Foster v. Smith, 2:18-cv-00429

Background

Petitioner Scott Allen Foster filed a §2254 habeas petition challenging his 2013 Curry County convictions, alleging multiple Sixth Amendment violations and other trial defects.
Core claim: trial counsel Randall Harris was allegedly impaired by drugs/alcohol during jury selection and trial (observed slurring; posthumous toxicology and an unauthenticated Betty Ford payment check).
Other claims: misuse of confidential informant Michael Robinson (Ground Two), alleged tampering/audible problems with undercover video, failure to file a suppression motion, undisclosed conflict of interest (Monica Caroland), improper law‑enforcement commissions for officers, and double jeopardy as to trafficking and conspiracy.
State courts held evidentiary hearings, found Harris was not impaired, rejected the claims on Strickland and procedural‑default grounds, and denied relief. Magistrate Judge Molzen recommended denying the federal petition.
The District Court conducted a de novo review, overruled Foster’s objections, adopted the PF&R, denied the petition and supplement, dismissed with prejudice, and denied a certificate of appealability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — counsel impairment	Harris was slurring at jury selection and later found to have controlled substances/alcohol in his system; counsel’s impairment undermined competence	State trial court observed Harris and found no impairment; assistant and staff testimony supported competency; Strickland not shown	Denied — state court's credibility finding reasonable; Foster failed to show Strickland prejudice or unreasonable state adjudication
Ground Two — confidential informant/witness issues (procedural default)	Robinson's reliability and related challenges should be considered on merits	Foster failed to exhaust/sought no certiorari in state court; claims are procedurally defaulted absent cause and prejudice or actual innocence	Denied as procedurally defaulted; Foster produced no new reliable evidence of actual innocence
Other counsel failures — video tampering, failure to suppress, conflict, officer commissions	Harris failed to investigate video/audio, failed to file suppression motion, had undisclosed conflict via Monica Caroland, and should have challenged officers’ commissions	State habeas fact‑finding credited Harris’s tactical decisions, attempted audio remediation, Caroland left firm before representation in 2013, and any commission issues involved clerical matters without prejudice	Denied — claims fall to trial‑strategy deference; state findings not unreasonable under §2254(d)
Double jeopardy (trafficking vs conspiracy)	Trafficking conviction must be vacated because Foster did not personally sell drugs to officer	State presented evidence Foster ‘caused the transfer’ (via intermediary); conspiracy and trafficking rested on distinct factual bases	Denied — convictions nonunitary; state appellate application of federal double‑jeopardy law was reasonable

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance requires deficient performance and prejudice)
Thomas v. Arn, 474 U.S. 140 (magistrate reports and effect of objections on district review)
United States v. Raddatz, 447 U.S. 667 (de novo determination versus de novo hearing; district reliance on magistrate permitted)
United States v. One Parcel of Real Prop., 73 F.3d 1057 (10th Cir.) (objections to magistrate must be timely and specific; waiver rule)
Frost v. Pryor, 749 F.3d 1212 (actual‑innocence gateway requires new reliable evidence that would convince no reasonable juror)
Demarest v. Price, 130 F.3d 922 (actual‑innocence standard for miscarriage of justice exception)
Lucero v. Kerby, 133 F.3d 1299 (double‑jeopardy unitary/nonunitary conduct analysis)
In re Griego, 64 F.3d 580 (district court must consider relevant record during de novo review)