Key v. Harvanek

• Decision Date: 29 September 2017
• Docket Number: Case No. CIV 14-283-RAW-KEW
• Parties: SAMMY LYNN KEY, Petitioner, v. KAMERON HARVANEK, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Oklahoma

SAMMY LYNN KEY, Petitioner, v. KAMERON HARVANEK, Warden, Respondent.

Case No. CIV 14-283-RAW-KEW

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

September 29, 2017

OPINION AND ORDER

This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Mack Alford Correctional Center in Stringtown, Oklahoma. He is attacking his convictions and sentence of life without parole in Bryan County District Court Case No. CF-2011-175 for Trafficking in Methamphetamine (Count 1), After Former Conviction of Two or More Violations of the Uniform Controlled Dangerous Substances Act; Unlawful Possession of a Firearm, After Former Felony Conviction (Count 2); and Possession of Drug Paraphernalia (Count 3). He sets forth the following grounds for relief:

I. Insufficient evidence to prove Petitioner had dominion and control, or even any knowledge whatsoever, of the trafficking quantity of methamphetamine found in Ms. Maxey's lingerie drawer.

II. Petitioner's mandatory sentence of life without parole for Count 1 is excessive and violates his protection under both the federal and state Constitutions against cruel and unusual punishment.

III. Insufficient evidence to prove Petitioner was guilty of Unlawful Possession of a Firearm, After Former Felony Conviction.

IV. The trial court committed plain error by denying Petitioner's request for a mistrial, thereby preventing him from receiving a fair and impartial jury trial.

V. Petitioner was prejudiced by ineffective assistance of counsel.

VI. The trial court committed plain error by failing to give Oklahoma Uniform Jury Instruction 9-6A, advising the jury that they were required to give separate consideration to each of the three counts charged.

VII. The trial court erred by failing to follow the statutorily-mandated procedures when the jury had questions both during the first stage and second stage of Petitioner's jury trial.

VIII. The cumulative effect of all the cited errors deprived Petitioner of a fair trial and warrants relief.

Respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the Court for consideration in this matter:

A. Petitioner's direct appeal brief.

B. The State's brief in Petitioner's direct appeal.

C. Petitioner's reply brief.

D. Summary Opinion affirming Petitioner's judgment and sentence. Key v. State, No. F-2012 (Okla. Crim. App. July 25, 2013).

D. Transcripts

E. State court record.

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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).

Facts

The Oklahoma Court of Criminal Appeals (OCCA) set forth the facts of the case in its Opinion affirming Petitioner's Judgment and Sentence:

On March 25, 2011, members of the Bryan County Sheriff's Department, the District 19 Drug Task Force, the Oklahoma Highway Patrol and the Durant Police Department executed a search warrant on the mobile home located at 303 Martin Lane, Colbert, Oklahoma. Lori Maxey owned the mobile home and shared the residence with Appellant.

When the officers approached the mobile home, they discovered Shane St. Clair in the front yard. St. Clair was texting Appellant's cell phone asking: "I'm outside if ur up or at home?" (State's Ex. No. 20). The officers knocked on the door and announced their presence three times to no avail. They breached the door and found Appellant and Maxey lying in bed in the master bedroom. Both were clothed with a T-shirt. The officers permitted Appellant and Maxey to fully cloth [sic] themselves and then placed them in the living room.

The officers searched the home and found 26.44 grams of crystalline methamphetamine, 2 glass pipes, aluminum foil, and a digital scale that looked like a pack of Marlboro cigarettes in a dresser drawer filled with female undergarments. The methamphetamine was in both a clear baggie and red zipit baggies. The officers found a ball cap on the dresser. The ball cap contained Appellant's billfold, cell phone, cash, and a baggie containing .22grams of powdered methamphetamine. In the floor next to the bed the officers located a propane torch frequently used by drug users to heat and smoke methamphetamine.

The door to the closet in the bedroom was open. Officers found a loaded pistol on the shelf and a rifle in its case.

