Lovin, Jr. v. McCollum
OPINION AND ORDER by Judge Ronald A. White : Denying 1 Petition for Writ of Habeas Corpus (2254) and denying certificate of appealability (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
GLEN HUGHIE LOVIN, JR.,
JOE M. ALLBAUGH, DOC Director,
No. CIV 14-384-RAW-KEW
OPINION AND ORDER
This matter is before the Court on Petitioner’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner, a pro se prisoner currently incarcerated at Davis
Correctional Facility in Holdenville, Oklahoma, challenges his conviction and sentence in
Pontotoc County District Court Case No. CF-2010-73 for Endeavoring to Manufacture
Methamphetamine, after two or more felony convictions. He sets forth the following
grounds for relief:
The evidence was not sufficient to prove the offense charged by the
The improper admission of an irrelevant and prejudicial video that
demonstrated the production of methamphetamine deprived Mr. Lovin
of a fair trial, requiring a new trial or favorable modification.
The prejudice of improper details of Mr. Lovin’s legal history
inappropriately introduced to the jury through the State’s exhibits
resulted in an inflated sentence.
Under the facts of the case Mr. Lovin’s sentence is excessive and
should be modified.
Petitioner was denied due process when the preliminary hearing
magistrate also conducted Petitioner’s jury trial without Mr. Lovin’s
consent, in violation of the Fifth and Fourteenth Amendments to the
United States Constitution and Okla. Stat. tit. 22 § 576.
Petitioner was denied Sixth Amendment effective assistance of trial
counsel during plea negotiations.
Petitioner was denied Sixth Amendment effective assistance of
appellate counsel when appellate counsel failed to raise the claim of
trial counsel’s ineffectivness during plea negotiations.
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:
Petitioner’s direct appeal brief.
The State’s brief in Petitioner’s direct appeal.
Summary Opinion affirming Petitioner’s judgment and sentence. Lovin
v. State, No. F-2012-58 (Okla. Crim. App. Feb. 27, 2013).
Petitioner’s application for post-conviction relief.
Post-conviction findings by the trial court.
Petitioner’s petition in error to the Oklahoma Court of Criminal
Order Affirming Denial of Application for Post-Conviction Relief.
State court record.
Transcripts of preliminary hearing and jury trial.
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
28 U.S.C. § 2254(d).
Ground I: Sufficiency of the Evidence
Petitioner alleges the State failed to meet its burden of proof to sustain his conviction
for Endeavoring to Manufacture Methamphetamine. The Oklahoma Court of Criminal
Appeals (OCCA) denied relief on this claim in Petitioner’s direct appeal:
. . . Lovin argues that the evidence is insufficient to prove endeavoring to
manufacture a controlled dangerous substance. This Court addresses a
challenge to the sufficiency of the evidence by viewing the evidence in the
light most favorable to the State, accepting all inferences that support the
verdict, and asking whether any rational trier of fact could have found guilt
beyond a reasonable doubt. Warner v. State, 144 P.3d 838, 863 (Okla. Crim.
App. 2006) (citing Spuehler v. State, 709 P.2d 202, 203-04 (Okla. Crim. App.
The elements of Endeavoring to Manufacture Methamphetamine are: 1)
knowingly; 2) endeavoring; 3) to manufacture; 4) the controlled dangerous
substance of methamphetamine. Okla. Stat. tit. 63, § 2-408; OUJI-CR (2d) 63B. “Endeavoring means any effort to do or accomplish the evil purpose that
the law was enacted to prevent.” OUJI-CR (2d) 6-16. The evidence
introduced by the State, including purchases made by Lovin at Wal-Mart on
January 8, 2010; the video depiction of the methamphetamine manufacturing
process in conjunction with the explanatory testimony of Agent Dean; the
admissions of Lovin; and the evidence found in the back of Lovin’s car on
February 19, 2010, provide sufficient evidence for a rational trier of fact to
find guilt beyond a reasonable doubt. Warner, 144 P.3d at 863; Spuehler, 709
P.2d at 203-04.
