# Jenkins v. Nunn

> District Court, N.D. Oklahoma · December 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10755517

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** December 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10755517

## How later opinions describe it (automated extraction)

- explaining that the government may rely on circumstantial evidence to meet its burden to prove guilt beyond a reasonable doubt and stating that “[c]ircumstantial evidence alone may permissibly support a jury’s guilty verdict”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

BRANDON L. JENKINS, )
)
Petitioner, )
)
v. ) Case No. 22-CV-0036-GKF-JFJ
)
CARRIE BRIDGES,1 )
)
Respondent. )

OPINION AND ORDER
Petitioner Brandon Jenkins, a self-represented Oklahoma prisoner,2 seeks federal habeas
relief, under 28 U.S.C. § 2254, asserting he is in state custody in violation of federal law pursuant
to the criminal judgment entered against him in Tulsa County District Court Case No. CF-2018-
4136. He claims he was deprived of Fourteenth Amendment right to due process because (1) the
State of Oklahoma did not present sufficient evidence at trial to prove, beyond a reasonable doubt,
that he committed a firearm offense and a drug trafficking offense; and (2) the State did not have
jurisdiction to prosecute him for crimes he committed in Indian country. Having considered
Jenkins’s Petition for Writ of Habeas Corpus (Dkt. 1), Respondent’s Response in Opposition to
the Petition (Dkt. 6), Jenkins’s Reply (Dkt. 11), the record of state court proceedings (Dkts. 6, 7,

1 Jenkins presently in incarcerated at the James Crabtree Correctional Center (“JCCC”).
The Court therefore substitutes the JCCC’s current warden, Carrie Bridges, in place of the JCCC’s
former warden, Scott Nunn, as party respondent. Fed. R. Civ. P. 25(d); Rule 2(a), Rules Governing
Section 2254 Cases in the United States District Courts. The Clerk of Court shall note on the
record this substitution.
2 Because Jenkins appears without counsel, the Court liberally construes the Petition and
Reply. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the rule of liberal construction
neither requires nor permits the Court to act as an advocate for Jenkins by constructing legal
arguments or scouring the record for facts that might support his claims. Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
8), and applicable law, the Court finds and concludes that this matter can be resolved without an
evidentiary hearing and that the Petition shall be denied.
BACKGROUND
On September 8, 2018, Tulsa Police Officer Will Mortensen was driving his patrol car

northbound on Hartford Avenue, approaching East Apache Street, when he saw a red Chevy Blazer
signaling a left turn. Dkt. 7-9, at 101, 109. Officer Mortensen saw the driver of the Blazer, later
identified as Jenkins, commit two traffic violations: a belated use of his turn signal and an
incomplete stop at a stop sign. Id. at 109-10. Jenkins turned left onto East Apache Street, then
immediately turned left again, heading south on North Garrison Place. Id. at 110, 118. Officer
Mortensen, who was driving a marked patrol car, activated the patrol car’s light bar as he turned
left onto North Garrison Place, following Jenkins. Id. at 110-11, 118. Jenkins kept driving. Id. at
111, 157. Officer Mortensen then activated the patrol car’s siren; still, Jenkins kept going. Id. at
111. As he followed Jenkins, Officer Mortensen saw that two objects were thrown out of the
passenger side window of the Blazer. Id. at 112-13. After a brief, low-speed pursuit, Jenkins

stopped the Blazer on North Garrison Place, “approximately two to three blocks south of where
the items were thrown out.” Id. at 113, 156, 161; see also Dkt. 8 (Def. Exhs. 1, 2 (dash camera
and body camera videos)). Officer Mortensen approached the Blazer, saw that the passenger
window was down, saw that the driver’s window was up, and spoke with Jenkins, “the driver and
only occupant of the vehicle.” Dkt. 7-9, at 114. Jenkins admitted that did not have a driver’s
license, so Officer Mortensen arrested him for driving without a license. Id. at 116, 122. During
the search incident to Jenkins’s arrest, Officer Mortensen recovered $105 from the front pocket of
Jenkins’s pants, but he found no money in Jenkins’s wallet. Id. at 136, 153-54.
As other officers arrived at the scene of the traffic stop, Officer Mortensen asked Officer
Paul Spicer to search “the area from East Apache to the location of the traffic stop” to locate and
recover the items that Officer Mortensen saw Jenkins throw out the passenger side window. Dkt.
7-9, at 121-22, 125, 163, 174-79. Officer Mortensen searched the Blazer and found no guns, drugs,
or drug paraphernalia. Id. at 122-24, 152-53. Officer Spicer, however, found two items on the

