Opinion
No. CIV-16-126-R
03-07-2017
TIMOTHY N. McKINLEY, Petitioner, v. TRACY McCOLLUM, Warden, Respondent.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his ten convictions for Indecent or Lewd Acts with a Child Under Twelve (Counts 1, 3, 4, 5, 6, 7, 9) after two or more felony convictions, Rape in the First Degree by Instrumentation, Victim Under Age 14 (Count 2) after two or more felony convictions, and Forcible Oral Sodomy (Counts 8 and 11) after two or more felony convictions entered against him following a jury trial in the District Court of Cleveland County, Oklahoma, Case No. CF-2011-576. Respondent has responded to the Petition and filed the relevant state court records, including the transcript of Petitioner's jury trial (hereinafter "TR___").
The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Petition be denied.
I. Background
In Case No. CF-2011-576, Petitioner was tried before a jury on eleven criminal counts. Evidence presented to the jury during the seven-day trial showed that Petitioner repeatedly molested and sexually assaulted at his home a minor girl, C.S. C.S. and her five siblings are the great nieces and nephews of Petitioner's then-girlfriend, Ms. Penick, with whom he shared a residence. Petitioner would often take C.S., her sister K.L., and their four brothers to Ms. Penick's and Petitioner's home for weekends beginning when K.L., who was two years older than C.S., was about eight or nine years old. Ms. Penick was usually absent during these visits due to her job. All of the offenses involving C.S. occurred beginning when C.S. was six years old and ended when she was removed from her home by child welfare authorities at the age of ten. The evidence showed that Petitioner committed other acts of molestation and sexual assault involving K.L. and J.K., a minor female friend of C.S. Many of these molestation incidents were accompanied by Petitioner's threats to C.S. to harm her or others if she told anyone what he had done.
The jury returned verdicts of guilty on all but one charge (Count Ten). Consistent with the jury's sentencing recommendation, the district court sentenced Petitioner to twenty-year terms of imprisonment for each of the convictions in Counts 1, 3, 4, 6, and 7, and life imprisonment for each conviction in Counts 2, 5, 8, 9, and 11. The court ordered the sentences in Counts 1, 3, 4, and 6 to run concurrently with each other and consecutively to the sentence in Count 2, ordered the sentence in count 5 to run concurrently with the sentence in Count 8, and ordered the sentences in Counts 7, 8, 9, and 11 to run consecutively to each other and to the sentence in Count 2. Response, Ex. 1, at 1-2.
Petitioner raised seven grounds for relief in a direct appeal to the Oklahoma Court of Criminal Appeals ("OCCA"). In a summary opinion entered in August 2013 the OCCA rejected each of Petitioner's claims and affirmed the convictions and sentences. Response, Ex. 3 (McKinley v. State, No. 2012-754 (Okla. Crim. App. Aug. 8, 2013)(unpublished summary op.)). Petitioner also sought post-conviction relief in the district court. The district court entered an order denying post-conviction relief, and the OCCA affirmed that decision.
II. Petition
In this Court, Petitioner asserts the following grounds for federal habeas relief: Ground One: "Testimony by [the minor victim] should have been corroborated as there is only slight circumstantial evidence and inconsistent testimony;" Ground Two: "Admission of unfairly prejudicial evidence that was not and could not be linked to me;" Ground Three: "Trial counsel was not allowed to present a theory of defense;" Ground Four: "Prosecutorial misconduct" due to "untrue, unfounded remarks to the jury [that] paint me as some kind of predatory monster;" Ground Five: "I was prejudiced by ineffective assistance of trial counsel" because "trial counsel fail[ed] to object to prosecutorial misconduct;" Ground Six: "Punishment is grossly excessive" where "I have been sentenced to more than 4 consecutive life sentences for crimes that have never been commited [sic];" Ground Seven: "The cumulative effect of all errors deprived me of a fair trial;" Ground Eight: "Ineffective Appellate Counsel" because of appellate counsel's failure to adequately raise the issue of ineffective assistance of trial counsel; Ground Nine (designated Grounds 9 and 10 in the Petition): "Direct Appeal Counsel did not object to the Burk [sic] witnesses, [K.L.] and [J.K.];" Ground Ten (designated Ground 11 in the Petition): "Trial court, the State of Oklahoma, and the Oklahoma Court of Criminal Appeals decided on my application for post-conviction relief without addressing a single issue."
