Opinion
CIV-23-333-JD
02-15-2024
DAVID BRYAN EMEKA CHUKWURAH, Petitioner, v. RANDY HARDING,[1] Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNI1ED STATES MAGISTRATE JUDGE
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1.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.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination. Except for capitalization, quotations are verbatim, unless otherwise specified.
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 (10th Cir. 2013)). “It is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
The “‘unreasonable application' prong requires [the petitioner to prove] that the state court identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was objectively unreasonable.” Id. “In other words, ‘so long as fairminded jurists could disagree on the correctness of the state court's decision,' habeas relief is unavailable.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).
Finally, although this Court liberally construes the petition, it will not supply Petitioner with an argument. See, e.g., United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[B]ecause [the petitioner] appears pro se, we must construe his arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.”) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
III. The Court should deny habeas relief.
Respondent contends Petitioner's claims are unexhausted and are procedurally barred from review because Petitioner's claims would be procedurally barred in state court if he returned to raise them. Doc. 8, at 9-30. The undersigned finds Grounds One and Three are unexhausted and subject to an anticipatory procedural bar. Grounds Two and Four are exhausted, but they should be denied. Grounds Five and Six should be denied on the merits despite any potential exhaustion issues.
A. Exhaustion requirement and procedural bar.
“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.” Bland, 459 F.3d at 1011 (citing 28 U.S.C. § 2254(b)(1)(A)). “Exhaustion requires that the claim be ‘fairly presented' to the state court, which ‘means that the petitioner has raised the substance of the federal claim in state court.'” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland, 459 F.3d at 1011). This means “a federal habeas petitioner [must] provide the state courts with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982).
“[T]he crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012). “A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution.'” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)). But a “‘[f]air presentation' requires more than presenting ‘all the facts necessary to support the federal claim' to the state court.” Bland, 459 F.3d at 1011 (quoting Anderson, 459 U.S. at 6).
When a petitioner presents a claim, but the state court declines to review its merits due to “an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Doc. 13, at 14-15.
For a state procedural rule to be “independent and adequate” sufficient to bar federal habeas review, it “must be based solely on state law,” Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012), and “must be strictly or regularly followed and applied evenhandedly to all similar claims,” id. (quoting Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999)).
To overcome a procedural bar by demonstrating cause and prejudice for defaulting on a claim, a petitioner must show cause-“that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Scott v. Mullin, 303 F.3d 1222, 1228 (10th Cir. 2002). He must also show prejudice-“that the errors at his trial . . . worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions,” something more than that an error “might have changed the outcome of the trial.” Daniels v. United States, 254 F.3d 1180, 1191 (10th Cir. 2001) (quoting United States v. Fray, 456 U.S. 152, 170 (1982), then quoting Strickler v. Greene, 527 U.S. 263, 289 (1999)).
To overcome a procedural bar by establishing that this Court's failure to consider the claim will result in a fundamental miscarriage of justice, a petitioner must “show[] that ‘constitutional error probably resulted in the conviction of one who was actually innocent,'” United States v. Cervini, 379 F.3d 987, 990-91 (10th Cir. 2004) (quoting Schlup v. Delo, 513 U.S. 298, 322 (1995)). A credible “claim of actual innocence requires a petitioner to present new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Fontenot v. Crow, 4 F.4th 982, 1031 (10th Cir. 2021) (quoting Schlup, 513 U.S. at 324), cert. denied, 142 S.Ct. 2777 (2022). It is “a petitioner's burden . . . to demonstrate ‘that more likely than not any reasonable juror would have reasonable doubt.'” Id. at 1030 (quoting House v. Bell, 547 U.S. 518, 538 (2006)).
B. Anticipatory procedural bar precludes this Court's review of Grounds One and Three.
In Ground One, Petitioner asserts his convictions in Counts One and Three (endangering others while eluding police officers and escape from detention) amount to double jeopardy. Doc. 1, at 4-8. In Ground Three, Petitioner contends his convictions in Counts One and Two (endangering others while eluding police officers and battery on a police officer) amount to double jeopardy. Id. at 10-12. As much as Petitioner raises double-jeopardy claims based on the United States Constitution, he did not raise these claims in state court, so they remain unexhausted. Because Petitioner's claims would be procedurally barred in state court if he returned to raise them, they should be denied due to anticipatory procedural bar. To the extent that Petitioner raises his state-law claims here, such claims are not cognizable for habeas relief.
1. Petitioner's arguments in state court.
In his direct appeal to the OCCA, Petitioner argued he suffered double punishment through his convictions in Counts One and Three (Proposition I) and Counts One and Two (Proposition III). Doc. 8, Att. 2, at 12-19, 27-30. In both Propositions I and III, Petitioner based his arguments on Okla. Stat. tit. 21, § 11, which provides that “in no case can a criminal act or omission be punished under more than one section of law” and “a conviction and sentence under one section of law[] bars the prosecution for the same act or omission under any other section of law.” Petitioner noted that this law “protects a criminal defendant from the imposition of double punishment beyond the traditional constitutional double jeopardy protections.” Id. at 12-13 (citing Okla. Stat. tit. 21, § 11). He also recognized that “[t]he issue of whether a conviction has violated [Okla. Stat. tit. 21, § 11] is separate and distinct from the issue of constitutional double jeopardy.” Id. at 13.
