Dever v. Wilkinson
Filing
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OPINION AND ORDER by District Judge James H. Payne: Denying 1 Petition for Writ of Habeas Corpus, and this action is in all respects is DISMISSED.(acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LORANCE RIDELL DEVER,
Petitioner,
v.
ROBERT PATTON, DOC Director,
Respondent.
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Case No. CIV 12-353-JHP-KEW
OPINION AND ORDER
This matter is before the court on petitioner’s petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Petitioner, an inmate currently incarcerated at Cimarron
Correctional Facility in Cushing, Oklahoma, attacks his convictions and sentences in
McCurtain County District Court Case No. CF-2010-147A for Murder in the First Degree
and Shooting with Intent to Kill. He sets forth the following grounds for relief:
I.
Petitioner was denied a fair trial by the trial court’s refusal to give his
requested instructions regarding accomplice testimony and alibi.
II.
The evidence was insufficient to convict petitioner, because the
accomplice testimony was not corroborated or credible.
III.
The trial court’s failure to follow statutory procedure in answering a
jury question denied petitioner a fair trial.
IV.
(A)
Petitioner was denied a fair trial by the improper admission of
bad character evidence.
(B)
The prosecutor’s intentional use of false or misleading testimony
denied petitioner a fair trial.
(C)
Petitioner was denied the effective assistance of trial counsel.
(D)
Petitioner’s sentences are excessive when compared to those of
his co-defendants.
(E)
The accumulation of error in this case denied petitioner a fair
trial.
The respondent concedes that petitioner has exhausted his state court remedies for the
purpose of federal habeas corpus review. The following records have been submitted to the
court for consideration in this matter:
A.
Petitioner’s direct appeal brief.
B.
The State’s brief in petitioner’s direct appeal.
C.
Summary Opinion affirming petitioner’s judgment and sentence. Dever
v. State, No. F-2011-431 (Okla. Crim. App. June 21, 2012).
D.
Transcripts of petitioner’s preliminary hearing, trial, and sentencing.
E.
Original Record
Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus
relief is proper only when the state court adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
Facts
Sometime before 3:40 p.m. on February 28, 2010, Rodney Fields and Jordon Garrett
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were sitting in the front seat of Fields’ white Lincoln Town Car, when they were shot by
petitioner and his brother Marvel Dever. (Tr. II 253-54; Tr. III 446, 593; State’s Exhibits 79). Mr. Garrett was killed, and Ms. Garrett was wounded.
Khyrie Willis, the Dever brothers’ cousin, was visiting from Texas at their home in
Idabel. (Tr. III 432-33). Petitioner and Marvel both told Willis that they did not like Fields,
but they did not disclose the reason for their animosity. (Tr. III 436-37).
At the direction of petitioner on the afternoon of the murder, Willis drove the brothers
to the house where Fields was sitting in his car. (Tr. III 442-43). Willis was driving his
maroon Lincoln. (Tr. III 434-35, 439; State’s Exhibit 1). The three men first stopped at the
house of a man called “Blue” to get a gun for Willis. (Tr. III 438-441). Petitioner went into
Blue’s house and returned with a .380 pistol holding only three bullets and gave it to Willis.
(Tr. III 440-41). Petitioner and his brother already had pistols, a .357 revolver and a 9 mm
semi-automatic pistol. (Tr. III 439-41).
Willis followed petitioner’s directions to the house in Idabel where Fields was parked
under a carport in his white Lincoln. (Tr. II 264, Tr. III 442-43). Willis stopped his maroon
Lincoln in the intersection by the house where Fields was parked, and petitioner and his
brother exited the car first. (Tr. III 443-44). They went around the front of the house where
Fields was parked, and Willis walked toward the back of the house behind the car. (Tr. III
445). Petitioner was wearing a dark blue bandanna around his face, his brother Marvel had
a dark blue scarf with stripes pulled up over his face, and Willis had an orange bandanna over
his face. (Tr. III 437-38, 454). Petitioner and his brother both began to fire into the car
where Fields and Ms. Garrett were sitting. (Tr. III 446).