ground, about one block apart from each other, on the west side of North Garrison Place: a nine-
millimeter pistol and a baggie containing drugs. Id. at 125-31, 179-82, 187-94.
The State filed an amended felony information in January 2019, charging Jenkins with
multiple felonies and misdemeanors and alleging he committed them after former conviction of
six felonies. Dkt. 7-13, at 86-88. Jenkins’s case proceeded to a jury trial in September 2019. Dkt.
7-8, at 1. Ultimately, the jury found Jenkins guilty of trafficking in illegal drugs
(methamphetamine) (count one); possession of a controlled dangerous substance (cocaine) (count
two);3 acquiring proceeds from drug activity (count four); possession of a firearm while in the
commission of a felony (count six); eluding a police officer (count eight); and obstructing a police
officer (count nine).4 Dkt. 7-14, at 82-88. The jury also found that Jenkins committed the felony

offenses after former conviction of two or more felonies. Id. at 89-92. At sentencing, the trial
court dismissed the drug-related convictions in counts two and four, finding that they merged with

3 The original charge in count two was possession of cocaine with intent to distribute, but
the jury found him not guilty of possession with intent to distribute and guilty of the alternative
charge of simple possession. Dkt. 7-13, at 86; Dkt. 7-14, at 83.
4 The jury found Jenkins not guilty of committing a gang-related offense, as charged in
count seven. Dkt. 7-14, at 86. After the jury returned a verdict of guilt as to the firearm offense
charged in count six, the trial court granted the State’s motion to dismiss count five which charged
Jenkins with possession of a firearm after former conviction of a felony. Dkt. 7-10, at 76-77. The
trial court also dismissed the remaining charges (counts three, ten, eleven, and twelve) at the State’s
request. Dkt. 7-13, at 5; see also Docket Sheet, State v. Jenkins,
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2018-
4136&cmid=3187798 (last viewed, Dec. 3, 2024).
the drug trafficking conviction in count one. Dkt. 7-12, at 18-19. As to the remaining convictions,
the trial court sentenced Jenkins according to the jury’s recommendations: twelve years’
imprisonment (count one); twenty years’ imprisonment (count six); six months in jail (count eight);
and one year in jail (count nine). Id. at 18-22; Dkt. 7-10, at 73.5 The trial court ordered the first

two sentences to be served consecutively to each other and ordered the last two sentences to be
served concurrently with each other and concurrently with the sentence in count one. Dkt. 7-12,
at 18-22.
Jenkins filed a direct appeal in the Oklahoma Court of Criminal Appeals (“OCCA”),
claiming the State violated his Fourteenth Amendment right to due process by failing to present
sufficient evidence to support his firearm and drug trafficking convictions. Dkt. 6-1. The OCCA
rejected both claims and affirmed Jenkins’s convictions and sentences in December 2020. Dkt. 6-
3. Jenkins also filed two applications for postconviction relief. In the first application, filed in
August 2020 while his direct appeal was pending, Jenkins relied on McGirt v. Oklahoma, 591 U.S.
894 (2020), to assert that the State lacked jurisdiction to prosecute him for crimes he committed

within the boundaries of the Muscogee (Creek) Nation Reservation because the Muscogee (Creek)
Nation had no “cross-deputization agreement with Tulsa County, Oklahoma.” Dkt. 6-4. The state
district court denied relief, reasoning, in part, that Jenkins presented no evidence that he is Indian.
Dkt. 6-5. Nearly two weeks later, Jenkins filed a “motion to dismiss,” raising a different Indian
country jurisdiction claim. Dkt. 6-6. In this motion, Jenkins relied on the Treaty of Washington,
14 Stat. 799 (1866), to assert that he could only be prosecuted by the Cherokee Nation. Dkt. 6-6.
In support of this claim, Jenkins conceded that he is “not an Indian within the meaning of federal

5 After hearing oral arguments, the trial court dismissed the drug-related convictions in
counts two and four, finding that they merged with the drug trafficking conviction in count one.
Dkt. 7-12, at 18-19.
law.” Id. at 4. The state district court construed the motion as a second application for
postconviction relief and denied relief, reasoning (again) that Jenkins’s non-Indian status
precluded relief. Dkt. 6-8. Jenkins filed a postconviction appeal, and the OCCA affirmed the
denial of postconviction relief. Dkts. 6-9, 6-10. Like the state district court, the OCCA reasoned

that Jenkins cited no controlling authority to show that the State lacks jurisdiction to prosecute
crimes committed in Indian country when there is no evidence that either the defendant or a victim
is Indian. Dkt. 6-10, at 2-3.6
Jenkins now seeks federal habeas relief, reasserting the Fourteenth Amendment claims he
presented to the OCCA on direct appeal, challenging the sufficiency of the evidence to support
two of his convictions, and the Fourteenth Amendment claim he presented to the OCCA on
postconviction appeal, challenging the State’s exercise of criminal jurisdiction in Indian country.
Dkt. 1. Respondent urges the Court to deny the Petition, arguing that 28 U.S.C. § 2254(d) bars
relief because the OCCA reasonably applied federal law and reasonably determined the facts when
it rejected Jenkins’s claims. Dkt. 6.

DISCUSSION
A federal court has discretion to issue a writ of habeas corpus to a state prisoner who
demonstrates that he is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). But the Antiterrorism and Death Penalty Act of 1996 (“AEDPA”)

6 After the OCCA affirmed the denial of postconviction relief, Jenkins filed a petition for
writ of certiorari in the Supreme Court of the United States, and the Supreme Court denied the
petition. Dkts. 6-11, 6-12.
and federal habeas jurisprudence limit that discretion in several ways.7 Relevant here, when a state
court has adjudicated a federal claim on the merits, a federal court “shall not” grant habeas relief
unless the prisoner first shows that the state court’s adjudication of that claim either “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),8

or “resulted in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” id. § 2254(d)(2).9 The prisoner “carries the
burden of proof” in satisfying these standards. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
This burden is demanding; it requires the prisoner to “show[] there was no reasonable basis for the
state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011); see also Meek v. Martin,
74 F.4th 1223, 1248 (10th Cir. 2023) (noting that to satisfy § 2254(d)’s demanding standards,
“[t]he prisoner must show that a state court’s decision is ‘so obviously wrong’ that no reasonable
judge could arrive at the same conclusion given the facts of the prisoner’s case” (quoting Shinn v.
Kayer, 592 U.S. 111, 118 (2020) (per curiam))).

Moreover, even if a prisoner satisfies § 2254(d)’s preconditions to relief, a federal court

7 The AEDPA imposes a one-year statute of limitations and requires a state prisoner to
exhaust available state remedies before seeking federal habeas relief. 28 U.S.C. §§ 2244(d)(1),
2254(b)(1)(A). Respondent concedes that Jenkins timely filed the Petition and that he exhausted
available state remedies as to each of his claims. Dkt. 6, at 3.
8 The phrase “clearly established Federal law,” as used in § 2254(d)(1), “refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Bonney v. Wilson, 754 F.3d 872, 880 (10th Cir. 2014) (alteration in original)
(citation and internal quotation marks omitted).
9 Respondent asserts, and the Court finds, that the OCCA denied Jenkins’s constitutional
claims on the merits. Dkt. 6, at 8 & n.2; see Dkts. 6-3, 6-10, at 2. Jenkins appears to acknowledge
this point in by arguing in his Reply that the OCCA’s decision is unreasonable under § 2254(d).
Dkt. 11.
need not grant habeas relief. See Brown v. Davenport, 596 U.S. 118, 134 (2022) (“While AEDPA
announced certain new conditions to relief, it did not guarantee relief upon their satisfaction.”);
Horn v. Banks, 536 U.S. 266, 272 (2002) (“While it is of course a necessary prerequisite to federal
habeas relief that a prisoner satisfy the AEDPA standard of review set forth in 28 U.S.C. § 2254(d)

. . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should
automatically issue if a prisoner satisfies the AEDPA standard.”). Rather, the prisoner “must still
. . . persuade a federal habeas court that ‘law and justice require’ relief.” Davenport, 596 U.S. at
134 (quoting 28 U.S.C. § 2243).
As discussed next, Jenkins has shown that he can satisfy § 2254(d)’s demanding
preconditions to habeas relief, must less shown that law and justice require relief.
I. Claims one and two: insufficient evidence
Jenkins claims, as he did on direct appeal, that he was deprived of his Fourteenth
Amendment right to due process because the State did not present sufficient evidence at trial to
prove, beyond a reasonable doubt, that he is guilty of possessing a firearm in the commission of a

felony and trafficking in illegal drugs. Dkt. 1, at 5, 7; Dkt. 6-1; Dkt. 11.
The Fourteenth Amendment’s due process clause “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When reviewing the sufficiency
of the evidence supporting a criminal conviction, “the 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). When it applies the Jackson standard, this Court first looks to State law to
determine the essential elements of the crime. Hawes v. Pacheco, 7 F.4th 1252, 1264 (10th Cir.
2021). The Court then “examine[s] whether the evidence suffices to establish each element.”
Anderson-Bey v. Zavaras, 641 F.3d 445, 448 (10th Cir. 2011).
But “Jackson claims face a high bar in federal habeas proceedings because they are subject
to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012).

First, on direct appeal, “it is the responsibility of the jury—not the court—to decide
what conclusions should be drawn from evidence admitted at trial. A reviewing
court may set aside the jury’s verdict on the ground of insufficient evidence only if
no rational trier of fact could have agreed with the jury.” [. . .] And second, on
habeas review, “a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees
with the state court. The federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’”
Id. at 651 (internal citation omitted) (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)).
In assessing objective reasonableness under § 2254(d)(1), this Court “ask[s] whether the
OCCA correctly identified the governing legal principle from Jackson and reasonably applied it
to the facts of [the petitioner’s] case.” Hooks v. Workman, 689 F.3d 1148, 1167 (10th Cir. 2012).
Under § 2254(d)(2), “a factual finding may be unreasonable . . . only if the state court ‘plainly
misapprehended or misstated the record’ and the ‘misapprehension goes to a material factual issue
that is central to the petitioner’s claim.’” Frederick v. Quick, 79 F.4th 1090, 1104 (10th Cir. 2023)
(quoting Menzies v. Powell, 52 F.4th 1178, 1195 (10th Cir. 2022)), cert. denied, 144 S. Ct. 2634
(2024). This Court “may not characterize . . . state-court factual determinations as unreasonable
‘merely because [this Court] would have reached a different conclusion in the first instance.’”
Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (alteration added) (quoting Wood v. Allen, 558
U.S. 290, 301 (2010)). Further, and regardless of whether this Court reviews a federal claim under
§ 2254(d)’s deferential standards or reviews that claim de novo (i.e., without any deference to the
state court’s decision), “state-court factfinding still receives the benefit of doubt under §
2254(e)(1): that is, ‘[a]ny state-court findings of fact that bear upon the claim are entitled to a
presumption of correctness rebuttable only by “clear and convincing evidence.”’” Fontenot v.
Crow, 4 F.4th 982, 1061 (10th Cir. 2021) (quoting Hooks, 689 F.3d at 1164), cert. denied 142 S.
Ct. 2777 (2022).
A. Additional facts