Petitioner raised the first seven of these grounds in his direct appeal. He raised Grounds Eight and Nine in his post-conviction application. Petitioner has not exhausted the claim asserted in Ground Ten in the state courts. However, as found below, this claim is meritless, and exhaustion is not required. 28 U.S.C. §2254((b)(2).
III. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §2254(d). The AEDPA directs courts to "ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Williams v. Taylor, 529 U.S. 362, 386 (2000)(quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
A state court decision is "contrary to" established Supreme Court precedent if the state court either (1) reached a conclusion that contradicts governing Supreme Court precedent or (2) reached a conclusion different from the Supreme Court on materially indistinguishable facts. Id. at 405-406, 413. A state court decision involves an "unreasonable application" of Supreme Court precedent if the state court "applies [the Supreme] Court's precedents to the facts in an objectively unreasonable manner." Brown v. Patton, 544 U.S. 133, 141 (2005); see Williams, 529 U.S. at 407; Price v. Vincent, 538 U.S. 634, 640-41 (2003).
"[W]ether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it." Holland v. Jackson, 542 U.S. 649, 652 (2004)(per curiam)(citations omitted). Thus, federal habeas "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
IV. Corroboration of Testimony and Sufficiency of the Evidence
Petitioner asserted in his direct appeal that corroboration of the child victim's testimony was required because her testimony and statements were "inconsistent, contradictory and unbelievable." Response, Ex. 1, at 8. Petitioner has raised the same claim in Ground One in his Petition.
In Oklahoma, the testimony of a victim in a lewd molestation case must be corroborated "when the victim's testimony is so incredible or has been so thoroughly impeached as to be unworthy of belief." Applegate v. State, 904 P.2d 130, 136 (Okla. Crim. App. 1995). If the child victim's testimony is "lucid, clear, and unambiguous," however, it does not require corroboration. Id.
In rejecting this claim in Petitioner's appeal, the OCCA did not make any factual findings concerning the evidence presented at Petitioner's trial, but the court concluded that the child victim's testimony did not require corroboration. Response, Ex. 3, at 3.
Petitioner's claim that corroboration of the child victim's testimony at his trial was required under Oklahoma law is not cognizable in this federal habeas proceeding. See, e.g., Mabry v. Johnson, 467 U.S. 504, 507 (1984)(federal writ of habeas corpus reaches only convictions obtained in violation of the United States Constitution, laws, or treaties). The corroboration issue does not raise a federal habeas issue because "[n]o direct Supreme Court precedent requires corroboration of child witness testimony." Parker v. Scott, 394 F.3d 1302, 1314 (10th Cir. 2005).
In the second part of this claim, Petitioner contends that because the child victim's testimony was not corroborated there was insufficient evidence presented at his trial to support the convictions. Petitioner asserted a somewhat different version of this claim in his direct appeal, admitting that there was arguable corroboration of C.S.'s testimony concerning one of the counts, Count Three. Id., Ex. 1, at 15 n.3. The OCCA rejected Petitioner's claim of insufficient evidence due to lack of corroboration. In its decision, the OCCA stated: "Taking the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt." Id., Ex. 3, at 3.
The Supreme Court has clearly established that a defendant's conviction passes constitutional muster only if, "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). See Lott v. Trammell, 705 F.3d 1167, 1219 (10th Cir. 2013)(agreeing Jackson decision provides "the clearly established law applicable to [an insufficient evidence] claim").
Petitioner must therefore demonstrate that the OCCA unreasonably applied Jackson's holding in finding the evidence presented at Petitioner's trial was sufficient to support his convictions. In reviewing this issue, the Court must be cognizant that "the responsibility of adjudging the child's credibility belonged to the trier of fact, not to [the court]." Parker, 394 F.3d at 1315.
Petitioner argues that the child victim's testimony was "unbelievable" and that her "story change[d] from preliminary hearing to the trial" and in her "recorded testimony," but Petitioner does not specifically describe any instances in which the child victim's testimony or statements were inconsistent. Although Petitioner described instances in his direct appeal brief in which he asserted corroboration was necessary because of inconsistencies between the child victim's statements during forensic interviews and her trial testimony, all of these statements were presented to the jury. Moreover, Petitioner's defense counsel thoroughly cross-examined the child victim and the other witnesses during Petitioner's trial. The jury obviously found the child victim's testimony and statements credible with respect to the challenged convictions.
