Franklin v. Patton

• Decision Date: 25 November 2014
• Docket Number: Case No. CIV-12-865-F
• Court: U.S. District Court — Western District of Oklahoma
• Parties: CORTEZ L. FRANKLIN, Petitioner, v. ROBERT PATTON, Director, Respondent.

CORTEZ L. FRANKLIN, Petitioner, v. ROBERT PATTON, Director, Respondent.¹

Case No. CIV-12-865-F

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

November 25, 2014

REPORT AND RECOMMENDATION

Petitioner Cortez L. Franklin, a state prisoner appearing pro se, has filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus and Brief in Support, challenging the constitutionality of his criminal conviction by the State of Oklahoma. See Doc. Nos. 1, 3. Respondent ODOC Director Robert Patton has filed a Response to Petition for Writ of Habeas Corpus (Doc. No. 13). United States District Judge Stephen P. Friot has referred this action to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636. As outlined herein, the undersigned recommends that the Petition be DENIED.

I. Relevant Case History and Issues Presented

On the morning of August 9, 2004, fifteen-year-old Marcus Ivy was seen sweeping the porch of the apartment at the Will Rogers Courts public housing complex in southwest Oklahoma City, where he lived with his brother. Pet'r's Br. (Doc. No. 3) at 11;² Vol. IV Trial Tr. 231, 234-35; Vol. V Trial Tr. 39, 46, 79, 80 (State v. Franklin, No. CF-2004-5898 (Okla. Cnty., Okla. Dist. Ct. Dec. 8-16, 2008)) (Doc. No. 15). Marcus Ivy was shot once in the stomach by a person using a handgun and, 23 days later, on September 1, 2008, died of multiple organ failure caused by the gunshot wound. Pet'r's Br. at 11; Vol. V Trial Tr. 12, 21, 22-25; Original Record ("OR") 5 (Doc. No. 15).

During the authorities' investigation, at least one eyewitness placed Petitioner at or near the murder scene, and Petitioner ultimately was charged by information with the felony crime of Murder in the First Degree. See OR 5-11. On December 16, 2008, after a jury trial in the District Court of Oklahoma County, Petitioner was convicted of one count of Murder in the First Degree with Malice Aforethought in violation of Title 21, Section 701.7 of the Oklahoma Statutes. Vol. VII Trial Tr. 108; OR 1643, 1706. On January 23, 2009, Petitioner was sentenced to life imprisonment without the possibility of parole, in accordance with the jury's recommendation following a second-stage sentencing proceeding in which the State had sought the death penalty. OR 64-65, 68-69, 1644, 1668, 1706; Sent'g Tr. 5 (Jan. 23, 2009) (Doc. No. 15).

Petitioner appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals ("OCCA"). OR 1721; see Franklin v. State, No. F-2009-96 (Okla. Crim. App. filed Feb. 3, 2009).³ On Aug. 30, 2010, the OCCA affirmed Petitioner's conviction and sentence. OCCA Op., No. F-2009-96 (Doc. No. 13-3).

Petitioner then filed this federal habeas action and now raises seven grounds for relief: (1) the testimony of an eyewitness identifying Petitioner as the shooter was unlawfully coerced, resulting in a deprivation of due process; (2) ineffective assistance of trial counsel for failing to raise this first ground; (3) the evidence presented at trial was insufficient to support Petitioner's conviction; (4) denial of a fair trial based upon the trial court's refusal to grant a mistrial; (5) denial of a fair trial based upon the trial court's failure to give an eyewitness-identification instruction to the jury; (6) the State's improper use of peremptory challenges denied Petitioner a jury comporting with constitutional standards; and (7) cumulative error based on Grounds One through Six. See Pet. at 4-5; Pet'r's Br. at 17-38; Pet'r's Mot. to Supplement (Doc. No. 16) at 1-4; Doc. Nos. 16-1 to 16-5. Respondent concedes that Petitioner's claims are timely and that Petitioner exhausted his state-court remedies with respect to the grounds raised in the Petition and Brief in Support. See Resp't's Resp. (Doc. No. 13) at 2.

II. The Standard of Review

The Tenth Circuit recently summarized the standard of review for evaluating state-court legal determinations that have been challenged in federal court through a 28 U.S.C. § 2254 habeas proceeding:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we must apply a highly deferential standard in § 2254 proceedings, one that demands that state-court decisions be given the benefit of the doubt. If a claim has been "adjudicated on the merits in State court proceedings," we may not grant relief under § 2254 unless the state-court decision "was contrary to, or involved an unreasonable application 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." 28 U.S.C. § 2254(d)(1), (2). The phrase "clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), refers to the holdings, as opposed to the dicta, of the Court's decisions as of the time of the relevant state-court decision.

