Crowder v. Miller et al

Filing 21

ORDER adopting Report and Recommendations re 16 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 10/20/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

CLAYTON SCOTT CROWDER,
Petitioner,
v.
JUSTIN JONES,1
Respondent.

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Case No. CIV-10-550-D

ORDER
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 16] issued by United States Magistrate Judge Bana Roberts pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Petitioner has timely objected to the Report, which recommends the
denial of his Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus. The
Court must make a de novo determination of any portion of the Report to which a specific
objection is made, and may accept, modify, or reject the recommended decision in whole or
in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus with respect
to convictions of unlawful possession of a controlled drug with intent to distribute and
possession of a firearm during the commission of a felony, which resulted in consecutive
prison sentences totaling 25 years. The Oklahoma Court of Criminal Appeals (OCCA)
affirmed his convictions and sentences, as well as a denial of his application for post-

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The Court adopts the substitution of parties effected by Judge Roberts and adopted by Petitioner.

conviction relief. In the Report, Judge Roberts conducts a thorough analysis of the issues
and concludes that the Amended Petition should be denied. Judge Roberts finds that
Petitioner’s claim alleging a Fourth Amendment violation is barred from consideration, that
a claim of ineffective assistance of trial counsel lacks merit, and, with regard to all other
claims raised in the Amended Petition, that Petitioner has failed to show the OCCA reached
a result that was contrary to, or an unreasonable application of, clearly established federal
law.
In his Objection, Petitioner challenges the recommended denial of relief only with
respect to his Fourth Amendment claim. He also objects to Judge Roberts’ failure to
consider a belated issue raised in Petitioner’s reply brief based on new information about a
law enforcement officer involved in his case, Rodney Richards. Apart from these two
objections,2 Petitioner has waived further review of all other issues addressed in the Report.
See United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996); Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
Upon de novo consideration of the issues raised by the Objection, the Court finds that
Judge Roberts’ analysis is correct. Petitioner reargues the merits of his first ground for relief,
that evidence obtained in violation of the Fourth Amendment was used to convict him.
However, Judge Roberts properly determined that this claim is barred from consideration

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Petitioner also objects to Judge Roberts’ alleged view of his pleadings like those of an attorney,
invoking the protections of Haines v. Kerner, 404 U.S. 519 (1972), and Hall v. Bellmon, 935 F.2d 1106 (10th
Cir. 1991). He does not identify any particular pleading that has been denied a liberal construction, and thus,
this objection fails to raise any specific issue for determination by the Court.

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under Stone v. Powell, 428 U.S. 465 (1976), which precludes federal relief when the state has
provided an opportunity for full and fair litigation of a Fourth Amendment claim. Petitioner
ignores Judge Roberts’ conclusion that the rule of Stone applies. Thus, the Court finds that
Petitioner presents no issue for decision by the Court regarding his first ground for relief.
Concerning Officer Richards, Petitioner argued for the first time in his reply brief, and
presented exhibits to show, that new information about Officer Richards drew into question
the veracity of his testimony, which was critical to the state’s case. This information consists
of reports that Officer Richards was terminated as a police officer and indicted on charges
of perjury in 2010 based on allegations of misconduct raised in 2009. Petitioner’s offenses
and arrest occurred in 2007; he was sentenced in 2008, and his direct appeal was decided the
same year. Because this new information was not available before Petitioner’s criminal
judgment became final, it is unclear how it relates to the claims asserted in the Amended
Petition. As noted by Judge Roberts, to the extent Petitioner argues that similar information
might have undermined Officer Richards’ credibility, the credibility of witnesses has no
bearing on Petitioner’s claim for relief based on the sufficiency of evidence. See Report
[Doc. No. 16] at 13, n.12; see also Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996).
Because the new information in Petitioner’s reply brief did not affect the determination of
any claim raised in the Amended Petition, the Court finds no error in Judge Roberts’ failure
to consider it.3

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In his Objection, Petitioner seems to raise a new argument that his trial counsel was ineffective for
failing to investigate Officer Richards’ credibility and to uncover similar information that might have affected
(continued...)

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In short, the Court finds no merit in Petitioner’s Objection, and cannot add
significantly to Judge Roberts’ discussion of the issues. Therefore, the Court adopts the
Report and Recommendation in its entirety as though fully set forth herein.
IT IS THEREFORE ORDERED that the Amended Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus is denied. Judgment shall be entered accordingly.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. §2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon
consideration, the Court finds this standard is not met in this case. Therefore, a COA will
be denied. The denial shall be included in the judgment.
IT IS SO ORDERED this 20th day of October, 2011.

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counsel’s advice and Petitioner’s decision about whether to testify. However, the Court declines to consider
new matter raised in opposition to the magistrate’s report. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s recommendation are
deemed waived.”).

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