Odom v. Braun, Case No. 1:13-cv-035
| Decision Date | 11 October 2013 |
| Docket Number | Case No. 1:13-cv-035 |
| Parties | Charles Odom, Petitioner, v. Colby Braun, Respondent. |
| Court | U.S. District Court — District of North Dakota |
ORDER DISMISSING HABEAS
PETITION
The petitioner, Charles Odom ("Odom"), is an inmate at the North Dakota Missouri River Correctional Center. On March 15, 2013, he filed what the court construed as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenged the validity of convictions in two separate cases on grounds that an arrest warrant issued in the first case was defective and that he would not have been charged in the second case but for its execution.
On June 11, 2013, respondent (hereinafter "State") filed a motion to dismiss Odom's habeas petition on the grounds that it was time-barred. For the reasons discussed below, the court grants the State's motion. Portions of the state-court records have be filed by the State at Doc. No. 13 and will be referred to by their exhibit numbers.1
On January 20, 2004, Bismarck police officers responded to a 911 call from Riddle Johnson, a man claiming that, in the midst of an argument with Odom over an outstanding drug debt, Johnsonhad locked himself in a motel room bathroom at the Select Inn. Officers proceeded to a room at the Select Inn registered to Galen Smith. There they found Johnson, Smith, and Odom. They also observed drug paraphernalia in plain view. Upon further investigation, they found a small quantity of marijuana in a pickup parked outside the Select Inn. The pickup did not belong to Odom. Odom v. State, 2010 ND 65, ¶ 2; 780 N.W.2d 666.
Odom was not arrested at the time. It was not until April 25, 2005, some sixteen months later, that Bismarck police Officer Kenan Kaizer went before a state district court judge to swear out a complaint and obtain a warrant for Odom's arrest. Id. at ¶¶ 2-3.
Kaizer presented oral sworn testimony in support of the complaint and arrest warrant in lieu of submitting an affidavit. Based solely on Kaizer's testimony, the state district judge found there was probable cause for the charges set forth in the complaint, namely felony possession of drug paraphernalia and misdemeanor possession of a small quantity of marijuana, and issued a warrant for Odom's arrest. Id.
The testimony that Kaizer gave was inaccurate in two respects. He testified that the marijuana was found in the room, when in fact it was found outside in a pickup that did not belong to Odom. Further, he testified that the room at the Select Inn where the officers responded to was registered to Odom, when, in fact, it was not. Kaizer did, however, accurately testify (at least according to a later opinion of the North Dakota Supreme Court) that officers at the scene: (1) were told by Johnson that Odom had threatened to assault him if he did not immediately pay an outstanding drug debt; (2) obtained consent to search the motel room; and (3) found drug paraphernalia in plain view. Concluding there was probable cause to charge Odom, the courtapproved the complaint and issued a warrant for Odom's arrest in Case No. 08-05-K-00812. Id. at ¶ 3.
On December 4, 2005, approximately seven months after the arrest warrant was issued, the manager of the Days Inn called the Bismarck police to report suspicious activity on the part of a Charles Odom, who had just checked in at the motel. See Odom v. Brutger Equities, Inc., No. 1:06-cv-038, 2007 WL 1611923, at **2-3 (D.N.D. June 1, 2007); Odom v. State, 2010 ND 65, ¶ 4. The police responded and arrested Odom outside the Days Inn on the still outstanding warrant for the charges of possession of drug paraphernalia and marijuana arising out of the events at the Select Inn almost two years earlier. Following Odom's arrest, police searched his room. In the room's safe, they found a digital scale covered with cocaine residue, a bundle of cash, and crack cocaine. Odom v. State, 2010 ND 65, ¶ 4; State v. Odom, 2006 ND 209, ¶¶ 2-6, 722 N.W.2d 370.
At some point following Odom's arrest, a second set of charges was brought against him in a separate criminal proceeding, Case No. 08-05-K-02477, for possession of cocaine with the intent to deliver and possession of drug paraphernalia based on what was discovered in his room's safe at the Days Inn. State v. Odom, 2006 ND 209, ¶¶ 2-6.
A combined preliminary hearing was held in January 2006 on both sets of charges and Odom was bound over to stand trial. Odom v. State, 2010 ND 65, ¶ 5.
