Korona v. Nunn
| Docket Number | 19-CV-0058-CVE-JFJ |
| Decision Date | 02 February 2022 |
| Parties | BRIAN EX KORONA, a.k.a., Brian Edward Xavier Korona, Petitioner, v. SCOTT NUNN, [1] Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Petitioner Brian EX Korona a.k.a., Brian Edward Xavier Korona, a state inmate appearing pro se, [2] commenced this action in March 2019 by filing an amended 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 3).[3] Korona seeks federal habeas relief from the judgment and sentence entered against him in the District Court of Tulsa County, Case No CF-2014-631, and identifies four claims. Respondent Scott Nunn filed a response (Dkt. # 17) in opposition to the amended petition and provided state court records (Dkt. ## 17, 18, 19, 28-1) necessary to adjudicate Korona's claims. Korona filed a reply brief (Dkt. # 24) and, with leave of Court, Nunn filed a sur-reply brief (Dkt # 28). In 2021, Korona filed a motion (Dkt. # 31) requesting a stay of this habeas proceeding pending his exhaustion of available state remedies as to a fifth claim that is not raised in the amended petition. Nunn filed a response (Dkt. # 32) in opposition to the motion. For the reasons discussed below, the Court denies the motion to stay and denies the amended petition for writ of habeas corpus.[4]
Korona and J.K. were married in February 2012, and their son, J.B.K. was born in November 2012. Dkt. # 18-3, Tr. Trial vol. 2, at 35, 38.[6] In February 2013, J.K. petitioned for and obtained a protective order that prohibited Korona from having any contact with J.K. or their son. Dkt. # 18-3, Tr. Trial vol. 2, 38-40; Dkt. # 18-5, Trial Exs., at 3-13. The protective order was served on Korona on February 13, 2013. Dkt. # 18-5, Trial Exs., at 14. J.K. also filed for a divorce and was temporarily granted full custody of J.B.K. Dkt. # 18-3, Tr. Trial vol. 2, 41-43. Korona and J.K. attempted to reconcile, on one or more occasions, despite the protective order, but by the end of 2013 Korona was not living in the same house as J.K. and their son. Dkt. # 18-3, Tr. Trial vol. 2, at 44-46, 102. J.K. had the locks changed in January 2014, and Korona did not have a key. Dkt. # 18-3, Tr. Trial vol. 2, at 45-46.
On the afternoon of February 7, 2014, J.K. and J.B.K. had lunch with J.K.'s friend, went to the grocery store, and returned home. Dkt. # 18-3, Tr. Trial vol. 2, at 31-33, 46-49. When J.K. and J.B.K.. arrived home, J.K. took J.B.K. inside. Dkt. # 18-3, Tr. Trial vol. 2, at 49. Before J.K. could go outside to get the groceries, Korona came “rushing out from the back bedroom and tackle[d]” J.K. Dkt. # 18-3, Tr. Trial vol. 2, at 49, 52. Korona and J.K. both fell to the floor, and Korona placed his hands around J.K.'s neck and began strangling her. Dkt. # 18-3, Tr. Trial vol. 2, at 52. Eventually, Korona let go of J.K.'s neck but he then bound her wrists and ankles with duct tape. Dkt. # 18-3, Tr. Trial vol. 2, at 53-54. After Korona threatened to kill her, J.K. begged him to stop and told him, falsely, that she loved him and wanted to work on saving their marriage. Dkt. # 18-3, Tr. Trial vol. 2, at 55.
Korona told J.K. they could fix their relationship if they “move back to New York” to “get away from everybody, ” removed the duct tape from her ankles, forced J.K. to walk to her Mercury Mountaineer while hiding her bound wrists with their son's diaper bag, and placed J.B.K. in a car seat. Dkt. # 18-3, Tr. Trial vol. 2, 55-57. Korona drove around for a period of time but refused to remove the duct tape from J.K.'s wrists. Dkt. # 18-3, Tr. Trial vol. 2, at 57-60. J.K. ultimately removed the duct tape with her teeth, but Korona warned her that “there would be consequences” if she attempted to signal anyone for help. Dkt. # 18-3, Tr. Trial vol. 2, at 57-58, 60.
At some point, Korona took J.K. and J.B.K. to a Burger King where he bought food and met with his drug dealer to buy oxycodone. Dkt. # 18-3, Tr. Trial vol. 2, at 59-60. Korona injected himself and J.K. with oxycodone. Dkt. # 18-3, Tr. Trial vol. 2, at 59-60. Sometime after they left the Burger King, Korona stopped at J.K.'s father's house to pick up J.K.'s brother, Jared, so that Jared could retrieve his truck-the truck that Korona borrowed earlier that morning to drive to J.K.'s house. Dkt. # 18-3, Tr. Trial vol. 2, at 60-63, 115-16, 153-55. While Jared was in the Mountaineer, J.K. tried to use her eyes and to display “an attitude” to communicate to Jared that something was wrong, but she feared the consequences of doing anything further. Dkt. # 18-3, Tr. Trial vol. 2, at 62-63, 115-16. Jared observed that Korona and J.K. were arguing, but he did not perceive anything that made him concerned for J.K.'s safety. Dkt. # 18-3, Tr. Trial vol. 2, at 157-58, 164-65.