Petitioner incorporated his Okla. Stat. tit. 21, § 11 argument from Proposition I into his argument in Proposition III. Doc. 8, Att. 2, at 27.
For Proposition I, Petitioner argued he committed one act-fleeing from police-for which he was charged with escape from detention and endangering others while eluding. Id. at 14-19. And in Proposition III, he argued because “[Officer] Mitchell was struck when [Petitioner] was eluding officers . . . [Petitioner] was twice punished for the same act of fleeing.” Id. at 28.
The OCCA analyzed Proposition I, applying state law. Doc. 8, Att. 1, at 3-6. It determined that the acts supporting a conviction for endangering others while eluding a police officer occurred when Petitioner drove around traffic at a red light, weaved through traffic, and pulled into oncoming traffic causing other cars to slam on their brakes-all while “being pursued by police officers in marked patrol cars with lights and sirens activated.” Id. at 4. It held the act supporting a conviction for escape from detention “was completed when [Petitioner] was forced to stop at the intersection . . . due to blocked traffic, Officer Eades stopped behind [Petitioner's] car, the officer drew his weapon, approached on foot, momentarily detained [Petitioner] at gunpoint and then [Petitioner] drove off.” Id. at 5. It concluded:
[Petitioner's] escape occurred after the chase came to a stop at the intersection to the Highway 7 bypass. At that moment, [Petitioner] was no longer eluding and was momentarily detained by Officer Eades. Although this detention was brief, [Petitioner's] escape
nonetheless was a separate and distinct crime from [Petitioner's] acts of endangering others while eluding the police officers that required dissimilar proof.Id. at 5-6.
The OCCA also rejected Proposition III. Doc. 8, Att. 1, at 6-7. It found the crime of battery on a police officer “occurred while the officers were attempting to extract [Petitioner] from the car on Highway 81” and was “complete when [Petitioner] drove off after the initial traffic stop and knocked Officer Mitchell to the ground.” Id. at 7. On the other hand, “[t]he crime of Endangering Others While Eluding a Police Officer did not commence until later, when [Petitioner] endangered other people in traffic further up Highway 81 and then drove around traffic to make the turn onto Camelback Road at the red light.” Id. So the court held that the “crimes constitute separate and distinct acts requiring dissimilar proof.” Id. The OCCA neither cited nor applied federal law in its decision.
2. Petitioner's habeas claims.
In Ground One, Petitioner contends that his convictions for endangering others while eluding police and escape from detention “arose from the same transaction of events when [he] fled from Duncan police officers.” Doc. 1, at 4. As he did in his direct appeal, Petitioner cites Okla. Stat. tit. 21, § 11, which prohibits double punishment for the same act or omission. Id. at 6. But unlike his direct appeal, Petitioner refers to the “Double Jeopardy Clause” and contends “the OCCA's analysis was contrary to Blockburger v. United States, 284 U.S. 299 (1932).” Id. He also asserts the OCCA unreasonably determined that Officer Eades momentarily detained Petitioner because “[a]t no time during the ‘momentary' interaction with Officer Eades did the Officer have the opportunity to ‘lawfully arrest or detain' Petitioner.” Id. at 7.
In Ground Three, Petitioner argues the charges of endangering others while eluding police officers and battery on a police officer “arose from the same transaction of events when Petitioner fled from Duncan Police officers.” Id. at 10. He contends “the OCCA unreasonably determined the facts, to support law enforcement and the state's untenable position that Petitioner was guilty of four (4) separate and distinct crimes while in the course of committing the plain and obvious crime of ‘eluding' pursuant to [Okla. Stat. tit. 21], § 540A(A).” Id. at 12. Petitioner does not cite Blockburger or the United States Constitution.
Petitioner faults the OCCA for attributing “‘other people in traffic' as ‘distinct persons'” and for finding “the video evidence of Officer Atkinson reaching inside the vehicle without cause was not ‘justification or excusable cause' to flee from that armed white officer.” Doc. 1, at 11. Petitioner also argues that with “respect to the battery charge, the video evidence is clear that the officer stumbled and fell to the ground on his own volition.” Id. at 11-12.
3. Petitioner's double-jeopardy claims based on federal law are unexhausted and subject to an anticipatory procedural bar.
Petitioner did not fairly present his federal double-jeopardy claims in state court. In his direct appeal, Petitioner's double-punishment claims relied on Okla. Stat. tit. 21, § 11. Doc. 8, Att. 2, at 12-19, 27-30. Petitioner recognized that “Oklahoma statute protects a criminal defendant from the imposition of double punishment beyond the traditional constitutional double jeopardy protections” and that “[t]he issue of whether a conviction has violated Section 11 protection is separate and distinct from the issue of constitutional double jeopardy.” Id. at 12-13.