Lovin attempts to argue that for the purpose of a sufficiency analysis, the
Court should be limited by the Information which states that Lovin endeavored
to manufacture methamphetamine “on or about the 19th day of February
2010,” the day of Lovin’s arrest. Lovin claims that what happened
approximately six weeks earlier, on January 8, 2010, is irrelevant. Trial
counsel was provided with notice of the January 8, 2010, Wal-Mart shopping
spree in discovery. Counsel did not object to the relevancy of this evidence at
trial and there is no basis for this objection now. Title 22, Section 405 states
that: “The precise time at which the offense was committed need not be stated
in the indictment or information; but it may be alleged to have been committed
at any time before the finding thereof, except where the time is a material
ingredient in the offense.” Okla. Stat. tit. 22, § 405. The Information was
filed on February 23, 2010, less than two months after Lovin’s January 8 WalMart purchases. The evidence was relevant and properly admitted.
Citing Okla. Stat. tit. 21, § 41,1 Lovin also argues that his admission that he
manufactured methamphetamine on January 8, after purchasing the raw
materials at Wal-Mart, precludes his conviction for endeavoring to
manufacture. The crime of endeavoring to manufacture was removed from
Section 41, and designated under Title 63, as a distinct statute, with distinctly
defined punishment. Okla. Stat. tit. 63, § 2-408 (“Any person who . . .
endeavors . . . to commit any offense defined in the Uniform Controlled
Dangerous Substances Act . . . shall be subject to the penalty prescribed for the
offense, the commission of which was the object of the . . . endeavor[.]”); see
also Tidmore v. State, 95 P.3d 176, 177-78 (Okla. Crim. App. 2004) (rejecting
the argument that the crime of endeavoring to manufacture is the equivalent
of the crime of attempt). The crime of endeavoring is not, therefore, barred
where there is evidence of the commission of the crime. See Mehdipour v.
State, 956 P.2d 911, 914-95 (holding that Okla. Stat. tit. 21, § 44 does not
preclude a conviction for attempting to intimidate a witness where evidence
demonstrated witness was persuaded not to testify because crime of attempt to
intimidate witness was prosecuted under Okla. State. tit. 21, § 455, and there
is no requirement under Section 455 that State resort to attempt statutes or
disprove completion of the crime). The prosecutor retains discretion over
which act to charge, so long as “the decision not be based on impermissible
standards, such as race or religion.” State v. Haworth, 283 P.3d 311, 316
(Okla. Crim. App. 2012). [This Proposition] is denied.
Lovin v. State, No. F-2012-58, slip op. at 2-4 (Okla. Crim. App. Feb. 27, 2013) (footnote in
original). 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. §
Sufficiency of the evidence is a mixed question of law and fact. We ask
whether the facts are correct and whether the law was properly applied to the
facts, which is why we apply both 28 U.S.C. § 2254(d)(1) and (d)(2) when
reviewing sufficiency of the evidence on habeas.
Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006) (citations omitted), cert. denied, 549
U.S. 1285 (2007).
In federal habeas review of a state court conviction, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
Section 41 of Title 21 provides that “[n]o person can be convicted of an attempt to commit
a crime when it appears that the crime intended or attempted was perpetrated by such person in
pursuance of such attempt.”
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The Supreme Court
repeatedly has emphasized the deference the reviewing court owes to the trier of fact and “the
sharply limited nature of constitutional sufficiency review.” Wright v. West, 505 U.S. 277,
296 (1992) (citing Jackson, 443 U.S. at 319).
“[A] federal habeas corpus court faced with a record of historical facts that supports
conflicting inferences must presume--even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer
to that resolution.” Jackson, 443 U.S. at 326. The court must “accept the jury’s resolution
of the evidence as long as it is within the bounds of reason.” Grubbs v. Hannigan, 982 F.2d
1483, 1487 (10th Cir. 1993) (citing United States v. Edmondson, 962 F.2d 1535, 1548 (10th
Cir. 1992)). “To be sufficient, the evidence supporting the conviction must be substantial;
that is, it must do more than raise a mere suspicion of guilt.” Beachum v. Tansy, 903 F.2d
1321, 1332 (10th Cir.) (citing United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.
1987)), cert. denied, 498 U.S. 904 (1990).
“[W]here a sufficiency challenge was resolved on the merits by the state courts, . . .
