Speed v. Allbaugh
| Decision Date | 26 March 2019 |
| Docket Number | No. CIV-18-962-R,CIV-18-962-R |
| Parties | SETH HARVEY SPEED, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his conviction for Conspiracy to Traffic a Controlled Dangerous Substance (Methamphetamine), After Former Conviction of Two or More Felonies ("AFCF") in the District Court of Oklahoma County, Case No. CF-12-4723. Respondent has responded to the Petition and filed the relevant state court records, and Petitioner has replied. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
In 2014, Petitioner was tried before a jury on one count of Conspiracy to Traffic a Controlled Dangerous Substance AFCF. At trial, the State presented evidence that Petitioner bought methamphetamines from a local supplier by the pound and employed runners to resell it. The jury found him guilty and he was sentenced, consistent with Oklahoma statutory mandate at that time, to life imprisonment without the possibility of parole.
In 2011, Oklahoma Bureau of Narcotics ("OBN"), led by Agent Dennis Garza and working with Homeland Security Investigations, began investigating Jesus Mora-Herrera, also known as Tweety, in connection to his drug trafficking organization, specifically methamphetamine. Doc. No. 13-10 at 42, 104. As part of that investigation, OBN investigators obtained authorization for a wiretap on the telephone number being used by Mr. Mora-Herrera, (405) 882-7016. Id. at 44. A communication recorded by a wiretap would be either a telephone conversation or a text message. Id. at 51. Agent Garza had the wiretap in place on Mr. Mora-Herrera's telephone number for approximately three weeks in March 2012. Id. at 48. Through the wiretap, OBN agents heard individuals contact Mr. Mora-Herrera requesting certain amounts of methamphetamine. Id. at 59. Mr. Mora-Herrera would then contact one of his his employees, or runners, via a different telephone or a walkie-talkie telephone to meet the individual and exchange money for methamphetamine. Id. at 59, 95-96.
On March 1, 2012, Petitioner called Mr. Mora-Herrera from telephone number (580) 215-2097. Id. at 66-67. In that phone call, Petitioner spoke to Mr. Mora-Herrera about arranging a meeting for Petitioner to deliver drug proceeds. Id. at 67-69, 72-77. Petitioner had been arrested in Lawton earlier that day and wanted Mr. Mora-Herrera to know that he remained trustworthy. Id. Petitioner indicated he had $17,000.00 that he had already collected prior to that day in drug sales, or proceeds, for Mr. Mora-Herrera. Id. at 72-73. Agent Garza testified that based on the content of the conversation, he concluded Petitioner and Mr. Mora-Herrera already had an established relationship regarding methamphetamine transactions. Id. at 73-74.
The following day, March 2, 2012, Petitioner called Mr. Mora-Herrera from the same phone number to make further arrangements for Petitioner to deliver drug proceeds to him. Id. at 78-80. Petitioner indicated he was going to bring $15,000.00 to Mr. Mora-Herrera and leave $2,500.00 with his mother in case he was arrested again. Id. at 79-82. Agent Garza testified that $15,000.00 indicates Petitioner was purchasing approximately one pound of methamphetamine. Id. at 82-83. Petitioner also indicated that he was going to change telephone numbers soon. Id. at 80-81. Agent Garza testified that it is common for someone involvedin drug trafficking to change telephone numbers frequently and/or to do so after being arrested in an attempt to avoid law enforcement detection. Id.
Later in the day on March 2, 2012, Petitioner called Mr. Mora-Herrera from a new telephone number, (580) 483-5625, to finalize plans to meet. Id. at 83-85, 107-08. Petitioner indicated he was going to have someone follow him so that he would have two cars. Id. at 84-85. Agent Garza testified that often the owner of the methamphetamine will not ride in the same car as the drug in case the vehicle gets pulled over. Id. In that instance, the owner would not go to jail because he is in a different vehicle. Id.
Agent Garza testified that, based on his experience in investigating drug trafficking, Petitioner and Mr. Mora-Herrera were meeting in order to exchange drug proceeds for more drugs. Id. at 86. Petitioner and Mr. Mora-Herrera exchanged several more phone calls on that date prior to meeting. Id. at 89-90, 93-95, 98-99, 106-07. Based on the captured communications, Agent Garza was able to set up surveillance of the meeting in which drugs and proceeds were exchanged. Id. at 88, 99-100, 103.
Petitioner drove away from the transaction in a trail car following the first car, which was carrying Petitioner's methamphetamine. Id. Agent Garza surmised Petitioner paid for one pound of methamphetamine that Mr. Mora-Herrera hadpreviously fronted to Petitioner and then obtained more methamphetamine up front. Id. at 87. Agent Garza testified that Mr. Mora-Herrera fronting Petitioner one pound of methamphetamine further indicated this was not the first transaction between the two and clearly they had established a relationship of great confidence and trust. Id. at 87-88.
