Simpson v. Duckworth

• Decision Date: 25 May 2016
• Docket Number: Case No. CIV-11-96-M
• Parties: KENDRICK ANTONIO SIMPSON, Petitioner, v. KEVIN DUCKWORTH, Interim Warden, Oklahoma State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

KENDRICK ANTONIO SIMPSON, Petitioner, v. KEVIN DUCKWORTH, Interim Warden, Oklahoma State Penitentiary, Respondent.¹

Case No. CIV-11-96-M

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

May 25, 2016

MEMORANDUM OPINION

Petitioner, a state court prisoner, has filed a petition for writ of habeas corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 23. Petitioner challenges the convictions entered against him in Oklahoma County District Court Case No. CF-06-496. Tried by a jury in 2007, Petitioner was found guilty of first degree murder (Counts 1 and 2), discharging a firearm with intent to kill (Count 3), and possession of a firearm after former felony conviction (Count 4). Petitioner received a life sentence for Count 3 and a 10-year concurrent sentence for Count 4. For Counts 1 and 2, Petitioner was sentenced to death. In support of both death sentences, the jury found four aggravating circumstances: (1) Petitioner was previously convicted of a felony involving the use or threat of violence to the person; (2) Petitioner knowingly created a great risk of death to more than one person;(3) the murder was especially heinous, atrocious, or cruel; and (4) the existence of a probability that Petitioner would commit criminal acts of violence that would constitute a continuing threat to society (O.R. III, 529-31, 583-87; O.R. IV, 612, 665-69; J. Tr. VI, 110-11; J. Tr. VIII, 65-67, 83). With respect to Count 2, the murder of Anthony Jones, the especially heinous, atrocious, or cruel aggravator was later stricken.²

Petitioner has presented eighteen grounds for relief. Respondent has responded to the petition and Petitioner has replied.³ Docs. 23, 49, and 63. In addition to his petition, Petitioner has filed motions for discovery and an evidentiary hearing. Docs. 42 and 51. After a thorough review of the entire state court record (which Respondent has provided), the pleadings filed in this case, and the applicable law, the Court finds that, for the reasons set forth below, Petitioner is not entitled to his requested relief.

I. Procedural History.

Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals (hereinafter "OCCA"). The OCCA affirmed in a published opinion. Simpson,230 P.3d at 907. Petitioner sought review of the OCCA's decision by the United States Supreme Court. His petition for writ of certiorari was denied on January 18, 2011. Simpson v. Oklahoma, 562 U.S. 1185 (2011). Petitioner also filed two post-conviction applications, which the OCCA denied in unpublished opinions. Simpson v. State, No. PCD-2012-242 (Okla. Crim. App. Mar. 8, 2013); Simpson v. State, No. PCD-2007-1262 (Okla. Crim. App. Oct. 13, 2010).

II. Facts.

In adjudicating Petitioner's direct appeal, the OCCA set forth a summary of the facts. Pursuant to 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." Although this presumption may be rebutted by Petitioner, the Court finds that Petitioner has not done so, and that in any event, the OCCA's statement of the facts is an accurate recitation of the presented evidence. Thus, as determined by the OCCA, the facts are as follows:

On the evening of January 15, 2006, Jonathan Dalton, Latango Robertson and [Petitioner] decided to go to Fritzi's hip hop club in Oklahoma City. Prior to going to the club, the three drove in Dalton's white Monte Carlo to [Petitioner's] house so that [Petitioner] could change clothes. While at his house, [Petitioner] got an assault rifle which he brought with him.[FN3] Before going to Fritzi's, the men first went to a house party where they consumed alcohol and marijuana. When they left the party, [Petitioner] put the assault rifle into the trunk of the Monte Carlo, which could be accessed through the back seat.

FN3. There was testimony that this weapon was an AK-47 or SKS assault rifle.