At trial, Officer Mortensen testified that he saw two objects thrown out of the passenger
side window of the Blazer while he pursued Jenkins. Dkt. 7-9, at 112-13. Officer Spicer testified
that he searched along the west side of the road where Officer Mortensen saw the two items thrown
out the window. Id. at 174-82, 187-94. Officer Spicer further testified that he found two items, a
loaded nine-millimeter pistol and a baggie that appeared to contain drugs, on the ground. Id.
Officer Spicer testified there was “light moisture” on the ground and the weather was cool when
he found these items, but “there was no moisture on the gun” and the gun felt warmer than the air
temperature. Id. at 183-86. Officer Spicer also testified the gun, which he found on a sidewalk,
had scuff marks on the steel slide that were consistent with the gun being “thrown against
concrete.” Id. at 186-87. The State presented evidence that the gun was loaded, with a magazine

of bullets and one round in the chamber, and the baggie of drugs contained 112 pills and a smaller
baggie of a white powdery substance. Id. at 126-35, 184-85, 218-22. Officer Spicer testified,
based on his training and experience, that this quantity of pills was consistent with distribution,
not personal consumption. Id. at 196. Officer Mortensen and Officer Spicer testified, based on
their training and experience, that possession of a gun in conjunction with possession of this
quantity of pills is consistent with drug distribution. Id. at 142, 197-98.
Jared Lieser, a forensic analyst with the Tulsa Police Department, ran chemical tests on a
nine of the pills from the baggie Officer Spicer found. Dkt. 7-9, at 213-19. Lieser identified the
pills as methamphetamine, testified that each pill weighed approximately .20 grams, and testified
that the total weight of all pills in the baggie was 21.98 grams. Id. at 220-21. Lieser identified the
white powdery substance from the smaller baggie as cocaine and testified that the total weight of
the cocaine was .14 grams. Id. at 221-23. James Wilcoxen, a firearms analyst with the Tulsa
Police Department, tested the functionality of the gun Officer Spicer found and determined that

the gun was inoperable. Id. at 225, 233. Wilcoxen testified the safety was broken and the trigger
mechanism would not engage with the hammer. Id. at 233.
In accordance with state law, the trial court instructed the jury that it could not find Jenkins
guilty of trafficking in illegal drugs (methamphetamine), in violation of Okla. Stat. tit. 63, §§ 2-
415(B) and (C)(4)(a), unless the State proved, beyond a reasonable doubt, that Jenkins (1)
knowingly; (2) distributed or possessed; (3) not less than twenty (20) grams of methamphetamine.
Dkt. 7-14, at 34. The trial court further instructed the jury that state law defines “possession” as
“[a]ctual physical custody, or knowledge of the substance’s presence, as well as power and intent
to control its use or disposition.” Id. at 41. The trial court instructed the jury that it could not find
Jenkins guilty of possessing a firearm while in commission of a felony, in violation of Okla. Stat.

tit. 21, § 1287, unless the State proved, beyond a reasonable doubt, that Jenkins (1) knowingly; (2)
willfully; (3) possessed; (4) a pistol; (5) while committing the crimes of (a) trafficking in illegal
drugs, and/or (b) acquiring proceeds from drug activity, and/or (c) unlawfully possessing a
controlled drug with intent to distribute; (6) committed one or more of the applicable underlying
felonies; and (7) that possession of the weapon was connected to the commission of or attempt to
commit the underlying felony. Id. at 46-47. Applicable to both offenses, the trial court instructed
the jury that the law recognizes “two kinds of possession, actual possession and constructive
possession.” Id. at 51. As to the latter kind the trial court instructed the jury that “[a] person who,
although not in actual possession, knowingly has the power and the intention at a given time to
exercise dominion or control over a thing, is then in constructive possession of it,” that “mere
proximity to a substance is insufficient proof of possession,” and that “additional evidence of the
defendant’s knowledge and control” of a substance” “may be established by circumstantial
evidence.” Id.

