OCDW 07.10.17



James L. Hankins, Publisher


(with special thanks to Mark Hoover, OIDS, for contributing regularly)


“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).


COUNTY No. 8: CADDO COUNTY: Caddo County was named for the Caddo tribe who were settled in the area in the 1870s. Anadarko is the county seat. I do not get to Anadarko that often, but have had some good results there over the years. This brings my county-count to 6 out of 8.




Lyndol Keith Nunley v. State, No. M-2016-596 (Okl.Cr., Jun 8, 2017) (unpublished): Record on Appeal: Nunley was tried at a bench trial before the Hon. Jerry W. Herberger in Stephens County of a misdemeanor count of Domestic Abuse. However, trial counsel waived a court reporter, so there was no record. On appeal, Nunley argued that this was IAC and that prejudice must be presumed. The Court disagreed, held that prejudice must still be shown, and affirmed. NOTE: It appears that Nunley did not press any specific legal error, other than failure to make a record. The Court noted that there are procedures to create a record in these types of cases, but that Nunley did not employ these procedures or otherwise claim that there were any errors in his trial.

Gerald Nuckolls v. State, No. F-2015-1064 (Okl.Cr., June 29, 2017) (unpublished): Sealed Pleadings: Nuckolls was convicted by jury in Tulsa County (the Hon. William D. LaFortune, presiding) of Sexual Battery and Indecent Exposure. Nuckolls was apparently in law enforcement, and he filed a motion to file a document under seal (which may have divulged his place of confinement). The Court denied the request, noting that he failed to follow the procedures of the Rules of the Court and the Open Records Act. NOTE: There are specific requirements for filing documents under seal, and this opinion has the citations and a discussion of those requirements if any of you need to do this in the future.




Wade Greely Lay v. Terry Royal, Warden, No. 15-5111 (10th Cir., June 26, 2017) (Published) (Kelly, Briscoe & McHugh) (N.D. Okla., Hon. Terence C. Kern): Habeas Corpus (Capital Habeas Cases); Insanity & Competency: Oklahoma capital case is affirmed over claims relating to IAC and a competency stay. NOTE: Judge Briscoe concurred, but took issue with circuit precedent that claims of substantive competence cannot be procedurally barred in federal habeas corpus cases. She acknowledged the precedent, but opined that it should be “revisited.”

Michael Don Leatherwood v. Joe M. Allbaugh, No. 16-6251 (10th Cir., June 27, 2017) (Published) (Hartz, Matheson & Moritz) (W.D. Okla., Hon. Joe L. Heaton): Habeas Corpus; Suspended Sentences: Leatherwood was convicted in Oklahoma state court of sex offenses, and was eventually revoked while he was in prison for continuing to have a relationship with a woman who had minor children, which violated the terms of his probation. He filed a habeas petition to attack the revocation on the basis of notice and substantive Due Process, and in this opinion the panel affirmed the denial of relief. NOTE: It is important to note that under circuit precedent, revocation of suspended sentences are treated under 28 U.S.C. 2241 (which attacks the execution of the sentence, not the underlying conviction), not 28 U.S.C. 2254 (which attacks the underlying conviction). The analysis is different. Judge Hartz concurred in the judgment, but wrote separately to question whether circuit precedent in this regard is still valid.

United States v. Jesus Octavio Valdez-Aguirre, No. 15-3275 (10th Cir., July 3, 2017) (Published) (Lucero, Matheson & Bacharach): Allocution: This is yet another case where the circuit grapples with the right of the accused to allocate in a federal case where it seems likely that the district court made its mind about a sentence prior to hearing from the defendant. The panel identified this as a problem, but because there was no objection the analysis centered around plain error which resulted in the inevitable affirmance.




“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).


CIRCUIT JUSTICE: The allotment of Circuit Justices has been issued. The new Circuit Justice of the Tenth Circuit is Associate Justice Sonia Sotomayor.

