Sanchez v. Dowling et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION for 14 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 1/19/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CARLOS G. SANCHEZ,
Petitioner,
v.
JASON BRYANT, Warden,
Respondent.

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Case No. CIV-15-79-R

ORDER
Before the Court are the Report and Recommendation of United States Magistrate
Judge Gary M. Purcell [Doc. No. 14] and Petitioner’s Objection to the Report and
Recommendation [Doc. No. 15]. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews
the Report and Recommendation de novo in light of Petitioner’s objections. Petitioner
objects to the findings and conclusions of the Magistrate Judge on each of his claims.
Although Petitioner’s arguments are largely the same arguments that were addressed by the
Magistrate Judge, nevertheless, the Court addresses Petitioner’s arguments in his Objection.
First, Petitioner objects to the “Background” section of the Report and
Recommendation but because that section was not material to the Magistrate Judge’s
findings and conclusions, that objection is irrelevant.
Next, Petitioner argues that Stone v. Powell, 428 U.S. 465 (1976) is not applicable
because he did not have a full and fair opportunity to litigate his Fourth Amendment claims
that his traffic stop was unlawful and that the vehicle search was unlawful. However, as the
Magistrate observed, Petitioner raised these issues by a motion to suppress and on appeal.

See Report and Recommendation at pp. 5-6. A hearing was conducted on the motion to
suppress. Petitioner has not shown that the state courts did not afford Petitioner a full and
fair opportunity to litigate his Fourth Amendment claims and thus Stone v. Powell bars
consideration of those claims now.
With respect to Ground Three of Petitioner’s petition, Petitioner merely reargues that
certain evidence that was presented at trial was more prejudicial than probative. He argues
that the Oklahoma Court of Criminal Appeals (OCCA) did not address the alleged error in
admitting testimony about indicators of deception in body language allegedly observed
during the traffic stop and only applied state law in its disposition of Petitioner’s claims as
to other alleged evidentiary errors. However, the OCCA found that the admission of
testimony concerning deception indicators was harmless error. Moreover, state court
evidentiary rulings do not warrant habeas relief unless they render a trial so fundamentally
unfair as to violate due process. See e.g., Payne v. Tennessee, 501 U.S. 808, 825 (1991).
The Magistrate Judge specifically concluded that admission of the testimony concerning
allegedly deceptive body language did not render Petitioner’s trial fundamentally unfair, a
conclusion in which this Court concurs. The Magistrate further found that the OCCA’s
rejection of the other alleged errors in admission of evidence did not result in an adjudication
that was contrary to or an unreasonable application of the principle stated in Payne, see
Report and Recommendation at p. 10, a conclusion in which the Court concurs.
Petitioner next claims that his mistrial motion was improperly denied by the OCCA.
He asserts that the issue of whether he had a prior criminal history was very important to the
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jury because of the weakness of the State’s case and the lack of any direct evidence of guilt.
The OCCA found that there was no discovery violation warranting a mistrial due to
testimony about Petitioner’s prior arrest. The admission of that testimony did not render
Petitioner’s trial fundamentally unfair and thus, the OCCA’s adjudication of this claim was
not contrary to or an unreasonable application of clearly established Supreme Court
precedent. There was substantial circumstantial evidence that Petitioner was guilty of the
crimes charged.
As to his Fifth Ground for Relief, Petitioner argues that there was prosecutorial
misconduct because the prosecutor shifted the burden of proof to Defendant, mocked the
defense theory and provided personal opinion evidence. First, the prosecutor in his closing
argument did not shift the burden of proof and the other prosecutorial argument about which
Petitioner complains was fair comment and inferences from the evidence. More importantly,
for the purpose of this proceeding, Petitioner has not shown that his trial was rendered
fundamentally unfair due to the alleged prosecutorial misconduct and Petitioner has not
shown that the OCCA’s disposition of Petitioner’s prosecutorial misconduct claims was
contrary to or involved an unreasonable application of Supreme Court authority.
With respect to Ground Six, Petitioner argues that there was insufficient evidence to
support his drug trafficking conviction because there was no evidence that he possessed the
drugs found hidden in the rental car, someone else could have put them there and there is no
evidence that Petitioner was ever in the back seat or opened and closed the rear door. He
states that he was convicted of possessing a nut driver and bit. Petitioner’s argument ignores
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significant circumstantial evidence of constructive possession of the drugs, considering
where they were found and that Petitioner had in his possession a drill and bit that would
allow access to the drugs. The OCCA’s adjudication of Petitioner’s insufficient evidence
claim was not contrary to or an unreasonable application of Jackson v. Virginia, 443 U.S.
307, 319 (1979) because reasonable jurors could find the essential elements of the drug
trafficking crime beyond a reasonable doubt.
Petitioner’s Seventh Ground for Relief is directed to the sufficiency of the evidence
to support his firearm conviction. Petitioner contends that there was insufficient evidence
to establish the required nexus between drug trafficking and possession of an otherwise legal
firearm. The location of the gun affording Petitioner easy access while he was in possession
of illegal drugs in the same vehicle was sufficient evidence from which reasonable jurors
could find the requisite nexus and find Petitioner guilty of the firearm offense.
In his argument directed to his Eighth Ground for Relief, Petitioner states that the
OCCA’s decision was an unreasonable determination of the facts and an abuse of discretion
because the sentence for drug trafficking Petitioner received was grossly disproportionate to
the severity of the crime.

However, as the Magistrate stated “[i]n considering the

proportionality of a sentence, a state trial court’s sentencing is accorded ‘wide discretion’ and
‘challenges to that decision are not generally constitutionally cognizable, unless it is shown
that the sentence imposed is outside the statutory limits or unauthorized by law.’” Report and
Recommendation at p. 23, quoting Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000).
Petitioner’s thirty-year sentence for drug trafficking was within the range of punishment
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authorized for that offense and Petitioner has not shown that his sentence was so grossly
disproportionate as to be contrary to or an unreasonable application of Ewing v. California,
538 U.S. 11, 21 (2003).
Finally, Petitioner objects to the Magistrate Judge’s disposition of his cumulative error
claim. Petitioner’s objection is without merit inasmuch as neither the Magistrate Judge nor
this Court has found two or more constitutional errors. See Moore v. Reynolds, 153 F.3d
1086, 1113 (10th Cir. 1998).
In accordance with the foregoing, the Report and Recommendation of the Magistrate
Judge is ADOPTED in its entirety and Petitioner’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS SO ORDERED this 19th day of January, 2016.

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