On direct appeal, Jenkins claimed the State failed to prove his guilt as to either offense. As
to the firearm conviction, Jenkins argued the State “failed to prove that—(1) [he] possessed the
gun; and (2) the 9-millimeter pistol recovered in this case meets the statutory definition of ‘pistol.’”
Dkt. 6-3, at 4. The OCCA rejected both arguments. The OCCA explained that “possession of a
firearm can be either constructive or actual” and that “[a]n individual may constructively possess
a firearm where he exercises dominion or control over it.” Id. Applying the Jackson standard, the
OCCA reasoned that the “evidence here, when viewed in the light most favorable to the State,
established beyond a reasonable doubt that [Jenkins] constructively possessed the 9-millimeter
pistol that was found on the sidewalk shortly after the stop.” Id. at 3-4. The OCCA explained that
Jenkins’s second argument, regarding the statutory definition of “pistol,” was based on a

misunderstanding of state law. Id. at 4. The OCCA stated,
[Jenkins] erroneously cites 21 O.S. Supp. 2017, § 1289.3 to argue the definition of
pistol only includes objects capable of discharging a projectile. [Jenkins] was
convicted of Possession of a Firearm While in the Commission of a Felony in
violation of 21 O.S. Supp. 2012, § 1287. Section 1287 contains a list of qualifying
firearms that fall within its purview. Section 1287 broadly includes, inter alia, any
“blank or imitation” pistols, as well as any “altered air or toy pistol, shotgun or rifle
capable of raising in the mind of one threatened with such device a fear that it is a
real pistol, shotgun or rifle[.]” Thus, by the statute’s plain language, the State was
not required to prove that the firearm [Jenkins] possessed was capable of
discharging a lethal projectile.
Id. at 4-5. As to the drug trafficking conviction, Jenkins argued the State failed to prove the
element of possession. Id. at 5. The OCCA disagreed, citing the concept of constructive
possession, applying the Jackson standard, and reasoning that, “viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt
[Jenkins] constructively possessed the illegal drugs recovered shortly after the traffic stop.” Id. at
3, 5-6.
B. Analysis and conclusion

Jenkins claims, as he did on direct appeal, that the State did not present sufficient evidence
to support the firearm conviction because “[t]he State failed to prove that [he] possessed a gun”
and Okla. Stat. tit. 21, § 1289.3 “shows that the definition of a pistol only includes objects capable
of discharging a projectile.” Dkt. 1, at 5; Dkt. 6-1, at 11-18; Dkt. 11. He further claims that the
State did not present sufficient evidence to support the drug trafficking conviction because he “did
not actually or constructively possess any drugs,” “no drugs were found in the vehicle,” and it was
unreasonable for the jury to infer that the baggie of drugs found on the ground by Officer Spicer
was one of the items that Officer Mortensen saw Jenkins throw out the window of the Blazer. Id.
at 7; Dkt. 6-1, at 19-24; Dkt. 11.
Respondent contends that § 2254(d) bars relief as to these two Fourteenth Amendment

claims because the OCCA reasonably applied Jackson to the facts of this case and reasonably
determined the facts based on the evidence presented at trial. Dkt. 6, at 15-28.
In his Reply, Jenkins contends the OCCA’s decision rejecting these claims is contrary to
clearly established federal law, based on an unreasonable application of Jackson, and based on an
unreasonable determination of the facts presented in state court, under § 2254(d)(1) and (d)(2),
because the OCCA (1) did not consider “important evidence”; (2) “wholly failed to reference any
testimony or evidence that [he] actually or constructively possessed a firearm”; (3) did not consider
discrepancies between where Officer Mortensen said he saw two items thrown out the window
and where Officer Spicer testified he found those items; (4) overlooked that the State did not
establish a “connection or nexus between [Jenkins] and the firearm”; and (5) should have
concluded that “it was unreasonable for the jury to convict [him] of possessing a firearm and drugs
because the State never presented any evidence directly linking [him] to the items that were found
on a sidewalk.” Dkt. 11, at 1-5.