Petitioner argues here that “[u]nder state law, the OCCA analyzes double jeopardy violations under” Okla. Stat. tit. 21, § 11. Doc. 1, at 6. But this Court and the OCCA have recognized there is a separate analysis for claims brought under Okla. Stat. tit. 21, § 11, and those alleging double jeopardy under the United States Constitution. See Ledford v. Jones, No. CIV-06-460-R, 2007 WL 427703, at *8 (W.D. Okla. Feb. 6, 2007) (“In the state's highest criminal court, the OCCA, Mr. Ledford has never argued that his multiple convictions violated the Fifth Amendment's prohibition against double jeopardy. His direct appeal included a similar argument under Oklahoma statutory law, but the federal claim is separate.”); Barnard v. State, 290 P.3d 759, 767 (Okla. Crim. App. 2012) (“Because Section 11 complements the double jeopardy protections of the Oklahoma and United States Constitutions, a traditional double jeopardy analysis is conducted only if Section 11 does not apply.”); Davis v. State, 993 P.2d 124, 125 (Okla. Crim. App. 1999) (“As a separate matter, not involving double jeopardy issues, we must determine if the convictions violate the provisions of [Okla. Stat. tit. 21, § 11], as Davis alleges.”).
Although Petitioner's arguments in state court and this action are related, “mere similarity between Petitioner's prior state-court argument and his current argument is insufficient to establish exhaustion under § 2254(b)(1).” Jacobs v. Allbaugh, No. CIV-17-1327-D, 2018 WL 4963079, at *2 (W.D. Okla. Oct. 15, 2018) (rejecting the petitioner's claim that he fairly presented federal double-jeopardy claim in state court by alleging a violation of Okla. Stat. tit. 21 § 11). Thus, Petitioner did not exhaust his federal claim by raising his state-law claim in state court. See Walker v. Patton, 671 Fed.Appx. 703, 704 (10th Cir. 2016) (“We have carefully examined Mr. Walker's arguments in the OCCA and find that they were limited to whether he received multiple punishments for the same crime in violation of the Oklahoma statute-not the Double Jeopardy Clause of the United States Constitution. He therefore failed to exhaust his remedies. . . . Indeed, Mr. Walker never mentioned the United States Constitution or cited any cases interpreting the Double Jeopardy Clause. And the OCCA understood the argument to be grounded in the Oklahoma statute.”).
Because Petitioner did not exhaust his federal claims in Grounds One and Three, the doctrine of anticipatory procedural default bars these claims. See Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015) (explaining that anticipatory procedural default applies “where a petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be procedurally defaulted on remand”).
As discussed above, Petitioner previously sought post-conviction relief in the Oklahoma courts. If Petitioner were to return to state court to exhaust the unexhausted double-jeopardy claims, he would be raising them in a second application for post-conviction relief. “Oklahoma requires a post-conviction relief applicant to raise all grounds for relief which he actually knows or should have known through the exercise of due diligence in his original application for relief.” Id. Because Petitioner already filed a direct appeal and a post-conviction action, the claims raised here are procedurally barred. See Cummings v. Sirmons, 506 F.3d 1211, 1222 (10th Cir. 2007) (“readily” concluding that ineffective assistance of trial counsel claim, raised for the first time in habeas petition and thus unexhausted, was procedurally barred: “[a]lthough the claim is technically unexhausted, it is beyond dispute that, were Cummings to attempt to now present the claim to the Oklahoma state courts in a second application for post-conviction relief, it would be deemed procedurally barred” (citing Okla. Stat. tit. 22, §§ 1086, 1089(D)(2))).
A petitioner can overcome procedural default by establishing either cause for the default and actual prejudice from the alleged violation of federal law, or that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Petitioner does not assert either. Instead, he incorrectly claims he raised the issues on direct appeal. Doc. 1, at 8, 12. Thus, he has failed to establish either avenue for avoiding procedural default.
4. To the extent that Petitioner brings his state-law claims of double punishment in Grounds One and Three, they should be denied.
Grounds One and Three should be denied insofar as Petitioner seeks review of the OCCA's conclusion that his convictions did not amount to double punishment under Okla. Stat. tit. 21, § 11. Errors of state law provide no basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). Thus, Petitioner is not entitled to habeas relief based on his claim that the OCCA wrongfully denied his claim under Okla. Stat. tit. 21, § 11. See Smith v. Bridges, No. 23-6002, 2023 WL 2980318, at *1 (10th Cir. Apr. 18, 2023) (“Mr. Smith's double punishment claim under Oklahoma law is not cognizable on federal habeas review.”); Amey v. Patton, 606 Fed.Appx. 924, 929 (10th Cir. 2015) (district court's finding that petitioner's statutory double punishment argument “was a state-law issue not cognizable in federal habeas proceedings” amounted to a “bed rock proposition[] not subject to debate”).
