cir. 2001) (citing Thomas v. Gibson, 218 F.3d 1213, 1221-22 (10th Cir. 2000); Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000)).
Petitioner's claim is therefore procedurally barred unless he can demonstrate cause and prejudice or that miscarriage of justice will occur if the Court does not review it. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Although Petitioner does not address cause and prejudice in his Petition, he does imply appellate counsel was ineffective by not raising this issue on appeal. The undersigned addressed the merits of this ground for relief in the previous section.
The fundamental miscarriage of justice exception to the procedural default rule "is a markedly narrow one, implicated only in extraordinary cases where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quotations and modification omitted). See also Herrera v. Collins, 506 U.S. 390, 404 (1993) ("The fundamental miscarriage of justice exception is available only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." (quotations omitted)). "[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar [or] . . . expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The Court's opinion in McQuiggin makes clear the limitations on its holding, explaining, "[T]enable actual-innocence gateway pleas are rare: '[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of [] new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, Petitioner does not claim he is actually innocent of the crime with which he is charged. He does not present new evidence indicating he was not the individual who was dealing in methamphetamine with Mr. Mora-Herrera. Instead, he argues that his actions do not meet the requirements of the charging statute. See, supra. This assertion is grounded in legal, rather than factual, innocence. The Tenth Circuit has consistently ruled that legal, as opposed to factual, innocence does not provide a basis to conclude a miscarriage of justice may occur without federal habeas review. In Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the Tenth Circuit explained:
[In order to establish a fundamental miscarriage of justice,] a criminal defendant must make a colorable showing of factual innocence. See Herrera v. Collins, 506 U.S. 390, 404 [] (1993). "The exception is intended for those rare situations 'where the State has convicted the wrong person of the crime. . . . [Or where] it is evident that the law has made a mistake.'" Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (citation omitted). [Petitioner] does not claim that he is innocent of killing Raymond Matthews. Rather, he claims that he is not guilty of first degree murder because he was intoxicated and acted in self defense. However, these arguments go to legal innocence, as opposed to factual innocence.Id. at 923. See also Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (noting that actual innocence means factual innocence); Beavers, 216 F.3d at 923 (noting legal defenses to criminal charge do not show factual innocence).
Petitioner cannot overcome the procedural default regarding this ground for relief because he cannot establish cause and prejudice or a miscarriage of justice. Accordingly, this ground should be denied as it is barred from habeas review.
VII. Actual Innocence
To the extent Petitioner intended to assert actual innocence as a separate ground for habeas relief, see Petition at 17, 20-21, it should also be denied. As previously noted, Petitioner does not present any new evidence to support this assertion, but instead, argues the evidence does not support his conviction because the State failed to present evidence that he was in possession of 20 grams of methamphetamines, as he contends Oklahoma law requires for a trafficking conviction. Id. at 20-21.
Claims of actual innocence, not predicated on a constitutional violation, are not cognizable in a habeas action. As the Supreme Court explained in Herrera, "[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution - not to correct errors of fact." Herrera, 506 U.S. at 400. Where a petitioner asserts that he is innocent of the crime for which he was convicted, separate and apart from alleging a constitutional violation occurred during the course of his trial, he asserts a "freestanding" actual innocence claim. Allen v. Beck, 179 F. App'x 548, 550-51 (10th Cir. 2006) (citing Sellers v. Ward, 135 F.3d 1333, 1338 (10th Cir. 1998)). "Such a freestanding claim of actual innocence is not available in [a] non-capital [habeas] case." Beck, 179 F. App'x at 551. See also Boyd v. McCollum, No. CIV-15-1236-HE, 2017 WL 4640460, at *13 (W.D. Okla. July 20, 2017) ("[N]o freestanding claim of actual innocence is cognizable [in a habeas action] . . . ."). Accordingly, Petitioner's claim of actual innocence does not provide a basis for habeas relief and therefore, must be denied.
As previously noted, Petitioner filed a Reply to the Response to the Petition for Writ of Habeas Corpus. Doc. No. 24. To the extent he raised grounds for relief in his Reply not raised in his initial Petition, such grounds are not properly before this Court and are not considered herein. See United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002) ("[W]e [do not] consider arguments raised for the first time in a reply brief"); see also Galloway v. Howard, 624 F. Supp. 2d 1305, 1316 n.32 (W.D. Okla. 2008) (refusing to consider habeas claims raised for the first time in a reply brief). --------
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court by April 15th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this 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 Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 26th day of March, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE