Jackson v. Dowling

Filing 18

OPINION AND ORDER by Judge Ronald A. White : Denying 1 petitioner's 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
ERIC JEROME JACKSON,
Petitioner,
v.
TOMMY SHARP, Interim Warden,
Respondent.

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Case No. CIV-16-580-RAW-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. [Doc. 1]. Petitioner, a pro se prisoner in the custody of the
Oklahoma Department of Corrections, is currently incarcerated at the Oklahoma State Penitentiary
in McAlester, Oklahoma. Following a jury trial, Petitioner was convicted of one count of Unlawful
Possession of a Controlled Dangerous Substance (Methamphetamine) (63 O.S.Supp.2012, § 2402), after former conviction of two or more felonies, in Carter County District Court Case No.
CF-2013-344. He was sentenced to fifteen years of imprisonment in accordance with the jury’s
recommendation.
Petitioner was represented by counsel Eric R. Jones at trial and counsel Robert W. Jackson
with the Oklahoma Indigent Defense System on direct appeal. Appellate counsel raised one claim
on direct appeal, arguing that Petitioner’s Sixth Amendment rights were violated when the trial
court refused to allow him to call a material witness in his defense. [Doc. 13-2]. Petitioner’s
conviction was affirmed by the Oklahoma Court of Criminal Appeals (OCCA) on direct appeal.
See Jackson v. State, F-2014-222 (Okla. Crim. App. Jan. 6, 2015) (unpublished). [Doc. 13-4].
In this habeas action, Petitioner alleges that his appellate counsel was ineffective for failing
to argue on direct appeal that trial counsel was ineffective for not objecting when the prosecutor
deliberately deceived the jury by presenting false testimony. Respondent concedes the § 2254
petition is timely and that Petitioner has exhausted his state court remedies for the purpose of

federal habeas corpus review. [Doc. 13 at 3]. 1 Petitioner, appearing pro se, previously filed two
applications for post-conviction relief in the state district court. [Docs. 13-5 and 13-6]. Both
applications were almost identical, and Petitioner asserted the same claim of ineffective assistance
of appellate counsel for failing to raise the claim of ineffective assistance of trial counsel on direct
appeal. The Carter County District Court denied relief [Doc. 13-8], and Petitioner appealed the
state trial court’s order denying post-conviction relief. He filed a petition in error and brief in
support of petition in error with the OCCA. [Docs. 13-9 and 13-10]. The OCCA affirmed the
district court’s denial of post-conviction relief. [Doc. 13-11].
The following have been submitted for consideration in this matter:
A.

Petitioner’s direct appeal brief.

B.

State’s brief in Petitioner’s direct appeal.

C.

Summary Opinion affirming Petitioner’s judgment and sentence.

D.

Petitioner’s applications for post-conviction relief.

E.

State’s response to Petitioner’s application for post-conviction relief.

F.

Order denying Petitioner’s application for post-conviction relief.

G.

Petition in error.

H.

Brief in support of petition in error.

I.

Order affirming denial of post-conviction relief.

J.

State court record.

K.

Transcripts. 2

L.

Trial exhibits.

Standard of Review

Under the Antiterrorism and Effective Death Penalty Act, federal habeas corpus relief is
proper only when the state court adjudication of a claim:
1

This court's record citations refer to the CM/ECF page numbers in the upper right-hand
corner of each document.
2
The transcript of jury trial [Doc. 14-2] and transcript of sentencing [Doc. 14-4] were filed
by Respondent. For unknown reasons, a transcript of preliminary hearing from a different state
case, Carter County Case No. CF-2013-661, was also filed herein. [Doc. 14-1].
2

(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).

Factual Background
On June 26, 2013, at approximately 1:40 a.m., Ardmore Police Officer Juan Galicia pulled
behind a truck and noticed the operational failure of the center brake light. [Doc. 14-2 at 123,
134]. Before the officer could make the stop, however, the vehicle turned into a driveway and its
driver turned off the vehicle headlamps. Id. at 123. Thinking such activity was strange, Officer
Galicia traveled a short distance down the road and set up near an intersection. Id. After a brief
period of time, the vehicle approached the intersection. Id. at 123-24. Officer Galicia pulled
behind the truck and activated his overhead lights to initiate a traffic stop. Id. at 124.
The vehicle came to a stop and Officer Galicia made contact with the driver and three
occupants. Id. Officer Galicia asked Petitioner, who was the driver, to provide a driver’s license
and insurance verification. Id. at 124-25. Petitioner provided an insurance verification for a
different vehicle, but not for the truck that had been stopped. Id. at 125. He did not provide a
driver’s license. Id. After gathering information about Petitioner and his passengers, the officer
contacted dispatch for a license and warrant check. Id. Petitioner did not hold a valid driver’s
license, and he was placed under arrest and handcuffed. Id. at 126, 128, 135. Officer Galicia
testified at trial that he “conducted two series of searches” on Petitioner:
The first was a pat search, which is you pat the outer clothing -- clothing around
the pockets, anything where you need to go inside to ensure that there’s nothing in
there that could be dangerous to you or to him, whether it be weapons, needles,
sharp objects. Once I conducted that and felt that it was safe for me to go inside
his pockets, I conducted a search of his pockets, reaching inside of all of his pockets

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and making sure he had nothing – no illegal contraband, anything illegal, any
weapons, such as a pocketknife or anything that could be used as a weapon[.]
Id. at 126-27. Officer Galicia explained that these searches were “not necessarily” designed to
find something like a small baggie, although he was checking for both weapons and drugs. Id. at
127, 135. The officer also confirmed that part of the search involved the patting down of both
legs. Id. at 136. Officer Galicia then transported Petitioner to the Carter County Jail. Id. at 128.
Petitioner’s girlfriend at the time, Cheyenne Burkett, who had been seated in the front passenger
seat of Petitioner’s truck, was arrested because of a local warrant, and taken to the jail by another
officer responding to the scene. Id. at 128, 165.
Officer Galicia arrived at the Carter County Detention Center and pulled into the “sally
port,” an enclosed garage-like structure attached to the jail building. Id. at 128. Petitioner was
escorted to the book-in area by Deputy Danny Renken, and Officer Galicia searched the back seat
area where Petitioner had been for anything that may have been left behind. Id. at 128, 137, 145.
Deputy Renken told the jury that, at one point, Petitioner’s pants were “sagging down” and the
deputy pulled them up. Id. at 145. Petitioner’s handcuffs were removed, and Deputy Renken
asked Petitioner whether there was anything in his clothing that might stick or poke the deputy
during the pat down. Id. at 146-47. He then described his search of Petitioner:
As I was proceeding to pat him down and all that stuff, when I got to his – his legs
and stuff like that, I told him to raise his left leg up so I could check his sock out,
and a little package fell out onto the floor down by his foot.
Id. at 147. The deputy also provided the following responses during cross-examination:
Question: Okay. Now, you pulled his pants up and nothing fell out then; is that
correct?
Answer: Correct.
Question: Do you know exactly from where - - from where this baggy fell?
Answer: As soon as he lifted his foot up when I was going to pat down his sock
and check his feet out, it fell out right on the floor out of his pant leg.
Question: Was it near his - - came out near his sock or around his sock or around
his ankle?
Answer: I don’t know. It just fell out of his pant legs and onto the ground.
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Id. at 151.
The package, more specifically described as a small plastic baggie wrapped tightly within
another small plastic baggie, was picked-up by the deputy at approximately the same time that
Officer Galicia was making his way from the sally port to the book-in area. [Doc. 14-2 at 128-29,
147-48, 155; Doc. 14-3 at 3]. Deputy Renken gave the baggie to Officer Galicia for processing,
and the officer was informed that it “had fallen out of the Defendant’s pant leg.” [Doc. 14-2 at
128-29, 138, 147-48, 156-57, 197]. The deputy acknowledged at trial that this was not the first
time that he had found contraband when doing a search on an inmate, and further agreed that it
happens with some regularity. Id. at 155-56.
The State next called Mistie Burris as a witness. Id. at 158. Ms. Burris, a criminalist
supervisor at the Oklahoma State Bureau of Investigation, testified that she had performed three
different analyses on the substance within the baggies. Id. at 162. The package contained 1.92
grams of methamphetamine. Id.
In his case-in-chief, Petitioner told a story contrary to that of Officer Galicia and Deputy
Renken. Petitioner admitted his prior usage of methamphetamine, but denied it had been on his
person in the jail that night. Id. at 173-76, 182, 189-90. Petitioner focused on the multiple
searching opportunities the police had to discover the drugs, stating that he had been searched as
many as four separate times and that the drugs did not drop from his pant leg during the search.
Id. at 170-76, 182-83, 189-92. He claimed that Officer Galicia had found the drugs on the floor
behind him, that Deputy Renken was lying, and that the footage from the surveillance cameras in
the book-in area would “prove” his innocence, but that the footage was unavailable. Id. at 17273, 175, 179, 183-84. According to the Petitioner, Officer Galicia had previously expressed his
intent at the scene “to get [Petitioner] off the streets.” Id. at 169, 183. Petitioner also testified that
other arrestees, including his former girlfriend, were seated on the bench in the book-in area when
the drugs were found. Id. at 173-75. When asked if he thought he was being framed by Deputy
Renken and Officer Galicia, Petitioner stated “I can’t say they’re framing me, but they found meth
on the floor. They didn’t get it off of me.” Id. at 189.
Petitioner admitted that he had been previously convicted of three felonies: Possession of
a Stolen Vehicle; Possession of a Controlled Dangerous Substance; and Unlawful Distribution of
5

a Controlled Dangerous Substance Within 2000 Feet of a School, After Former Conviction of a
Felony. [Doc. 14-2 at 176-77, 179-81, 192; Doc. 14-3 at 7-12]. Petitioner also conceded that he
used illegal drugs and had been doing so since he “was 10 or 11” years old. [Doc. 14-2 at 18182].
Deputy Michael Armstrong, the jail administrator, rebutted Petitioner’s suggestions of
sinister motives regarding the destruction of the surveillance footage. Deputy Armstrong testified
that Petitioner had never reported to him that others in the jail had conspired to plant
methamphetamine on Petitioner. Id. at 194. Had anyone made a request for him to do so, Deputy
Armstrong stated, he would have “[p]ulled the video and burn[ed] the disk off.” Id. Deputy
Armstrong also testified that the jail surveillance videos are recorded over “about every three
weeks.” Id. The jail administrator further explained that, even if the recordings had been
preserved, there was no guarantee that Petitioner’s incident would have been caught on camera.
Id. at 195.
Lastly, Officer Galicia was recalled by the State in rebuttal. The officer did not recall
saying “We’ve got to get you off the streets” before Petitioner was arrested. Id. at 196.

Appellate counsel was ineffective for failing to argue on direct appeal that trial counsel was
ineffective for not objecting when the prosecutor deliberately deceived the jury by presenting
false testimony.
Petitioner essentially claims that he was framed by the prosecutor and State’s witnesses.
He contends that the drugs were actually found by Officer Galicia on the floor of the jail’s bookin area, that Officer Galicia had previously stated that he wanted to get Petitioner off the streets,
and that Deputy Renken was lying when he said the drugs fell out of Petitioner’s pant leg.
Petitioner told the jury that he had talked with Deputy Renken about his case “three or four times”
and that the deputy’s story “changed every time.” Id. at 184. At some point during the
conversations, Petitioner allegedly asked Deputy Renken “why he lied on [Petitioner], and . . . he
said it was on camera that it fell out of [Petitioner’s] sock.” Id. Petitioner then claims that he
asked his lawyer “Can you have them present those cameras? [Bec]ause I know those cameras will