A gray Ford Taurus was parked in the yard, and Willis fired the three bullets from the
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.380 into that car, because he thought someone was firing at his cousins from behind the
vehicle. (Tr. III 446-47; State’s Exhibits 9A, 10A, and 11A). Willis saw Fields and a girl
in the white Town Car after the shots were fired, and Field’s head was slowly dropping. (Tr.
III 449).
Willis fled the crime scene in his maroon Lincoln with petitioner and petitioner’s
brother as passengers. (Tr. III 449-50). As they were leaving, Willis saw children running
from the area toward a nearby nursing home. (Tr. III 450). He drove his car to the Devers’
sister’s house and parked it there. (Tr. III 450-51).
The murder occurred at Wanda Daniels’ house, where she was hosting a barbeque that
afternoon. (Tr. II 262). She heard gunshots and called 911. (Tr. 11 265). When she went
outside, she saw that Fields’ car was “just shot up,” and “blood was just everywhere.” (Tr.
II 268). She also saw that Fields and Garrett had been shot, and she thought both were dead
until Garrett raised up in the seat. (Tr. II 268). Fields did not move and was transported by
ambulance to the hospital, where he was pronounced dead on arrival. (Tr. II 268, 283-84).
Ms. Garrett testified that she and Fields were listening to music and talking in the
white Lincoln at the time of the shooting. (Tr. II 253-54). Jodi Chandler, Ms. Daniels’
daughter, had been in the backseat of the car, but just before the shooting she left to put a CD
in her mother’s Taurus that was parked in the yard. (Tr. II 253-54).
Ms. Garrett was talking to Fields, when he suddenly pushed her head down to the
floorboard. (Tr. II 254-55). When she came up, blood was running out of her mouth. (Tr.
II 254-55). She had been shot three times but was able to walk into the house. (Tr. II 25455). She did not look at Fields after the shooting and did not see the shooters. (Tr. II 255).
Ronald Daniels, Wanda Daniels’ 10-year-old son, was outside the house playing with
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two younger relatives at the time of the shooting. (Tr. II 228, 230-31). He and the two other
children were walking to a creek near his house, when he saw a maroon car pull in front of
the house. (Tr. II 230-31). He had seen the car driving around his house earlier that day.
(Tr. II 230-31). At trial Ronald identified a picture of Willis’ maroon Lincoln as the car he
saw the day of the shooting. (Tr. II 232; State’s Exhibit 1). He saw three people get out of
Willis’ maroon Lincoln with “du-rags” around their faces. (Tr. II 233). He said one of the
bandannas was blue, and the other two were black. (Tr. II 233).
Ronald watched the three men split up when they got out of the car, with one going
to one side of his house and the other two going to the other side. (Tr. II 233-34). The men
started shooting, so he grabbed a big stick and ran. (Tr. II 234). He told the other two
children to go across the field. (Tr. II 234-35). When the shooting stopped, Ronald saw the
three men get back into Willis’ car and drive away together. (Tr. II 235).
Valesa Jackson saw petitioner at a park near the murder scene earlier that afternoon.
(Tr. II 206-13). She had known him as “Spanky” since they were children in grade school.
(Tr. II 205-206). Petitioner was sitting in a maroon Lincoln with two other men. (Tr. 20709; State’s Exhibit 1). Petitioner was in the passenger seat with a blue bandanna around his
neck, and the backseat passenger had a blue bandanna around his face. (Tr. II 209). Ms.
Jackson did not pay attention to the driver. (Tr. II 209).
Ms. Jackson left the park after a short time and drove to her mother’s house nearby.
(Tr. II 211-212). When she got out of her car at her mother’s house, she heard loud noises
sounding like fireworks, but she dropped down to the ground when the other people said the
sounds were gunshots. (Tr. II 213). The murder occurred around the corner, and Ms.
Jackson testified she could see Ms. Daniels’ house from her mother’s house, but she did not
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see the shooting. (Tr. II 214).
The medical examiner testified that Fields was shot six times--four times in the head
and twice in the chest. (Tr. II 298-301). Each individual wound potentially could have been
fatal. (Tr. II 301-02).