For three reasons, the Court agrees with Respondent that § 2254(d) bars relief as to claims
one and two. First, because the OCCA identified Jackson as the clearly established federal law
governing Jenkins’s sufficiency-of-the-evidence claims, Jenkins has not shown that the OCCA’s
rejection of those claims is contrary to clearly established federal law under § 2254(d)(1). See
Matthews v. Workman, 577 F.3d 1175, 1183 (10th Cir. 2009) (“Because the OCCA applied the
Jackson standard in deciding [the petitioner’s] sufficiency claim on direct review, our task is
limited by AEDPA to inquiring whether the OCCA’s application of Jackson was unreasonable.”
(footnote omitted)).
Second, as Respondent contends, Jenkins has not shown that the OCCA applied Jackson
to the facts of the case in an objectively unreasonable manner, or that the OCCA rested its decision

on an objectively unreasonable determination of the facts presented in state court. Applying the
Jackson standard, the OCCA determined that a rational jury could have found, beyond a reasonable
doubt, that Jenkins constructively possessed the gun and the baggie of drugs that Officer Spicer
found on the side of the same street that, just minutes before, Officer Mortensen briefly pursued
Jenkins’s vehicle and saw Jenkins throw two items out of the passenger side window. The
evidence presented at trial supports the objective reasonableness of the OCCA’s conclusion. The
jury heard evidence that Officer Mortensen saw two items thrown out of the passenger window of
Jenkins’s vehicle as Officer Mortensen pursued Jenkins for a few blocks on North Garrison Place
and that Jenkins was the only occupant of the vehicle. The jury also heard evidence that Officer
Spicer walked along North Garrison Place and found two items: (1) a loaded pistol that appeared
to be scuffed, as if may have been thrown on the concrete sidewalk, and that appeared to be dry
and warm despite a cool outside temperature and moisture on the sidewalk; and (2) a plastic baggie
containing more than one hundred methamphetamine pills and a smaller baggie of cocaine. On

this evidence it was objectively reasonable for the OCCA to conclude, viewing the evidence in the
light most favorable to the State, that a rational juror could have found Jenkins guilty, beyond a
reasonable doubt, of constructively possessing the gun and the baggie of drugs. Thus, as
Respondent contends, § 2254(d)(1)’s unreasonable application prong bars relief.
Third, none of Jenkins’s arguments compel a conclusion that he has satisfied the
preconditions to relief in § 2254(d). To the extent Jenkins reasserts his argument that the State
had to prove that the gun found on the sidewalk had to be operable, the OCCA rejected that
argument based on its interpretation that Okla. Stat. tit. 21, § 1287 does not require a showing that
the defendant possessed a firearm capable of discharging a lethal projectile. Dkt. 6-3, at 4-5. On
habeas review, this Court is bound by the OCCA’s interpretation of state law and by its

determination that operability of the firearm is not an essential element of possessing a firearm
while in commission of a felony. Hawes, 7 F.4th at 1264, 1266; Anderson-Bey, 641 F.3d at 448.
This argument therefore cannot satisfy § 2254(d)’s standards. Jenkins’s arguments that the OCCA
either failed to consider or failed to explicitly discuss “important evidence” likewise does not
satisfy those standards. Jackson requires a reviewing court to determine “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, 443 U.S. at 319.
It does not, however, require a reviewing court to include in its opinion any detailed analysis of
the evidence presented at trial. In its decision, the OCCA identified the Jackson standard as the
federal law relevant to Jenkins’s claim and stated that it thoroughly considered the entire record
and the parties’ briefs in applying that standard. Dkt. 6-3. That the OCCA did not also discuss,
within its decision, each piece of evidence that supported its rejection of the Jackson claims does
not come close to showing that the OCCA’s decision is unreasonable, either as a matter of law or