6

prove my innocence.” Id. It was at this point, according to the Petitioner, that his lawyer “comes
back telling [him] that the DA said it’s been recorded over, conveniently.” Id.
Petitioner now directs the court’s attention to page 149 of the trial transcript. In support of
his sole ground requesting habeas relief, Petitioner is confident that Deputy Renken discussed the
events surrounding Petitioner’s arrest with Deputy Armstrong, the jail administrator, and that
Deputy Armstrong therefore knew that Petitioner was denying that the drugs belonged to him, and
that Deputy Armstrong destroyed the surveillance tapes “in bad faith,” knowing that the
surveillance footage was “possibly exculpatory” and could prove his innocence. [Doc. 1 at 4].
Petitioner does not claim that he has seen the footage, and there is no way of knowing whether the
cameras actually captured the moment when the drugs were found in the jail. Nonetheless,
Petitioner claims the prosecutor knew Deputy Armstrong’s testimony at trial was false, and that
his trial attorney was ineffective for failing to object to the prosecution’s use of the perjurious
testimony, and that his appellate counsel was therefore ineffective for failing to raise the claim of
ineffective assistance of trial counsel on direct appeal.
In response, Respondent directs the court’s attention to Hawkins v. Hannigan, 185 F.3d
1146, 1152 (10th Cir. 1999) and Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003), arguing
that the OCCA’s determination that Petitioner was not denied effective assistance of appellate
counsel is not contrary to, or an unreasonable application of, Supreme Court precedent as set forth
in Strickland v. Washington, 466 U.S. 688 (1984). [Doc. 13 at 20]. Respondent more specifically
sets forth the following argument:
The OCCA concluded that Petitioner had established neither deficient performance
nor resulting prejudice from his appellate counsel’s failure to raise a claim on direct
appeal against his trial counsel for failing to object to Deputy Armstrong’s
testimony (Exhibit 11, p. 4). With formidable grace, the OCCA framed Petitioner’s
claim as strongly and clearly as could be gleaned from his pleadings. The OCCA
found the two underlying factual premises for Petitioner’s claim– that the jail
surveillance tapes contained exculpatory evidence and were purposely destroyed
by Deputy Armstrong – unsupported by the record (Exhibit 11, p. 5). This
determination by the state court is correct, as only Petitioner makes the giant
inferential leap, without any evidence, that trial counsel’s objection during Deputy
Armstrong’s testimony would have somehow resulted in proof that (a) a
surveillance tape existed showing Petitioner in the sally port area with another
person planting methamphetamine on him; or (b) Deputy Armstrong purposely

7

destroyed such a surveillance tape knowing that it showed Petitioner in the sally
port area with another person planting methamphetamine on him.
Petitioner offered nothing but speculation and innuendo that the surveillance video
portrayed him in the area, that the video would have revealed he was innocent of
the crime, or that Deputy Armstrong had maliciously destroyed the video because
it contained exculpatory evidence. Without any proof that Petitioner or his alleged
innocence was memorialized on the surveillance tape, or that Deputy Armstrong
purposely allowed the tape containing alleged exculpatory evidence to be taped
over or otherwise destroyed, a viable claim of ineffective assistance of trial counsel
for not lodging an objection at trial during Deputy Armstrong’s testimony would
have been fruitless on direct appeal. Neither deficient performance nor prejudice
could be established because there was never any evidence, aside from Petitioner’s
self-serving declarations, that the methamphetamine that flowed out underneath his
clothing did not belong to him. Nor was there any evidence that the discovery of
Petitioner’s methamphetamine would have even been captured clearly on the
surveillance video had it been preserved. And although Petitioner points [to]
testimony that Deputy Renken, when Deputy Armstrong came in to work the next
morning, told Deputy Armstrong “what happened that night[,]” nothing about what
appears to have been a routine shift-change encounter between officers imputes the
insidious motivation that Petitioner brands upon Deputy Armstrong to intentionally
destroy exculpatory evidence or testify falsely (Exhibit 13; Tr. 149).
Petitioner’s appellate counsel was left with precisely the type of speculative,
“‘conclusory, unprovable, [and] unspecific claims’” that the OCCA correctly held
to be meritless (Exhibit 11, pp. 4-5) (quoting Logan, 293 P.3d at 978-79). See
Hooks, 689 F.3d at 1187 (speculation is not enough to demonstrate reasonable
probability the outcome would be different). So lacking in substance was
Petitioner’s claim, the OCCA observed, that it failed to even raise an issue of
material fact (Exhibit 11, p. 5). Therefore, the underlying ineffective assistance of
trial counsel claim advanced by Petitioner would have been meritless, and appellate
counsel was not ineffective for not including it in Petitioner’s direct appeal.
Hawkins, 185 F.3d at 1152.
As Petitioner’s underlying claim of trial ineffectiveness had no merit, the OCCA
did not unreasonably apply Strickland when evaluating Petitioner’s ineffective
assistance of appellate counsel claim in his application for post-conviction relief.
Cargle, 317 F.3d at 1202. Petitioner makes no attempt in this Court to satisfy the
“doubly deferential” standard of review by showing any probability, much less a
reasonable one, that he would have prevailed on direct appeal had the trial counsel
ineffectiveness claim been raised. Smith, 528 U.S. at 285; Milton, 744 F.3d at 669;
Byrd, 645 F.3d at 1167-1168. In fact, other than mentioning some of the statutory
words in his ground for relief, Petitioner presents no argument at all as to how the
OCCA’s order affirming the denial of his post-conviction application was “contrary
to, or an unreasonable application of, clearly established federal law” (see Petition,
pp. 3-3a).
Id. at 20-23 (footnotes omitted).
8

