Crawford v. Horton

• Decision Date: 25 April 2012
• Docket Number: Case No. 09-CV-0152-CVE-PJC
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: ADRIAN DWANE CRAWFORD, Petitioner, v. DANNY HORTON, Warden, Respondent.

ADRIAN DWANE CRAWFORD, Petitioner,

v.DANNY HORTON, Warden, Respondent.

Case No. 09-CV-0152-CVE-PJC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

Dated: April 25, 2012

OPINION AND ORDER

Before the Court is the petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner Adrian Dwane Crawford, a state inmate appearing pro se. Respondent filed a response (Dkt. # 8) and provided the state court records (Dkt. ## 8, 9, and 10) necessary for adjudication of Petitioner's claims. Petitioner filed a reply (Dkt. # 12) to Respondent's response. In addition, Petitioner filed a "motion seeking status update" (Dkt. # 17). For the reasons discussed below, the Court finds the petition for writ of habeas corpus shall be denied. Petitioner's motion for an update shall be declared moot.

BACKGROUND

During the evening of February 10, 2004, Michelle Cox drove her car to a shopping center located at 81st Street and South Lewis Avenue in Tulsa, Oklahoma, to pick up a food order she had placed at Zio's, a restaurant located in the shopping center. Before picking up her food, Ms. Cox stopped at a liquor store located a few shops away from the restaurant. Two male customers were also present in the liquor store. One approached her and started talking to her. He was staring at her and making her feel uncomfortable. After the two men left the store, she completed her purchase and, because of her uncomfortable encounter, asked the clerk to escort her to her car. She drove hercar out of the parking lot, but then immediately returned to pick up her food at Zio's. As she walked to her car with her food, she was grabbed from behind and pushed to the ground so that she was on her back. Two men were present. One sat on top of her. He ripped open her shirt, put his hands under her bra and touched and groped her breasts. The other man held her feet. Ms. Cox was able to pull a can of mace out of her jacket pocket and she sprayed it. The men ran away. Once she got home, she called her husband and the police. Although she was unable to identify her assailant in a photo lineup, she told police investigators that she was positive that the man who sat on top of her, groping her breasts, was the same man who talked to her in the liquor store.

Based on the results of a police investigation, including review of the surveillance video from the liquor store, Petitioner Adrian Crawford and his co-defendant Granville Dwayne Taylor, were arrested and charged with Attempted Rape, in Tulsa County District Court, Case No. CF-2004-705. Petitioner was tried by a jury. His co-defendant testified as a witness for the State. At the conclusion of trial, he was found guilty as charged. On November 14, 2005, Petitioner was sentenced in accordance with the jury's recommendation to seventeen (17) years imprisonment and fined $5,000. At trial, Petitioner was represented by attorney Brian Martin.

Petitioner appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA). On direct appeal, Petitioner was represented by attorney Stuart Southerland. Petitioner raised the following propositions of error:

Proposition 1: The jury was improperly instructed as to the offense of "Attempted Rape."

a) The Oklahoma Legislature did not intend to punish the offense of "attempted rape" under the general attempt statute.

b) The jury was not instructed as to the proper range of punishment.

Proposition 2: While the evidence presented at trial was sufficient to establish the lesser offense of sexual battery, the evidence was insufficient to support a conviction for attempted rape.

Proposition 3: It was error to deny Appellant's motion for a mistrial after his actions demonstrated his lack of competency to continue with his jury trial.

Proposition 4: The jury was exposed to enough irrelevant and prejudicial information to justify reversal or modification.

Proposition 5: Appellant received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.

Proposition 6: Instances of prosecutorial misconduct prejudiced Appellant and denied his right to receive a fair trial pursuant to the Fourteenth Amendment to the United States Constitution.

Proposition 7: The combined error at trial resulted in an excessive sentence which should be modified.

(Dkt. # 8, Ex. 1). On February 21, 2007, in Case No. F-2005-1179, the OCCA entered its unpublished summary opinion affirming Petitioner's Judgment and Sentence. See Dkt. # 8, Ex. 3.

On June 14, 2007, Petitioner filed an application for post-conviction relief in the state district court. See Dkt. # 8, Ex. 4. He raised the following five (5) propositions of error:

Proposition 1: Petitioner's trial and appellate counsel were ineffective for not recognizing assault with intent to commit rape as a lesser-included offense.

