Marshall v. Jones, No. 05-CV-033-TCK-PJC.

• Citation: 639 F.Supp.2d 1240
• Decision Date: 16 March 2009
• Docket Number: No. 05-CV-033-TCK-PJC.
• Parties: Andre L. MARSHALL, Petitioner, v. Justin JONES,<SMALL><SUP>1</SUP></SMALL> Director, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

639 F.Supp.2d 1240

Andre L. MARSHALL, Petitioner, v. Justin JONES,¹ Director, Respondent.

No. 05-CV-033-TCK-PJC.

United States District Court, N.D. Oklahoma.

March 16, 2009.

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Andre L. Marshall, Cushing, OK, pro se.

Heath Thomas Robinson, Office of the Attorney General, Oklahoma City, OK, Julian Stuart Smith, Jr., Richardson Law Firm, Muskogee, OK, for Respondent.

OPINION AND ORDER

TERENCE KERN, District Judge.

This is a 28 U.S.C. § 2254 habeas corpus action. Petitioner is a state inmate, appearing pro se. By prior Order (Dkt.# 20), the Court denied Respondent's motion to dismiss for failure to exhaust, finding that although Petitioner had failed to present his seventh claim, as identified in the "amended and/or supplemental brief" (Dkt.# 8), to the Oklahoma Court of Criminal Appeals, it would be futile to require him to return to state court. Respondent filed a response (Dkt.#24) addressing the exhausted claims as raised in the petition. Petitioner filed both a response (Dkt.#30) to show cause why an anticipatory procedural bar should not apply to his seventh claim and a reply (Dkt.# 31) to Respondent's response. For the reasons discussed below, the Court finds the claims raised in the petition for writ of habeas corpus should be denied. The ineffective assistance of appellate counsel claims identified in the "amended and/or supplemental brief" are procedurally barred.

BACKGROUND

On July 8, 2001, at approximately 8:45 p.m., Tulsa Police Officer Pierce stopped a Suburban vehicle in the area of 54th Street North and Frankfort Avenue, in Tulsa, Oklahoma. Officers Hart and Bella arrived as back-ups. Initially, the vehicle was stopped because the driver, Vagus Penny, was not wearing a seatbelt. However, after finding narcotics in the possession of Penny and his passenger, Tyson Banks, the officers handcuffed Penny and Banks and began searching the vehicle. A crowd of onlookers gathered at the scene. While searching the vehicle, at approximately 9:00 p.m., the police officers heard gunshots. The police officers exchanged gunfire with the shooter who was seen running in and along a creek in the area. The police ultimately arrested Petitioner, Andre Lasuan Marshall, at a nearby home where he had sought shelter. He had received two (2) gunshot wounds. None of the police officers was wounded by the gunfire.

As a result of those events, Petitioner was tried and convicted by a jury in Tulsa County District Court, Case No. CF-01-4055, of Assault With a Dangerous Weapon (Count I), two (2) counts of Shooting With Intent to Kill (Counts II and III), Possession of a Firearm After Former Felony Conviction (renumbered as Count V), and Entering a Building With Unlawful Intent (renumbered as Count IV), all after Former Conviction of Two or More Felonies. He was sentenced to twenty (20) years imprisonment on Count I, thirty (30) years on each of Counts II and III, and four (4) years on Count V, all to be served concurrently. He was fined $500 on Count IV. At trial, Petitioner was represented by Richard L. Clark and Brian J. Rayl, attorneys in the Tulsa County Public Defender's Office.

Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals ("OCCA"). On direct appeal, Petitioner, represented by Stuart W. Southerland, an attorney in the Tulsa County Public Defender's Officer, raised the following eight (8) propositions of error:

I: There was insufficient evidence to establish that Andre Marshall shot anyone with the intent to kill.

II: It was error to instruct on the lesser offense of Assault With a Dangerous Weapon over Appellant's objection.

III: Since Appellant was convicted of Shooting With Intent to Kill After Former Conviction of Two Felonies, his conviction for Possession of a Firearm After Former Felony Conviction violates 21 O.S.2001 § 11 and the Double Jeopardy provisions of the United States and the Oklahoma Constitutions.

IV: The testimony of Tulsa Police Officer Bella about members of the crowd of onlookers wearing "gang colors" constituted an evidentiary harpoon which deprived Appellant of a fair trial pursuant to the United States and Oklahoma Constitutions.

V: There was insufficient evidence to support Appellant's conviction for Count V (renumbered as Count IV), Entering With Unlawful Intent.

VI: It was error not to instruct the jury as to 21 O.S.2001 § 13.1.

