Chukwurah v. Harding

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DAVID BRYAN EMEKA CHUKWURAH, Petitioner, v. RANDY HARDING,^[1] Warden, Respondent.

No. CIV-23-333-JD

United States District Court, W.D. Oklahoma

February 15, 2024

REPORT AND RECOMMENDATION

SUZANNE MITCHELL, UNI1ED STATES MAGISTRATE JUDGE

Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 Doc. 1.^[2]United States District Judge Jodi W Dishman referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondent responded to the petition and attached Petitioner's state-court filings and those courts' decisions, as well as portions of the state-court record for Stephens County Case No. CF-2019-27 Doc. 8.

Respondent also conventionally filed documents from the state-court record, including the original record (O.R.), trial transcript (Tr.), trial exhibits (State's Ex.), and the post-conviction record (P.C.R.). Doc. 10. For the reasons below, the undersigned recommends the Court deny the petition.

I. Factual and procedural background.

Officers Ryan Atkinson and Zach Mitchell of the Duncan Police Department were on patrol on the morning of February 6, 2019. Tr. 11-12. It was rainy and extremely foggy. Id. at 15, 46. Officer Atkinson observed Petitioner going twelve miles per hour over the speed limit on Highway 81. Id. at 12-13. Officer Mitchell turned around and activated the emergency lights to initiate a traffic stop. Id. at 14. Petitioner pulled his vehicle over to the shoulder and both Officers Atkinson and Mitchell exited and approached Petitioner's vehicle. Id. at 15. As Officer Atkinson approached the passenger side of the vehicle, he detected the odor of marijuana. Id. at 16.

Officers Atkinson and Mitchell questioned Petitioner about the odor of marijuana. Both officers requested Petitioner exit the vehicle so they could check his sobriety. Id. at 18-19; State's Ex. 1, at 2:40-3:00. Petitioner did not exit the vehicle, instead informing officers they needed a search warrant to search his vehicle. Tr. 18. Officer Atkinson told Petitioner to put his vehicle in park and get out. State's Ex. 1, at 3:30-3:55. After Petitioner refused, Officers Atkinson and Mitchell grabbed Petitioner on his left arm to try to remove him from the vehicle, but they were unsuccessful. Tr. 18; State's Ex. 1, at 4:05-4:15. At that point, Petitioner put the vehicle in drive and sped off, causing Officer Mitchell to fall to the ground in the right-hand southbound lane of Highway 81. Tr. 19-20; State's Ex. 1, at 4:15-4:20.

Officers Mitchell and Atkinson pursued Petitioner southbound on Highway 81 in a marked police vehicle at speeds up to 90 or 100 miles per hour with activated lights and sirens. Tr. 21-22, 33. Even at that speed, they were unable to gain much on Petitioner's vehicle. Id. at 22. Officer Atkinson testified he saw other vehicles on the road. Id.

Officer Bryan Eades received a call about the pursuit. Id. at 46-47. He turned on the lights and siren and drove to the intersection of Highway 81 and Camelback. Id. at 47. He saw Petitioner's vehicle approach at a high rate of speed-greater than the speed of other cars on the roadway-swerving in and out of both lanes to overtake cars and partially leaving the roadway into the median. Id. at 47-48, 67. Petitioner went through a red light at the intersection, onto the right shoulder to go around traffic, and turned onto Camelback. Id. at 48-49. Officer Eades turned around through the median to give chase. Id. at 48.

Petitioner drove erratically and at very high rate of speed on Camelback-at times on the wrong side of the roadway. Id. at 50. Officer Eades testified Petitioner's vehicle went airborne as it went over a hill. Id. Officer Eades estimated Petitioner was driving around 100 miles per hour. Id. at 51. Then, Petitioner topped another hill while driving on the wrong side of the roadway. Id. Officer Eades did not see any civilian vehicles on Camelback during the pursuit. Id. 52.

