Opinion
Case No. CIV-06-266-T.
June 15, 2006
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. Pursuant to an order of United States District Judge Ralph G. Thompson, this matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a response, and although Petitioner was given the opportunity to file a reply, he has not, and the time for doing so has lapsed.
On June 12, 2006, Petitioner filed a "Motion for Consideration," wherein he asks the Court to consider the brief he filed with the Oklahoma Supreme Court and which he attached to his petition in this case. That brief has been considered in entering this Report and Recommendation.
After review of the response, which revealed that the petition was a mixed one, that is one containing both exhausted and unexhausted claims, the undersigned issued an order directing Petitioner to inform the Court whether he desired to dismiss the entire petition or to dismiss only the unexhausted claims. On June 7, 2006, Petitioner responded by filing a "Motion to Dismiss," wherein he asked that the Court dismiss Grounds Two and Four, the unexhausted claims. The undersigned hereby construes the motion to dismiss as a motion to amend and permits amendment of the petition to include only Grounds One and Three, the exhausted grounds.
By this action, Petitioner challenges his conviction following a bench trial for unlawful possession of anhydrous ammonia in an unauthorized container with the intent to manufacture a controlled substance. Case No. CF-2003-38, District Court of Jefferson County. Petitioner filed a direct appeal, and the Oklahoma Court of Criminal Appeals affirmed. Petition, p. 2; Case No. F-2004-560, Oklahoma Court of Criminal Appeals (Summary Opinion, August 24, 2005) (attached to Response as Ex. C). Thereafter, Petitioner sought relief from the Supreme Court of Oklahoma, which dismissed the case for lack of jurisdiction. Petition, p. 2. Petitioner did not seek post-conviction relief in State court.
I. STANDARD GOVERNING APPLICATIONS FOR A WRIT OF HABEAS CORPUS
For factual and legal issues that have already been adjudicated in state court, the Court may only grant a writ of habeas corpus if that adjudication (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, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1) and (2).
A state court's determination is contrary to clearly established federal law where it applies a rule that contradicts the law set forth in Supreme Court cases, or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result.Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court's determination involves an unreasonable application of clearly established Supreme Court precedent if it identifies the correct governing legal principle from the Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413; see also Wiggins v. Smith, 539 U.S. 510, 520 (2003). It is not enough that the state court applied clearly established federal law erroneously or incorrectly; the application must also be unreasonable.Williams, 529 U.S. at 410-11; Valdez v. Bravo, 373 F.3d 1093, 1096 (10th Cir.), cert. denied, 543 U.S. 1008 (2004).
II. DISCUSSION
A. GROUND ONE — FOURTH AMENDMENT VIOLATION
In Ground One, Petitioner alleges that the Texas officer who initiated the arrest failed to provide any evidence to corroborate his probable cause theory. Petition, unnumbered p. 3. Respondent contends that because Petitioner had a full and fair opportunity to litigate this issue in the State courts, federal habeas relief is precluded. The undersigned agrees.
The facts of this case are set out infra, pp. 7-8.
Under clearly established federal law, a Fourth Amendment violation does not support federal habeas relief if the petitioner had a full and fair opportunity to litigate the issue in state court. Stone v. Powell, 428 U.S. 465, 481-82 (1976). The rule in Stone forecloses federal habeas relief even if the arrest and seizure of evidence violated the Petitioner's Fourth Amendment rights: "Under Stone, habeas relief shall not be granted on the ground that the trial court admitted evidence obtained in violation of the Fourth Amendment despite the judicially-created exclusionary rule, provided that the defendant had an opportunity for full and fair litigation of the Fourth Amendment claim." Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (citing Stone, 428 U.S. at 481-82). That opportunity may exist either at trial or on direct review.Stone, 428 U.S. at 494-95 n. 37 ("we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review").
Petitioner initially challenged his arrest and the actions of the Texas officer by filing a pre-trial motion to suppress and to quash arrest, which was denied on February 17, 2004. Response, Ex. D (Motion to Suppress and Quash Arrest); Response, Ex. E (Court Docket reflecting denial of the motion). Petitioner's counsel raised the issue again prior to the beginning of trial and at the conclusion of the State's case, and the motion was again denied. Tr. 3, 44-47. Petitioner also raised the issue on direct appeal, and the Oklahoma Court of Criminal Appeals affirmed his conviction, finding:
As to Propositions 1 through 3, we find the search of the vehicle [Petitioner] was riding in was lawful. [Petitioner] concedes that the Texas officer did not stop the van. The Texas officer's conduct was consistent with what any ordinary citizen might do under the same circumstances. The sufficiency of the anonymous tips to justify a warrantless arrest, or even an investigative detention, is immaterial; the Texas officer's conduct amounted to neither.
The Oklahoma authorities characterized their search of the vehicle as an impound/inventory pursuant to a misdemeanor arrest. Neither vehicle occupant had a valid driver's license, and the apparent driver was arrested for driving under suspension. [Petitioner] contends that because the arresting officer did not witness the van in motion, the offense was not committed in his presence, and the officer had no authority to arrest for that offense. While this may be true, we do not find the argument dispositive. The initial tips regarding a possible theft, strongly corroborated by the Texas officer's own observations when approaching the van, constituted probable cause for Oklahoma authorities, once they arrived, to effect a warrantless arrest of both occupants for the felony offense of bringing stolen property (anhydrous ammonia) into Oklahoma, and a search of the van incident thereto.
