Baxter v. Franklin

• Decision Date: 29 May 2014
• Docket Number: Case No. 11-CV-0194-CVE-TLW
• Parties: RICHARD ZOBON BAXTER, Petitioner, v. ERIC FRANKLIN, Warden, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

RICHARD ZOBON BAXTER, Petitioner, v. ERIC FRANKLIN, Warden, Respondent.

Case No. 11-CV-0194-CVE-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED: May 29, 2014

OPINION AND ORDER

Before the Court is the petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner, a state inmate appearing pro se. Respondent filed a response (Dkt. # 8), and provided the state court records necessary for adjudication of Petitioner's claims (Dkt. # 8, 10). Petitioner filed a reply (Dkt. # 15). For the reasons discussed below, the Court denies the petition for writ of habeas corpus.

BACKGROUND

On May 10, 2007, Joshua Aaron Bogue agreed to help a friend by giving a ride to a man, later identified as Petitioner Richard Zobon Baxter, to the Sugarberry Apartments, located in Tulsa, Oklahoma. (Dkt. # 10-1, Tr. Vol. II at 283-86). After arriving at the apartment complex, Bogue remained in his car while Petitioner attempted to purchase $2,900 worth of cocaine from two men who were waiting in the parking lot of the apartment complex. Id. at 290. Bogue watched Petitioner hand over the cash to one of the two men who promptly left without giving Petitioner anything in exchange. Id. at 292. After Petitioner handed over the money, Bogue started to leave and Petitioner said, "Don't leave. I am using you for collateral." Id. After 5-10 minutes, when the man failed to return, Petitioner got back into Bogue's car and told Bogue to drive around the apartment complexin search of the man. Id. at 293. As he drove, Bogue observed Petitioner pull out a gun, slide in a clip, and chamber a bullet. Id. at 294, 334-338.

After unsuccessful attempts to find the man or Petitioner's money, Petitioner ordered Bogue to drive to Bogue's house. Instead, Bogue offered to telephone his mother and ask her to write a check for the $2,900. Id. Bogue called his mother and asked her to meet him at a Wal-Mart store located in Broken Arrow, a suburb of Tulsa. Id. at 297. While on the way to Wal-Mart, Bogue claimed Petitioner demanded all his money and Bogue gave Petitioner $100 from his wallet. Id. at 299.

After talking to Bogue and discerning that he was "in a dangerous situation," Bogue's mother called another son, Ryan Mitchell. Id. at 381. Mitchell told his mother to call police. Mitchell and his friend, Aria Ebady-Nezami, immediately drove to the Wal-Mart to search for Bogue. Id. at 388. Mitchell spotted Bogue and Petitioner standing outside the front entrance to the store. Id. at 385. Bogue walked over to Ebady's truck and said, "[b]e careful. He has got a gun, be cool." Id. While Ebady parked his truck, Mitchell, Bogue, and Petitioner went inside the Wal-Mart. (Dkt. # 10-2, Tr. Vol. III at 429).

Meanwhile, Broken Arrow Police Officers Michael Golden and Brian Gerber arrived at the Wal-Mart. After talking to Ebady in the parking lot, the officers entered the store and spotted Mitchell, Bogue, and Petitioner walking across the front, near the cashiers. Id. at 469, 495. Officers Golden and Gerber ordered the three men to raise their hands. Id. at 470, 495. Petitioner "clenched his waistband and took off running . . . through the store." Id. at 470. The officers chased Petitioner through the clothing department of the Wal-Mart, but briefly lost sight of him in the shoe section. Officer Gerber saw Petitioner come out of the shoe department "no longer clutching at his waistband[with] both arms pumping pretty good" as he ran out the store and through the parking lot. Id. at 497. Golden found Petitioner hiding in a dumpster behind an adjacent shopping center. In a search of Petitioner incident to arrest, police found no gun or money. Id. at 475. Police also searched the dumpster, parking lot, and the Wal-Mart for anything Petitioner may have discarded during the chase. Id. at 499, 507-509. However, no gun or money was recovered on May 10, 2007, the night of Petitioner's arrest. Id. at 509.

The next morning, May 11, 2007, Broken Arrow Police Detective Todd Geiger received a call from a Wal-Mart manager who reported that an employee found a gun at approximately 8:00 a.m. in the shoe department. Id. at 533. When Detective Geiger recovered the gun, it had a round in the chamber. Id. at 538. Later, Bogue identified the gun as the same he saw in Petitioner's possession at the apartment complex. (Dkt. # 10-2, Tr. Vol. II at 308).

Based on these events, Petitioner was charged in Tulsa County District Court Case No. CF-2007-2601. A jury found Petitioner guilty of Possession of a Firearm After Former Conviction of a Felony (Count II), but acquitted him of Robbery with a Firearm After Former Conviction of a Felony (Count I). (Dkt. # 8-3 at 1). The trial court sentenced Petitioner to a ten-year term of imprisonment. Attorney Brian Wilkerson represented Petitioner at trial.