When Petitioner reached the intersection of Camelback and the bypass, Petitioner briefly stopped at the intersection. Id. at 23, 53. Officer Eades exited his vehicle with his weapon drawn, and told Petitioner to turn the vehicle off and put his hands out the window. Id. at 53. Petitioner saw Officer Eades and did briefly put his hands out the window. Id. at 53-54. As Officer Eades yelled at Petitioner to keep his hands out of the window, Petitioner said something to Officer Eades that the officer could not hear and turned and drove away. Id. at 54. When Petitioner took off, he made a left-hand turn to go southbound on the bypass. Id. at 24, 54. Vehicles in both directions on the bypass had to slam on their brakes to avoid a collision. Id. at 54.

About a mile later, Petitioner pulled over to the shoulder. Id. at 25-26. Officers Atkinson, Eades, and Mitchell drew their weapons and commanded Petitioner to exit the vehicle. Id. at 26, 55; State's Ex. 1, at 7:40-8:15. Petitioner exited the vehicle slowly but did not put the vehicle in park. Tr. 26; State's Ex. 1, at 8:15-8:30. Officer Eades had to enter the vehicle and put it in park so it would not roll away. Tr. 56.

Petitioner did not comply with orders to lay flat on the ground, instead staying on his hands and knees. Id. at 27. Officer Atkinson forced Petitioner to lay flat on the ground and officers placed Petitioner in handcuffs while he yelled and screamed. Id. at 27, 56; State's Ex. 1, at 8:50-9:00. After the officers stood Petitioner up, Petitioner unsuccessfully kicked at one of the officers. Tr. 28. When the officers ordered Petitioner to get in the patrol car, he instead moved forward toward police officers and shouted at them. State's Ex. 1, at 10:35-10:50. Officer Atkinson struck Petitioner with his knee to get Petitioner into the patrol car. Tr. 28.

The State charged Petitioner with endangering others while eluding police officers (Count One), battery on police officer (Count Two), escape from detention (Count Three), and resisting an officer (Count Four). P.C.R. 1-6. A state district court judge convicted Petitioner after a bench trial on all four counts and sentenced Petitioner to five years' imprisonment on Count One, five years' imprisonment on Count Two (consecutive to Count One), five years' imprisonment on Count Three (consecutive to Court Two), and one year in the county jail on Count Four (concurrent with all other counts). Id. at 7-14; Tr. 79, 85.

The trial court also ordered Petitioner to pay a $1,000 fine on Counts One, Two, and Three. Id.

Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA) in Case No. F-2020-453. Doc. 8, Att. 2. The OCCA affirmed Petitioner's convictions and sentences in an unpublished summary opinion. Id. Att. 1. Petitioner then sought post-conviction relief in the state district court, Id. Att. 9, at 1-10, which the state district court denied. Id. at 14. The OCCA affirmed the denial of post-conviction relief. Id. Att. 6.

Petitioner now seeks habeas corpus relief from this Court, raising six grounds for relief:

Ground One: The [OCCA] unreasonably construed to facts of the case to find plain error did not occur in analyzing Petitioner's double jeopardy claim in respects to counts one and three.

Ground Two: The OCCA misapprehended the record in finding sufficient evidence to support the violation of resisting an officer.

Ground Three: The [OCCA] unreasonably construed to facts of the case to find plain error did not occur in analyzing Petitioner's double jeopardy claim in respects to counts one and two.

Ground Four: The OCCA unreasonably determined that the evidentiary lack of others was supported by the trial court's personal knowledge of the neighborhoods where Petitioner drove at a very high rate of speed.

Ground Five: Petitioner is actually innocent of battery on a police officer.

Ground Six: Petitioner is not guilty of the felony of endangering others while eluding police officers.

Doc. 1, at 4-20.

II. Standard of review for habeas relief.

“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep't of Corr., 952 F.3d 1242, 1245 (10th Cir. 2020). A petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of petitioner's claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d). Petitioner bears the “burden to make this showing and it is a burden intentionally designed to be ‘difficult to meet.'” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).

This Court first determines “whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). Clearly established federal law consists of Supreme Court holdings in cases with facts much like those in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242.

“A state court's decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.'” Id. (quoting Dodd v. Trammell, 753 F.3d 971, 982...