AEDPA adds an additional degree of deference, and the question becomes whether the
OCCA’s conclusion that the evidence was sufficient constituted an unreasonable application
of the Jackson standard.” Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007) (citations
and internal quotation marks omitted), cert. denied, 553 U.S. 1079 (2008). This standard is
called “deference squared.” Hooks v. Workman, 689 F.3d 1148, 1166 (10th Cir. 2012
(quoting Young v. Sirmons, 486 F.3d 655, 666 n.3 (10th Cir. 2007)). “Even if a state court
resolves a claim in a summary fashion with little or no reasoning, [this court] owe[s]
deference to the state court’s result.” Paine v. Massie, 339 F.3d 1194, 1198 (10th Cir. 2003).
A state court’s summary disposition must be upheld unless a federal habeas court is
persuaded, after conducting an independent review of the record and pertinent federal law,
that the state court’s result “unreasonably applies clearly established federal law.” Id.
(quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)).
To determine whether there was sufficient evidence presented at trial to sustain
Petitioner’s conviction, the Court first must look to Oklahoma law for the elements required
for the crime. Jackson, 443 U.S. at 324 n.16; see also Torres v. Mullin, 317 F.3d 1145, 1152
(10th Cir.), cert. denied, 540 U.S. 1035 (2003). As set forth above, the OCCA cited Spuehler
in its analysis that found the elements of the charged crime were proven by the State. Lovin,
No. F-2012-58, slip op. at 2-4. This Court notes that in Spuehler, the OCCA expressly
adopted the standard set forth in Jackson v. Virginia. Spuehler, 709 P.2d at 203-04. See also
Warner, 144 P.3d at 863.
Petitioner’s argument on direct appeal was based upon the relevance and admissibility
of evidence used to convict him. He claimed that if evidence of his January 8, 2010, WalMart purchases and his admission that he actually manufactured the drugs had not been
admitted, there would not have been sufficient evidence to convict him. As shown above,
however, the OCCA disposed of each evidentiary challenge, and Petitioner has not alleged
that the OCCA’s determination of these underlying state-law issues deprived him of a
fundamentally fair trial.
“[I]t 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)). “Habeas corpus is a civil proceeding
and the burden is upon the petitioner to show by a preponderance of the evidence that he is
entitled to relief.” Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir. 1964) (citing Teague v.
Looney, 268 F.2d 506 (10th Cir. 1959)).
Here, the state court determined under state law that Petitioner’s sufficiency of the
evidence argument was meritless. Because state evidentiary law was not improperly applied,
Petitioner’s claim of insufficient evidence as argued fails to present a federal issue. See
Williams v. Hartley, No. 13-CV-1258, 2013 WL 5548242, at *4 (D. Colo. Oct. 8, 2013)
(unpublished) (holding that because petitioner’s claim of insufficient evidence was premised
on state law, the claim failed to present a federal issue and was not cognizable in habeas
“[O]nly the most serious misapplications of Supreme Court precedent will be a basis
for relief under § 2254.” House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (citing
Maynard v. Boone, 468 F.3d 665, 671 (10th Cir. 2006)). Petitioner’s legal arguments for
federal habeas relief are based on state evidentiary law, not Supreme Court precedent.
Because the State’s highest court rejected these claims, Petitioner cannot show that the
OCCA’s decision that there was sufficient evidence to support the conviction was contrary
to, or an unreasonable application of, Jackson v. Virginia. Ground I for habeas relief fails.
Grounds II and III: Admissibility of Evidence
Petitioner alleges in Ground II of the petition that the improper admission of an
irrelevant and prejudicial video demonstrating the production of methamphetamine deprived
him of a fair trial. In Ground III Petitioner claims the prejudicial introduction of his
incarceration history to the jury through the State’s exhibits resulted in an inflated sentence.
Respondent alleges Petitioner’s claims in Grounds II and II raise issues of state law
which are not proper for federal habeas review. Respondent further asserts Petitioner was
not denied a fair trial by the introduction of this evidence.
The habeas statute “unambiguously provides that a federal court may issue a
writ of habeas corpus to a state prisoner ‘only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United
States.’” Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (per curiam) (quoting 28
U.S.C. § 2254(a)). “We have stated many times that ‘federal habeas corpus
relief does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62,
67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
A federal habeas court will not disturb the state court’s evidentiary rulings unless the
petitioner “demonstrates that the state court’s error was “so grossly prejudicial that it fatally
infected the trial and denied the fundamental fairness that is the essence of due process.’”
Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (citing Williamson v. Ward, 110 F.3d
1058, 1522 (10th Cir. 1997)), cert. denied, 531 U.S. 938 (2000).
Ground II: Video Presentation
The OCCA denied relief on Petitioner’s claim concerning the video as follows:
. . . Lovin argues that the trial court abused its discretion by admitting State’s
Exhibit 11, a video demonstrating the “one pot” method of making
methamphetamine; the same method that Lovin admitted to police that he
employed on January 8, 2010. Lovin’s objection to the introduction of this
video was overruled and the video was introduced with no cautionary or
limiting instruction. While the video played, Agent Dean testified to the
Lovin argues that the video was both irrelevant and prejudicial. We find that
it was neither. The video and accompanying testimony of Agent Dean helped
the jury understand how the laundry list of items in Lovin’s possession could
have been used to manufacture methamphetamine, and therefore, why his
possession of those items was indeed evidence that he was endeavoring to
manufacture methamphetamine. The demonstration was presented simply, in
a sterile setting. Though Agent Dean’s brief testimony concerning the
potential for dangerous fires to arise during the manufacturing process was
arguably irrelevant, it was not objected to at trial and does not rise to the level
of plain error. As Lovin points out, “anyone who watches the news or reads
the paper is familiar [with the fact that] meth labs are very dangerous and often
destructive.” The trial court did not abuse its discretion. Harris v. State, 13
P.3d 489, 495 (Okla. Crim. App. 2000).
Lovin, No. F-2012-58, slip op. at 4-5.
The record shows that while the video played, Agent Dean explained the process for
manufacturing methamphetamine by the “one pot” method and that the ingredients Petitioner
obtained on January 8, 2010, could be substituted for items used in the video (Tr. 228-32;
State’s Exhibit 11). Agent Dean also explained to the jury that Petitioner admitted he
possessed the ingredients that were used when he manufactured methamphetamine (Tr. 228).
The jury was advised that the video was made by the Washington State Patrol in a controlled
environment (Tr. 228). Agent Dean explained to the jury that what was shown on the video
might deviate from what Petitioner said about how he made methamphetamine (Tr. 228).
At one point, Petitioner objected to the testimony as speculative, and the trial court sustained
the objection (Tr. 233). Petitioner’s counsel thoroughly cross-examined Agent Dean about
his testimony (Tr. 235-60) and specifically about the video (Tr. 247, 257).
To convict Petitioner of the charged crime, the State was required to prove he
knowingly endeavored to manufacture methamphetamine (Jury Instruction Nos. 21, 22; Dkt.
16-9; Okla. Stat. tit. 63 § 2-408 (2001)). The jury also was instructed on the credibility of
opinion witnesses (Jury Instruction No. 19; Dkt. 16-9).
Showing the process of manufacturing methamphetamine using the items Petitioner
either purchased or had in his possession was evidence that he knowingly endeavored to
manufacture methamphetamine. Therefore, the video and Agent Dean’s narration of the
video were relevant to show Petitioner’s knowledge and intent. See Walker v. Mullin, No.
CIV-08-1107, at *6 (W.D. Okla. Mar. 30, 2014) (unpublished) (holding that prosecution’s
use of a “demonstration lab” to assist in the jury’s understanding of the process of
manufacture of methamphetamine raised questions of merely state law, where the jury was
informed of the limitations of the evidence and no particular constitutional guarantees were
implicated). See also Torres v. Roberts, No. 07-3176, 253 Fed. App’x 783, 789, 2010 WL
3302437, at *4 (10th Cir. 2007) (unpublished) (holding that when a federal court reviews a
state court ruling admitting demonstrative evidence, federal habeas relief is only appropriate
“if the alleged error was so grossly prejudicial [that it] fatally infected the trial and denied
the fundamental fairness that is the essence of due process”) (citations omitted).
Here, Petitioner told Agent Dean that both the items he obtained on January 8, 2010,
and the items in his possession on February 19, 2010, were used to manufacture
methamphetamine (Tr. 224, 227-28). Agent Dean, an experienced narcotics agent with
training about clandestine methamphetamine labs, also independently explained that the
items could be combined to manufacture methamphetamine (Tr. 228-32). The OCCA found
the demonstration was simple and helped the jury understand how the items could be used
to manufacture methamphetamine, thus assisting in showing Petitioner’s intent to endeavor
to manufacture. This Court finds the video demonstration claim is an issue of state law, and
the admission of the video demonstration did not deny Petitioner a fundamentally fair trial.