Davila v. Davis, Director, No. 16-6219 (U.S., June 26, 2017): IAC; Habeas Corpus (Procedural Default): Prior case law allows a prisoner in a habeas case to assert IAC of post-conviction counsel in order to excuse a defaulted claim relating to the IAC of trial counsel. In this case, Davila sought to extend this exception to claims of ineffective assistance of appellate counsel. The Court refused to do so. NOTE: Justice Gorsuch sided with the five-member majority in this case, led by Justice Thomas. Although it is early in his career on the Court, Justice Gorsuch appears to be aligned with the extreme conservative members of the Court.




Brendan Dassey v. Michael A. Dittmann, No. 16-3397 (7th Cir., June 22, 2017): Interrogations; Habeas Corpus (AEDPA Deference); Juveniles: In this massive, 128-pages of opinions, a split panel affirmed the grant of habeas relief in the case of a juvenile murder defendant on the basis that his confession was coerced. NOTE: This case involves the minor from the riveting Netflix series “Making a Murderer.” As habeas cases often do, the central issue revolved around how much deference the federal judges had to give to the state court opinion. Check out this language from the majority opinion: “If a state court can evade all federal review by merely parroting the correct Supreme Court law, then the writ of habeas corpus is meaningless.”

United States v. Master Giddins, No. 15-4039 (4th Cir., June 6, 2017): Interrogations: Bank robbery conviction reversed because statement to police was coerced. NOTE: This is another 2-1 split, with Judge Agee dissenting.

United States v. Jonathan N. Pinson, No. 15-4311 (4th Cir., June 19, 2017): Sufficiency; Racketeering; Conspiracy: RICO conspiracy conviction is reversed because of insufficient evidence.




THIRD MISTRIAL: Tulsa attorney Richard O’Carroll represented former Tulsa police officer Shannon Kepler in a third trial—which ended in a mistrial for the third consecutive time(!!) I do not know much about the facts of the case, other than what I read in the papers, which sound pretty damning to the client, but Richard apparently gives the jurors something to think about, and they have stuck to their guns three times now. It is unclear at this point whether the State will attempt a fourth trial. Richard O’Carroll is to be commended for his tenacious advocacy in this case. Nice work, Richard!

MISTRIAL II: Stillwater trial lawyer Royce Hobbs also tried a domestic violence case to a jury that ended in a hung jury and a mistrial.




PARAMEDIC ARRESTED: A newly hired paramedic with the Coweta Fire Department has been arrested for stealing drugs.

CITY ATTORNEY: The City of Durant has hired a new city attorney, Tom Marcum.

JAIL: Construction of the Love County Jail has been halted due to problems with the building contractor.

DEPUTY vs. DEPUTY: A Sheriff Deputy in Grady County has arrested a McClain County Sheriff Deputy for excessive speeding.

EXECUTION: The state of Virginia has executed death row inmate William Morva for the 2006 murders of a security guard and a sheriff’s deputy.    

INMATE DEATH: An inmate at the Oklahoma County Jail has died from an apparent suicide.

NEW U.S. ATTORNEY: President Trump has nominated R. Trent Shores to be the U.S. Attorney for the Northern District of Oklahoma.

CORRECTIONAL OFFICERS CHARGED: Two female correctional officers at Cimarron Correctional Facility have been charged with sex offenses involving inmates.

JURY SELECTION: Interesting article about the company that manages the selection of jurors in Oklahoma having problems in Georgia.




TRUE LOVE: A woman in Muskogee has accepted a marriage proposal from her fiancée…as he was being arrested by police.

THIRD TIME IS NOT A CHARM: An Altus man was been arrested three times…in one week for disturbing the peace and intoxication, after citizens reported seeing a man standing in the road with his pants down.

SECOND TIME: Nearly three years ago, a man named Michael Tate Reed of Van Buren, Arkansas, ran his car into the Ten Commandments monument in Oklahoma. A couple of weeks ago, he did the same thing in Arkansas.

DARWIN: A robbery suspect will soon be arrested when he used an app to set up the victim…and texted her his real name, real phone number, and his real picture.



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ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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