Cone v. Dowling
Filing
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OPINION AND ORDER by District Judge James H. Payne :Denying 9 respondent's Motion to Dismiss and directs respondent to file a response to petitioner's remaining claims within thirty (30) days. (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHN ELDRIDGE CONE, JR.,
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Petitioner, )
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v.
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JANET DOWLING, Warden,
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Respondent. )
Case No. CIV-16-384-JHP-KEW
OPINION AND ORDER
This matter comes before the court on petitioner’s petition for writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2254. Petitioner an inmate currently incarcerated at the Dick
Conner Correctional Center located in Hominy, Oklahoma, attacks his conviction in the
District Court of Muskogee County, Case No. CF-2012-749 for the following crimes: Count
I, Murder in the First Degree in violation of Okla. Stat. tit. 21, § 701.7 and Count II, Assault
and Battery with a Deadly Weapon in violation of Okla. Stat. tit. § 652(C).
Petitioner was convicted by a jury on March 12, 2014. The jury recommended life
imprisonment on Count I and and five years on Count II. The trial court judge sentenced
petitioner accordingly and ordered the sentences to be served concurrently followed by a
two-year post imprisonment community supervision upon release. Petitioner timely
appealed his conviction to the Oklahoma Court of Criminal Appeals (OCCA), raising the
following issues:
1) whether the instructions issued by the trial court were fundamentally
defective;
2) whether he was prejudiced by prosecutorial misconduct;
3) whether he received the effective assistance of counsel; and
4) whether the cumulative effect of all the errors deprived him of a fair trial.
On August 5, 2015, the OCCA denied relief. Cone v. State, No. F-2014-477, slip op. at 1-2
(Okla. Ct. Crim. App. 2015). (Dkt. # 1, at pp. 13-14). Petitioner did not seek certiorari.
Further, Petitioner never sought any post-conviction relief in state court.
On September 9, 2017, petitioner filed the instant petition for writ of habeas corpus.
A liberal construction of the petition reveals petitioner is claiming the following errors entitle
him to release from custody: (1) ineffective assistance of trial counsel for failing to consult
and call an expert witness to testify about the multiple drugs contained in the victim’s system
at the time of the crime and the effects those drugs would have had on the victim;1 (2)
ineffective assistance of trial and appellate counsel for failing to “properly” object to and
appeal the “fundamentally defective” jury instructions; (3) ineffective assistance of trial and
appellate counsel for failing to object to alleged instances of prosecutorial misconduct which
prejudiced petitioner; (4) ineffective assistance of trial and appellate counsel violated his
Fifth Amendment right to a fundamentally fair trial and his Sixth Amendment right to
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The petition indicates petitioner did not exhaust this ground in state court due to ineffective assistance of appellate
counsel. Petitioner states, however, that this ground relates to his exhausted claims of ineffective assistance of counsel. See,
Dkt. 1, at p. 3.
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effective assistance of counsel; and (5) ineffective assistance of appellate counsel for not
raising a claim of cumulative error.
On October 11, 2016, respondent filed a motion to dismiss (Dkt. # 9) and a brief in
support thereof (Dkt. # 10) claiming the petition is a mixed petition, or in other words that
not all claims contained within said petition have been exhausted in state court. In her brief,
respondent detailed how petitioner had exhausted some claims of ineffective assistance of
trial counsel but had not exhausted any claims of ineffective assistance of appellate counsel.
On July 28, 2017, this court advised petitioner that his petition was subject to
dismissal for failure to exhaust all of his claims in state court. Petitioner was given an
opportunity to dismiss unexhausted claims or continue with his original petition. On August
16, 2017, petitioner advised the court he intended to continue with his original petition, but
he “asks that the Court dismiss only the unexhausted claims and proceed on the merits of the
exhausted claims.” Dkt. # 13, at p. 1.
To the extent petitioner never raised any claims of ineffective assistance of appellate
counsel in state court, this court finds those claims are unexhausted. Further, based upon the
pleadings, the only claims of ineffective assistance of counsel raised in state court dealt with
trial counsel’s failure to request appropriate jury instructions and/or failure to object to
alleged prosecutorial misconduct. See, Brief of Appellant, Dkt. 10-1, at pp. 25-27. As a
result, this court finds those two allegations of ineffective assistance of trial counsel are the
only ineffective assistance of counsel claims which have been exhausted. Accordingly, after
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liberally construing the petition, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991),
this court finds petitioner will be allowed to proceed on the following claims for relief:
1) Trial counsel was ineffective for failing to object to allegedly defective
instructions;
2) Trial counsel was ineffective for failing to object to alleged incidences of
prosecutorial misconduct; and
3) Cumulative error deprived petitioner of a fair trial.
As a result, this court hereby denies respondent’s motion to dismiss (Dkt. # 9) and directs
respondent to file a response to petitioner’s remaining claims within thirty (30) days.
It is so ordered on this 21st day of August, 2017.
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