After Korona dropped off Jared at J.K.'s house, Korona took J.K. and J.B.K. to a hotel in West Tulsa. Dkt. # 18-3, Tr. Trial vol. 2, at 63-64. While he was in the lobby checking in to the hotel, J.K. remained in the Mountaineer with J.B.K., and Korona stared at J.K. through the glass window. Dkt. # 18-3, Tr. Trial vol. 2, at 64. Inside the hotel room, Korona again injected J.K. with oxycodone. Dkt. # 18-3, Tr. Trial vol. 2, at 65. Korona then removed J.K.'s clothing and engaged in vaginal intercourse with her. Dkt. # 18-3, Tr. Trial vol. 2, at 65-68. J.K. remained passive and did not resist because she feared that Korona would become violent if he discovered she had no intent to salvage their relationship. Dkt. # 18-3, Tr. Trial vol. 2, at 65-67.
The next morning, Korona planned to steal some scrap metal from his previous employer, Boyle Services, so he could get cash for the trip to New York. Dkt. # 18-3, Tr. Trial vol. 2, at 68-69. Korona took J.K. and J.B.K. with him to Boyle Services and briefly left them alone in the Mountaineer. Dkt. # 18-3, Tr. Trial vol. 2, at 69. J.K. found an old cell phone, plugged it in to a charger, and called 911, but she hung up after a few seconds when Korona came running back to the Mountaineer. Dkt. # 18-3, Tr. Trial vol. 2, at 69-70, 74; Dkt. # 19 (State's Ex. 8, audio recording of 911 call). Korona then drove to a gas station where he attempted to use a stolen gas card, but the card did not work. Dkt. # 18-3, Tr. Trial vol. 2, at 74. Unable to get gas, Korona drove back to Boyle Services so he could steal power tools and exchange them for cash at a pawn shop. Dkt. # 18-3, Tr. Trial vol. 2, at 74-75. J.K. again tried to call 911, but Korona returned to the Mountaineer before the call connected. Dkt. # 18-3, Tr. Trial vol. 2, at 74-75. Korona planned to retrieve an identification card from the home of J.K.'s father so that he could pawn the stolen tools, but before he could execute that part of his plan, Korona received a text message or phone call from Jared warning him that law enforcement officers were looking for him at J.K.'s father's house. Dkt. # 18-3, Tr. Trial vol. 2, at 75-76, 158. Korona told J.K. that they “need[ed] to get out of Tulsa and lay low because the cops [were] looking for [them].” Dkt. # 18-3, Tr. Trial vol. 2, at 76.
Korona then drove to the Bass Pro Shop in Broken Arrow. Dkt. # 18-3, Tr. Trial vol. 2, at 76-77. After Korona parked the Mountaineer, Korona, J.K. and J.B.K went into the store. Dkt. # 18-3, Tr. Trial vol. 2, at 76-77. J.K. was “upset and angry because [Korona] had a protective order on [her], too” so J.K. took Korona's phone from him and called her attorney, but her attorney did not answer. Dkt. # 18-3, Tr. Trial vol. 2, at 77, 124-25. J.K., who was holding J.B.K, then refused to leave the store with Korona and contacted a store manager who called the police. Dkt. # 18-3, Tr. Trial vol. 2, at 77-78, 173-74; Dkt. # 19 (State's Ex. 9, audio recording of 911 call from Bass Pro). Korona left the store, alone, before any law enforcement officers arrived. Dkt. # 18-3, Tr. Trial vol. 2, at 77, 83.
Later that same day, Jared met Korona in the parking lot of St. Francis Hospital, in Broken Arrow, to drop off bags of Korona's clothing. Dkt. # 18-3, Tr. Trial vol. 2, at 158-61. Jared then went with Korona to Cash America Pawn and saw Korona pawn a sander and nail gun. Dkt. # 18-3, Tr. Trial vol. 2, at 161.[7] Korona told Jared he needed the cash to get back to New York. Dkt. # 18-3, Tr. Trial vol. 2, at 161. Korona ultimately was arrested in a casino parking lot in West Siloam Springs, Oklahoma. Dkt. # 18-4, Tr. Trial vol. 3, at 31-33. Before the arrest, the arresting officer saw Korona get into J.K.'s Mountaineer and heard him start the vehicle. Dkt. # 18-4, Tr. Trial vol. 3, at 32-33. Korona told the officer that the Mountaineer belonged to J.K., and that “he was about to go return it to her.” Dkt. # 18-4, Tr. Trial vol. 3, at 34. Law enforcement officers found a wad of duct tape on Korona's person and a roll of duct tape in the Mountaineer. Dkt. # 18-4, Tr. Trial vol. 3, at 14-15, 27-28. Officers also found in the Mountaineer sacks containing groceries that J.K. bought before Korona attacked her at her home, and a receipt from Burger King. Dkt. # 18-3, Tr. Trial vol. 2, at 48-49; Dkt. # 18-4, Tr. Trial vol. 3, at 15-18.
A sexual assault nurse examiner examined J.K. on February 8, 2014, and found injuries consistent with J.K.'s account of the events that occurred beginning on February 7, 2014. Dkt. # 18-4, Tr. Trial vol. 3, at 57-82. Specifically, the nurse found bruising and needle marks on J.K.'s skin and an abrasion on her genitalia that was consistent with forcible intercourse. Dkt. # 18-4, Tr. Trial vol. 3, at 67-74, 76-80.
Based on the foregoing events, the State of Oklahoma (“the state”) charged Korona with several criminal offenses. The case proceeded to trial...
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