Proposition 2: Petitioner was denied a post-examination competency hearing, in violation of his right to due process.

Proposition 3: Petitioner was denied due process of law when the jury was not instructed on the statutory limit on parole eligibility for the crime of attempted first degree rape.

Proposition 4: The trial court showed prejudice against the petitioner, constituting an abuse of discretion.

Proposition 5: The petitioner was denied the effective assistance of appellate counsel, in violation of the Sixth Amendment.

(Dkt. # 8, Ex. 4). By order signed August 13, 2007, filed August 22, 2007, and amended October 26, 2007, the trial court denied post-conviction relief. See Dkt. # 8, Ex. 5 at 2. Petitioner appealed.

By order filed February 25, 2008, in Case No. PC-2007-913, the OCCA affirmed the denial of post-conviction relief. Id.

Petitioner commenced the instant habeas corpus action by filing his petition on March 17, 2009. See Dkt. # 1. Grounds 1-7 are identical to the claims raised on direct appeal. Grounds 8-12 appear to be identical to the claims raised in Petitioner's application for post-conviction relief. See Dkt. # 1. In response to the petition, Respondent argues that Petitioner is not entitled to habeas corpus relief. See Dkt. # 8.

ANALYSIS

A. Exhaustion

As an initial matter, the Court must determine whether Petitioner meets the exhaustion requirements of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Respondent states that Petitioner has exhausted his state court remedies. The Court agrees. Petitioner presented his habeas claims to the OCCA on direct and post-conviction appeal.

B. Evidentiary hearing

The Court finds that an evidentiary hearing is not warranted as Petitioner has not met his burden of proving entitlement to an evidentiary hearing. See Williams v. Taylor, 529 U.S. 420 (2000); Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998).

C. Claims adjudicated by the OCCA

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain federal habeas relief only if the state decision "was contrary to, or involved an unreasonableapplication of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). When a state court applies the correct federal law to deny relief, a federal habeas court may consider only whether the state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002). Furthermore, the "determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

In this case, the OCCA adjudicated grounds 1-7 on direct appeal. In addition, the OCCA adjudicated Petitioner's claims of ineffective assistance of appellate counsel, grounds 8 and 12, on post-conviction appeal. Therefore, those claims will be reviewed pursuant to § 2254(d).

1. Improper jury instruction (ground 1)

As his first ground of error, Petitioner complains that the jury was improperly instructed as to the crime of "attempted rape." See Dkt. # 1. He claims that the Oklahoma legislature did not intend for the crime to be prosecuted under the general attempt statute, Okla. Stat. tit. 21, § 42, and that the instruction failed to describe the proper range of punishment. Id. On direct appeal, the OCCA rejected these claims, as follows:

[W]e find Appellant was properly prosecuted under the general attempt statute, 21 O.S. 2001, § 42. Messick v. State, 2004 OK CR 3, ¶ 15, 84 P.3d 757, 762 (§ 42 only applies where our criminal code does not contain a separate provision applying to the specific kind of attempt charged). See also Pierce v. State, 1988 OK CR 294, 766 P.2d 365; Rosteck v. State, 1988 OK CR 11, 749 P.2d 556; Williams v. State, 1983 OK CR 45, 661 P.2d 911; Clark v. State, 1981 OK CR 20, 625 P.2d 119; Reeves v.State, 1977 OK CR 143, 567 P.2d 503; Moulton v. State, 1970 OK CR 154, 476 P.2d 366 (in all cases the crime of attempted rape was prosecuted under the general attempt statute). Assault with intent to commit the crime of rape under 21 O.S. 2001, § 681 is usually considered a lesser included offense of a § 42 attempted rape prosecution. See Woodruff v. State, 74 Okla. Crim. 289, 125 P.2d 211 (1942); Temple v. State, 71 Okla. Crim. 301, 111 P.2d 524 (1941); Brockman v. State, 60 Okla. Crim. 75, 61 P.2d 273 (1936).

Further, the trial court appropriately instructed the jury on the range of punishment. See Matthew v. Raines, 1960 OK CR 90, ¶¶ 14-16, 356 P.2d 783, 786 (punishment for attempt to commit first degree

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