Bushyhead v. Wade

• Decision Date: 13 February 2014
• Docket Number: Case No. 10-CV-0797-CVE-FHM
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: GREGORY JOHN BUSHYHEAD, Petitioner, v. MICHAEL WADE, Warden, Respondent.

GREGORY JOHN BUSHYHEAD, Petitioner, v. MICHAEL WADE, Warden,¹ Respondent.

Case No. 10-CV-0797-CVE-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED: February 13, 2014

OPINION AND ORDER

Before the Court is the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner Gregory Bushyhead, a state inmate represented by counsel. In its Opinion and Order, dated July 28, 2011, the Court stayed this proceeding. (Dkt. # 10). On October 4, 2011, the Court lifted the stay. Respondent filed a response to the petition (Dkt. # 14) and provided the state court records (Dkt. # 16) necessary for the adjudication of Petitioner's claims. Petitioner filed a reply (Dkt. # 17). For the reasons discussed below, the petition for writ of habeas corpus shall be denied.

BACKGROUND

On March 8, 2007, Petitioner was the driver of a vehicle involved in a fatality collision at the intersection of Lewis Avenue and Skelly Drive, in Tulsa, Oklahoma. Following an investigation, Petitioner was charged in Tulsa County District Court, Case No. CF-2007-3179, with DUI-Manslaughter (Count I), Leaving the Scene of Accident - Personal Injury (Count II), and DrivingWhile Under the Influence of Intoxicating Liquor (Count III). (Dkt. # 16-21, O.R. at 1). Evidence presented at Petitioner's jury trial demonstrated the following facts. On the evening of the collision, Petitioner met his father and a childhood friend, Nicki Remus, for dinner at McGill's Restaurant located at 21^st Street and Utica Avenue in Tulsa. (Dkt. # 16-9, Tr. Vol. IV at 991-92). All three individually drove to the restaurant. Id. at 995. During dinner, Petitioner consumed two vodka tonics. Id. at 993-94. After dinner, Petitioner followed Ms. Remus back to her house, where she parked her car and got into Petitioner's truck. Id. at 996. They went to the Gray Snail, a bar/restaurant located at 15th Street and Peoria Avenue in Tulsa. Id. at 997. There, Petitioner had at least one more alcoholic drink.² After approximately an hour, Petitioner and Ms. Remus returned to her house near 39th Street and Quaker Avenue. Id. at 999. At about 11:00 p.m., Petitioner left her house. Id. at 1000. Petitioner testified that he did not consume any additional alcohol while at Ms. Remus' house. Id.

After leaving Ms. Remus' house, Petitioner proceeded to go to his house, located at 54th Street and Atlanta Avenue. Id. Petitioner testified that, as he traveled southbound on Lewis Avenue, he was following a white truck. Id. at 1002. As he approached the intersection of Lewis Avenue and Skelly Drive, Petitioner testified that he looked ahead and noticed a northbound car on Lewis Avenue "start[] to make a turn extremely early as though it was going to try to maintain a lot of speed and take the corner real short." Id. at 1002-03. The car did not make the turn, returned back to its northbound lane, and stopped. Id. at 1004. Jeffrey Underwood, a witness, testified that, prior to the collision, the northbound car was still in its lane of traffic, but partially in theintersection, waiting to make its turn. (Dkt. # 16-7, Tr. Vol. II at 441-42). Petitioner testified that the last time he looked at the light it was green, but admitted that he failed to look again before entering the intersection. (Dkt. # 16-9, Tr. Vol. IV at 1004). According to Petitioner, after the truck in front of him passed through the intersection, the northbound car accelerated and turned in front of Petitioner. Id. As a result, Petitioner's vehicle hit the passenger side of the car as it attempted to turn left. Id. Witnesses testified that the traffic light was red when both vehicles entered the intersection. (Dkt. # 16-7, Tr. Vol. II at 402, 441-42). Data recovered from Petitioner's vehicle showed that he was not speeding at the time of the collision. (Dkt. # 16-8, Tr. Vol. III at 734).

There were two men in the northbound car, Robert McGrew, the driver, and Richard Brown, his passenger. (Dkt. # 16-8, Tr. Vol. III at 588-91). Mr. Brown died shortly after the collision. After the collision, Petitioner exited his vehicle, looked at the scene, and then fled on foot. Id. at 446-447, 464. Approximately 15-20 minutes after the collision, Tulsa Police Officer Jason Beauchamp found Petitioner in a nearby residential neighborhood, bent over behind a wall. (Dkt. # 16-8, Tr. Vol. III at 485, 497). Officer Beauchamp observed that Petitioner had a little bit of blood on him, vomit on his shirt, a strong odor of alcohol, and had difficulty standing and walking. Id. at 490-91. Petitioner was placed in handcuffs and transported to Oklahoma State University (OSU) Medical Center in Tulsa, Oklahoma for a legal blood draw. Id. at 496, 539-540. Petitioner refused a breathalyzer test. (Dkt. # 16-21, O.R. at 34). The blood test revealed Petitioner had a blood alcohol level of 0.24. (Dkt. # 16-9, Tr. Vol. IV at 882).