VII: Various instances of prosecutorial misconduct in the State's closing argument constituted reversible error.

VIII: Aggregate error at Appellant's trial warrants reversal of his convictions, or modification of his sentence.

(Dkt.# 24, Ex. A). On August 21, 2003, in Case No. F-2002-537, the OCCA found merit to Petitioner's second and fifth claims and rejected the remaining claims. For that reason, the state appellate court affirmed Petitioner's convictions and the sentence of imprisonment as to Counts II, III, and V, but reversed with instructions to dismiss Counts I (Assault with a Dangerous Weapon) and IV (Entering a Building with Unlawful Intent). Dkt. # 24, Ex. C.

On August 24, 2004, Petitioner filed an application for post-conviction relief in the state district court alleging ineffective assistance of appellate counsel for failing to raise claims of ineffective assistance of trial counsel and prosecutorial misconduct. See Dkt. # 24, Ex. D. By order filed September 23, 2004, the state district court denied the requested relief. Dkt. # 24 Ex. E. Petitioner filed a post-conviction appeal in the OCCA, assigned Case No. PC-2004-1074, asserting one claim: "the trial court errored [sic] and/or abused it's [sic] discretion in denying the appellant's effective assistance of counsel claim, and in not granting an evidentiary hearing." See Dkt. # 24, Ex. F. On December 6, 2004, the OCCA affirmed the order of the district court denying post-conviction relief. Dkt. # 24, Ex. G. The OCCA found as follows:

Petitioner has failed to establish entitlement to post-conviction relief. All issues that could have and should have been previously raised are waived and may not be the basis of a post-conviction application. 22 O.S.2001, § 1086; Fowler v. State, 1995 OK CR 29, ¶ 2, 896 P.2d 566, 569. Petitioner is attempting to avoid this procedural bar by claiming his appellate counsel and trial counsel were ineffective. To support of [sic] a claim of ineffective counsel, Petitioner must establish his counsel's performance was deficient under prevailing professional norms, and that but for the deficient performance the outcome of his trial and appeal would have been different, or that Petitioner is factually innocent. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698. Petitioner has not established that the simple failure to advance claims on appeal causes appellate counsel's performance to be deficient under prevailing professional norms. Id. Petitioner has not established that the outcome of this trial or appeal would have or should have been different. Id. Finally, Petitioner has definitely not established he is factually innocent. Id. Therefore, the order of the District Court of Tulsa County denying Petitioner's application for post-conviction relief in Case No. CF-2001-4055 should be, and is hereby, AFFIRMED.

(Dkt.# 19, Ex. 2).

On January 18, 2005, Petitioner filed his federal petition for writ of habeas corpus (Dkt.# 1), and supporting brief (Dkt.# 4). In his supporting brief, Petitioner identifies the following claims:

Proposition I: The OCCA's opinion was "contrary to" clearly established federal law or involved an unreasonable application of federal law in light of the evidence presented in the state court proceedings concerning the Petitioner's "insufficiency of the evidence" claim, that Andre Marshall shot anyone with the "intent" to kill.

Proposition II: Since the petitioner was convicted of shooting with the intent to kill after former conviction of two felonies, his conviction for possession of a firearm after former felony conviction violates 21 O.S.2001 § 11 and the Double Jeopardy provisions of the United States and the Oklahoma Constitutions. Therefore, the OCCA's decision as to this proposition, was "contrary to" clearly established federal law, or involved an unreasonable application of federal law in light of the facts and/or evidence that was presented in the state court proceedings.

Proposition III: The testimony of Tulsa Police Officer Bella about members of the crowd of onlookers wearing "gang colors" constituted an evidentiary harpoon which deprived the petitioner his right to a fair trial pursuant to the Oklahoma and Untied States Constitutions. Whereas, the decision by the OCCA regarding this claim was "contrary to" clearly established federal law, or "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings."

Proposition IV: It was error for the trial court not to instruct the jury as to 21 O.S.2001 § 13.1. Therefore, the OCCA's decision was "contrary to" clearly established Supreme Court precedent, or was based on an "unreasonable determination of the facts in light of the evidence presented in the state court proceedings."

Proposition V: Various instances of prosecutorial misconduct in the State's closing argument deprived the petitioner of a "fair trial," whereas, the decision by the OCCA regarding this claim was "contrary to" clearly established federal law, or "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings."

Proposition VI: Aggregate error at the petitioner's trial warrants reversal of his convictions, or modification of his sentences. Whereas, the OCCA's decision concerning this claim is "contrary to" clearly established Supreme Court precedent, or was based on an "unreasonable determination of the facts in light of the evidence...