Petitioner did not testify at trial, but he called Leo Lanham, a.k.a. Blue, to testify. (Tr.
III 645-47, 668). Lanham, a convicted felon who was on probation at the time of the murder,
denied providing a gun to petitioner, petitioner’s brother, or Willis. (Tr. III 645-47).
Petitioner’s older brother Joey Dever testified that he gave petitioner a ride to work
at the Tyson chicken plant the afternoon of the murder. (Tr. III 660-61). He, however, was
not very certain of the time, saying, “I can’t really remember what time it was when I had
took him to work. I want to say probably about--probably about--somewhere probably about
4:00 at the latest, somewhere around up in there.” (Tr. III 661, 664). He also was not sure
when petitioner’s shift started. (Tr. III 664).
Grounds I and III: Jury Instructions and Jury Question
Petitioner alleges in Ground I that the trial court erred in its instructions on the
requirement of accomplice corroboration and on the defense of alibi. In Ground III he claims
the trial court erred in the manner it answered a question from the jury during deliberations
about whether there was a record of the time petitioner clocked into work on the day of the
murder. Specifically, the jury’s note asked, “Is there a record of Mr. Dever clocking into
work at Tyson’s on the date Feb. 28, 2010?” (Ct. Exh. 1). The trial court answered the
question in writing: “You have all the evidence that is proper for you to consider.” Id. The
record does not show whether the prosecutor and defense counsel were notified of the
question or whether either objected to this procedure. On direct appeal the OCCA found no
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merit in either proposition:
[Regarding the jury instructions] . . . while the rationale behind the trial
court’s decision to omit one of the standard OUJI instructions on accomplice
corroboration (OUJI-CR (2nd) No. 9-32), over defense objection, is not clear
from the record, we find any error to be harmless beyond a reasonable doubt.
The rest of the instructions (OUJI-CR (2nd) No. 9-28 in particular) sufficiently
explained the law on this subject. Furthermore the evidence “corroborating”
the accomplice testimony, albeit circumstantial in nature, was sufficient on its
own to support a conviction. Allen v. State, 522 P.2d 243, 245-46; Gaines v.
State, 302 P.2d 798, 800. The trial court’s refusal to give a special instruction
on the accomplice’s credibility issues, due to his role as an “informant” against
Appellant (OUJI-CR (2nd) No. 9-43), was not error. The subject was
sufficiently addressed elsewhere. A general OUJI instruction cautioned the
jury to consider the motives any witness may have to slant his testimony. But
most importantly, an informant-credibility instruction was rendered
superfluous by the very requirement of accomplice corroboration--which is,
in effect, a credibility test that does not apply to other kinds of “informants.”
Okla. Stat. tit. 22, § 742; OUJI-CR (2nd) Nos. 9-25 to 9-32, 10-8. The trial
court’s refusal to give an instruction on alibi evidence, over defense objection,
was not error, as the defense evidence did not sufficiently raise alibi as a
defense. Baxter v. State, 364 P.2d 705, 708. [This proposition] is denied.
Dever, No. F-2011-431, slip op. at 2-3.
[Regarding the jury’s question] . . . when the trial court answers a jury
communication during deliberations, but the record does not clearly show that
proper statutory procedure was followed, a presumption of prejudice arises;
that presumption, however, can be overcome if the record shows the trial
court’s answer was entirely proper. Okla. Stat. tit. 22, § 894; Grayson v. State,
687 P.2d 747, 750 (Okla. Crim. App. 1984). Here, while it is not clear
whether the trial court followed § 894 to the letter, the court’s answer to the
jury’s question was entirely proper. Any presumption of prejudice is thus
overcome, and [this] proposition is denied.
Id., slip op. at 3-4.
The respondent asserts the issue of jury instructions regarding corroboration and alibi
is an issue of state law that is not cognizable in federal habeas corpus.
In a habeas corpus proceeding attacking a state court judgment based
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on an erroneous jury instruction, a petitioner has a great burden. Lujan v.