C. Petitioner exhausted Ground Two and the Court should deny it on the merits.
In Ground Two, Petitioner contends his conviction for resisting an officer was not supported by sufficient evidence. Doc. 1, at 8-10. Respondent contends
Petitioner did not exhaust this claim and it is subject to an anticipatory procedural bar. Doc. 8, at 14-16, 20-21. The undersigned finds Petitioner exhausted this claim, but the Court should deny it on the merits.
1. The OCCA denied Petitioner's sufficiency-of-the-evidence claim.
On direct appeal, Petitioner argued the state did not present sufficient evidence to convict him of resisting an officer. Id. Att. 2, at 20-26. In support of this claim, Petitioner cited the Fifth and Fourteenth Amendments to the United States Constitution, Jackson v. Virginia, 443 U.S. 307, 315-16 (1979), and Oklahoma law. Id. at 20.
Petitioner asserted that the body camera footage presented at trial did not depict him “using force or violence to resist any of the officers.” Id. at 21. He contended he did not struggle with officers after he exited his car, and he did not escape their grasps or jerk away from them. Id. at 24. He contended he surrendered his arms to be handcuffed after an officer jumped on his back to push him down from his hands and knees. Id. at 24-25. Then, after an officer's “arm got tangled around the front of [Petitioner's] body and his arm crossed [Petitioner's] neck and over his chest,” Petitioner became panicked and was “afraid that he was about the [sic] be choked now that he was handcuffed and helpless, so he yelled ‘stop choking me,' and kicked his feet out from under him as he was half-way standing up.” Id. at 25. When officers “assured him that no one was going to choke him,” Petitioner “began walking to the police cruiser with officers.” Id. He also contended that the body camera footage did not show Petitioner voicing threats against any of the officers. Id.
The OCCA held:
Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to find beyond a reasonable doubt the essential elements of the crime of Resisting an Officer as charged in this case. The record evidence showed that [Petitioner] forcibly resisted arrest at the end of the chase as the officers placed him in the patrol car. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Newman v. State, 2020 OK CR 14, ¶ 8, 466 P.3d 574, 580; Custer v. State, 1986 OK CR 159, ¶ 4, 727 P.2d 973, 975; 21 O.S.2011, § 268. Proposition II is denied.Doc. 8, Att. 1, at 6.
2. Petitioner's habeas claim.
Petitioner contests the OCCA's determination that sufficient evidence supports the violation of Resisting an Officer. Petitioner contends the OCCA “misapprehended the ‘facts' of the body-camera footage to find the essential elements of ‘the use of force or fear' in respect to not ‘an officer' but the ‘officers [that] placed him in the patrol car.'” Doc. 1, at 9. Petitioner contends “the OCCA did not find which ‘officer' Petitioner actually ‘resisted.'” Id.
He asserts “[t]he OCCA's interpretation of the officers' body-camera, similar to the trial court, is contrary to the ‘proof beyond a reasonable doubt' standard as to ‘the use of force or violence' without the actual element of any testifying executive officer, ‘to wit a peace officer.'” Id. He states that “the body-camera video shows that Petitioner was assaulted and that law enforcement used unnecessary force to ‘legally arrest' Petitioner. Without ‘a peace officer' averring that [Petitioner] ‘knowingly resist[ed], by the use of force or violence, [that] officer.'” Id. at 10.
3. Petitioner has exhausted this claim.
Respondent argues Petitioner did not exhaust Ground Two in state court because the claims on direct appeal and here focus on different elements of the crime. Doc. 8, at 14. Specifically, Respondent contends the direct appeal focused on whether Petitioner used force or violence while the claim here focuses on whether evidence showed that Petitioner resisted a particular officer. Id. Respondent asserts the claim is not exhausted because a sufficiency-of-the-evidence claim must rest on the same theory in both state and federal court to be considered exhausted. Id. at 15-16.
The change in focus between Petitioner's direct appeal and his claim here is irrelevant because the OCCA concluded sufficient evidence was presented at trial to satisfy each element of resisting an officer. Id. Att. 1, at 6 (“[S]ufficient evidence was presented at trial to allow any rational trier of fact to find beyond a reasonable doubt the essential elements of the crime of Resisting an Officer as charged in this case.”). Thus, the OCCA necessarily held the prosecution presented sufficient evidence at trial to find Petitioner resisted “a peace officer.” So it is immaterial that Petitioner did not focus on that element on direct appeal because the OCCA's holding addressed all elements of the crime. Hardin v. Pruitt, 833 Fed.Appx. 176, 179 (10th Cir. 2020) (“A claim can also be exhausted, and therefore ripe for review under the deferential standards of § 2254(d), if the state appellate court considers it sua sponte.”); Alverson v. Workman, 595 F.3d 1142, 1153 n.3 (10th Cir. 2010) (“[A] state appellate court's sua sponte consideration of an issue not only satisfies § 2254's exhaustion requirement, but, more importantly for our purposes, also constitutes an adjudication on the merits that is ripe for federal habeas review.”). Thus, Petitioner's claim is exhausted.
