Hammon v. Ward

• Decision Date: 25 October 2006
• Docket Number: No. 05-6158.,05-6158.
• Citation: 466 F.3d 919
• Parties: Glen Dale HAMMON, Petitioner-Appellant, v. Ron WARD, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

466 F.3d 919

Glen Dale HAMMON, Petitioner-Appellant, v. Ron WARD, Respondent-Appellee.

No. 05-6158.

United States Court of Appeals, Tenth Circuit.

October 25, 2006.

Glen Dale Hammon filed a brief pro se.

James L. Hankins, Hankins Law Office, Oklahoma City, OK, for Petitioner-Appellant.

Jennifer L. Strickland, Assistant Attorney General for Oklahoma, Oklahoma City, OK (W.A. Drew Edmondson, Attorney General for Oklahoma, and Laura E. Samuelson, Assistant Attorney General for Oklahoma, on the brief), for Respondent-Appellee.

Before HENRY, SEYMOUR, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Petitioner-Appellant Glen Dale Hammon ("Petitioner") was convicted in Oklahoma state court of possession of a controlled dangerous substance ("CDS"), possession of a firearm by a convicted felon, and possession of a firearm with a defaced or mutilated serial number, for which he was effectively sentenced to seventy years' imprisonment. Petitioner filed a pro se 28 U.S.C. § 2254 habeas petition challenging those convictions, which the district court denied. We issued a certificate of appealability on the issue of ineffective assistance of appellate and trial counsel, and we now vacate the district court's order denying § 2254 relief and remand for an evidentiary hearing.

BACKGROUND

I. Factual Background

On October 19, 2000, Petitioner was driving through an Oklahoma City suburb in a vehicle with his brother, Demarcus Hammon, as the passenger, when Officer Hill of the Del City Police Department initiated a traffic stop of the vehicle because the brake lights were not working. Officer Hill approached the driver's side and asked Petitioner for his license and proof of insurance. After Petitioner stated that he had neither, Officer Hill returned to his patrol car to confirm that information with dispatch.

Once Officer Turner and Lieutenant Baker arrived as back-up, Officer Hill again approached the vehicle to arrest Petitioner for driving without a license and for an outstanding warrant. Officer Hill ordered Petitioner out of the car, informed him that he was under arrest, and placed him in handcuffs. Officer Hill searched Petitioner's person as part of that arrest and found nothing. Officer Turner removed Demarcus Hammon from the car, performed a pat-down search of him, and discovered nothing. Demarcus Hammon did not have any outstanding warrants, but the officers did not release the car to him because his license had also been suspended and the car was not insured.

Officers Hill and Turner thus conducted an inventory search of the vehicle. The officers first searched the driver's side of the vehicle and found nothing there. In searching the passenger's side, however, Officer Hill found a bag containing thirteen to fourteen gravel sized brownish-white rocks located in the cavity of the dashboard where the glove box would normally be located. Subsequent tests revealed the rocks to be crack cocaine. Underneath the passenger seat, the officers discovered a loaded semiautomatic handgun with a mutilated or defaced serial number.¹ No other contraband was found inside the car. At that time, Demarcus Hammon was arrested and searched, and the officers discovered $260.00 in $20 bills on him.

While in county jail, Glenn and Demarcus Hammon retained the same defense counsel to represent them. At some point before trial, trial counsel negotiated a plea bargain for Demarcus Hammon. Petitioner, unaware his brother had pleaded, rejected a plea offer of fifteen years in prison and proceeded to trial.

The State apparently sought to call Demarcus Hammon as a witness at Petitioner's trial, but it was unable to locate him. In its case-in-chief, the State's two main witnesses were Officers Hill and Turner, both of whom testified about the stop and subsequent search as well as their opinion regarding whether the amount of drugs found in the vehicle was for distribution or personal use.² Without objection from trial counsel, Officer Hill testified that, based upon the amount of rocks found, the money found on Demarcus Hammon, the fact that neither Petitioner nor Demarcus Hammon exhibited signs of being under the influence of drugs, the absence of crack-use paraphernalia found in the car, and the presence of the gun, the drugs found in the vehicle were for distribution— as Officer Hill basically described, "the gun, the money, and the dope." Officer Turner testified to essentially the same facts and opinions as Officer Hill, but he additionally testified, again without objection from trial counsel, that his opinion that the drugs were for distribution was based on the fact that the Hammon brothers were stopped in an area of town with heavy gang and drug activity.