The three arrived at Fritzi's between midnight and 1:00 a.m. on January 16. Once inside, they went to the bar to get a drink. [Petitioner] andDalton also took a drug called "Ecstasy." After getting their drinks, Dalton and Robertson sat down at a table while [Petitioner] walked around. When [Petitioner] walked by London Johnson, Anthony Jones and Glen Palmer, one of the three apparently said something to him about the Chicago Cubs baseball cap that he was wearing. [Petitioner] went back to the table and told Dalton and Robertson that some guy had given him a hard time about his cap. At some point, [Petitioner] approached Johnson, Jones and Palmer again. During this encounter, [Petitioner] told them that he was going to "chop" them up.[FN4] After making this threat, [Petitioner] walked away. He returned a short time later and walked up to Palmer. [Petitioner] extended his hand and said, "We cool." Palmer hit [Petitioner] in the mouth knocking him to the floor. [Petitioner] told Dalton and Robertson that he wanted to leave and the three of them left the club.

FN4. Johnson testified at trial that this meant to him that [Petitioner] was going to shoot at them with a "chopper" which was an AK-47.

Out in the parking lot, [Petitioner], Dalton and Robertson went to Dalton's Monte Carlo. Before leaving, they talked with some girls who had come out of the club and were parked next to them. The girls told the men to follow them to a 7-11 located at NW 23rd Street and Portland. When they arrived at the store, [Petitioner], Dalton and Robertson backed into a parking space toward the back door and the girls pulled in next to the pumps. While the men were sitting in the Monte Carlo, they saw Johnson, Jones and Palmer drive into the parking lot in Palmer's Chevy Caprice. They recognized Palmer as the person who had hit [Petitioner] at Fritzi's. Dalton told [Petitioner] to "chill out" but [Petitioner] was mad and wanted to retaliate against Palmer. When Palmer drove out of the parking lot onto 23rd Street and merged onto I-44, [Petitioner] told Dalton to follow them.

While they were following the Chevy, [Petitioner], who was sitting in the front passenger seat, told Robertson, who was sitting in the back seat, to give him the gun. He told Robertson that if he had to get the gun himself, there was going to be trouble. Robertson reached through the back seat into the trunk and retrieved the gun for [Petitioner]. Dalton followed the Chevy as it exited the interstate onto Pennsylvania Avenue. He pulled the Monte Carlo into the left lane beside the Chevy as they drove on Pennsylvania Avenue and [Petitioner] pointed the gun out his open window and started firing at the Chevy.

When the Chevy was hit with bullets, Palmer was driving, Jones was sitting in the front passenger seat and Johnson was in the back seat. Johnson heard about twenty rapid gun shots and got down on the floor of the car. He did not see the shooter but noticed a white vehicle drive up beside them. The Chevy jumped the curb and hit an electric pole and fence before coming to a stop. Palmer and Jones had been shot. Jones had been shot in the side of his head and torso and was unconscious. Palmer had been shot in the chest. He was initially conscious and able to talk but soon lost consciousness when he could no longer breathe. Johnson tried to give both Jones and Palmer CPR but was unsuccessful. He flagged down a car that was driving by and asked the driver to get help. Both Palmer and Jones died at the scene from their gunshot wounds.

After he fired at the Chevy, [Petitioner] said, "I'm a monster. I just shot the car up." He added, "They shouldn't play with me like that." Dalton kept driving until they reached a residence in Midwest City where he was staying. They dropped the gun off and switched cars, and then Dalton, Robertson and [Petitioner] went to meet some girls they had talked to at Fritzi's.

Simpson, 230 P.3d at 893-94.

III. Standard of Review.

A. Exhaustion as a Preliminary Consideration.

The exhaustion doctrine is a matter of comity. It provides that before a federal court can grant habeas relief to a state prisoner, it must first determine that he has exhausted all of his state court remedies. As acknowledged in Coleman v. Thompson, 501 U.S. 722, 731 (1991), "in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." While the exhaustion doctrine has long been a part of habeas jurisprudence, it is now codified in 28 U.S.C. § 2254(b). Pursuant to 28 U.S.C. § 2254(b)(2), "[a]n application for a writ of habeas corpus may bedenied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."

B. Procedural Bar.

Beyond the issue of exhaustion, a federal habeas court must also examine the state court's resolution of the presented claim. "It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.'" Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). "The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman, 501 U.S. at 729-30.

C. Merits.

When a petitioner presents a claim to this Court, the merits of which have been addressed in state court proceedings, 28 U.S.C. § 2254(d) governs his ability to obtain relief. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that the burden of proof lies with the petitioner). Section 2254(d) provides as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision

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