Several vehicles were parked in the yard of the residence. A red Dodge Stratus four-door and a faded blue Chevrolet pickup were parked in front of the home. Appellant's truck was parked next to the mobile home and had a stock trailer hitched to it. A green Jeep Grand Cherokee was also parked on the side of the home. The officers searched the vehicles. Inside Appellant's stock trailer the officers found numerous items associated with the manufacture of methamphetamine. The officers located coffee filters, straws, a glass mason jar, a yellow bucket, hydrogen peroxide, used rubber gloves, and a Gatorade bottle with two pieces of black tubing and electrical tape on it. The Gatorade bottle had been transformed into a hydrogen chloride gas generator used to powder-out methamphetamine in the final processes of making the drug. The bottle was tested and determined to contain methamphetamine.

The Jeep Grand Cherokee was registered to Constance Clites. The keys to the vehicle were found inside the residence. The officers had last observed this vehicle when they conducted an inventory search of the vehicle before it was impounded from the courthouse parking lot on the day that Clites went to prison for manufacturing methamphetamine. A search of the Jeep also revealed numerous items associated with the manufacture and use of methamphetamine. The officers located acetone, digital scales, an empty Gatorade bottle with black tubing and electrical tape on it, red zipit baggies, and a broken methamphetamine pipe. One of the baggies contained a cutting agent used to dilute methamphetamine for resale. Officers also found a box of .32 caliber automatic ammunition that matched the pistol found in the closet. None of these items were in the vehicle on the day that Clites went to prison.

Officers obtained a search warrant for Appellant's cell phone and extracted information from the device. The incoming and outgoing text messages revealed Appellant's ongoing personal and business relationship with Maxey. Appellant used Maxey's mobile home as his residence when it suited his purposes. Appellant and Maxey had a twelve-month-old daughter together. Appellant interacted extensively with Maxey's young son. Both Appellant and Maxey helped each other sell methamphetamine. They shared money andsome bills. However, Appellant's relationship with Maxey was not totally exclusive. Appellant spent time in the home of Charla Carbaugh as well. Appellant's choice to spend consecutive nights with Carbaugh angered Maxey and caused her to lash out at him in the text messages. Ultimately, Maxey accepted Appellant's behavior. The day before the officers executed the search warrant on her mobile home, Maxey asked Appellant to come with her to check the quality of some methamphetamine. When Appellant failed to timely respond, Maxey complained that Appellant knew that she did not have any methamphetamine but that she didn't know why she would expect anything different from him.

Key v. State, No. F-2012-211, slip op. at 2-4 (Okla. Crim. App. July 25, 2013) (unpublished) (Dkt. 10-4). The OCCA's factual findings are entitled to a presumption of correctness, unless Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

Ground I: Sufficiency of the Evidence (Count 1)

Petitioner alleges in Ground I that the evidence was insufficient to sustain his conviction for Trafficking, as alleged in Count 1, because the evidence did not demonstrate his knowledge of or control over the methamphetamine found in Ms. Maxey's lingerie drawer in her home. Respondent asserts the OCCA's determination of this claim was not contrary to, or an unreasonable application of, Supreme Court law, nor was it based on an unreasonable determination of the facts presented on direct appeal.

Sufficiency of the evidence is a mixed question of law and fact. We ask whether the facts are correct and whether the law was properly applied to the facts, which is why we apply both 28 U.S.C. § 2254(d)(1) and (d)(2) when reviewing sufficiency of the evidence on habeas.

Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006) (citations omitted), cert. denied, 549 U.S. 1285 (2007).

The OCCA analyzed and denied relief on this claim as follows:

In his first proposition of error, Appellant challenges the sufficiency of the evidence supporting his conviction for trafficking in methamphetamine. We review to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Easlick v. State, 90 P.3d 556, 559 (Okla. Crim. App. 2004); Speuhler v. State, 709 P.2d 202, 203-204 (Okla. Crim. App. 1985). The requisite elements of trafficking in methamphetamine are:

First, knowingly;

Second, possessed;

Third, twenty (20) grams or more of methamphetamine.

Lewis v. State, 150 P.3d 1060, 1062 (Okla. Crim. App. 2006); Okla. Stat. tit. 63 § 2-415(C)(4)(a) (Supp. 2007); Inst. No. 6-13, OUJI-CR(2d) (Supp. 2010).

Appellant does not

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