Odom changed his plea to guilty on the first set of charges in Case No. 08-05-K-00812 on September 6, 2006, and was immediately sentenced to time served and a small fine. Odom v. State, 2010 ND 65, ¶ 5; (Ex. 6). However, upon learning that he would not be released because of thecharges pending in the second case, Odom immediately moved to withdraw his plea of guilty. A judgment of conviction was entered on September 13, 2006, which was followed by another motion to withdraw the guilty plea. On April 11, 2007, the state district court denied the motions to withdraw the plea of guilty. (Ex. 12). Odom did not take a direct appeal from either the judgment of conviction or the order denying the motions to withdraw the plea of guilty. (Ex. 1); see Odom v. Kaizer, No. 1:07-cv-019, 2009 WL 2709395, at *3 (D.N.D. Aug 24, 2009).
In Case No. 08-05-K-02477, the state district court initially suppressed the evidence from the search of the safe in Odom's room at the Days Inn on the grounds that Odom's consent to the search of his room did not extend to the room's safe. However, the State's Attorney took an immediate appeal and the North Dakota Supreme Court reversed the trial court's decision in State v Odom, 2006 ND 209; see also Odom v. State, 2010 ND 65, ¶ 5.
In June 2007, Odom entered a conditional plea of guilty to the second set of charges after the district court denied his motion to suppress the evidence. (Ex. 31). He was sentenced to twenty years' incarceration. (Ex. 32). On January 17, 2008, the North Dakota Supreme Court summarily affirmed the criminal judgment in State v. Odom, 2008 ND 2, 747 N.W.2d 136 (Table); see Odom v. State, 2010 ND 65, ¶ 5.
Odom next filed a state petition for post-conviction relief in March 2008, arguing that he had been denied effective assistance of counsel by the attorneys who had represented him in the two cases. Odom contended that his attorneys should have requested a transcript of the testimony given by Kaizer in April 2005 in support of the warrant for his arrest and uncovered his allegedly falsetestimony, which Odom contended made his arrest unlawful and lead to his being charged in the second case. (Exs. 14, 18, 38, 40, 44). The state district court denied the petition, concluding that Odom's counsels' performance was not ineffective and also that Odom had not suffered prejudice. With respect to the latter, the district court concluded that, notwithstanding the inaccurate testimony, sufficient other evidence had been presented to establish probable cause. (Exs. 18, 44); see Odom v. State, 2010 ND 65, ¶ 6.
On April 6, 2010, the North Dakota Supreme Court affirmed the district court's order denying Odom's petition for post-conviction relief, but on more limited grounds. The court agreed that Odom had failed to prove that his counsel's representation was ineffective under the first prong of Strickland v. Washington, 466 U.S. 668 (1984). And, because of that conclusion, the court stated it did not have to consider the second Strickland prong and determine whether Odom had suffered prejudice, i.e., whether there was sufficient other correct evidence in the testimony to establish probable cause. Odom v. State, 2010 ND 65, ¶ 13.
Odom subsequently filed a petition for writ of certiorari with the United States Supreme Court. Odom's petition was denied on October 4, 2010. Odom v. North Dakota, 131 S.Ct. 251 (2010) (Mem.).
1. Prior § 2254 petions
In June 2008, Odom filed a petition for habeas corpus relief with this court. Observing that Odom had yet to exhaust all of his state court remedies, the court dismissed the petition without prejudice on December 22, 2008. Odom v. State of North Dakota, No. 3:08-cv-00057 (D.N.D.). In October 2010, Odom again petitioned this court for habeas corpus relief. However, he moved towithdraw his petition, which the court granted on November 17, 2010. Odom v. Redmann, No. 3:10-cv-00097 (D.N.D.)
2. Civil actions
On March 20, 2007, Odom filed a § 1983 action against Kaizer and several other named defendants. Odom v. Kaizer, No. 1:07-cv-019 (D.N.D.). Odom alleged, among other things, that Kaizer provided false information that was used in support of a complaint and warrant for his arrest in his first state criminal case. Odom sought both equitable relief, i.e., dismissal of his state charges, and damages for pain and suffering and mental anguish. Initially, the court stayed this action because of Odom's ongoing state criminal proceedings. When those proceedings were completed, the court conducted a preservice screening as required by 28 U.S.C. § 1915A and concluded that Odom's complaint stated two possible § 1983 claims, one akin to the common law tort of malicious prosecution and the other a claim for selective enforcement, and dismissed the claims for failure to state a claim. Odom v. Kaizer, No. 1:07-cv-019, 2009 WL 2709395, at *6 (D.N.D. Aug. 24, 2009) ("Odom v. Kaizer I").
Odom appealed the court's preservice dismissal, and the Eighth Circuit affirmed, stating summarily that it "found no basis for reversal." Odom v. Burleigh County Detention Center, 369 Fed.Appx. 767, 2010 WL 1223163 (8th Cir. Mar. 31, 2010) (unpublished per curiam).
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