Barry v. Braggs
| Decision Date | 28 January 2021 |
| Docket Number | CIV-19-587-SLP |
| Parties | JABARI BARRY, Petitioner, v. JEORLD BRAGGS, JR., Warden, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
REPORT AND RECOMMENDATION
Petitioner Jabari Barry (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 14). United States District Judge Scott L. Palk initially referred the matter to United States Magistrate Judge Gary M. Purcell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 3, 15). It was subsequently transferred to the undersigned Magistrate Judge. (Doc. 27). Respondent filed a response (Doc. 22), along with the jury-trial transcripts (Tr. Vol. I-IV), the jury-trial exhibits (State Ex.), the state court record (R.), and the sentencing transcript (S. Tr.). (Doc. 24). Petitioner replied. (Doc. 26).[1] For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be denied.
Between approximately 12:30 a.m. and 3:00 a.m. of May 15, 2015 Petitioner, Kenya Laday, Breana Johnson, and others socialized at a house in northwest Oklahoma City. (Tr. Vol. III, at 11-13, 39-44, 176). Ms. Laday and Ms. Johnson testified that Petitioner drank at least six shots of alcohol, drank additional alcohol directly out of the bottle, and smoked marijuana. (Tr. Vol. II, at 195-96, 218; Vol. III, at 46, 98).
Petitioner then drove Ms. Johnson, Ms. Laday, and four other passengers to a gas station and then to a Crest supermarket. (Tr. Vol. II, at 198-99; Vol. III, at 48, 52). Ms. Laday testified that she believed Petitioner was “[r]eally drunk” while driving, and Ms. Johnson testified that Petitioner drank more alcohol in the car. (Tr. Vol. II, at 219; Vol. III, at 51). Ms. Johnson testified that Petitioner acted drunk at the gas station by stumbling, leaning on the counter, and slurring his words. (Tr. Vol. III, at 49-50, 100-01). While at Crest, Petitioner punched two store employees, Christopher Brailas and Brent Abernathy. (Tr. Vol. II, at 173-76).
After leaving Crest, Petitioner drove across the street and entered the parking lot of a Walmart Neighborhood Market at 3:11 a.m., where Rodney Lynch and his wife had just returned to an overnight shift from their lunch break. (Tr. Vol. II, at 149; Vol. III, at 60, 178). According to eyewitnesses, Petitioner drove into the parking lot at a high rate of speed, and an investigating officer testified that Petitioner was travelling at twenty-eight miles per hour. (Tr. Vol. II, at 150; Vol. III, at 63; Vol. IV, at 63-64). Ms. Johnson testified that she told Petitioner to “watch out, there's a man walking,” to which Petitioner responded, “fuck you.” (Tr. Vol. III, at 63-64, 108). Petitioner kept driving, made a sharp left turn in front of the store, and struck and killed Mr. Lynch, who was standing in the crosswalk, on a “YIELD” sign painted on the pavement. (Tr. Vol. II, at 150-51; Vol. III, at 67-68; Vol. IV, at 40, 65; State Exs. 2, 29). An eyewitness testified that she saw the brake lights of the vehicle come on before it turned towards Mr. Lynch, sped up, and struck him. (Tr. Vol. II, at 151). Petitioner was travelling approximately seventeen miles per hour at the moment of the turn. (Tr. Vol. IV, at 64). Mr. Lynch “flew up in the air . . . came down and landed on top of the SUV and then went under.” (Tr. Vol. II, at 151). The vehicle got stuck on his body, and Petitioner “[h]it the gas” and left the parking lot. (Tr. Vol. II, at 151-52).
Ms. Laday testified that the group then returned to the house in northwest Oklahoma City, and when the police arrived, she heard Petitioner say that he thought he was going to go to jail. (Tr. Vol. II, at 213-15). Detective Shanna Lakin testified that Petitioner appeared in a glass storm door and was “sweating, upset,” and “kind of aggressive.” (Tr. Vol. III, at 134-35). When she asked Petitioner to step outside, Petitioner asked “for what, for what?” (Tr. Vol. III, at 135). Petitioner did not come outside for several minutes, was aggressive, stepped toward the door like he might come out, and had his hands balled up in fists. (Tr. Vol. III, at 135-36, 146). Sergeant David Hollis testified Petitioner had a knife in his hand. (Tr. Vol. III, at 159). Detective Lakin pulled out her taser, and Petitioner told her that she “better put that shit up.” (Tr. Vol. III, at 136-37). When officers continued to ask Petitioner to come outside, he responded with threats, including telling the officers that they were going to have to kill him, that he was going to kill the officers, and that he would cause the officers physical harm. (Tr. Vol. III, at 138, 150, 158). Petitioner occasionally stepped outside and went back inside. (Tr. Vol. III, at 139-40, 151). After twelve minutes, Detective Lakin deployed her taser at the direction of another officer. (Tr. Vol. III, at 141, 144-45).
Officers who were at the scene testified they did not notice an odor of alcohol on Petitioner. (Tr. Vol. III, at 147, 152). However, Detective Heather Brady, who interviewed Petitioner later that morning, testified she smelled alcohol on Petitioner and learned during the interview that Petitioner had been driving the vehicle while intoxicated. (Tr. Vol. III, at 208; Vol. IV, at 6, 18). Petitioner stated during the interview that he had been drinking heavily before driving the vehicle to Crest. (State Ex. 13).
The State charged Petitioner in Oklahoma County, Case No. CF-2015-4070, with one felony count of murder in the first degree, two misdemeanor counts of assault and battery, and one misdemeanor count of threatening to perform an act of violence. (R., at 166). On the first day of trial, Petitioner entered a blind plea of guilty as to the three misdemeanor counts. (Tr. Vol. I, at 3-22; R., at 174-80).
At the conclusion of the four-day trial, the trial court instructed the jury on the charge of murder in the first degree and Petitioner's defense of intoxication. (R., at 20109). The trial court also gave instructions on the lesser-included offenses of murder in the second degree and manslaughter in the first degree. (R., at 210-17). The jury found Petitioner guilty of murder in the second degree and not guilty of murder in the first degree and manslaughter in the first degree. (R., at 262-63). At sentencing, the trial judge sentenced Petitioner to thirty-six years of imprisonment for murder in the second degree, ninety days of imprisonment for each count of assault and battery, and six months of imprisonment for threatening to perform an act of violence, all to be served consecutively.
(R., at 277-81). Petitioner's direct appeal was denied by the Oklahoma Court of Criminal Appeals (OCCA). (Doc. 22, Ex. 4).
Petitioner filed a Petition for Writ of Habeas Corpus By A Person In State Custody Pursuant to 28 U.S.C. § 2254 in this court on June 27, 2019. (Doc. 1). Respondent filed a Motion to Dismiss, arguing Petitioner failed to exhaust his state court remedies. (Doc. 7). Magistrate Judge Purcell found that Petitioner raised both exhausted and unexhausted claims and recommended either allowing Petitioner to amend the Petition to dismiss the unexhausted claims or dismissing the Petition in its entirety. (Doc. 11). After Petitioner advised he wanted to amend his Petition (Doc. 12), the court issued an order granting Petitioner leave to file an amended petition (Doc. 13). That Amended Petition is at issue. (Doc. 14).
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep'tof Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (internal quotation marks omitted). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Well...
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