Walker v. Allbaugh

• Decision Date: 02 May 2016
• Docket Number: Case No. 13-CV-0233-GKF-PJC
• Parties: WILL G. WALKER, Petitioner, v. JOE M. ALLBAUGH, Interim Director, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

WILL G. WALKER, Petitioner, v. JOE M. ALLBAUGH, Interim Director,¹ Respondent.

Case No. 13-CV-0233-GKF-PJC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

May 2, 2016

OPINION AND ORDER

Before the Court is the petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner Will Walker, a state prisoner appearing pro se. Respondent filed a response (Dkt. # 10) and provided the state court records (Dkt. # 11) necessary for adjudication of Petitioner's claims. Petitioner filed a reply to the response (Dkt. # 12) and a "Motion for Stay to Pose Question to the Oklahoma [] Court of Criminal Appeals" (Dkt. # 13). Respondent filed a response to the motion to stay (Dkt. # 14). For the reasons discussed below, the Court denies Petitioner's motion to stay and petition for writ of habeas corpus.

BACKGROUND

On June 17, 2008, shortly before midnight, Hamad Ahmad - the clerk at the Diamond Shamrock convenience store located in Tulsa, Oklahoma - heard someone enter the store and turned to see Petitioner advance towards him wearing a mask over his face. Dkt. # 11-1, Trial Tr. at 89-90,93-94. Petitioner jumped the counter and grabbed Ahmad. Id. at 93-94. Ahmad testified Petitioner "pull[ed] [him] down and hit [him] and choke[d] [him]." Id. at 94. Ahmad further testified that he thought Petitioner might have a weapon because, more than once, Petitioner's hand went "back on his back like he has something . . . in [his] pants," id. at 95, and that Petitioner told him "just do [] what I'm saying and don't try to be funny, otherwise you [sic] going down, man." Id. at 110.

Petitioner ordered Ahmad to give him money, and Ahmad complied, giving Petitioner $100 from under the counter. Id. at 96. Petitioner then demanded more money, and Ahmad gave him an additional $200. Id. at 97-98. Petitioner also took several boxes of cigars. Id. at 98-99; Dkt. # 11-3 at 5. After putting the money and the cigars into a brown paper sack, Petitioner started to leave the store. Dkt. # 11-1, Trial Tr. at 101. At that time, Ahmad retrieved a baseball bat from behind the counter and struck Petitioner twice in the head. Id. at 101-02. Petitioner exited the store and attempted to cross the parking lot when Ahmad tackled him and, with another customer's help, held Petitioner until the police arrived. Id. at 104, 107.

The State charged Petitioner with First Degree Robbery (Count I) and Resisting an Officer (Count II) in Tulsa County District Court, Case No. CF-2008-2941. Dkt. # 10-1 at 1. Attorney J. Brian Rayl represented Petitioner at trial. Dkt. # 10-4 at 3. A jury found Petitioner guilty as charged, id. at 1, and recommended a sentence of twenty-four (24) years imprisonment on Count I and a $500 fine on Count II.² Id. The trial judge sentenced Petitioner in accordance with the jury's recommendations. Id.

Petitioner perfected a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA) (Dkt. ## 10-1, 10-2). Attorney Stuart Southerland represented Petitioner on appeal. Dkt. # 10-4 at 3. Petitioner raised two (2) propositions of error in his appellate brief, as follows:

Proposition 1: The evidence was insufficient to support the jury's verdict.

Proposition 2: The jury instruction defining critical language applicable to both first and second degree robbery was inaccurate, misleading, and served to prejudice Appellant and deny him the right to due process and a fair trial pursuant to the Fourteenth Amendment to the United States Constitution.

(Dkt. # 10-1). Petitioner also raised one (1) proposition of error in a pro se supplemental brief, as follows:

Proposition 3: Appellant was not provided reasonable [sic] effective cross[-] examination by trial counsel, denied him right to a fair trial and due process of law, due to ineffective assistance of trial counsel. U.S.C.A. Const. Amends. 6, 14; Okla. Const. Art. 2, Sections 20, 7, 6.

(Dkt. # 10-2). In an unpublished summary opinion, entered August 25, 2009, in Case No. F-2008-1116, the OCCA denied relief on all three propositions of error and affirmed the trial court's judgments and sentences. Dkt. # 10-4.

Petitioner filed a petition for rehearing (Dkt. # 10-5). In his petition, Petitioner contended the OCCA "failed to adequately address the argument, in his second proposition of error, that the jury was improperly instructed as to critical language in both first and second degree robbery." Id. at 1. In an order filed September 17, 2009, the OCCA granted the petition for rehearing "for the limited purpose of addressing this oversight," but denied the requested relief. Dkt. # 10-6 at 2.

