Bautista v. Crow
| Decision Date | 20 September 2022 |
| Docket Number | 19-CV-169-RAW-KEW |
| Parties | VERGEL JOSEPH BAUTISTA, Petitioner, v. SCOTT CROW, Respondent. |
| Court | U.S. District Court — Eastern District of Oklahoma |
This action is before the Court on Vergel Joseph Bautista's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. Dkt 1. Bautista is a pro se state inmate in the custody of the Oklahoma Department of Corrections who is currently incarcerated at the Davis Correctional Facility in Holdenville, Oklahoma. He is attacking his convictions and sentences in Muskogee County District Court Case No CF-2014-1025 for burglary in the first degree (Count 1) grand larceny (Count 3), and knowingly concealing stolen property (Count 4), setting forth the following grounds for relief:
Respondent concedes, and the Court finds, that Bautista has timely filed his habeas action. Dkt. 26 at 2. Respondent argues one portion of Bautista's ineffective assistance of trial claim and the entirety of his ineffective assistance of appellate counsel claim are unexhausted and procedurally defaulted. The following records have been submitted to the Court for consideration in this matter:
A Bautista's judgment and sentence. Dkt. 26-1.
B. Bautista's direct appeal brief. Dkt. 26-2.
C. The State's brief in Bautista's direct appeal. Dkt. 26-3.
D. Bautista's reply brief in his direct appeal. Dkt. 26-4.
E. Opinion affirming Bautista's judgment and sentence. Bautista v. State, No. F-2016-197 (Okla. Crim. App. June 1, 2019) (unpublished). Dkt. 26-5.
F. Bautista's application for post-conviction relief, filed in Bautista v. State, No. CF-2014-1025 (Muskogee Cnty. Dist. Ct.) on June 6, 2018. Dkt. 26-6.
G. Order denying application for post-conviction relief, filed in Case No. CF-2014-1025 on October 23, 2018. Dkt. 26-7.
H. Bautista's Petition in Error in Case No. PC-2018-1219 (Okla. Crim. App.). Dkt. 26-8.
I. Order affirming denial of application for post-conviction relief, filed in Bautista v. State, No. PC-2018-1219 (Okla. Crim. App. Mar. 29, 2019) (unpublished). Dkt. 26-9.
J. Order denying Bautista's application for post-conviction relief in Muskogee County District Court Case Nos. CF-2008-597, CF-2008-804, CF-2008-867, CF-2009-47, CF-2009-365. Dkt. 26-12.
K. Order affirming denial of post-conviction relief, filed in Bautista v. State, No. PC-2019879 (Okla. Crim. App. Feb. 21, 2020). Dkt. 26-13.
L. Transcripts and Original Record. Dkt. 27.
On December 29, 2014, the State of Oklahoma charged Bautista by Information in Muskogee County District Court, No. CF-2014-1025, with one count of burglary in the first degree, one count of burglary in the second degree, one count of grand larceny, and one count of knowingly concealing stolen property. Dkt. 27-5 at 9-10. The state subsequently dropped the count of burglary in the second degree. Id. at 33-34. The state sought enhancement of Bautista's sentence because of prior convictions for possession of controlled dangerous substances, Muskogee County District Court Case No. CF-2009-365; distribution of controlled dangerous substances, Muskogee County District Court Case No. CF-2009-47; possession of controlled dangerous substances with intent to distribute, Muskogee County District Court Case No. CF-2008-867; burglary in the second degree, Muskogee County District Court Case No. CF-2008-804; and burglary in the second degree, Muskogee County District Court Case No. CF-2008-597. Id. at 11-12, 96.
Bautista's case proceeded to jury trial, and on March 3, 2016, the jury found Bautista guilty of each count. Id. at 104-09. The jury further found that each count occurred after two felony convictions and sentenced Bautista to 35 years for burglary in the first degree, 10 year for grand larceny, and 10 years for knowingly concealing stolen property. Id. These sentences ran concurrently. Id. at 104-11.
Following his conviction, Bautista filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), raising nine claims. Dkt 26-2. Relevant to this proceeding, Bautista raised a claim to the OCCA arguing he received ineffective assistance of trial counsel when his counsel failed to seek certain jury instructions, failed to raise an objection to the improper sentencing enhancement, and failed to demur on the knowingly concealing stolen property count. Id. at 51-56. The OCCA reviewed Bautista's claims and affirmed the judgment and sentence on June 1, 2017. Bautista, No. F-2016-197 at 13. Dkt. 26-5.
