Johnson v. Keith

DARRELL ROBERT JOHNSON, Petitioner,

v.JIM KEITH, Warden, Respondent.

Case No. 08-CV-691-JHP-PJC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

Dated: April 25, 2012

OPINION AND ORDER

Before the Court is the amended petition for writ of habeas corpus (Dkt. # 17)¹ filed by Petitioner Darrell Robert Johnson, a state inmate appearing pro se. Respondent filed a response (Dkt. # 19) and provided the state court records (Dkt. ## 19, 20, and 21) necessary for adjudication of Petitioner's claims. Petitioner did not file a reply to Respondent's response. For the reasons discussed below, the Court finds the amended petition for writ of habeas corpus shall be denied.

BACKGROUND

A. Factual Background

Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by the state court are presumed correct. Following review of the record, including the trial transcripts, the Court finds that the following factual summary by the OCCA is adequate and accurate. Therefore, the Court adopts this portion of the OCCA's summary as its own:

Testimony introduced at trial indicated that during September of 2002, Tulsa Police Officers William Wolthuis and Israel Rodrigue[z] were assigned to a multi-jurisdictional organized crime task force conducting narcotic investigations. Part oftheir duties included motel/hotel interdictions. On the afternoon of September 30, 2002, they went to the Days Inn at 8181 East Skelly in Tulsa County. They observed some short-term traffic in and out of room number 254. When they asked the motel manager, they learned that the room was registered to a woman with a California driver's license, Regina Moody. Appellant's name was on the bottom of the registration card.

The officers went to the room and knocked on the door. They identified themselves and asked if they could come in. Appellant let them in and once inside, the officers noted that there was another individual identified as Lillie LaGrone in the room. The officers advised Appellant and LaGrone that they were investigating possible drug activity and they asked if there was anything illegal in the room. Appellant replied that there was not. When the officers asked if they could look in the room, Appellant replied, "Sure, go ahead." Underneath the bed Wolthuis observed several large baggies containing what looked like rolled-up toilet paper. He unrolled one of the pieces of toilet paper and found what he believed to be a rock of crack cocaine. He asked Appellant what it was and Appellant responded that it was "crack." Appellant also volunteered that there was a half a key of powder on the other side of the bed. When Wolthuis looked on the other side of the bad [sic], he found two large baggies of white powder, three bottles of liquid PCP and a set of scales.

After he found the drugs, Wolthuis told Appellant that he was under arrest and he read him his Miranda rights. Appellant did not request a lawyer and agreed to talk to the officers. He told them that he had purchased the drugs for $20,000 in Oklahoma City. He sold the drugs out of the hotel room but kept the drug proceeds in his apartment in order to avoid detection by law enforcement. Appellant gave the officers written consent to search his apartment where they found over $10,000 in cash.

(Dkt. # 19, Ex. 4 at 2-3). In addition, evidence presented at trial demonstrated that the weights and volumes of the controlled drugs recovered in the motel room were as follows: the total weight of the cocaine powder introduced as State's Exhibits 2 and 3 was 487.06 grams, the total weight of the cocaine base introduced as State's Exhibit 4 was 334.53 grams, and the total volume of the PCP introduced as State's Exhibit 17 was about 2.5 fluid ounces. (Dkt. # 21-2, Tr. Trans. at 321-27).

B. Procedural Background

Based on those events, and pursuant to a Fifth Amended Information, filed February 13, 2006, in Tulsa County District Court, Case No. CF-2002-5046, Petitioner was charged withTrafficking in Illegal Drugs (Count 1) and Possession of Paraphernalia (Count 2). A second page listed three (3) prior felony convictions. Three (3) additional counts were previously dismissed by the trial court. Petitioner was tried by a jury. At the conclusion of a two-stage trial, he was found guilty as charged. On February 15, 2006, Petitioner was sentenced in accordance with the jury's recommendation to life without parole on Count 1 and one (1) year in the county jail and a fine of $1,000 on Count 2. In addition, the trial court judge entered a fine of $20,000 as to Court 1. The sentence for Count 2 was ordered to be served concurrently with Count 1. At trial, Petitioner was represented by attorney David Phillips.

Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals (OCCA). On direct appeal, Petitioner was represented by attorney Stuart Southerland. Petitioner raised the following propositions of error:

Proposition 1: It was reversible error for the trial court to deny Appellant's "Batson" challenge to prospective juror Hassan.