Petitioner's trial counsel gave no opening statement.³ He called only one witness—Evan June Smith, Petitioner's mother. Ms. Smith testified that she visited Petitioner in jail and that he told her the gun was not his and that he did not know anything about the drugs. According to Ms. Smith, Petitioner also told her that, on the day he was arrested, he had planned to pick up Demarcus Hammon and then drive to her house. She further testified that the car driven by Petitioner did not belong to her, Petitioner, or Demarcus Hammon.

To rebut Ms. Smith's testimony about her son's statement that the gun was not his, the State confronted her on cross-examination with a letter Petitioner had written to then-District Attorney Bob Macy, which was read into the record by the prosecutor:

Mr. Macy, I am Glen Hammon. My birthday is January 17, 1976. I am accused ... with my brother, Demarcus Hammon, ... after being stopped in a car searched by officer [sic]. A firearm was found under the passenger side where Demarcus Hammon was sitting. He confessed to the firearm on the spot. This information should be written in [sic] police report. Why am I still charged with possession of firearm? Thank you for your time, respectfully yours, Glen Hammon.

At the conclusion of Ms. Smith's testimony, the defense called no other witnesses, Petitioner waived his right to testify on his own behalf, and the defense rested.

Although the State could not locate Demarcus Hammon and thus could not call him in its rebuttal case, it attempted to introduce Demarcus Hammon's plea paperwork. Specifically, the State wanted to read into the record a statement from the factual basis for the plea in which Demarcus Hammon admitted under oath that "I committed the crimes of possession of CDS and possession of a firearm while a passenger in an automobile driven by my brother, Glen Hammon; the gun was mine; the CDS belonged to both of us." In response, Petitioner's trial counsel argued that if the factual basis for Demarcus Hammon's plea was read to the jury, then the jury should also simultaneously be informed that there was an agreement between Demarcus Hammon and the State that Demarcus Hammon would, in exchange for receiving a deferred sentence,⁴ inculpate Petitioner in the factual basis for his plea and testify against Petitioner at trial.

The exchange that followed between trial counsel (Mr. Jackson) and the trial court is particularly relevant to this appeal:

THE COURT: I don't see it in this portion of the paperwork. The part where they discuss the plea agreement it says, "Is their [sic] a plea agreement?" And it says, "Yes." And then handwritten in is—well, typed in, "What is your understanding of the plea agreement?" Handwritten in, "I'm pleading guilty to Possession of CDS and Possession of a Firearm in exchange for a five-year deferred sentence...."

MR. JACKSON: In exchange for that statement—he's saying in exchange for that statement he received consideration. In other words, he was motivated to the statement be given [sic]. We have—

THE COURT: Well, he may or—I don't know.

MR. JACKSON: We have a right to inform the jury—we have the right to inform the jury [sic] any agreements [Demarcus Hammon] had with the district attorney that the court approved. It's like—isn't it like a jail house snitch or—

THE COURT: No, not at all. I mean, he's merely pleading guilty and—

MR. JACKSON: In considering [sic] of a five-year deferred.

THE COURT: Right.

MR. JACKSON: If [Demarcus Hammon] had not inculpated [Petitioner], [Demarcus Hammon] would not have gotten [a five-year deferred sentence].

THE COURT: I don't know. It doesn't say in here [the plea paperwork] that. I don't know if that's true or not. I don't know.

At this point, trial counsel instructed the trial court that he had a conflict of interest in this case because he had also represented Demarcus Hammon in negotiating the plea bargain:

MR. JACKSON: Well, I have a bit of a conflict of interest, Your Honor, in that I was the attorney [for Demarcus Hammon] as well.

THE COURT: That's your—

MR. JACKSON: And that's something I need to—

...

THE COURT: Well, I'm asking about your discussions with the State of Oklahoma. Did the State of Oklahoma say to you, Your Client, Mr. Demarcus Hammon, must inculpate his co-defendant [Petitioner] in return for this recommendation of a five-year deferred [sentence]?

MR. JACKSON: That's correct.

THE COURT: You're saying that the State of Oklahoma said that?

MR. JACKSON: On the CDS charge. And it was a negotiated matter, Your Honor....

...

THE COURT: Okay. And you negotiated that with who? Paulette Stewart? She's the one who took the plea.

MR. JACKSON: I believe that's right. And Mr. Pate, I believe. There were—

MR. SIDERIAS [Assistant District Attorney]: I asked Mr. Pate about this matter and he has no recollection of it. That's not to say it didn't happen; its just to say he's probably negotiated a lot of cases since then.

...

MR. JACKSON: Your Honor, there was much discussion about this because—I represented both of them, and we were getting close to a point during the negotiations where if their interest [sic] became adverse, I would have to— certain decisions in terms of control. And the district attorney...