Of significant importance, the OCCA affirmed the state court’s denial of post-conviction
relief and provided the following explanation:
We find no merit in [Petitioner’s] claim as alleged in his Post-Conviction
application warranting relief. [Petitioner’s] ineffective assistance of appellate
counsel claim based upon his assessment of Deputy Armstrong’s motives and his
claim of exculpatory police video is speculative, and not supported by any credible
evidence. Other than [Petitioner’s] version of events, nothing in the record supports
a claim that Deputy Armstrong purposely destroyed evidence, much less that the
tape in question contained exculpatory evidence of [Petitioner’s] commission of the
offense.
After examining [Petitioner’s] claims of ineffective assistance of counsel, based on
appellate counsel’s failure to adequately raise these claims, and pursuant to this
Court’s decision in the Logan and Strickland standards stated above, we find
[Petitioner] has failed to establish that appellate counsel’s performance was
deficient or objectively unreasonable and has failed to establish any resulting
prejudice. To support his ineffective assistance of appellate counsel claim,
[Petitioner] must show that appellate counsel would have prevailed on direct appeal
had he argued trial counsel was deficient and that these enumerated errors resulted
in prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. His claims as presented
in this application for Post-Conviction relief are not supported by the appeal record
filed in this matter. 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, 2013 OK CR 2, at ¶ 23, 293 P.3d at 978-979. [Petitioner’s]
ineffective assistance of appellate counsel claim is without merit.
Jackson v. State, No. PC-2016-279, slip op. at 4-5 (Okla. Crim. App. June 15, 2016) (unpublished).
[Doc. 13-11 at 4-5].
The Sixth Amendment guarantees criminal defendants the effective assistance of counsel.
To prevail on his claim of ineffective assistance of counsel, the defendant must prove deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficiency, the defendant must overcome the strong presumption that counsel’s conduct fell within
the wide range of professional conduct, including trial strategy. Id. at 689. To prove prejudice,
the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. In Harrington v. Richter, 562
U.S. 86 (2011), the Supreme Court further explained:
Surmounting Strickland’s high bar is never an easy task. An ineffective-assistance

9

claim can function as a way to escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very
adversary process the right to counsel is meant to serve. Even under de novo
review, the standard for judging counsel’s representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the relevant proceedings,
knew of materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is all too tempting to second-guess counsel’s
assistance after conviction or adverse sentence. The question is whether an
attorney’s representation amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or most common custom.
See Richter, 562 U.S. at 105 (internal citations and quotation marks omitted).
More recently, in Johnson v. Carpenter, 918 F.3d 895 (10th Cir. 2019), the Tenth Circuit
Court of Appeals provided the following guidance regarding the application of Strickland in
habeas corpus proceedings:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this
case. AEDPA “circumscribes our review of federal habeas claims that were
adjudicated on the merits in state-court proceedings.” Hooks v. Workman, 689 F.3d
1148, 1163 (10th Cir. 2012). Under AEDPA, a federal court may grant relief to a
state prisoner only if he has established
that the state court’s adjudication of the claim on the merits (1)
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law”; 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.”
Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C.
§ 2254(d)).
This standard is “highly deferential [to] state-court rulings” and demands that those
rulings “be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24,
123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). “If this standard is difficult
to meet, that is because it was meant to be. ... It preserves authority to issue the writ
in cases where there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [Supreme Court] precedents. It goes no further.”
Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)
(citations omitted).
The burden on the petitioner is particularly difficult when he is pursuing an
ineffective assistance of counsel claim. This is because the state court must
unreasonably apply Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A Strickland claim will be sustained only when (1) “counsel
10