See Fox, 200 F.3d at 1296-97. Ground II of the petition must be denied.
Ground III: Judgment and Sentence Documents
Petitioner argues in Ground III that the trial court erred when it failed to redact sua
sponte several judgment and sentence documents during the second stage of trial. The claim
was denied by the OCCA on direct appeal:
. . . Lovin claims that he was prejudiced during the second stage of his
bifurcated trial by the admission of sentencing documents that were not
redacted and that clearly referenced his history of probation and parole
violations. Because Lovin did not object to these documents or seek redaction
at trial, he has waived all be plain error review. Hunter v. State, 208 P.3d 931,
933 (Okla. Crim. App. 2009).
The admission of the sentencing documents in this form was an actual, obvious
error. Id. Lovin, however, cannot establish prejudice resulting from this error.
Unlike in Hunter, the error here was not compounded by improper argument
by the State. Id. at 933-34. Moreover, the jury could have inferred that Lovin
violated his parole or probation from properly redacted documents, if the jury
considered the length of the sentences and the dates of conviction. Boyd v.
State, 743 P.2d 658, 662 (Okla. Crim. App. 1987). Though this fact does not
eliminate the error, it does minimize the prejudice. Finally, at sentencing,
Lovin was a ten-time convicted felon with convictions ranging from burglary
to terroristic threats to forgery. In the current case he admitted to
manufacturing methamphetamine on January 8, 2010, and on February 19,
2010, was found in possession of a coffee grinder with traces of ground
The minimum sentence Lovin could receive for
endeavoring to manufacture methamphetamine was twenty-one years. See
Okla. Stat. tit. 63, § 2-408 (setting penalty for endeavoring to manufacture
methamphetamine as the same penalty for manufacturing); Okla. Stat. tit. 63,
§ 2-401(G)(2) (Supp. 2005) (penalty for manufacturing methamphetamine is
seven years to life imprisonment); Okla. Stat. tit. 21, § 51.1(C) (Supp. 2002)
(providing for an enhancement of three times the minimum sentence where
defendant has two or more prior felonies). Lovin was sentenced to life
imprisonment with the possibility of parole. Lovin has not shown he was
prejudiced and has not established entitlement to relief. Okla. Stat. tit. 20, §
Lovin, No. F-2012-58, slip op. at 5-6.
Petitioner alleged on direct appeal that the jury could have impermissibly learned from
the unredacted documents that he did not serve his entire prison terms. As found by the
OCCA, Petitioner failed to object to the documents at trial. While not dispositive to the issue
on habeas review, the failure to object is relevant to the assessment of fundamental
unfairness. Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir. 1999), cert. denied, 53 U.S. 835
Petitioner claims he received an excessive sentence, as presented in Ground IV,
because of the alleged inadmissible evidence in the unredacted sentencing documents used
to enhance his sentence. The OCCA held that although the introduction of the unredacted
documents was “obvious error,” there was no improper argument by the State, and the jury
could have inferred Petitioner’s parole or probation violations from properly redacted
documents. While this fact does not eliminate the error, it does minimize the prejudice.
The minimum sentence Petitioner could have received for Endeavoring to
Manufacture Methamphetamine, after two or more felony convictions, was 21 years. See
Okla. Stat. tit. 63, § 2-408; Okla. Stat. tit. 63, § 2-401(g)(2); Okla. Stat. tit. 21, § 51.1(C).
With ten felony convictions, he was sentenced to life imprisonment with the possibility of
parole. Considering this evidentiary claim independently from his excessive sentence claim
in Ground IV, the Court finds Petitioner has failed to raise a habeas claim warranting relief.
See Bagby v. Jones, No. CIV-10-1086, 2011 WL 7746438, at *10 (W.D. Okla. Dec. 30,
2011) (unpublished) (report and recommendation holding that “[e]ven if the State
inappropriately relied on two ‘transactional’ crimes under state law, . . . federal habeas relief
would not be available” for petitioner’s challenge to his sentence enhancement), adopted by
district court, 2012 WL 138163 (Apr. 19, 2012), certificate of appealability denied, No. 126117, 495 Fed. App’x 860 (10th Cir. Aug. 3, 2012).
