Millsap v. Allbaugh

• Decision Date: 21 March 2019
• Docket Number: Case No. CIV-16-103-RAW-KEW
• Parties: TOMMY JAMES MILLSAP, Petitioner, v. JOE ALLBAUGH, Director, Respondent.
• Court: U.S. District Court — Eastern District of Oklahoma

TOMMY JAMES MILLSAP, Petitioner, v. JOE ALLBAUGH, Director, Respondent.

Case No. CIV-16-103-RAW-KEW

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

March 21, 2019

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. [Doc. 1]. Petitioner, a pro se prisoner in the custody of the Oklahoma Department of Corrections, is currently incarcerated at the Davis Correctional Facility in Holdenville, Oklahoma. Petitioner is attacking his conviction and sentence in Carter County District Court Case No. CF-2012-138 for Manslaughter in the First Degree, After Former Conviction of Two or More Felonies (Count 1), Felonious Possession of a Firearm, After Former Conviction of Two or More Felonies (Count 2), and Possession of a Controlled Dangerous Substance, After Former Conviction of Two or More Felonies (Count 3).¹ Petitioner sets forth the following grounds for relief:

I. Petitioner had an absolute right to use lethal force to repel an unlawful intruder. Therefore, Petitioner should have been immune from prosecution and his conviction for manslaughter must be vacated and dismissed.

II. The evidence was insufficient to support a conviction for manslaughter in the first degree by resisting criminal attempt because the evidence failed to prove beyond a reasonable doubt that Petitioner did not act in self-defense.

III. Petitioner's conviction for possession of a controlled dangerous substance (methamphetamine) must be vacated because the evidence was insufficient to prove his guilt beyond a reasonable doubt.

IV. The evidence was insufficient to prove Petitioner was guilty of possession of a firearm after former felony conviction as the possession of the firearm was justified and should have been excused.

V. Counts One and Three were improperly joined at Petitioner's trial in violation of his right to a fair trial and due process of law under the Fourteenth Amendment to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

VI. Petitioner's rights to due process and a fair trial under the Fourteenth Amendment to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution were violated by the improper admission of bad character evidence.

VII. The failure to provide a complete record of the proceedings constitutes a violation of Petitioner's rights under the Fourteenth Amendment to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

VIII. The trial court abused its discretion in allowing the State to allege and to present evidence of separate prior convictions on cases and counts that arose out of the same transactions, or occurrence or series of events closely related in time and location.

IX. Petitioner was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

X. Petitioner's sentences are excessive and should be modified.

XI. The accumulation of error violated Petitioner's rights under the Fourteenth Amendment to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

Respondent filed a response on May 12, 2017. [Doc. 20]. Respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. [Id. at 2]. The eleven grounds for relief asserted by Petitioner herein were also presented to theOklahoma Court of Criminal Appeals ("OCCA"). [Id. at 3]. The following have been submitted to the court for consideration in this matter:

A. Petitioner's direct appeal brief.

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

C. Summary Opinion affirming Petitioner's judgment and sentence.

D. Transcripts of preliminary hearing and jury trial proceedings.

E. DVD of interview of Petitioner.

F. Motion to dismiss filed in state court, and the minute order of 09/26/2012 showing motion to dismiss withdrawn.

G. Relevant jury instructions.

Standard of Review

Under the Antiterrorism 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).

As a preliminary matter, Petitioner has included claims specifically based upon the Oklahoma Constitution within Grounds V, VI, VII, IX and XI. Those portions of Petitioner's claims are denied. Claims grounded in a state's constitution are not cognizable on federal habeas corpus review. The Supreme Court has explained "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Davis v. Reynolds,890 F.2d 1105, 1109 n. 3 (10th Cir.1989) ("Alternative state claims, whether grounded in state statutes or the State Constitution, are not cognizable under 28 U.S.C. § 2254(a)." (citation omitted)).

Factual Background

The OCCA set forth the facts of the case as follows:

On February 27, 2012, members of the Carter County Sheriff's Office and Ardmore Police Department executed a search warrant on Millsap's home at 86 Clover Lane. Millsap was not present at the time. The structure was a two bedroom residence; one bedroom contained adult male clothing and the other contained small children's clothes. In the closet of the children's bedroom, officers found a lockbox containing prescription pill bottles bearing Millsap's name. Also in the lockbox were cystalline flakes that were tested to be methamphetamine. In the master bedroom, an OG&E bill dated January 2012 and bearing Millsap's name for 86 Clover Lane was found on the dresser.

On March 28, 2012, a group of people congregated at Millsap's home at 86 Clover Lane. Among those present were Toby Albin, the victim and long-time friend of Millsap, Susie Gorman, Taylor Burkett, and Karlie Barbour. The group drank and used drugs into the night. At one point, Millsap allowed Albin to use his vehicle to drive to Texas to get some money from Albin's father. On Albin's return, Millsap allowed Albin and Barbour to spend the night at his home while he spent the night at Burkett's apartment.

On the morning of March 29, 2012, Millsap and Burkett went to a store called 580-To Go where they traded Albin's iPhone for another phone. Millsap used methamphetamine that morning and appeared to be under the influence at the time. When they returned to Millsap's house, Albin was angry because his phone, money, and some drugs were missing. Although not directed at anyone in particular, Albin threatened to "take care" of anyone who was involved with taking his property.

Albin received information that his phone was at 580-To Go. Driving Millsap's car, Albin and Burkett picked up Gorman and the three went to the store to try to locate the phone. At the store, Albin identified his phone and store employees pointed to Burkett and advised that she and a man had traded it that morning. Albin told Gorman that he wanted to talk to Millsap before confronting anyone about taking his phone. Although flatly disputed by Gorman, Burkett testified that before returning to Millsap's house, Albin stopped at another house where he asked someone if they had a gun; at that time, Burkett called Millsap to warn him that Albin was trying to obtain a weapon.

When the call came in from Burkett, Millsap "started freaking out" and told Barbour that Albin was upset about his missing property. Millsap sent his children to his mother's house next door and returned with a gun. Barbour asked why he needed the gun to which Millsap responded, "In case something gets out of hand."

Millsap was standing outside with the shotgun when Albin pulled up to the house. Albin got out of the car and stated that he was not armed. Albin asked if the gun was for him and Millsap responded that it was not. The two men talked; at times the conversation got heated but would calm back down. During the conversation, Albin repeatedly tried to convince Millsap to go with him to confront Keith Dean, a man who was at the party the night before and whom Albin suspected of stealing his property. Albin remarked that he was not leaving until Millsap came with him to find Dean. As they talked, both Albin and Millsap moved in and out of the house. At one point they got into the car to go confront Dean but never left. As they talked by the car, Barbour saw a phone between the seat and armrest. She reached to get the phone and Albin held her by the hair, brandished a knife, laughed, and winked at her. Barbour explained that Albin was simply trying to get Millsap's attention and that she never felt threatened.

Millsap told Albin to come inside the house to talk. Millsap went into the house, sat down in the living room, and propped the shotgun up on his leg. Burkett followed and sat beside him. Before Albin went inside, Gorman said something to him which prompted him to say "Oh hell no." Albin went into the house with Barbour following a few steps behind. As he entered, Albin accused Millsap of taking his property. Millsap fired one shot striking Albin in the stomach. From the time Albin entered until the time he was shot, only a matter of seconds passed. Millsap hid the shotgun in a wooded area until police arrived. No weapons were found on or near Albin. The knife the victim brandished earlier was found outside near the car.

In a Mirandized interview given on March 30, 2012, Millsap

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