Tansy, 2 F. 3d 1031, 1035 (10th Cir. 1993), cert. denied, 510 U.S. 1120
(1994). A state conviction may only be set aside in a habeas proceeding on the
basis of erroneous jury instructions when the errors had the effect of rendering
the trial so fundamentally unfair as to cause a denial of a fair trial. Shafer v.
Stratton, 906 F.2d 506, 508 (10th Cir. 1990), cert. denied, 498 U.S. 961
(1990). “An omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Id. at 155. The degree of
prejudice from the instruction error must be evaluated in the context of the
events at the trial. United States v. Frady, 456 U.S. 152, 169 (1982).
Maes v. Thomas, 46 F. 3d 979, 984 (10th Cir.), cert. denied, 514 U.S. 1115 (1995).
In this case Ms. Jackson’s testimony placed petitioner and two other men in Mr.
Willis’ maroon Lincoln a few minutes before the shooting. Ten-year-old Ronald Daniels saw
the maroon Lincoln pull up, and he watched three men exit in front of his house where the
murder occurred. Ronald heard gunshots and ran away. This evidence was more than
sufficient to place petitioner in the car used in the murder very close to the time and place of
the murder, and it tended to connect petitioner to the murder. The jury was given several
instructions on accomplice testimony, including Instruction No. 9-28, OUJI-CR (2d), stating
in pertinent part:
. . . It is sufficient corroboration if you, in your discretion, find from the
evidence, beyond a reasonable doubt, that the testimony of the accomplice is
corroborated as to some material fact or facts by independent evidence tending
to connect the defendant with the commission of the crime.
(O.R. 201 Instruction No. 23, Dkt. 6-3 at 32). The court finds the jury was properly
instructed on the requirement for independent evidence tending to connect the defendant with
the crime.
Petitioner also argues that the trial court erred in its refusal to give an instruction on
the defense of alibi. Such an instruction is appropriate under Oklahoma law, if there is
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evidence that petitioner was at another place at the time of the crimes charged. See Novey
v. State, 709 P.2d 696, 697 (Okla. Crim. App. 1985).
The evidence at trial was that the murder occurred sometime before 3:40 p.m. (Tr.
III 593). Petitioner’s older brother Joey Dever testified he gave petitioner a ride to work at
the Tyson chicken plant the afternoon of the murder. (Tr. III 660-61). Joey, however, was
uncertain of the time of the ride and did not know when petitioner’s shift began. (Tr. III 661,
664).
Petitioner’s father Otis Dever testified he saw petitioner watching a football game, but
admitted he did not pay attention to the time when petitioner left the house. (Tr. II 306-07).
This testimony did not place petitioner at work at the time of the shootings, and petitioner
could have left his father’s home for a number of purposes, including murder. The court
finds the trial court did not err in the instructions on this issue, and petitioner was not denied
a fair trial.
Regarding the jury’s note about whether there was a record of petitioner’s clocking
into work on the day of the murder, the court finds the trial court responded correctly in
writing. Plaintiff argues he was prejudiced, because the trial court allegedly did not follow
the requirements of Okla. Stat. tit. 22, § 894, by bringing the jury back into the courtroom
and answering the question in the presence of all parties. Petitioner acknowledges, however,
that the record is silent as to whether this procedure was followed.
Even if the record supported petitioner’s claim about the procedure of answering the
jury’s question, this is a matter of state law that is not cognizable in a federal habeas corpus
action. Moreover, petitioner has not shown how he was prejudiced by the court’s answer to
the jury’s question. If there actually was a time card to support petitioner’s alibi claim, he
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could have produced it, but did not.
After careful review, the court finds the OCCA’s determination of the claims in
Ground I and Ground III were consistent with federal law, and petitioner has not shown he
was denied his constitutional rights by the rulings. 28 U.S.C. § 2254(d). Grounds I and III
of the petition are meritless.
Ground II: Corroboration of Accomplice-Witness Evidence
Petitioner alleges the evidence presented at trial was insufficiently corroborated under
Oklahoma law to convict him of first degree malice murder and shooting with intent to kill.