Petitioner, represented by attorney Kimberly D. Heinze, perfected an appeal to the Oklahoma Court of Criminal Appeals (OCCA). Petitioner raised six (6) propositions of error, as follows:

Proposition I: Mr. Baxter was denied a fair trial before an unbiased jury by (1) the trial court's plain error in not removing a convicted felon and otherwise biased juror for cause as promised and (2) defense counsel's ineffectiveness in failing to verify his status and challenge the felon for cause or remove him with a peremptory challenge.

Proposition II: An evidentiary harpoon denied Mr. Baxter a fair trial.

Proposition III: Prejudicial details of appellant's prior conviction and the possibility that probation or parole might allow appellant to serve less time in prison than the jury imposed, acted to inflate the sentence.

Proposition IV: Any failure to investigate and preserve issues for review was the result of the ineffective assistance of counsel.

Proposition V: This court should remand this case to the district court with instructions to correct the judgment and sentence by an order nuncprotunc.

Proposition VI: Cumulative errors deprived Mr. Baxter of a fair trial and reliable verdict and sentence.

(Dkt. # 8-1). Petitioner sought to file a pro se supplemental brief on direct appeal, but his request was denied due to an incomplete affidavit by appellate counsel. (Dkt. # 8-11). In an unpublished Summary Opinion, filed July 21, 2009, in Case No. F-2008-421, the OCCA found that the trial court erred in failing to remove the convicted felon from the jury panel, but that the error was harmless because Petitioner failed to show harm or prejudice. (Dkt. # 8-3 at 2). Additionally, the OCCA found that the "introduction of previous probation and parole information, even through an otherwise properly admitted Judgment and Sentence, is error." Id. at 5. Again, however, the OCCA found the error was harmless because "it is clear from the verdict form that the jury intended to impose . . . the maximum sentence allowed by law." Id. at 5-6. The OCCA also agreed with Petitioner that the Judgment and Sentence reflected an incorrect and improperly enhanced offense, and, for that reason, remanded to the district court with instructions to correct the Judgment and Sentence nunc pro tunc. Id. at 6-7. After rejecting the remaining claims, the OCCA affirmed Petitioner's conviction and sentence. Id. at 7.

On June 14, 2010, Petitioner filed an application for post-conviction relief. Petitioner raised five (5) propositions, as follows:

Proposition I: Baxter 'was denied effective assistance of appellate counsel by appellate counsel filing a clearly defective affidavit in support of the Supplemended [sic] Brief filed by defendant.'

Proposition II: Baxter's [sic] asserts 'the appellate courts' decision to deny the Pro Se Supplemental Brief submitted by the petitioner was erroneous and premature, in that, it deprived defendant of appeal.'

Proposition III: Petitioner was 'denied a full appellate review of whether the evidence was sufficient to sustain his conviction for Possession of Firearms AFCF.'

Proposition IV: 'This proposition is so closely related to my third proposition that self same arguments fully address [sic] the issues.'

Proposition V: 'Petitioner's rights under the Fourteenth Amendment to have Due Process and Equal Protections of the law were violated at trial.'

(Dkt. # 8-4 at 6-7). The trial court denied the application (Dkt. # 8-4), and the OCCA affirmed (Dkt. # 8-5).

On April 4, 2011, Petitioner commenced this federal action by filing his pro se petition for writ of habeas corpus. (Dkt. # 1). Petitioner raises eight (8) grounds of error, as follows:

Ground I: Mr. Baxter was denied a fair trial in violation of the Sixth and Fourteenth Amendments by the trial court's error in not removing a convicted felon and otherwise biased juror for cause as promised and defense counsel's ineffectiveness in failing to verify his status and failure to challenge the felon for cause or remove him with a peremptory challenge.

Ground II: An evidentiary harpoon denied Mr. Baxter a fair trial in violation of the Sixth and Fourteenth Amendments.

Ground III: Prejudicial details of Mr. Baxter's prior conviction and suspended sentence and probation term prejudiced the sentence.

Ground IV: Trial counsel was ineffective under the Sixth Amendment for failing to object and preserve the following issues for appellate review:

(a) failing to object to inclusion of G.G. as a juror,

(b) Detective Geiger's prejudicial statement, and(c) failure to object to the state's introduction of Mr. Baxter's complete Judgment and sentence which (unlawfully) included details of his probation.

Ground V: The cumulative errors above denied Mr. Baxter a fair trial in violation of the Sixth and Fourteenth Amendments.

Ground VI: Appellate counsel was ineffective for filing a clearly defective affidavit in support of the Supplemented [sic] Brief provided by Mr. Baxter in violation of the Sixth and Fourteenth Amendments.

Ground VII: Petitioner was denied a fair appeal in violation of the Fourteenth Amendment when the state appeals court failed to consider the pro se supplemental brief

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