a matter of fact. Lastly, Jenkins’s remaining arguments—regarding the lack of direct evidence
that he possessed the gun and drugs and the reasonableness of the jury’s assessment of the
circumstantial evidence presented at trial—effectively ask this Court to ignore the double
deference that applies to a Jackson claim on habeas review and to ignore that juries can rely on
circumstantial evidence to reach a verdict. Johnson, 566 U.S. at 651; see United States v. Hill,
786 F.3d 1254, 1261 (10th Cir. 2015) (explaining that the government may rely on circumstantial
evidence to meet its burden to prove guilt beyond a reasonable doubt and stating that
“[c]ircumstantial evidence alone may permissibly support a jury’s guilty verdict”). Giving due
deference to the jury’s responsibility to resolve conflicts in the evidence and “decide what
conclusions should be drawn from evidence admitted at trial,” including circumstantial evidence,

and due deference to the OCCA’s responsibility to apply the Jackson standard in the first instance,
the Court finds that the OCCA’s rejection of the Jackson claims is objectively reasonable, as a
matter of law and a matter of fact.
Based on the foregoing, the Court denies the Petition as to claims one and two.
II. Claim three: Indian country jurisdiction
Jenkins claims the trial “court lacked jurisdiction over [him] because his crime occurred in
Indian Territory (Cherokee).” Dkt. 1, at 8. In support of this claim, Jenkins alleges his “crime
was committed within the bounds of the Cherokee Nation Treaty of 1866, art. 13.” Id. As
previously discussed, the OCCA rejected this claim because Jenkins presented no evidence in state
court to establish that either he or any victim is Indian. Dkts. 6-8, 6-10.
For three reasons, Jenkins has not shown that habeas relief is warranted as to this claim.
First, he presents no clear and convincing evidence to contradict the state courts’ factual findings
that neither he nor any victim is Indian for purposes of federal law. Dkts. 1, 11, generally; see 28

U.S.C. § 2254(e)(1) (providing that a habeas court must presume the correctness of a state court’s
factual finding absent clear and convincing evidence to rebut that finding); Fontenot, 4 F.4th at
1061. Second, even if the presumption of correctness did not apply, it was undeniably reasonable
for the state courts to find that neither Jenkins nor any victim is Indian because the only evidence
presented in state court was Jenkins’s own admission, in his affidavit, that he is not Indian for
purposes of federal law. Dkt. 6-6, at 4. Thus, § 2254(d)(2) bars relief because Jenkins has not
shown that the OCCA’s rejection of his Indian country jurisdiction claim is based on an
unreasonable determination of the facts presented in state court. Third, because Jenkins admits he
is not Indian and has not alleged or established that his crimes involved an Indian victim, he has
not shown that the OCCA’s decision either is contrary to, or is based on an unreasonable

application of, clearly established federal law, as required to overcome § 2254(d)(1). When the
OCCA rejected Jenkins’s claim, clearly established federal law provided that the State had
jurisdiction to prosecute crimes committed within Indian country if those crimes were committed
by a non-Indian against a non-Indian. See Oklahoma v. Castro-Huerta, 597 U.S. 629, 637 (2022)
(“In the leading case in the criminal context—the McBratney case from 1882—this Court held that
States have jurisdiction to prosecute crimes committed by non-Indians against non-Indians in
Indian country.” (citing United States v. McBratney, 104 U.S. 621, 623-24 (1882)); McGirt, 591
U.S. at 933 (citing McBratney for the proposition that unless otherwise provided in 18 U.S.C. §§
1152 and 1153, “States are . . . free to apply their criminal laws in cases of non-Indian victims and
defendants, including within Indian country”). For these reasons, the Court denies the Petition as
to claim three.
CONCLUSION
The Court finds and concludes that Jenkins has not made the necessary showings to obtain
federal habeas relief under 28 U.S.C. § 2254. The Court therefore denies the Petition as to all three
claims raised therein. The Court further concludes that no certificate of appealability shall issue
because reasonable jurists would not debate the correctness of this Court’s assessment of Jenkins’s
constitutional claims. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE ORDERED that the Petition (Dkt. 1) is denied; a certificate of
appealability is denied; and a separate judgment shall be entered in this matter.
IT IS FURTHER ORDERED that the Clerk of Court shall note on the record the
substitution of Carrie Bridges, Warden, in place of Scott Nunn as party respondent.
DATED this Sth day of December, 2024.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10755517. Public record. Not legal advice.