He is not claiming the evidence was insufficient to prove Mr. Fields was murdered or that
Ms. Garrett also was shot in the attack. Instead, he asserts the testimony of Khyrie Willis
was not corroborated as required under Oklahoma law.
The Oklahoma Court of Criminal Appeals (OCCA) denied relief on direct appeal:
. . . [W]hile the evidence against Appellant did include the testimony
of an accomplice in the shootings (who testified pursuant to a plea agreement
with the State), that was hardly the only evidence linking Appellant to the
crimes. We find the accomplice testimony was sufficiently corroborated with
other evidence linking Appellant to the crimes themselves, not just to the other
perpetrators thereof. Okla. Stat. tit. 21, § 742; Glossip v. State, 157 P.3d 143.
152 (Okla. Crim. App. 2007); Collier v. State, 520 P.2d 681, 683 (Okla. Crim.
App. 1974). [This proposition] is denied.
Dever v. State, No. F-2011-431, slip op. at 2 (Okla. Crim. App. June 21, 2012).
In particular, one eyewitness, who was personally acquainted with
Appellant, saw him in a car which matched a description of the vehicle driven
by the gunmen to the scene of the crime. This occurred a short time before the
shootings, and a short distance away from the crime scene. This witness
described Appellant as wearing a bandana around his neck, and another
passenger wearing a bandana over his face--all of which was consistent with
other (non-accomplice) eyewitness testimony describing the gunmen.
Contrary to Appellant’s suggestion, while accomplice testimony must be
corroborated, such corroborative evidence need not amount to additional direct
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observation of the defendant committing the crime.
Dever, slip op. at 2 n.2. The OCCA’s factual findings are entitled to a presumption of
correctness, unless petitioner produces clear and convincing evidence to rebut the
presumption. 28 U.S.C. § 2254(e)(1).
There is no constitutional right to corroboration of an accomplice-witness’s testimony.
Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir. 2007), cert. denied, 554 U.S. 907
(2008); Scrivner v. Tansy, 68 F.3d 1234, 1239 (10th Cir. 1995), cert. denied, 516 U.S. 1178
(1996). Furthermore, under Oklahoma law “it is not necessary that an accomplice’s
testimony to be corroborated in all material respects.” Cummings v. State, 968 P.2d 821, 830
(Okla. Crim. App. 1998) (citation omitted).
As set forth by the OCCA and the above facts in this Opinion and Order, the evidence
was more than sufficient to corroborate the testimony of Mr. Willis. To the extent petitioner
is claiming a violation of state law, “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas review,
a federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing 28
U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 (1995) (per curium)).
Here, the court finds petitioner has failed to show the decision by the OCCA on this
state law issue was contrary to, or an unreasonable application of clearly established federal
law. 28 U.S.C. § 2254(d)(1). The court further finds that the OCCA’s determination was
not 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)(2). This ground for habeas relief fails.
Ground IV(A): Evidence of Bad Character
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Petitioner next claims the prosecutor engaged in misconduct when offered evidence
of other crimes. Prior to trial the State filed a notice of intent to offer evidence of other
crimes. Asserting the evidence went to motive, the State wanted to present evidence of a
grand larceny allegedly committed by petitioner and Rodney Fields, the murder victim.
Petitioner objected, arguing in part that there was no visible connection between that crime
and the shootings for which he would stand trial, and the evidence would be unduly
prejudicial. ( O.R. 109). The trial court took the matter under advisement, but ultimately
overruled petitioner’s objection during trial. (Motion Tr. 37; Tr. II 242).
Officer Billy Conaway testified he was with the McCurtain County Sheriff’s Office
in 2008, when he investigated Rodney Fields about the theft of a Honda four-wheeler and a
Honda dirt bike. (Tr. II 243-45). Both Fields and petitioner were suspects, and Fields
implicated petitioner. (Tr. II 245). When Conaway advised petitioner of the accusation by
Fields, petitioner reacted with a “pissed off expression.” (Tr. II 246). Montavious Moore
also testified about this incident, though his testimony was that petitioner did not blame
Fields for getting him in trouble. (Tr. III 425-26). Petitioner argues there is no obvious
connection between the prior larceny and the shooting for which petitioner stood trial, and
the only connection was the State’s assertion that the earlier crime provided the motive for
the later crime.