made errors so serious that counsel was not functioning as ‘counsel’ ” and (2) “the
deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. Thus,
“[t]he standards created by Strickland and § 2254(d) are both highly deferential,
and when the two apply in tandem, review is doubly so. The Strickland standard is
a general one, so the range of reasonable applications is substantial.” Richter, 562
U.S. at 105, 131 S.Ct. 770 (citations omitted).
Federal courts, therefore, “must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d). When
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. Our only task, then, is to determine whether
reasonable jurists could agree with the OCCA that [petitioner’s] trial and appellate
counsels acted reasonably. See id. AEDPA allows us to go no further.
*

*

*

To succeed on his claim of ineffective assistance of appellate counsel under the
Sixth Amendment, [Petitioner] must establish “both constitutionally deficient
performance and prejudice as required by Strickland.” Moore v. Gibson, 195 F.3d
1152, 1180 (10th Cir. 1999). This means that a court cannot find ineffective
assistance of appellate counsel unless there is “a reasonable probability the omitted
claim would have resulted in relief” on direct appeal, Neill v. Gibson, 278 F.3d
1044, 1057 n.5 (10th Cir. 2001), because there can be neither deficient performance
nor prejudice “[i]f the underlying issue was not valid,” English v. Cody, 241 F.3d
1279, 1283 (10th Cir. 2001).
See Johnson v. Carpenter, 918 F.3d at 899-900. See also Hawkins v. Hannigan, 185 F.3d 1146,
1152 (10th Cir. 1999) (“When a habeas petitioner alleges that his appellate counsel rendered
ineffective assistance by failing to raise an issue on direct appeal, we first examine the merits of
the omitted issue. If the omitted issue is meritless, then counsel’s failure to raise it does not amount
to constitutionally ineffective assistance.”).
As noted above, Petitioner claimed that Officer Galicia wanted to get him off the streets.
Petitioner also contended that Officer Galicia found the drugs on the floor while Petitioner and
other arrestees were in the book-in area, meaning the drugs were therefore not in his possession,
and that Deputy Renken had lied about seeing the drugs drop from Petitioner’s pant leg. Petitioner
argues that if the package of methamphetamine had been on his body, it would have been
discovered during one of the searches prior to the book-in. He is confident that the surveillance
footage of the room would have proven his innocence. Each of these claims were asserted during
the jury trial and were based solely on the testimony of Petitioner. He also admitted that he had
11

