Brown v. Dowling
| Docket Number | 19-CV-0014-TCK-JFJ |
| Decision Date | 22 March 2022 |
| Parties | JOSEPH ALLEN BROWN, Petitioner, v. JANET DOWLING, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Petitioner Joseph Brown, a state inmate appearing pro se [1] seeks federal habeas relief, under 28 U.S.C. § 2254. He claims his custody under the judgment entered against him in the District Court of Tulsa County, Case No. CF-2015-1238, is unlawful because (1) the trial court, his attorney, and the prosecutor violated several rights guaranteed to him by state and federal law by permitting a juror who was statutorily disqualified from serving on a criminal jury to serve on the jury that convicted him, (2) the trial court did not give an unrequested lesser-included-offense instruction, and (3) appellate counsel provided ineffective assistance by omitting two issues from his direct appeal. Having considered Brown's petition for writ of habeas corpus (ECF No. 1) Respondent Janet Dowling's response in opposition to the petition (ECF No. 6), Brown's reply brief (ECF No. 14) the record of state court proceedings, and applicable law, the Court concludes that Brown is not entitled to federal habeas relief and denies the petition.
On the evening of March 2, 2015, Brown fatally shot Omar Flores at Terry Jackson's apartment in Tulsa, Oklahoma. (Tr. Trial vol. 1, 226-29, 266, ECF No. 7-1; Tr. Trial vol. 2, 352-55, 359-65, 395-99, 427-42, ECF No. 7-2.)[2] Brown also shot Jackson and intentionally hit Jackson on the head with a glass bottle, but Jackson survived. (Tr. Trial vol. 2, 397-99, 440-42.) Law enforcement officers arrested Brown three days after the shooting. (Tr. Trial vol. 2, 413.) During a videotaped interview, Brown first denied knowledge of the events that occurred at Jackson's apartment but later told detectives he shot both men. Brown told detectives that he shot Flores because he thought Flores was “going for a knife” and he felt threatened by Flores, that he shot Jackson when he accidentally discharged his gun as he rose from his chair, and that he hit Jackson twice on the head with a glass bottle when Jackson grabbed his leg as he was leaving the apartment.[3] (Tr. Trial vol. 2, 392-95, 413-14, 440-46; State's Ex. 45 (DVD of Brown's interview), ECF No. 8.)
In June 2015, the State of Oklahoma filed an amended information charging Brown with first-degree murder with malice aforethought (count one), and assault and battery with a dangerous weapon (count two). (Original Record (O.R.) 27, ECF No. 7-6.) Brown's case proceeded to a jury trial in January 2016. (Tr. Trial vol. 1, 1, ECF No. 7-1.)
During voir dire, a prospective juror, R.D., identified himself as a “former Tulsa County Detention officer, ” and “a former Sapulpa Police Dispatcher and Jailer, ” and stated that he “currently work[s] for the Bixby Police Department as a Dispatcher and Jailer.” (Tr. Trial vol. 1, 16, 20, ECF No. 7-1.) Based on his stated employment, R.D. was not eligible to serve as a juror in a criminal action. See Okla. Stat. tit. 38, § 28(D) (2011) (). Neither the trial court, Brown's attorney, nor the prosecutor sought to remove R.D. from the jury panel for cause, and neither Brown's attorney nor the prosecutor used a peremptory challenge to remove him from the panel. (Tr. Trial vol. 1, 40-41, 141-42, 146-48, 152-53, 167-69, 189-90, 204-10.) R.D. thus served as a juror for Brown's criminal trial. (Tr. Trial vol. 1, 210.)