Petitioner also complains that the State elicited the following testimony from Khyrie
Willis regarding the orange and blue bandannas that petitioner and his two accomplices were
wearing at the time of the shooting:
Q:
. . . Now, was [sic] there any particular reasons you guys had those
colors?
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A:
Gang sense.
Q:
I’m sorry?
A:
Gang sense.
Q:
Gang symbols?
A:
Yeah.
(Tr. III 454-55).
The State then elicited from Leo Lanham, from whom Khyrie Willis alleged petitioner
had obtained one of the guns used during the shootings, that Lanham is a “107 Hoover Crip,”
and blue and orange are “our colors.” (Tr. III 648-49). Lanham also testified he did not
know whether petitioner was in a gang. (Tr. III 649). The State did not offer any evidence
suggesting the shooting was in any way connected to gang activity, and the State did not
attempt to argue that gang affiliation was the motivation for the crime.
The OCCA denied relief on this claim:
. . . [E]vidence that the murder victim in this case had implicated
petitioner in a property theft tended to show ill feelings between the two men,
which was relevant as a possible motive for the shootings. The trial court did
not abuse its discretion in admitting this evidence over defense objection.
Okla. Stat. tit. 12 § 2404(B); Frye v. State, 606 P.2d 599, 604 (Okla. Crim.
App. 1980). As for the prosecutor’s references to possible gang affiliation
among the perpetrators: while questions in this regard appear to have had no
relevance to the issues in the case (as no gang-related motive for the shooting
was suggested), and were therefore improper, they were brief and never
objected to, and we find no plain error in them. Ochoa v. State, 936 P.2d 583,
597 (Okla. Crim. App. 1998). [This proposition] is denied.
Dever, slip op. at 4.
The jury was made aware that Appellant was never prosecuted for the
theft. This reduced the unfairly prejudicial effect of the evidence, but did not
affect its probative value, because a fabricated allegation of crime can provoke
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the same ill feelings in the accused as a true one.
Id. at 4 n.3.
“As a general matter, federal habeas corpus relief does not lie to review state law
questions about the admissibility of evidence, see Estelle v. McGuire, 502 U.S. 62, 67-68
(1991), and federal courts may not interfere with state evidentiary rulings unless the rulings
in question rendered ‘the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights,’ Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989) (quotations
and citations omitted).” Moore v. Marr. 254 F.3d 1235, 1246 (10th Cir.), cert. denied, 534
U.S. 1068 (2001).
After careful review, the court finds the evidence of other crimes was relevant to show
petitioner’s possible motive and intent when he shot Mr. Fields. The court further finds this
evidence did not render petitioner’s trial fundamentally unfair or improperly influence his
sentence. Therefore, the OCCA’s determination of this issue was in accordance with 28
U.S.C. § 2254(d), and petitioner is not entitled to habeas relief on this claim.
As for petitioner’s allegation concerning his alleged gang affiliation, the court agrees
that the gang references were erroneous, but the issue of other-crimes evidence is a matter
of state law. Glover v. Newton-Embry, No. CIV-07-292-M, 2009 WL 2413925, at *12
(unpublished). “[T]he [state] courts’ interpretation of the state . . . statute is a matter of state
law binding on this court.” Parker v. Scott, 394 F.3d 1301, 1319 (10th Cir. 2005) (quoting
Chapman v. LeMaster, 302 F.3d 1189, 1196 (10th Cir. 2002)). Because the OCCA’s
determination of this issue was not contrary to, or an unreasonable application of relevant
federal law, and petitioner was not denied a fundamentally fair trial, this claim of error also
fails.