4. The OCCA's decision was not contrary to or an unreasonable application of Jackson.
The United States Supreme Court clearly established the constitutional right to sufficient evidence of guilt in Jackson, 443 U.S. at 324; see Lott v. Trammell, 705 F.3d 1167, 1219 (10th Cir. 2013) (agreeing that Jackson provided “the clearly established law applicable to [an insufficiency of the evidence] claim”). So a reviewing court must 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 (emphasis in original).
In a habeas action, if a state court has resolved a sufficiency challenge on the merits, the “AEDPA ‘adds an additional degree of deference,' and the question becomes whether ‘the OCCA's conclusion that the evidence was sufficient constituted an unreasonable application of the Jackson standard.'” Hooks v. Workman, 689 F.3d 1148, 1166 (10th Cir. 2012) (quoting Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007)). “[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326; see also Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (in reviewing the sufficiency of the evidence, the federal habeas court “may not weigh conflicting evidence nor consider the credibility of witnesses,” but must “‘accept the jury's resolution of the evidence as long as it is within the bounds of reason'” (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993))). And this Court's review “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16.
To convict a person for resisting an officer under Oklahoma law, the state must prove that the defendant (1) knowingly; (2) by the use of force/violence; (3) resisted; (4) a peace officer; (5) in the performance of his official duties. See OUJI-CR(2d) No. 6-47. “Force” is an “[a]ct of aggression by one in resistance of interference with an officer,” “violence” is “[p]hysical force exerted for the purpose of damaging or abusing,” and “resisting” is “[o]pposing actively; withstanding; to be firm against proposed action.” OUJI-CR(2d) No. 6-49.
The OCCA held that “sufficient evidence was presented at trial to allow any rational trier of fact to find beyond a reasonable doubt the essential elements of the crime of Resisting an Officer,” Doc. 8, Att. 1, at 6. This conclusion was neither contrary to nor an unreasonable application of Jackson.
The OCCA determined that “[t]he record evidence showed that [Petitioner] forcibly resisted arrest at the end of the chase as the officers placed him in the patrol car.” Id. This conclusion is supported by the evidence at trial that Petitioner remained on his hands and knees after being commanded by officers to lay flat, kicked at an officer, and moved forward toward officers and shouted rather than complying with their commands to get into the patrol car. Tr. 27-28, 56; see also State's Ex. 1, at 10:35-10:50.
The OCCA reasonably applied the Jackson standard to the facts of this case. So habeas relief is not warranted on Petitioner's Ground Two sufficiency-of-the-evidence claim.
D. Petitioner has exhausted Ground Four and the Court should deny habeas corpus relief.
In Ground Four, Petitioner asserts that his conviction for endangering others while eluding a police officer was not supported by sufficient evidence. Doc. 1, at 12-13. Respondent contends Petitioner has not exhausted this claim, and it would be procedurally barred if he returned to state court to present it. Doc. 8, at 14-16, 20-21. Respondent also contends the Court should deny on the merits the sufficiency-of-the-evidence claim Petitioner presented to the OCCA on direct appeal. Id. at 37-39. The undersigned finds Petitioner exhausted Ground Four on direct appeal. The Court should deny habeas corpus relief after deferring to the OCCA's decision.
1. The trial court's ruling and the OCCA's denial of Petitioner's appeal.
At the end of trial, Petitioner's counsel argued that “there were no others that [Petitioner] endangered while he was eluding the police officers” and asked the trial court to find Petitioner not guilty of felony eluding police officers. Tr. 75-76. The trial court found:
I watched the video, heard the testimony. I know that area very well. He did endanger others while eluding. He went around on the wrong side of the road in the center median right before he got to Camelback, around a car. That's endangering people at that place.
Now, I don't-you know, the high rate of speed, if he was going a high rate of speed when he turned, I don't know. But the officer testified he was going up to 80 trying to keep up with him, 85, on that Camelback, about a mile and three-quarters is the distance between the two highways.
And I promise you he's a very, very fortunate individual to be sitting there, if he was driving 80, 85 miles an hour on Camelback, especially at that time of the morning.
You're saying he didn't endanger anybody else. Hickory Hills probably has 30 houses that they come out of one double entryway. And most of them go to work about that time. There is another 15 homes or thereabouts on the other side of the road. A lot of them live off the road 100 or 200 yards, but they all have long driveways and you can't believe the amount of trees there are on that road. In fact, some of them are even in the bar ditches.
It's terribly maintained. Part of that road didn't even have a yellow line at one time. And it probably didn't-what's it been, almost two years ago? I don't think it did have.
My point is he did endanger others by driving that fast and that reckless going over there. So I find him guilty of Count 1,
endangering others while eluding police officers and after two prior convictions. I don't think that's even contested.Id. at 77-78.