On October 14, 2010, Petitioner filed his first application for post-conviction relief. See Dkt. # 10-7. Petitioner raised three (3) propositions of error, as follows:

Proposition 1: Numerous errors of trial counsel deprived Petitioner of a full and fair hearing regarding his rights under the U.S. Const. Fourth Amend. and Okla. Const. Art. 2 § 30, which was ineffective assistance of counsel under the U.S. Const. Fifth, Sixth, Fourteenth Amends. and Okla. Const. Art. 2 § 7.

Proposition 2: Appellate counsel failed to raise meritorious issues warranting modification of sentence, which was ineffective assistance of counsel under the U.S. Const. Fifth, Sixth, and Fourteenth Amendments, and Okla. Const. Art. 2 §§ 7 & 20, and 22 O.S. § 1051.

Proposition 3: I was denied my constitutional right when prosecution entered tainted evidence as facts of the case.

(Id.). The trial judge denied Petitioner's application for post-conviction relief (Dkt. # 10-8). On March 21, 2013, the OCCA affirmed the trial judge's denial of Petitioner's application for post-conviction relief, denying Proposition 2 on the merits and concluding Propositions 1 and 3 were procedurally barred. Dkt. # 10-10 at 2-4.

On April 24, 2013, Petitioner filed a federal petition for writ of habeas corpus (Dkt. # 1). In his petition, Petitioner identifies four (4) grounds of error, as follows:

Ground 1: The State [sic] evidence is insufficient to support the jury verdict of guilty under Jackson v. Virginia, 28 U.S.C.A. § 2254(d).

Ground 2: The jury instruction defining critical language applicable to both first and second degree robbery was inaccurate, misleading and served to prejudice Walker's right to a fair trial, due process of law and a fair trial pursuant to U.S.C.A.

Ground 3: Trial counsel was constitutionally ineffective assistance [sic] for failing to develope [sic] evidence relevant to charged crime pursuant to the 6th, 14th amendments to the U.S. Constitution.

Ground 4: I was denied my constitutional right when prosecution entered tainted evidence as facts of the case.

(Id.). In response to the petition, Respondent contends Petitioner is not entitled to habeas corpus relief (Dkt. # 10).

On June 7, 2013, after filing his petition for writ of habeas corpus, Petitioner filed a subsequent application for post-conviction relief. See http://www.OSCN.net. Petitioner raised one (1) proposition of error, as follows:

Proposition I: Due to an intervening change in the law, the jury instructions defining critical language applicable to both First Degree Robbery and Second Degree Robbery [were] inaccurate, misleading, and served to prejudice Appellant and deny him the right to due process and a fair trial pursuant to the Fourteenth Amendment of the United States Constitution.

(Id.). The trial court denied Petitioner's subsequent application for post-conviction relief, id., and the OCCA affirmed, concluding Petitioner's claim was procedurally barred. Id.

On December 1, 2015, Petitioner filed a "Motion for Stay to Pose Question to the Oklahoma [] Court of Criminal Appeals" (Dkt. # 13). Respondent contends the Court should deny the motion as "Petitioner has submitted no sufficient basis for the relief he requests in his motion." Dkt. # 14 at 1 (citation omitted).

ANALYSIS

A. "Motion for Stay"

In his "Motion for Stay to Pose Question to the Oklahoma [] Court of Criminal Appeals" (Dkt. # 13), Petitioner requests the Court certify a question to the OCCA regarding the definition of "serious bodily injury." Petitioner identifies his question as "Did 'serious bodily injury' have the same meaning under Oklahoma legislative intent in June of 2009, when petitioner-appellant's criminal conviction for First Degree Robbery was affirmed as it did in January 2010 when Owens was reversed?" Id. at 1, 4. Petitioner alleges this question impacts his claims challenging the sufficiency of the evidence and the adequacy of the jury instructions, discussed in Part B, below.

In Owens v. State, 229 P.3d 1261 (Okla. Crim. App. 2010), decided four (4) months after Petitioner's convictions were affirmed, the OCCA provided guidance as to what constitutes "serious bodily injury." The OCCA granted relief in Owens because the evidence in that case was insufficient to demonstrate "serious bodily injury" as required to establish First Degree Robbery and the trial judge failed to instruct the jury on Second Degree Robbery. Id. at 1264-66. In contrast, in Petitioner's case, the OCCA ruled that the evidence was sufficient to demonstrate that Petitioner "put the victim in fear of immediate serious bodily injury" as required to establish First Degree Robbery. See Dkt. # 10-4 at 2 n.1. In addition, unlike Owens, Petitioner's jury received an instruction on Second Degree Robbery. See Dkt. # 11-2, O.R. at 47.

Under Oklahoma's Revised Uniform Certification of Questions of Law Act, Okla. Stat. tit. 20, § 1601, et seq., this Court may certify a question of state law to the OCCA. The Court will only certify a question of state law if it is both 'unsettled and dispositive.' Kan. Judicial Rev. v. Stout, 519 F.3d 1107, 1119 (10th Cir. 2008) (citation omitted). "The decision to certify rests in the sound discretion of the federal court," and "[c]ertification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law." Id. at 1119-20 (citations and internal quotation marks...