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Ground IV(B): Prosecutorial Misconduct
Petitioner claims the prosecutor engaged in misconduct during trial when he elicited
allegedly false testimony from Agent Dansby concerning Willis’ crime. Dansby testified that
Willis “was charged with the crime that the evidence showed and that I believe he
committed.” (Tr. III 601). Petitioner argues that Willis was guilty of first degree murder,
but the prosecutor presented knowingly false testimony from Dansby that the evidence
supported a charge of assault and battery with a deadly weapon. (Tr. III 600). Petitioner
maintains Dansby’s answer minimized Willis’ culpability, thereby minimizing the
significance of the plea bargain Willis reached with the State and bolstering Willis’
credibility. The respondent asserts the prosecutor’s questions were proper and did not deny
petitioner a fair trial or sentencing. Furthermore, there was no objection by defense counsel
to Agent Dansby’s testimony. The OCCA found no relief was warranted for this claim:
. . . [W]e cannot agree with Appellant’s claim that the prosecutor
sponsored false or misleading testimony. A detective testified that the crimescene evidence supported the lesser charge that the accomplice was allowed
to plead guilty to in exchange for his cooperation. Yet regardless of what the
accomplice pled to, or the detective’s opinion about his relative culpability, the
jury was instructed that the witness was an accomplice as a matter of law--i.e.,
that he could have been charged with the very same crimes Appellant was
facing. Thus, the jury was not misled into believing that the accomplice was
some minor participant. We find neither misconduct on the part of the
prosecutor, nor any prejudice flowing from the detective’s testimony. See
Reed v. State, 657 P.2d 662, 664 (Okla. Crim. App. 1983). . . .
Dever, slip op. at 4-5.
The accomplice was allowed to plead guilty to Assault and Battery with
Dangerous Weapon. The evidence supported his claim that he only fired
gunshots at an unoccupied vehicle, parked next to the vehicle that held the two
victims.
Id., slip op. at 4 n.4.
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In a habeas corpus action, claims of prosecutorial misconduct are
reviewed only for a violation of due process. See Darden v. Wainwright, 477
U.S. 168, 181 (1986). “[N]ot every trial error or infirmity which might call for
application of supervisory powers correspondingly constitutes a failure to
observe that fundamental fairness essential to the very concept of justice.”
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (citations and quotations
omitted). In order to be entitled to relief, [petitioner] must establish that the
prosecutor’s conduct or remarks “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Id. at 643. This
determination may be made only after considering all of the surrounding
circumstances, including the strength of the state’s case. See Darden, 477 U.S.
at 181-82.
Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005), cert. denied, 547 U.S. 1181
(2006).
Here, the court finds the OCCA examined this claim on the merits and found the
prosecutor’s question did not sponsor false or misleading testimony, and petitioner was not
prejudiced by the question or the response by Agent Dansby. This determination was
consistent with federal law, so habeas relief cannot be granted.
Ground IV(C): Ineffective Assistance of Counsel
Petitioner claims his trial counsel was ineffective in failing to object to (1) the
testimony by Mr. Willis about the gang-related nature of the colors of the bandannas worn
during the crimes, (2) the testimony of Agent Dansby that Mr. Willis’ conduct supported a
charge of assault and battery with a deadly weapon, and (3) the manner in which the trial
court answered the jury’s question about petitioner’s time card from his job on the day of the
murder. The OCCA reviewed the claims and found trial counsel was not ineffective:
. . . [W]e reject Appellant’s three claims that his trial counsel was
ineffective. First, even assuming trial counsel was timely notified of the jury’s
question during deliberations, the lack of prejudice in the trial court’s response
. . . bars any finding that counsel was ineffective. Sanchez v. State, 223 P.3d
980, 1012 (Okla. Crim. App. 2009). Second, our finding that brief questions
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about “gang colors” were harmless . . . also bars any conclusion that Appellant
was prejudiced by counsel’s failure to object. Id. Trial counsel’s failure to
object to a detective’s opinion about the accomplice’s culpability was also
harmless beyond a reasonable doubt, as the jury was instructed to treat the
witness as an accomplice as a matter of law. Trial counsel was not ineffective,
and [this proposition] is denied.
Dever, slip op. at 5 (footnote omitted).
“There is a strong presumption that counsel provided effective assistance of counsel,
and petitioner has the burden of proof to overcome that presumption.” United States v.