Response, Ex. C, p. 2-3 (Summary Opinion, August 24, 2005) (footnotes omitted). Thus, the record shows that Petitioner did have a full and fair opportunity to litigate his Fourth Amendment claim in the State courts, and that the trial and appellate courts rejected the claim on the merits. Response, Exs. C, D, E; Tr. 44-47; Summary Opinion, p. 2-3. Accordingly,Stone precludes federal habeas relief. See, e.g., Smallwood, 191 F.3d at 1265 (affirming denial of federal habeas relief based on alleged Fourth Amendment violations because the "petitioner's appellate counsel [had] presented the issue to the [Oklahoma Court of Criminal Appeals] on direct appeal"); Chavez v. Rodriguez, 540 F.2d 500, 502 (10th Cir. 1976) (per curiam) (holding that a hearing on a motion to suppress and the consideration of the issue on appeal satisfied "[t]he dictates ofStone v. Powell"). Therefore, it is recommended that habeas corpus relief be denied on Ground One.
The Oklahoma Court of Criminal Appeals summarized Petitioner's claims one through three on direct appeal as follows:
(1) The anonymous tip failed to create reasonable suspicion that [Petitioner] had been involved in criminal conduct, where no evidence was presented as to the informant's reliability; (2) [t]he trial court erred in failing to grant [Petitioner's] motion to suppress and quash the arrest, since [Petitioner's] arrest was illegal; (3) [t]he trial court erred in failing to exclude all evidence found in the unlawful search and seizure, since the impoundment of the vehicle was illegal.
Summary Opinion, p. 1.
B. GROUND THREE — SUFFICIENCY OF THE EVIDENCE
In Ground Three, Petitioner asserts that the State presented insufficient evidence to convict him of unlawful possession of anhydrous ammonia with intent to manufacture a controlled and dangerous substance. The Oklahoma Court of Criminal Appeals rejected this claim on direct appeal.
In a habeas challenge to the sufficiency of the evidence presented at trial the Court "does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit."Herrera v. Collins, 506 U.S. 390, 402 (1993). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In applying this standard, the Court does not weigh conflicting evidence or consider the credibility of witnesses, but accepts the factfinder's resolution of the evidence as long as it is within the bounds of reason. Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996)
Although the Oklahoma Court of Criminal Appeals did not directly cite Jackson, it applied an analogous state standard, concluding that "[t]he officer's observations were sufficient to support a conviction for possessing anhydrous ammonia in an unauthorized container with the intent to manufacture methamphetamine." Summary Opinion, p. 4 (citing Spuehler v. State, 709 P.2d 202, 203-04 (Okla.Crim.App. 1985), which relied on Jackson). The question therefore, is whether the Oklahoma Court of Criminal Appeals' decision was contrary to or involved an unreasonable application of Jackson, or whether it was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1)-(2).
Petitioner takes issue with a single element of the crime for which he was convicted, arguing that the State failed to prove beyond a reasonable doubt that the substance in the van was anhydrous ammonia. Petition, unnumbered page 4. In the light most favorable to the State, the evidence established the following, which supported the judge's determination that Petitioner possessed anhydrous ammonia.
Jimmie Weddell, a deputy sheriff for the Clay County Sheriff's Department in Henrietta, Texas, received a telephone call that individuals were attempting to steal anhydrous ammonia from Schoefner's Fertilizer in Byers, Texas. Tr. 5-6. The anonymous caller described a light-colored blue van with primer spots that was driving back and forth near Schoefner's Fertilizer, on Highway 79 in Byers. Tr. 6. The caller also stated that a white male, wearing a white shirt and riding a bicycle was seen in the yard with the anhydrous ammonia tanks. Tr. 6. Deputy Weddell went to that location, but he did not find a vehicle matching the description of the van when he arrived at Schoefner's. Tr. 6. He was told, however, that the vehicle and the man on the bicycle left together, heading north on Highway 79. Tr. 7. Deputy Weddell proceeded north on Highway 79 in an effort to further his investigation, eventually locating a vehicle that matched the description of the van spotted at Schoefner's, as the vehicle was entering Oklahoma. Tr. 7.
Deputy Weddell followed the van into Qklahoma, advising the Jefferson County, Oklahoma authorities of his location and the allegations regarding the attempted theft of anhydrous ammonia. Tr. 8. When the van stopped, Deputy Weddell approached and asked the occupants their names. Tr. 8. As he approached the van, he saw a bicycle in the van and he noticed the smell of anhydrous ammonia coming from the van. Tr. 9-10. Undersheriff Dwayne English of Jefferson County, Oklahoma testified that he smelled a strong odor of what he believed was anhydrous ammonia when he approached the driver's side of the van after arriving in response to Deputy Weddell's call. Tr. 40.
Rodney Richards, who was a deputy sheriff of Jefferson County at the time of this incident, testified that the contents of a plastic cooler removed from the van were dragger tested to determine the presence of anhydrous ammonia, and tested positive. Tr. 21, 23-24. He also recognized the odor and the vaporing quality of the anhydrous ammonia. Tr. 24. This evidence was sufficient to support the judge's finding of guilt.
Deputy Richards testified that dragger testing is a method for testing the presence of anhydrous ammonia; that he had received training on this type of testing; that he had experience conducting the test; and that he had followed the training and experience in conducting the test here. Tr. 23-24.
Although Petitioner complains about the absence of scientific testing, there was a dragger test performed, and Petitioner does not dispute the accuracy of the test. Additionally, the testimony of the officers based on their law enforcement experience and training combined with the results of the dragger test was sufficient to establish that Petitioner and his co-defendant possessed anhydrous ammonia. Accordingly, Petitioner has failed to establish that he is entitled to habeas corpus relief on this claim.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the petition for a writ of habeas corpus be denied. Additionally, in accordance with Petitioner's Motion to Dismiss, construed as a motion to amend, the petition is hereby amended to remove Grounds Two and Four, as they are unexhausted. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before July 5th , 2006, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Petitioner is further advised that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991). This Report and Recommendation disposes of all the issues referred to the undersigned Magistrate Judge in the captioned matter.