On direct appeal Petitioner briefly argued that his counsel was ineffective in failing
to request a redaction, and he makes a similar statement under this ground for habeas relief
(Dkt. 1 at 8). The OCCA found no merit in this argument:
Failing to raise a separate proposition of error, Lovin argues that his counsel
was ineffective because he did not request redaction of the sentencing
documents introduced in the second stage. Lovin waived this claim by failing
to set it out as a separate proposition of error. Cuesta Rodriguez v. State, 247
P.3d 1192, 1197 (Okla. Crim. App. 2011); Rule 3.5(5), Rules of the Oklahoma
Court of Criminal Appeals, Title 22 Ch. 18, App. (2012). Had he properly
raised this claim, we would find no merit as prejudice is an essential element
of the test for ineffective assistance of counsel. Lovin could not establish that
there is a “reasonable probability that, but for counsel’s unprofessional errors,”
his sentence would have been different. Strickland v. Washington, 466 U.S.
668, 687, 694 (1984). [This proposition] is denied in its entirety.
Lovin, No. F-2012-58, slip op. at 6.
The OCCA found Petitioner had waived this claim, but also found it was meritless
under the federal precedent of Strickland. The Tenth Circuit holds that when assessing a
state prisoner’s ineffective assistance of counsel claim on habeas review under § 2254(d)(1),
“our review is ‘doubly deferential.’ We defer to the state court’s determination that counsel’s
performance was not deficient and, further, defer to the attorney’s decision in how best to
represent a client.” Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009) (citations
“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.
Here, the OCCA found the failure to redact the documents was an “obvious error.”
The second Strickland prong, however, cannot be met, because Petitioner cannot demonstrate
prejudice by showing the jury’s decision would have been different if the documents had
been redacted. The OCCA’s decision on this issue was not contrary to, or an unreasonable
application of, Supreme Court law. See 28 U.S.C. § 2254(d)(1).
Ground IV: Excessive Sentence
Petitioner alleges in Ground IV that his life sentence was excessive and should be
modified. The OCCA denied relief on direct appeal:
. . . [W]e find that Lovin’s sentence was not excessive. This Court will only
modify a sentence within the statutory range if, “considering all the facts and
circumstances, it shocks the conscience.” Neloms v. State, 274 P.3d 161, 171
(Okla. Crim. App. 2012). Under the facts and circumstances of this case,
including Lovin’s nine prior felony convictions, Lovin’s life sentence is not
excessive. Rea v. State, 34 P.3d 148, 149 (Okla. Crim. App. 2001).
Lovin, No. F-2012058, slip op. at 6-7.
This Court finds Petitioner has failed to identify any federal constitutional violation
in this claim, which is the core predicate for habeas relief. See 28 U.S.C. § 2254(a). He has
not even shown that his sentence falls outside the state statutory limits. See Dennis v.
Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000), cert. denied, 534 U.S. 887 (2001) (stating
challenges to state sentencing decisions “are not generally constitutionally cognizable, unless
it is shown the sentence imposed is outside the statutory limits or unauthorized by law”).
This claim is meritless.
Grounds V, VI, and VII: Preliminary Hearing Magistrate, Ineffective Assistance of
Trial Counsel, and Ineffective Assistance of Appellate Counsel
In Ground V, Petitioner complains he was denied due process when the preliminary
hearing magistrate presided over his trial. In Ground VI he asserts a claim of ineffective
assistance of trial counsel during plea negotiations, based on the claim in Ground V.
Petitioner alleges in Ground VII that he was denied the effective assistance of counsel on
direct appeal. He first raised these claims in his application for post-conviction relief.
The trial court found that “[a] review of the record and the Affidavit by Dawn DeVoe
Teal, Court Reporter, clearly establishes that Petitioner’s allegation of a single Judge
conducting both Preliminary Hearing [and] the Trial is false. Lovin v. State, No. CRF-10-73,
slip op. at 2 (Pontotoc County Dist. Ct. Mar. 14, 2014) (Dkt. 16-5). The trial court further
found that despite Petitioner’s assertions, “his claim clearly was known to him prior to appeal
and could have been raised on appeal.” Id.