On June 6, 2018, Bautista filed an application for post-conviction relief. Bautista, No. CF-2014-1025. Dkt. 26-6. In it, he raised four claims. First, Bautista claimed he received ineffective assistance of trial counsel; second, that his due process rights were violated when prosecutors elicited false testimony from Nathan Graham; third, the Oklahoma statutory enhancement scheme is unconstitutionally arbitrary and capricious; and fourth, that the lack of sentencing guidelines violates the Oklahoma constitution. Id. The trial court denied Bautista's claims, because his first claim was raised on direct appeal and was barred by res judicata, and the remaining claims were barred because they could have, but were not, raised on direct appeal. Bautista, No. CF-2014-1025 at 2. Dkt. 26-7. The OCCA reviewed these claims and affirmed the trial court's decision on March 29, 2019. Bautista, No. PC-2018-1219 at 2-3. Dkt. 26-9.
Bautista then filed the instant habeas petition on June 3, 2019. Dkt. 1.
At trial, the state presented evidence that, Bautista, together with Johnathon Smith, met Felisha Qualls at the local casino in the early morning hours of December 22, 2014. Dkt. 27-2 at 24. Bautista, Smith, and Qualls came up with a plan to steal marijuana from Heather Davis's home, because Davis Dkt. 27-2 at 28, 193. Around 2:00 a.m., the group headed to Nathan Graham's home, where they smoked meth together before Bautista, Smith, and Qualls drove to Ms. Davis's home. Dkt. 27-2 at 27-28; Dkt. 27-1 at 83, 87, 90. When they arrived, they began checking for unlocked doors and windows. Dkt. 27-2 at 28. After finding the front door and the kitchen window locked, Bautista broke a window into the garage and help Qualls climb through. Dkt. 27-2 at 28-30; Dkt. 27-1 at 94-95. Once inside, Qualls opened the garage side door and let Bautista and Smith into the garage. Dkt. 27-2 at 28-30. Bautista then broke the lock on the door leading from the garage into the home. Id. at 30.
After gaining entry to the home, Bautista proceeded to the back bedroom where he thought the marijuana was kept. Dkt. 27-2 at 31. Unable to find the marijuana, Bautista began to steal items. Id. As it was the week of Christmas, Bautista stole Christmas presents from under the Christmas tree, along with golf clubs, a purse, and an assortment of power tools from the garage. Dkt. 27-1 at 148-70; Dkt. 27-2 at 95-96. When some of the items were too heavy to carry, the group used a wheelchair found in the garage to help. Dkt. 27-2 at 59. After some time, Bautista went back into the home and to search again for the marijuana in the back bedroom. Id. at 60.
Living in the home were Ms. Davis, Ms. Davis's two children, LaQuinta Anderson, and Ms. Anderson's child. Dkt. 27-2 at 93-94. Ms. Davis was asleep in the back bedroom with one of her children, and Ms. Anderson was asleep on the couch with her child and Ms. Davis's other child. Id. Ms. Davis awoke to see Bautista in her bedroom going through her dresser. Id. at 94. She screamed and chased Bautista out of the house through the garage. Id. at 94-95. Bautista and Qualls jumped into the car, and Smith drove them away with the stolen items. Id. at 95. When Ms. Davis inspected her house, she found three broken windows and the door leading from the garage to the house damaged. Id. at 97-98; see also Dkt. 27-1 at 22.
From Ms. Davis's house, Bautista, Smith, and Qualls headed back to Graham's house. Dkt. 27-1 at 103; Dkt. 27-2 at 35. There, Bautista and Graham began unloading the car with the stolen property and hiding it behind a trailer. Dkt. 27-1 at 103-04. After unloading, Bautista, Smith, and Qualls went back to Bautista's grandmother's home, where he was living at the time. Id. at 10506. Police arrived at Bautista's grandmother's home that same day, and placed Bautista, Smith, and Qualls in custody. Id. at 107-08.
Officer Rickie Kubiak overheard Bautista tell Qualls the stolen property was at Graham's residence. Dkt. 27-2 at 10-11. Officer Kubiak and Bautista then went to Graham's home, where the stolen property was discovered, in part, in Graham's bedroom. Id. at 11-13. In his investigation, Officer Kubiak also discovered an active meth lab on the property. Id. at 14. Graham then gave a written statement to police that Bautista, Smith, and Qualls came to his house with a “bunch of junk.” Id. at 177. At trial, Graham attempted to retract this statement, saying it was only Smith that came to his home that night and only Smith returned with the stolen property. Id. at 75.
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