The jury heard testimony from several witnesses, including Jackson and Brown, and viewed Brown's videotaped interview with detectives. Jackson testified that only three people were in his apartment on the evening of the shooting: Jackson, Flores and Brown, that he did not see Brown or Flores interacting with each other or holding weapons, and that he blacked out at some point and woke up to discover that Flores was dead. (Tr. Trial vol. 1, 226-32, 238-48, ECF No. 7-1.) The medical examiner testified that Flores died from a single gunshot wound to the back. (Tr. Trial vol. 2, 359-60, 367-68, ECF No. 7-2.) Highly summarized, Brown testified that he carried a gun for protection because he had been robbed in February 2014, that he and Jackson were both intoxicated on the evening of the shooting, and that he felt threatened because Jackson turned up the volume on the stereo, Flores walked toward the kitchen with “a funny look in his eye, ” and Flores “grab[bed] a knife” from the kitchen counter. (Tr. Trial vol. 2, 428-37.) In response to the perceived threat from Flores, Brown moved his gun from his waistband to his lap, then, while still holding the gun in his lap, Brown saw Flores walking toward him with the knife and shot Flores. (Tr. Trial vol. 2, at 437-39.) As Brown tried to get up from his chair, still holding the gun, the gun went off. (Tr. Trial vol. 2, 439-440). Unaware that he shot Jackson, Brown walked past Jackson toward the door to leave the apartment. (Tr. Trial vol. 2, 440-42, 445.) Brown testified that Jackson, who was seated on the floor, grabbed Brown's leg, so Brown hit Jackson on the head with a glass bottle and went home. (Tr. Trial vol. 2, 441-42.) Brown showered, changed clothes, and went to another neighbor's house where he spent time “drinking and talking” with two of his neighbors. (Tr. Trial vol. 2, 442-43.) He testified he was afraid to call the police because he did not trust them and he had “just shot somebody.” (Tr. Trial vol. 2, 442.)
At the conclusion of the trial, the jury rejected Brown's claims that he killed Flores in self-defense, that he committed the lesser-included offense of first-degree, heat-of-passion manslaughter, and that he was too intoxicated to form the requisite intent to commit first-degree, malice aforethought murder, and found him guilty as charged in count one. (O.R. 98-121, 137, ECF No. 7-6.) As to count two, the jury found Brown guilty of the lesser-included offense of reckless conduct with a firearm. (O.R. 122-27, 138.) The jury affixed punishment at life imprisonment (count one) and six months in jail (count two). (O.R. 137-38.) The trial court sentenced Brown accordingly, ordered that he serve the sentences concurrently, and gave him credit for time served. (Tr. Sentencing Hr'g 2-5, ECF No. 7-5.)
Represented by appellate counsel, Brown filed a direct appeal in the Oklahoma Court of Criminal Appeals (OCCA), claiming (1) the trial court erred in failing to remove R.D. from the jury panel after learning he was statutorily disqualified, (2) the trial court erred in failing to instruct the jury on the lesser included offense of second-degree murder by imminently dangerous conduct, (3) the prosecutor committed reversible misconduct during closing argument, (4) trial counsel was ineffective for several reasons, including the failure to challenge R.D. for cause, and (5) the cumulative effect of trial errors deprived Brown of a fair trial. (Appellant's Br. i, ECF No. 6-1.) The OCCA rejected each claim on the merits and affirmed Brown's judgment and sentence. (Brown v. State, No. F-2016-73 (Okla. Crim. App. 2017) (OCCA Op.) 1-5, ECF No. 6-3.)
Proceeding pro se, Brown filed a combined application for postconviction relief and motion for evidentiary hearing in state district court, asserting that he was denied his Sixth Amendment right to the effective assistance of appellate counsel.[4] (Appl. 1-11, ECF No. 6-4.) The state district court denied Brown's request for an evidentiary hearing and denied his application for postconviction relief. (Dist. Ct. Order 4-5, ECF No. 6-5). Brown filed a postconviction appeal, and the OCCA affirmed the denial of postconviction relief (Brown v. State, No. PC-2018-499 (Okla. Crim. App. 2018) (OCCA Order) 1-2, ECF No. 6-7.)
In the instant federal habeas petition, Brown seeks relief on five grounds, four of which relate to the statutorily-disqualified juror issue.[5] Dowling urges the Court to deny the petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) guides this Court's review of Brown's petition. Under the AEDPA, a federal court may grant habeas relief to a prisoner in custody pursuant to a state-court judgment “only on the ground that [the prisoner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In other words, a federal court may not grant habeas relief to a state prisoner if the crux of his complaint is that his criminal judgment is subject to collateral attack based on an error of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (); Eizember v. Trammell, 803 F.3d 1129, 1145 (10th Cir. 2015) (); but see Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017) ().
Even if a state prisoner timely files a federal habeas petition that presents only properly exhausted federal claims [6] the AEDPA limits a federal court's ability to grant habeas relief. Those limits vary depending on how the state court disposed of the federal claims. If the state court adjudicated the merits of a federal claim, a federal court may not grant habeas relief unless the prisoner demonstrates that the state court's adjudication...
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