The OCCA affirmed, finding the record did not support Petitioner’s claim that the
same judge presided over his preliminary hearing and his jury trial. Lovin v. State, No. PC2014-249, slip op. at 4 (Okla. Crim. App. July 28, 2014). The OCCA further found there was
“more than sufficient evidence establishing that different judges presided over [Petitioner’s]
preliminary hearing and trial. Id. Furthermore, “[e]xcept as related to his ineffective
assistance of appellate counsel claim, consideration of Petitioner’s claims for relief are
waived because they could have been raised in his direct appeal.” Id., slip op. at 2 (citing
Logan v. State, 293 P.3d 969 (Okla. Crim. App. 2013); Fowler v. State, 896 P.2d 566, 569
(Okla. Crim. App. 1995); Walker v. State, 826 P.2d 1002, 1004 (Okla. Crim. App. 1992)).
Grounds V and VI, therefore, were procedurally barred by the State’s highest court.
This Court, however, may address the merits of a procedurally barred claim when it “can
easily find it fails on the merits.” See Fields v. Gibson, 277 F.3d 1203, 1217-18 (10th Cir.
The record supports the OCCA’s conclusion that the Petitioner’s preliminary hearing
and his jury trial were not conducted by the same judge. The certified transcript of the
preliminary hearing on January 28, 2011, reflects that Special District Judge C. Steven
Kessinger presided, and Petitioner was bound over for formal arraignment before Judge
Thomas S. Landrith (Dkt. 16-10). Petitioner was formally arraigned before Judge Landrith
on February 28, 2011 (Dkt. 16-12), and the jury trial transcript clearly reflects that Judge
Landrith presided (Dkt. 16-13). Because Petitioner’s underlying claim that the magistrate
judge and trial judge were the same fails on the merits, his claim of ineffective assistance of
counsel for failing to raise this issue at trial also fails. See Hawkins v. Hannigan, 185 F.3d
1146, 1152 (10th Cir. 1999) (holding that counsel’s failure to raise a meritless claim does not
amount to constitutionally ineffective assistance). See also Pavatt v. Royal, 859 F.3d 920,
929 (10th Cir. 2017) (holding that counsel was not ineffective for failing to object to
evidence if the objection was “doomed to fail” (citing Williams v. Trammell, 782 F.3d 1184,
1198 (10th Cir. 2015)).
Petitioner alleges in Ground VII that his appellate counsel failed to raise the issue in
Ground V and Ground VI on direct appeal. He maintains the court records showing that
Judge Kessinger presided over his preliminary hearing are incorrect. The OCCA found no
merit to this claim in his post-conviction proceedings:
Petitioner must show a reasonable probability that appellate counsel would
have prevailed on direct appeal had he argued trial counsel was deficient and
these errors resulted in prejudice. Strickland, 466 U.S. at 687. Petitioner has
failed to provide evidence supporting his claims. Repeated conclusions that
appellate counsel was ineffective are not sufficient proof. This Court has held
that “merely conclusory, unprovable, or unspecific claims of ineffective
assistance of appellate counsel do not raise an issue of material fact.” Logan
v. State, 293 P.3d 969, 978-979 (Okla. Crim. App. 2013). After examining
Petitioner’s claims of ineffective assistance of counsel, pursuant to the Logan
and Strickland standards stated above, Petitioner has failed to establish that
appellate counsel’s performance was deficient or objectively unreasonable and
Petitioner has failed to establish any resulting prejudice. As a result,
Petitioner’s ineffective assistance of appellate counsel claim is without merit.
Lovin, No. PC-2014-249, slip op. at 4.
After careful review, this Court finds the OCCA’s decision on this claim was not
contrary to, or an unreasonable application of Strickland, and the OCCA’s decision was not
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding. See 28 U.S.C. § 2254(d). Ground VII of the petition also fails.
Certificate of Appealability
The Court further finds Petitioner has failed to make a “substantial showing of the
denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). He also has not
shown “at least, that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether [this] court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). A certificate of appealability cannot be issued.
ACCORDINGLY, Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is
DENIED, and Petitioner is DENIED a certificate of appealability.
IT IS SO ORDERED this 18th day of September 2017.
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