Proposition 2: The evidence was discovered as a result of an illegal search and seizure in violation of Article II, § 30 of the Oklahoma Constitution as well as the Fourth and Fourteenth Amendments of the United States Constitution. It was error for the district court to overrule Appellant's motion to suppress.

a) Darrell Johnson had standing to contest the validity of the search of the motel room.

b) The Oklahoma Constitution requires a knowing, written waiver of the search warrant requirement to establish consent in a "knock and talk" search.

c) Under the facts of this case, the State failed to establish that Appellant consented to a search of the motel room.

d) Even if this Court deems the entry into the room consensual, Appellant's statements were the product of an unlawful arrest and should have been suppressed.

Proposition 3: It was error to refuse to instruct the jury on any lesser included or related offenses.

Proposition 4: It was reversible error to admit evidence of other crimes.

Proposition 5: Trafficking in controlled drugs as prohibited by 63 O.S.Supp.2002, § 2-415, is unconstitutional, because it purports to create a non-rebuttable presumption of an intent to distribute drugs, on a large scale, based solely upon the quantity possessed.

Proposition 6: Imprisonment for life, without opportunity of parole, for the possession of a controlled substance violates the excessive punishment provisions of both the Oklahoma and the United States Constitutions under the facts of this case.

Proposition 7: By failing to provide an opportunity to present mitigating evidence to the jury at sentencing, Appellant was denied the right to a fair sentencing proceeding guaranteed by the Fourteenth Amendment to the United States Constitution.

Proposition 8: The jury should have been provided with a definition of reasonable doubt. (Dkt. # 19, Ex. 1). On July 20, 2007, in Case No. F-2006-212, the OCCA entered its unpublished opinion affirming Petitioner's Judgment and Sentence. See Dkt. # 19, Ex. 4.

On July 17, 2008, Petitioner filed an application for post-conviction relief in the state district court. See Dkt. # 19 ¶ 3. The trial court denied post-conviction relief on September 5, 2008. Id. Petitioner appealed. See Dkt. # 19, Ex. 5. In his supporting brief filed in his post-conviction appeal, Petitioner identified the following seven (7) grounds for relief:

1. Mr. Johnson is factually innocent of Trafficking in Controlled Dangerous Substances.

2. Fundamental error occurred when the trial court permitted a violation of the Confrontation Clause.

3. Fundamental error occurred when Mr. Johnson was charged and convicted with a defective state information.

4. The trial court failed to resolve a conflict of interest.

5. Trial counsel was ineffective and the district court should have granted Mr. Johnson an evidentiary hearing to prove that fact.

6. Appellate counsel was ineffective and the district court should have granted Mr. Johnson an evidentiary hearing to prove that fact.

7. Each of these issues must be addressed on its legal merits.

See Dkt. # 19, Ex. 6. By order filed October 15, 2008, in Case No. PC-2008-915, the OCCA affirmed the denial of post-conviction relief. Id., Ex. 7.

Petitioner commenced the instant habeas corpus action by filing his petition on October 23, 2008. See Dkt. # 1. In his amended petition (Dkt. # 17), he identifies the following grounds of error:

Ground 1: Mr. Johnson is factually innocent of crime charged of Trafficking in Illegal Drugs.

Ground 2: Mr. Johnson's fundamental rights to due process and equal protection were violated when he was not allowed to confront his accuser.

Ground 3: Mr. Johnson's fundamental rights to due process and equal protection of the law were violated when he was convicted by a defective State's Information Sheet.

Ground 4: Mr. Johnson's fundamental rights to due process and equal protection of the law were violated when the trial court failed to conduct a hearing on a claimed conflict of interest.

Ground 5: Mr. Johnson's fundamental rights to due process and equal protection of the law were violated when the trial court refused Petitioner's "Batson" challenge to prospective juror Hassan.

Ground 6: Fundamental error occurred when the trial court refused to instruct the jury on any lesser included or related offenses.

Ground 7: Fundamental error occurred when the trial court allowed the State to admit evidence of other crimes.

Ground 8: Mr. Johnson's fundamental rights to due process and equal protection of the law were violated when the trial court allowed Mr. Johnson to be convicted under an unconstitutional drug trafficking statute, 63 O.S.Supp.2002, § 2-415.

Ground 9: Mr. Johnson's fundamental rights to due process and equal protection of the law were violated when the trial court violated the excessive punishmentclause of both the Oklahoma and United States Constitutions when Petitioner was sentenced to life without the possibility of

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