On direct appeal, Petitioner argued the State failed to prove all essential elements of endangering others while eluding. Doc. 8, Att. 2, at 31-34. Petitioner first referenced the trial court's above-quoted factual findings. Id. at 31-32 (citing Tr. 77-78). He then summarized the officers' trial testimony. Id. at 32-33. Petitioner argued the testimony “shows that no vehicles were forced to take evasive action or otherwise had to avoid [Petitioner's] vehicle” and “there was no testimony as to how fast [Petitioner] was traveling while on Highway 81, only that Mitchell and Atkinson were traveling 90 to 100 miles-per-hour in order to catch up to [Petitioner] after they had to get back to their cruiser and begin pursuit.” Id. at 33-34. He also noted that despite foggy conditions, Officer Eades testified he was preparing to conduct a tactical vehicle interception in the middle of traffic. Id. at 34.
Petitioner argued that “the evidence does not support a finding that [Petitioner] placed anyone else in peril or danger that morning” because “[n]o one was present on Camelback Road, no vehicles had to take evasive action to avoid [Petitioner] on Highway 81 or on the Duncan Bypass, and when necessary due to cross-traffic, [Petitioner] came to a stop until it was safe to cross the highway.” Id. at 33-34.
The State responded that “though the trial judge detailed his personal knowledge of the roadway's proximity to neighborhoods where the defendant drove at a very high rate of speed, all of the specific evidence of endangering others on the road came only from Officer Eades.” Doc. 8, Att. 3, at 23 (internal citations omitted). The State argued that Officer Eades's testimony supported the verdict: Petitioner swerved around stopped traffic to run a red light; he saw other vehicles close to Petitioner's while Petitioner drove erratically, and he saw cars slam on their brakes when Petitioner drove away from him while he stood in the roadway. Id. Based on that testimony, the State argued that “the additional impressions given by the trial court as to its personal knowledge of the danger of driving near certain neighborhoods [Petitioner] traversed . . . need not factor in as the sole source for [the OCCA's] appraisal of the sufficiency of the evidence.” Id. at 23-24. The State also argued Petitioner misrepresented testimony about his assertion that he stopped due to cross-traffic. Id. at 24-25.
The OCCA held:
Taken in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that [Petitioner] endangered other people during the police chase. See Jackson, 443 U.S. at 319. During the chase, [Petitioner] drove around traffic at the red light in order to turn off Highway 81 onto Camelback Road. Before that, [Petitioner] was weaving through traffic and driving recklessly while heading southbound on Highway 81. Later, [Petitioner] again endangered others when he pulled onto oncoming traffic on the Highway 7 bypass, causing other cars to
slam on their brakes in order to avoid a collision. These instances amounted to endangerment of other persons in traffic while [Petitioner] attempted to elude pursuing police officers. Sufficient evidence was thus presented at trial to support [Petitioner's] count 1 conviction. Proposition IV is denied.Doc. 8, Att. 1, at 7-8.
2. Petitioner's argument on habeas review.
Petitioner argues that “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.” Doc. 1, at 12. He focuses on the trial judge's explanation that he knew the area well and that Petitioner endangered people when driving on the wrong side of the road. Id. at 13 (citing Tr. 77-78). He contends “[w]ithout ‘distinct persons'-an element of every crime-the trial court made a ‘point' that [Petitioner] ‘did endanger others by driving that fast and that reckless.'” Id. (quoting Tr. 77-78).
Petitioner contends “the state lacked sufficient evidence because it is simply unfair to allow the trier of fact . . . to give evidence on a critical element of the charge.” Id. He contends it is “contrary to Jackson v. Virginia” for the OCCA to “sustain[] that the State provided sufficient evidence in the ‘personal knowledge' of the judge.” Id. He notes that “[t]he trial court considered that the video camera evidence, in toto, supported the element of ‘endangering any other person' because Petitioner eluded law enforcement through a ‘neighborhood' he was familiar with and that the officer's uncorroborated testimony-the officers testified that he did not see any of the vehicles take evasive action to avoid [Petitioner's] vehicle . . . .” Id. (citing Tr. 21-22).
3. Petitioner exhausted his claim.
Respondent argues Petitioner did not exhaust Ground Four because he brings a different claim here than in state court. Doc. 8, at 14. Specifically, Respondent asserts the claim brought here is that the trial judge relied on his personal knowledge of the area instead of record evidence to find Petitioner endangered others, while Petitioner's claim on direct appeal was that the officers' testimony did not show Petitioner placed anyone else in peril or danger. Id. at 14. Respondent asserts the claim is not exhausted because a sufficiency-of-the-evidence claim must rest on the same theory in both state and federal court to be considered exhausted. Id. at 15-16. Because Petitioner relies on a new theory, Respondent contends this claim is unexhausted. Id. at 16.