Under the "contrary to" clause of § 2254(d)(1), we may grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts. And under the "unreasonable application" clause, we may grant relief only if the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. An unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.

Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013) (alterations, citations, and internal quotation marks omitted).

Pursuant to AEDPA, factual findings made by a state trial or appellate court are presumptively correct and may be rebutted only by "clear and convincing evidence." 28U.S.C. § 2254(e)(1). The standard for relief prescribed by AEDPA is high: "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

III. Analysis

A. Ground One: Coercion of Testimony of Pam Watley

Pamela Watley lived in the Will Rogers Courts near the apartment where Marcus Ivy was staying and was shot on August 9, 2004. On that date, Ms. Watley was at her apartment with her mother and two daughters. Pet'r's Br. at 12-13; Vol. IV Trial Tr. 233-34, 236; Vol. V Trial Tr. 39. When first interviewed by police following the shooting, Ms. Watley denied seeing anything related to Marcus Ivy's murder. Pet'r's Br. at 12; Vol. V Trial Tr. 50, 111-13. Oklahoma City Police Department ("OCPD") detectives soon learned, however, that Ms. Watley had told acquaintances that Petitioner was the shooter. OR 1, 8; Vol. V Trial Tr. 90-91, 123-24, 126. On September 2, 2004, the police again questioned Ms. Watley; Ms. Watley again denied seeing the shooting. OR 1, 8; V Trial Tr. 123, 127, 128-30, 177.

On October 25, 2004, in an effort to obtain Ms. Watley's truthful testimony, an OCPD detective submitted a Subpoena Request Form to the Grand Jury Investigations Division of the Office of Attorney General of the State of Oklahoma. Doc. No. 13-1, at 99, 101. On October 26, 2004, Multicounty Grand Jury Subpoena No. MCGJ-03-1177("the Subpoena") was issued by the Attorney's General's Office directing Pamela Watley to appear and testify as a witness before the multicounty grand jury on November 15, 2004. Doc. No. 13-1, at 58. Ms. Watley never appeared before a grand jury, however. Instead, when served with the Subpoena on October 27, 2004, Ms. Watley agreed to further questioning by the OCPD and identified Petitioner as the gunman. OR 8; Doc. No. 13-1, at 60; Vol. V Trial Tr. 92-94, 130-31, 132. On November 1, 2004, the OCPD Detective who had requested the issuance of the Subpoena drafted a report, addressed to the multicounty grand jury, in which the detective stated he had obtained a "truthful eyewitness account" from Ms. Watley and had learned that Ms. Watley "saw Franklin shoot the victim." Doc. No. 13-1, at 60. On that same date, criminal charges were filed against Petitioner, by information rather than by grand jury indictment, for the murder of Marcus Ivy. OR 5. See generally Okla. Stat. tit. 22, §§ 301, 302.

Petitioner's criminal trial was continued on multiple occasions until commencing in December 2008. During the time prior to trial, Ms. Watley failed to appear to testify on multiple occasions and was arrested for not meeting the terms of conditions imposed while she was released on bond. Vol. IV Trial Tr. 227-28, 229-30; Vol. V Trial Tr. 94-95, 134-35, 150-51, 153, 154-55; OR 1440. At the time of trial, Ms. Watley was being held in custody and testified for the State pursuant to a material-witness warrant that had been issued on November 14, 2008. OR 1440-41, 1508-09; Vol. IV Trial Tr. 227; Vol. V Trial Tr. 103, 104. At trial, Ms. Watley identified Petitioner in person and testified that she had seen Petitioner shoot Marcus Ivy in the stomach. Vol. IV Trial Tr. 232-33, 238; Vol. V Trial Tr. 40, 445-46, 47-48, 79-84.

On direct appeal, Petitioner attacked Ms. Watley's identification of Petitioner as coerced through the use of an "unauthorized and unlawful" subpoena and argued that the use of Ms. Watley's testimony violated Petitioner's due process right to a fair trial. Pet'r's OCCA Br. (Doc. No. 13-1) at 17-21. The OCCA denied relief on the merits:

Appellant claims that by using a multi-county grand jury subpoena, law

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