Within two days, Petitioner contacted Mr. Mora-Herrera from a new telephone number. Id. at 150-51. Petitioner indicated he had already sold almost ten ounces of the methamphetamine from what he obtained from Mr. Mora-Herrera on March 2, 2012, and had collected $10,0000.00. Id. at 154. Mr. Mora-Herrera informed Petitioner that he had a shipment of new methamphetamine. Id. at 152-53. The two spoke again on March 6, 2012, and on March 7, 2012, during which Mr. Mora-Herrera stated that he was getting a new telephone number and they planned to meet again soon. Id. at 157-61. Petitioner stated that he had $11,500.00 and planned to have $17,500.00 soon. Id. at 158. Mr. Mora-Herrera did obtain a new telephone number and Agent Garza was not able to intercept any more communications regarding this transaction. Id. at 162-63.
On March 9, 2012, Agent Garza sought and subsequently received a wiretapon Mr. Mora-Herrera's new telephone number. Id. at 162-64. On March 13, 2012, Agent Garza intercepted a phone call between Petitioner and Mr. Mora-Herrera on the latter's new telephone number. Id. at 162-63, 167. Petitioner indicated he had $16,000.00 in new drug proceeds. Id. at 168-69. Petitioner referenced runners that he had working for him to sell the methamphetamine and that he was down to the last five ounces of his current supply. Id. at 169-70. Petitioner anticipated having $30,000.00 in drug proceeds for Mr. Mora-Herrera. Id. at 170.
Petitioner and Mr. Mora-Herrera had a similar conversation later wherein Petitioner indicated that he had $20,000.00 in drug proceeds, seven ounces that he had given to individuals who still owe him for the same, and he would have $30,000.00 for Mr. Mora-Herrera. Id. at 173-76. Petitioner also stated that he had "three onions," which Agent Garza testified that Petitioner was conveying that he still had three ounces of methamphetamine yet to sell. Id. at 175-76.
On March 15, 2012, Petitioner told Mr. Mora-Herrera that he had $26,000.00 and had two ounces of methamphetamine left. Id. at 177-79. He indicated his intention to bring Mr. Mora-Herrera $30,000.00 in drug proceeds. Id. at 179. Petitioner stated that he intended to pay Mr. Mora-Herrera for one pound that Mr. Mora-Herrera fronted him, then purchase one pound, and then have Mr. Mora-Herrera front him another pound. Id. at 179, 181. This transaction occurred on March 16, 2012. Id. at 184-90.
On March 21, 2012, Petitioner informed Mr. Mora-Herrera by telephone that he had $20,000.00 in drug proceeds thus far and had ten more ounces to sell. Id. at 197-99. The two of them planned to meet the following day. Id. at 199-200.
Based on information obtained throughout the investigation, Agent Garza determined that Mr. Mora-Herrera planned to leave soon for Las Vegas, Nevada. Id. at 201. As a result, Agent Garza decided to terminate the wiretap on Mr. Mora-Herrera's telephone and move to arrest him rather than risk him leaving town and avoiding arrest. Id. Agent Garza and other investigators obtained and executed search warrants for Mr. Mora-Herrera's apartment as well as the apartment out of which Mr. Mora-Herrera was distributing his methamphetamine at that time. Id. at 202-07. During the execution of the search warrant at Mr. Mora-Herrera's apartment, Agent Garza obtained Mr. Mora-Herrera's cellular telephone. Id. at 207.1
Based on Agent Garza's knowledge of the anticipated meeting betweenPetitioner and Mr. Mora-Herrera, Agent Garza, using Mr. Mora-Herrera's telephone and posing as the same, contacted Petitioner. Id. at 213-16. Agent Garza text Petitioner, asking Petitioner to bring him the drug proceeds that Petitioner had at that time because he was planning on going out of town. Id. at 216-17. They subsequently engaged in multiple telephone conversations in which Petitioner agreed to meet Agent Garza, posing as Mr. Mora-Herrera, at a convenience store and bring Mr. Mora-Herrera the drug proceeds he had at that time. Id. at 219-23. During their conversation, Petitioner described the two cars he would bring to their meeting place for the transaction. Id. at 221-22. Petitioner subsequently showed up at the meeting place with the described vehicles, as well as $22,000.00 in total between the two vehicles, and was arrested. Id. at 224-28, 257-58.
As previously noted, Petitioner was subsequently charged and convicted by a jury of...
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