Rantz, 862 F.2d 808, 810 (10th Cir. 1988) (citing United States v. Cronic, 466 U.S. 648, 658
(1984)), cert. denied, 489 U.S. 1089 (1989). To prevail on his claim of ineffective assistance
of counsel, petitioner must show that (1) his counsel’s performance fell below an objective
standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (2)
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different,” id. at 694.
As discussed above, petitioner’s claims concerning the colors of the bandannas, Agent
Dansby’s testimony that Willis’ conduct supported a charge of assault and battery with a
deadly weapon, and the trial court’s answer to the jury’s question all fail on the merits.
Therefore, petitioner’s counsel could not have been ineffective in failing to raise objections
concerning the claims at trial. Because petitioner suffered no prejudice from counsel’s
alleged failure to object to these issues, counsel was not ineffective under Strickland.
The OCCA clearly relied on Strickland in the Sanchez case that is cited in its analysis
of petitioner’s ineffective assistance of counsel claim. This court finds the OCCA’s ruling
on this issue was not contrary to, or an unreasonable application of Strickland, and
petitioner’s claim of ineffective assistance of counsel is meritless.
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Ground IV(D): Excessive Sentence
Petitioner complains that his sentence of life imprisonment with the possibility of
parole is excessive when compared to the sentences of his codefendants. Mr. Willis was
sentenced to seven years’ imprisonment, with all but one year suspended, and petitioner’s
brother Marvel Dever received a 25-year prison sentence. The OCCA denied the claim:
. . . [W]hile Appellant compares the sentences he received to those of
his two co-defendants, he fails to note that one co-defendant turned himself in
to the authorities and agreed to testify as a State’s witness, while the other codefendant waived his right to a jury trial. Appellant, on the other hand,
exercised his right to a jury trial; the jury found him guilty, but recommended
the minimum sentence for First Degree Murder. In addition, the trial court
ordered concurrent service of Appellant’s two sentences. We cannot say the
sentences imposed are shocking to the conscience. Rea v. State, 34 P.3d 148,
149 (Okla. Crim. App. 2001).
Dever, slip op. at 5-6.
. . . We afford 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. See Haynes v. Butler, 825 F.2d 921, 923–24
(5th Cir. 1987), cert. denied, 484 U.S. 1014 (1988); see also Handley v. Page,
398 F.2d 351, 352 (10th Cir. 1968). Generally, our review of a sentence ends
once we determine the sentence is within the limitation set by statute. See
Vasquez v. Cooper, 862 F.2d 250, 255 (10th Cir. 1988). In this case, the
sentences [petitioner] received are within the statutory range of permissible
punishment. . . .
Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000), cert. denied, 534 U.S. 887 (2001).
The court finds petitioner’s sentence was within the statutory range of permissible
punishment, so habeas relief is not warranted.
Ground IV(E): Cumulative Error
Finally, petitioner claims the alleged accumulation of errors in his trial denied him a
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fair trial. The OCCA held that “having found the one error identified above to be harmless
[the prosecutor’s references to possible gang affiliation among the perpetrators], there can
be no error by accumulation.” Dever, slip op. at 6 (citing Hope v. State, 732 P.2d 905, 908
(Okla. Crim. App. 1987)).
“Cumulative-error analysis applies where there are two or more actual errors. It does
not apply, however, to the cumulative effect of non-errors.” Hoxsie v. Kerby, 108 F.3d 1239,
1245 (10th Cir.), cert. denied, 522 U.S. 844 (1997) (citing United States v. Rivera, 900 F.2d
1462, 1471 (10th Cir. 1990)). See also Castro v. Ward, 138 F.3d 810, 832-33 (10th Cir.),
cert. denied, 525 U.S. 971 (1998); Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002), cert.
denied, 540 U.S. 833 (2003) (“When reviewing a case for cumulative error, only actual errors
are considered in determining whether the defendant’s right to a fair trial was violated.”).
Here, the court finds the OCCA’s determination of this claim was consistent with
federal law. Therefore, this ground for habeas of relief is meritless.
ACCORDINGLY, petitioner’s petition for a writ of habeas corpus is DENIED, and
this action is, in all respects, DISMISSED.
DATED this 30th day of September 2015.
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