The undersigned finds Petitioner exhausted Ground Four in state court. To be sure, Petitioner's focus on direct appeal was on the testimony of police officers and here he focuses on statements made by the trial judge in his findings of fact. Doc. 1, at 12-13; Doc. 8, Att. 2, at 31-34. But “[d]espite slight shifts in the focus of his sufficiency-of-the-evidence claim, Petitioner consistently argued in state court” that his conviction for endangering others while eluding should be set aside because there was insufficient evidence to support an element of the crime-that he endangered others. Wright v. Dowling, 2019 WL 1756538, at *6 (N.D. Okla. Apr. 19, 2019). And the State addressed issues related to the trial judge's factual findings in its response to Petitioner's brief on direct appeal. Under such circumstances, the Court finds the Petitioner fairly presented the substance of his federal claim to the OCCA on direct appeal and the OCCA had a fair opportunity to apply Jackson to the facts bearing on his claim. Thus, the claim is exhausted.
4. The Court should deny habeas corpus relief because the OCCA's decision was not contrary to or an unreasonable application of Jackson.
The OCCA addressed Petitioner's sufficiency-of-the-evidence claim on the merits. So this Court must determine whether “the OCCA's conclusion that the evidence was sufficient constituted an unreasonable application of the Jackson standard.” Hooks, 689 F.3d at 1166; see also Jackson, 443 U.S. at 319, 324; supra § III.C.4.
Petitioner focuses on the element of endangering others while eluding police officers that requires proof that the driver endangered another person while eluding an officer. See OUJI-CR(2d) No. 6-30. For this element, the OCCA held “any rational trier of fact could have found beyond a reasonable doubt that [Petitioner] endangered other people during the police chase” when the evidence was “taken in the light most favorable to the State.” Doc. 8, Att. 1, at 7. Petitioner challenges the OCCA's determination. Doc. 1, at 13.
Petitioner contends “it is simply unfair to allow the trier of fact . . . to give evidence on a critical element of a charge,” and thus the OCCA's decision contradicted Jackson because it “sustained that the State provided sufficient evidence in the ‘personal knowledge' of the judge.” Id. But the judge's comments on his knowledge of the area was not part of the OCCA's determination. Instead, the OCCA based its decision on other facts: Plaintiff drove around traffic at a red light, recklessly weaved through traffic, and caused other cars to slam on their brakes to avoid a collision when he pulled into oncoming traffic. Doc. 8, Att. 1, at 7.
The OCCA's factual findings are supported by the evidence presented at trial. Tr. 47-49, 54, 67. Based on the evidence, the OCCA's conclusion that a “rational trier of fact could have found beyond a reasonable doubt that [Petitioner] endangered other people during the police chase” was not unreasonable. Doc. 8, Att. 1, at 7. See, e.g., Neal v. Province, No. CIV-10-1120-C, 2011 WL 1376008, at *5 (W.D. Okla. Mar. 21, 2011) (“[T]he jury could reasonably have found endangerment of another” where an officer “testified that Mr. Neal had driven over 50 miles per hour, run every stop sign in a residential neighborhood with a school nearby and ultimately abandoned the vehicle while it was moving.”), adopted, 2011 WL 1375969 (W.D. Okla. Apr. 12, 2011); Johnson v. Jones, 2009 WL 2916892, at *5 (N.D. Okla. Sept. 4, 2009) (“[A]ny rational trier of fact could have found the elements essential to the crime of Eluding an Officer beyond a reasonable doubt” where the driver “increased its speed, turned into a residential neighborhood, and attempted to elude at speeds of 60-70 m.p.h.,” “[o]ther vehicles were traveling on the neighborhood streets at the time,” and [t]he driver of the vehicle ran stop signs and continued driving at a high rate of speed until he crashed the car into a curb.).
The OCCA reasonably applied the Jackson standard to the facts of this case. So habeas relief is not warranted on Petitioner's Ground Four sufficiency-of-the-evidence claim.
E. Grounds Five and Six should be denied on the merits.
In Ground Five, Petitioner argues he “is actually innocent of battery on a police officer.” Doc. 1, at 14. Petitioner contends the body camera footage shows he did not willfully use force or violence upon a police officer. Id. Instead, he contends Officer Atkinson approached him and assaulted him without provocation, so Petitioner accelerated his vehicle and fled the scene to avoid a “potentially fatal incident” based on his race and criminal history. Id.; see also Id. at 16 (“Petitioner had a right to flee his armed assailants-even assailants wearing law enforcement badges-and was not ‘without justification or excusable cause' when in the course of the vehicle driving away the officer lost his balance and fell to the ground.”). Petitioner also contends the body camera footage shows that he did not strike the officer and that the officer lost his balance. Id. at 14. Based on these facts, Petitioner asserts “he is INNOCENT of the charge of Battery on a Police Officer.” Id. at 16.
Petitioner notes that he is black, and Officer Atkinson is white. Doc. 1, at 14.