three prior felony convictions, two of which were related to crack cocaine, and that he had been
using drugs since he was 10 or 11 years old, explaining that “I used drugs before [the arrest date],
the whole time, every chance I get,” and that “I have used methamphetamine before.” [Doc. 14-2
at 179-82].
Petitioner now relies heavily upon the testimony found on page 149 of the trial transcript.
Petitioner speculates that Deputy Renken told Deputy Armstrong that he “found the
methamphetamine on Petitioner,” and in particular, “that the Petitioner denied that the
methamphetamine belonged to him.” [Doc. 1 at 4; Doc. 15 at 4, 7, 8] (emphasis added by this
court). Petitioner then argues that Deputy Armstrong destroyed the surveillance footage, knowing
that the footage could prove his innocence, and thereafter lied to cover up his misconduct.
Petitioner also leaps to the conclusion that his trial counsel was ineffective for not objecting when
the prosecutor deliberately deceived the jury by presenting false testimony, and that his appellate
counsel was ineffective for failing to raise the claim on direct appeal. This argument falls flat.
Petitioner’s testimony was clearly at odds with the testimony from the State’s witnesses.
Deputy Renken unequivocally testified that the drugs did, in fact, drop out of Petitioner’s pant leg
in the book-in room. The deputy acknowledged that such things can happen, even after an inmate
has been previously searched for contraband. Moreover, Deputy Renken, when asked if he had
notified anyone else that he had found drugs, simply stated that he “talked to the jail administrator
in the morning and told him what happened that night.” [Doc. 14-2 at 149]. Deputy Renken’s
statement was vague and Petitioner was not present when the conversation took place. There is
no way to know whether the deputy specifically told the jail administrator that Petitioner had
denied the methamphetamine belonged to him. Furthermore, Deputy Armstrong testified that he
did not recall Petitioner ever contacting him regarding the alleged setup, and that he would have
“[p]ulled the video and burn[ed] the disk off” if Petitioner had reported the allegations to him. Id.
at 194. He explained that the surveillance footage is recorded over approximately every three
weeks.
The jury also heard testimony from Officer Galicia about the traffic stop. Petitioner was
placed under arrest because he was driving without a license. And despite Petitioner’s claims to
the contrary, Officer Galicia testified that he did not find the drugs on the floor in the book-in area,
12

that Deputy Renken had handed the drugs to the officer after they were found, and that the officer
did not recall making statements that “We’ve got to get you off the streets.” Id. at 196-97.
Lastly, there is no evidence that Petitioner, the State’s witnesses or the prosecutor reviewed
the surveillance footage. As noted above, Petitioner was arrested and transported to the jail on
June 26, 2013. The jail administrator explained that the surveillance footage would have been
available for approximately three weeks. Petitioner’s jury trial took place the following year, on
February 4, 2014. Petitioner alleges that the jail cameras would have shown he was innocent. On
the other hand, the surveillance footage, if available, could have provided additional evidence
supporting Petitioner’s conviction. There is simply no way of knowing what the surveillance
footage would have revealed.
Petitioner claims appellate counsel was ineffective for failing to raise a claim of ineffective
assistance of trial counsel, alleging trial counsel was ineffective for not objecting when the
prosecutor deliberately deceived the jury by presenting false testimony. The court is unaware of
any evidence, other than Petitioner’s version of events, which undermines Deputy Renken’s
testimony that the drugs dropped from Petitioner’s pant leg, or that proves Deputy Armstrong
destroyed the surveillance footage and thereafter lied on the stand to cover up the alleged
misconduct. In other words, a prosecutor would have no reason to doubt the credibility of the
State’s witnesses, and the Petitioner has not shown that the prosecutor deliberately deceived the
jury by presenting false testimony. Trial counsel would have no reason to object under the
circumstances, meaning Petitioner has not shown that trial counsel’s performance was deficient or
that he suffered prejudice as a result. As noted by Respondent, “[w]ithout any proof that Petitioner
or his alleged innocence was memorialized on the surveillance tape, or that Deputy Armstrong
purposely allowed the tape containing alleged exculpatory evidence to be taped over or otherwise
destroyed, a viable claim of ineffective assistance of trial counsel for not lodging an objection at
trial during Deputy Armstrong’s testimony would have been fruitless on direct appeal.” [Doc. 13
at 22].
The court agrees with the OCCA’s conclusion that Petitioner’s ineffective assistance of
appellate counsel claim is without merit. Because the underlying claim of ineffective assistance
of trial counsel lacks merit, appellate counsel did not perform deficiently in failing to raise the
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claim. The OCCA’s decision was not contrary to, nor an unreasonable application of, Strickland.
Petitioner’s Ground I is denied.

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). In addition, he has not
“demonstrate[d] that reasonable jurists would find [this] court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate
of appealability shall be denied.
ACCORDINGLY, Petitioner’s petition for a writ of habeas corpus [Doc. 1] is DENIED,
and a certificate of appealability is DENIED.
It is so ordered this 6th day of January, 2020.

__________________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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