In September 2008, Petitioner, represented by attorney Allen M. Smallwood, was tried by jury and convicted of First Degree Manslaughter (Count I) and Leaving the Scene of an Injury Accident (Count II). The trial court had previously dismissed Count III. (Dkt. # 16-21, O.R. at 2,5). On October 28, 2008, in accordance with the jury's recommendation, the trial judge sentenced Petitioner to fourteen (14) years imprisonment on Count I, and nine (9) years imprisonment and a fine of $6,500 on Count II, with the sentences ordered to run consecutively. Id. at 10, 13.

Petitioner perfected a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA). Represented by attorney Kevin D. Adams, Petitioner raised three (3) propositions of error, as follows:

Proposition I: The Appellant was denied a fair trial because the jury was improperly instructed on the elements of manslaughter.

Proposition II: The Appellant was denied a fair trial by the court's refusal to give the requested theory of defense instruction.

Proposition III: The Appellant was denied a fair sentence by the court's refusal to properly consider the available sentencing options because the Appellant was convicted at a jury trial.

(Dkt. # 14-1). By Order filed, the OCCA affirmed the Judgment and Sentence of the district court. (Dkt. # 14-3).

On October 19, 2009, Petitioner filed a Motion for Judicial Review requesting modification of his sentence. (Dkt. ## 1 at 6; 14-6 at 1). The district court granted relief, modifying the sentence for Count II from nine (9) years imprisonment to run consecutively, to nine (9) years suspended to run consecutively to Count I. (Dkt. # 14-6 at 1-2).

On September 8, 2010, Petitioner filed an application for post-conviction relief, raising ten (10) propositions of error, summarized by this Court, as follows:

Proposition I: Defendant was denied his right to due process when the expert opinion testimony offered by the State misinformed the jury as to the law in the State of Oklahoma and led the jury to believe that Defendant was clearly at fault for the accident and therefore satisfied the third element of misdemeanor manslaughter.

Proposition II: Defendant was deprived of a fair and impartial jury as a result of juror misconduct when Juror Reeves admitted that he had a car accident with a drunk driver and told the other jurors about the incident.

Proposition III: Defendant was deprived of his 5th Amendment privilege against self incrimination when Sergeant Bondy was allowed to testify, over defense counsel objections, to statements Defendant allegedly made during the booking process without being read his Miranda rights.

Proposition IV: Defendant was convicted of a violation of Okla. Stat. tit. 47, § 10-102(1) when he was charged with a violation of Okla. Stat. tit. 47 § 10-102 and bound over only on that charge.

Proposition V: Defendant was denied access to possible exculpatory evidence when the State failed to turn over a recording of a police interview with Mr. McGrew, the other driver, and the results of Mr. McGrew's blood alcohol test results during discovery.

Proposition VI: Defendant was denied due process because he was not provided the results of his blood alcohol test for over 90 days, when he had only 60 days to request test results so he could have it tested by his own experts.

Proposition VII: Defendant's motion to suppress the State's blood alcohol test should have been granted and that evidence suppressed.

Proposition VIII: Trial court's denial of a proximate cause instruction deprived Petitioner of his right to present a defense.

Proposition IX: Defendant was denied a fair trial because the jury was improperly instructed on the elements of manslaughter due to the blending of the jury instructions for driving under the influence and driving while impaired.

Proposition X: Cumulative error denied Defendant his due process rights to a fair trial.

(Dkt. # 14-4). In his application, Petitioner also raised claims of ineffective assistance of trial and appellate counsel. Id. at 10. On October 14, 2010, the district court denied the application, stating that the claims in propositions eight and nine were barred by res judicata, that the remaining eightpropositions could have been raised on direct appeal, were not, and thus were waived, and that Petitioner failed to show ineffective assistance of counsel. (Dkt. # 14-4). After being granted a post-conviction appeal out of time, Petitioner, represented by attorney Bill J. Nunn, argued that "(1) certain issues not raised on direct appeal should not be considered as waived because there was no knowing and intelligent waiver of those issues, and (2) waived issues were the direct result of ineffective assistance of appellate counsel." (Dkt. # 14-5). On September 29, 2011, the OCCA affirmed the denial of post-conviction relief. Id.

On December 14, 2010, represented by attorney Nunn, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1). Petitioner raises ten (10) grounds of error, as follows:

Ground I: Petitioner was denied due process of law and his right to a jury trial

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