Manning v. Patton
| Decision Date | 29 July 2015 |
| Docket Number | Case No. 13-CV-722-TCK-FHM |
| Court | U.S. District Court — Northern District of Oklahoma |
| Parties | PATRICK WAYNE MANNING, II, Petitioner, v. ROBERT C. PATTON, Director, Respondent. |
Before the Court is the petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner, a state inmate appearing pro se. Respondent filed a response (Dkt. # 18), and provided the state court records necessary for adjudication of Petitioner's claims (Dkt. ## 18, 19, 20). Petitioner filed a reply (Dkt. # 24). Petitioner also filed motions "to expand on appeal" with an attached "supplemental habeas brief" (Dkt. # 29), "to expedite habeas petition" (Dkt. # 30), and "for appointment of counsel/evidentiary hearing" (Dkt. # 32). For the reasons discussed below, the petition for writ of habeas corpus is denied. Petitioner's motions "to expand on appeal" and "for appointment of counsel/evidentiary hearing" are denied and the motion "to expedite habeas petition" is declared moot.
From November 28, 2008, through February 25, 2009, four (4) armed robberies of IBC Banks, all located in Tulsa, Oklahoma, took place. The first bank robbed was located at 111 W. 5thStreet. The second bank robbed was located at 8202 E. 71st Street. Bank employees involved in the first two (2) robberies described the robber as a black male wearing a wig, a beard, and a long black coat. In both robberies, the robber was armed with a gun and a taser. He directed the employees to the vault and ordered them to put money in a white kitchen trash bag. The losses were $37,000 from the first armed robbery and $92,000 from the second armed robbery.
The IBC Bank located at 41st Street and Garnett Avenue was the site of both the third and fourth robberies. In both of those robberies, employees described the robber as a black man armed with a gun. He wore black jeans, a black leather trench coat, a gray beanie, a T-shirt covering his face, and black sunglasses. The robber jumped over the counter and told the employees we wanted to go to the vault. During the third robbery, the employees were unable to open the vault and put money from their cash drawers into a white trash bag produced by the robber. The loss from the third armed robbery was $14,000. During the fourth robbery, the robber's hood and mask fell off when he jumped the counter. After an employee opened the vault, other employees put money into a white trash bag provided by the robber. During the fourth robbery, one of the bank employees recognized the robber as the same man who had committed the third robbery. The loss from the fourth armed robbery was $102,000.
After the fourth armed robbery, Tulsa Police Department detectives released surveillance photos of the robber to the media. Detectives received a Crime Stoppers tip identifying Patrick Manning as the man in the photos. Based on that information, the detectives prepared a 6-person photo lineup and presented it, separately, to the employees of the IBC Bank at 41st Street and Garnett Avenue. Three employees selected a photograph of Patrick Manning as the man who robbed the bank.
Based on those identifications, Tulsa Police Department Detective John Brown obtained a warrant for Petitioner's arrest with regard to the robberies of the bank located at 41st Street and Garnett Avenue. On March 9, 2009, police found Petitioner at a motel located just east of 32nd Street and Memorial Avenue in Tulsa, Oklahoma. When he was confronted by police and told that he was being arrested, Petitioner ran. In order to subdue Petitioner, the police shot him multiple times with a pepper-ball gun. It took four (4) police officers to restrain Petitioner. Once he was handcuffed and in custody, Petitioner was transported to the Detective Division by Tulsa Police Officers Josh Martin and Jason Muse. While he was being transported, Petitioner made unsolicited statements that he had done "some licks on some banks."
As a result of those events, Petitioner was charged, by Second Amended Information filed in Tulsa County District Court, Case No. CF-2009-1023, with four (4) counts of Robbery With a Firearm (Counts 1, 2, 4, and 5), and Resisting an Officer (Count 3). Petitioner received a jury trial. At the conclusion of trial, the jury found Petitioner guilty as charged. On December 4, 2009, the trial judge sentenced Petitioner, in accordance with the jury's recommendations, to forty (40) years imprisonment and a fine of $10,000 on each of Counts 1, 2, 4, and 5, to be served consecutively, and to twelve (12) months in the Tulsa County Jail (TCJ) and a fine of $500 on Count 3, to be served concurrently with Count 1. Assistant Public Defender Julie Ann Ball represented Petitioner at trial.
Represented by Assistant Public Defender Richard Couch, Petitioner perfected a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA). Petitioner raised two (2) propositions of error, as follows:
(Dkt. # 18-1). The OCCA also allowed Petitioner to file a pro se supplemental brief and summarized his eight (8) additional claims, as follows:
See Dkt. # 18-3 at 2. In an unpublished Summary Opinion, filed April 6, 2011, in Case No. F-2009-1182, the OCCA denied relief on all of Petitioner's claims, including his claims raised in his pro se supplemental brief, and affirmed the Judgment and Sentence of the district court. Id.
On January 25, 2012, Petitioner filed an application for post-conviction relief. After the trial judge denied the requested relief, Petitioner appealed. (Dkt. # 18-4). In resolving Petitioner's post-conviction appeal, the OCCA found that Petitioner raised five (5) claims: (1) ineffective assistance of appellate counsel, (2) the State failed to prove chain of custody for tape recorded evidence, (3)ineffective assistance of trial counsel, (4) new evidence of police corruption, and (5) new evidence of false information in the arrest affidavit. By Order filed May 29, 2013, in Case No. PC-2012-308 (Dkt. # 18-5), the OCCA affirmed the district court's denial of post-conviction relief.
Petitioner commenced this federal action by filing a pro se petition for writ of habeas corpus. (Dkt. # 1). Petitioner raises six (6) grounds of error, as follows:
(Dkt. # 1). Respondent argues that the OCCA's adjudication of grounds 1, 2, 3, 4, and 5 was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, and that ground 6 raises a state law issue not cognizable on federal habeas review. (Dkt. # 18).
As an initial matter, the Court must determine whether Petitioner meets the exhaustion requirements of 28 U.S.C. § 2254(b). Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner presented the claims raised in the petition to the OCCA on direct and post-conviction appeal. Therefore, he has exhausted his state court remedies as to those claims.
Petitioner requests appointment of counsel. The Court denies Petitioner's request. There is no constitutional right to counsel beyond the direct appeal of a conviction. See Swazo v. Wyoming Dep't of Corrections, 23 F.3d 332 (10th Cir. 1994).
Petitioner's motion for an evidentiary hearing is denied. Petitioner has not met his burden of proving entitlement to an evidentiary hearing. Williams v. Taylor, 529 U.S. 420 (2000); Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998).
In the "supplemental habeas brief" attached to Petitioner's motion "to expand on appeal" (Dkt. # 29), Petitioner raises a claim of ineffective assistance of trial counsel based on a "conflict of interest." (Dkt. # 29-1). Petitioner further claims that trial counsel failed to: communicate...
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