Tacitly admitting he has failed to exhaust this claim, Petitioner asserts the Court should not procedurally default his claim due to his attorney's bad advice and his actual innocence. Doc. 1, at 15-16. But, as the undersigned explains, the Court may bypass the issue of anticipatory procedural default and address the claim on the merits.
In Ground Six, Petitioner argues he is not guilty of the felony of endangering others while eluding police officers. Id. at 18-20. He notes that the trial judge stated he knew the area well and Petitioner was fortunate to be sitting in the courtroom if he was driving eighty-five miles per hour on Camelback. Id. at 18 (citing Tr. 77-78). He also notes that Officer Atkinson did not see any vehicles take evasive action to avoid Petitioner, Officer Eades did not see any traffic while Petitioner was driving erratically, and that Petitioner stopped to avoid a collision. Id. Petitioner contends “[t]he felony enhancement to eluding must be supported by actual facts not by speculation from a non-testifying witness, the trial judge.” Id. at 19. At first glance, this claim appears to be one alleging the evidence presented at trial was insufficient to convict Petitioner. But Petitioner already raised this claim, see supra § III.D, and Petitioner asserts the claim should be addressed under a different standard than Jackson. Doc. 1 at 20. So, the undersigned liberally construes Petitioner's claim to be one alleging only actual innocence.
If the Court were to construe this Ground as a sufficiency-of-the-evidence claim, it could deny it for the same reasons stated in § III.D.
In his State application for postconviction relief, Petitioner argued his appellate counsel failed to raise the issue that Petitioner is actually innocent of battery on a police officer for substantially the same reasons he asserts he is actually innocent in Ground Five of this action. See Doc. 8, Att. 9, at 3-5. He also argued appellate counsel failed to raise a claim that Petitioner was not guilty of endangering others-but he did not allege any issues with the trial judge's findings as he does in his claim in Ground Six of this action. Id. at 6-7. Petitioner does not independently reassert his ineffective assistance of appellate counsel claims in his habeas petition. At best, Petitioner only asserts ineffective assistance of appellate counsel as cause for his procedural default of the actual innocence claims he asserts in Ground Five (see Doc. 1, at 16 (“Therefore, ineffective assistance of appellate counsel as adequate cause, Petitioner suffered actual prejudice because he is INNOCENT of the charge of Battery on a Police Officer.”)), and Ground Six (see id. at 20 (“As cause, Petitioner was denied the effective assistance of counsel, the actual prejudice is the trial judge acted as factfinder by considering his own facts and included the essential elements of ‘endangering others' from his recollection of the area in which Petitioner ‘may' have been speeding.”)).
Although technically unexhausted, the Court can easily deny Grounds Five and Six on the merits. See 28 U.S.C. § 2254(b)(2) (allowing courts to deny a habeas petition on the merits “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel giving the Teague question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” (citing 28 U.S.C. § 2254(b)(2))).
Respondent argues that Grounds Five and Six are unexhausted because Petitioner's claims here-that he was actually innocent of battery on a police officer and was not guilty of endangering others-were not raised as freestanding claims in state court, but instead were part of an ineffective-assistance-of-appellate-counsel claim. Doc. 8, at 16-19. The Court agrees these claims are unexhausted and would be subject to an anticipatory procedural bar but proceeds to the merits which are “easily resolvable.” See Lambrix, 520 U.S. at 518.
A distinction exists between claims of actual innocence used as a gateway and as a freestanding basis for habeas relief. As a gateway, a claim of actual innocence “enable[s] habeas petitioners to overcome a procedural bar” in order to assert distinct claims for constitutional violations. McQuiggin v. Perkins, 569 U.S. 383, 386, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). Because gateway claims are “procedural, rather than substantive,” they do not “provide a basis for relief.” Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). By contrast, a freestanding claim asserts actual innocence as a basis for habeas relief. See House v. Bell, 547 U.S. 518, 554, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009).Farrar v. Raemisch, 924 F.3d 1126, 1130-31 (10th Cir. 2019) (internal footnote omitted). Petitioner admits he is asserting “actual innocence” of these two crimes as a basis for habeas corpus relief. But the Supreme Court “has never recognized freestanding actual innocence claims as a basis for federal habeas relief.” Id. at 1131. So, Petitioner's claims of actual innocence necessarily fail on the merits and the Court can deny them on that basis. See id. (holding the petitioner's “freestanding claim of actual innocence [did] not entitle him to habeas relief”); see also Adair v. El Habti, No. CIV-22-231-R, 2022 WL 19333614, at *13 (W.D. Okla. Sept. 14, 2022) (electing to “bypass the issue of procedural default and address the claim on the merits” where the petitioner raised a freestanding actual innocence claim), adopted 2023 WL 2731051 (W.D. Okla. Mar. 30, 2023). Thus, the Court should deny habeas corpus relief on Grounds Five and Six.
IV. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court deny the petition for habeas corpus relief.
The undersigned advises the parties of their right to object to this Report and Recommendation by March 7, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.