Neal v. Allbaugh

Filing 23

ORDER ADOPTING 21 REPORT AND RECOMMENDATION. Signed by Honorable Robin J. Cauthron on 9/29/17. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ELBRYAN D. NEAL,
Petitioner,
vs.
JOE ALLBAUGH, Director,
Respondent.

)
)
)
)
)
)
)
)
)

No. CIV-17-596-C

ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner filed the present action pursuant to 28 U.S.C. § 2254 challenging the
constitutionality of his state court convictions. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B), the matter was referred to United States Magistrate Judge Gary M. Purcell,
who entered a Report and Recommendation (“R&R”) on September 18, 2017. Judge
Purcell recommended the Petition be denied. Petitioner has filed an objection.
The substantive facts and law are accurately set out in Judge Purcell’s R&R and
there is no purpose to be served in repeating them yet again.

Only one portion of

Petitioner’s objection is worthy of mention. Petitioner argues there was insufficient
evidence to support his conviction and that Judge Purcell erred in his consideration of this
issue. On this matter, Petitioner misapprehends the posture of this case. The question is
not whether or not there was sufficient evidence; rather, the question was whether in
reviewing his claim about the sufficiency of the evidence, the Oklahoma Court of Criminal
Appeals properly applied the relevant Supreme Court jurisprudence to evaluate that claim.
As Judge Purcell noted, the Oklahoma Court of Criminal Appeals properly applied Jackson

v. Virginia, 443 U.S. 307 (1979), to find that the evidence was sufficient to support the
jury’s finding of guilt. Petitioner’s arguments to the contrary, as noted by Judge Purcell,
rely on a different version of the facts and do not demonstrate that the Oklahoma Court of
Criminal Appeals’ analysis was improper. Indeed, at this stage, the Court does not
consider the credibility of witnesses or weigh conflicting evidence. See Valdez v. Bravo,
373 F.3d 1093, 1097 (10th Cir. 2004), and Messer v. Roberts, 74 F.3d 1009, 1013 (10th
Cir. 1996). In short, Petitioner has failed to demonstrate, and cannot demonstrate, that the
matters he challenges in this habeas action were decided in a manner that was contrary to
or an unreasonable application of Supreme Court law. Accordingly, habeas relief is not
warranted.
As set forth more fully herein, the Court adopts, in full, the Supplemental Report
and Recommendation of the Magistrate Judge (Dkt. No. 21), and the petition for writ of
habeas corpus is denied. A separate judgment will issue.
IT IS SO ORDERED this 29th day of September, 2017.

2