Having carefully considered the record, substantial evidence was presented from which the jury could have found Petitioner's guilt beyond a reasonable doubt of each of the offenses. Petitioner's bare assertions that C.S.'s testimony was "unbelievable" or that other witnesses could have testified "to other lies told" fail to demonstrate that the OCCA's decision was contrary to or an unreasonable application of the governing Jackson standard. Petitioner is not entitled to habeas relief with respect to Ground One.
V. Error in Admission of Evidence
In Ground Two, Petitioner asserts that the trial court erred in admitting prejudicial evidence during his trial. It is not clear, however, what evidence he believes was "unfairly prejudicial." Petition, at 7. He refers only to "images" on a laptop computer and testimony of the child victim that Petitioner showed her "images" although he argues "she never identifie[d] these images at trial or any hearing." Petition, at 8.
In his direct appeal, Petitioner asserted a similar claim. In support of the due process claim, Petitioner referred to the admission, during the testimony of a police officer, of evidence consisting of "numerous images of 'child erotica' and child pornography that were found on [Petitioner's] laptop computer." Response, Ex. 1, at 18. According to the officer's testimony, these images, admitted as State's Exhibits 60 and 61, constituted only a "sampling of the types of pictures that [Moore Police] Detective Lamer found" on Petitioner's computer. Id. at 19.
During Petitioner's trial, and over defense counsel's objection, the trial court admitted these exhibits under Oklahoma's res gestae evidentiary rule. Petitioner argued in his appeal that the trial court abused its discretion in admitting this evidence because the evidence could not be considered res gestae and was simply irrelevant or unfairly prejudicial.
The OCCA rejected this claim, finding that the trial court did not abuse its discretion in admitting the exhibits depicting child erotica and child pornography. Response, Ex. 3, at 3. The court concluded that "[a]s [Petitioner] showed the images to the children, there were part of the res gestae of the offenses" and further concluded that "[g]iving the exhibits their maximum reasonable probative force and minimum reasonable prejudicial value, . . . the exhibits' probative value was not substantially outweighed by the danger for unfair prejudice." Id.
First, by asserting that the trial court erred as a matter of state law, Petitioner does not comprehend the nature and jurisdictional limits of the federal habeas statute. It is well established that "[f]ederal habeas review is not available to correct state law evidentiary errors." Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999). See, e.g., Mabry v. Johnson, 467 U.S. 504, 507 (1984)(federal habeas relief available only if petitioner's custody is in violation of Constitution); Pulley v. Harris, 465 U.S. 37, 41 (1984)("A federal court may not issue the writ on the basis of a perceived error of state law."); Smith v. Phillips, 455 U.S. 209, 221 (1982)("A federally issued writ of habeas corpus . . . reaches only convictions obtained in violation of some provision of the United States Constitution. . . . Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."). Thus, when a habeas petitioner asserts error in the admission of evidence, judicial review is limited to the determination of whether a constitutional due process violation has occurred. The only question in this case, then, is whether the admitted evidence rendered Petitioner's trial "so fundamentally unfair that a denial of constitutional rights results." Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002)(internal quotation marks and citation omitted); .
Petitioner has made no showing of a federal law violation here. The OCCA found that Petitioner "showed the images to the children" and they were therefore "part of the res gestae of the offenses." Response, Ex. 3, at 3. In Oklahoma, "[e]vidence is considered res gestae 1) when it is so closely connected to the charged offense as to form part of the entire transaction, b) when it is necessary to give the jury a complete understanding of the crime, or c) when it is central to the chain of events." Rogers v. State, 890 P.2d 959, 971 (Okla. Crim. App. 1995). The OCCA's factual finding that Petitioner showed the images to the children is presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has not overcome the statutory presumption with clear and convincing evidence. Petitioner has not shown that his trial was rendered fundamentally unfair as a result of the admission of this evidence. Applying the §2254(d) deferential standard of review, the OCCA's decision was not contrary to or an unreasonable application of federal law as determined by the Supreme Court. Petitioner is not entitled to habeas relief concerning this claim.
VI. State Court Evidentiary Ruling
In Ground Three, Petitioner contends that the trial court's ruling which limited his cross-examination of a witness resulted in his trial counsel's inability to "present a theory of defense." Petition, at 9. Petitioner asserts that this prohibited line of questioning would have shown that the child victim "was in the presence of child abuse actually taking place and at that home her moma DD [sic] wanted custody of [the child victim]" and the victim "was making accusations against me" at the instruction of this individual. Id.
On appeal, Petitioner asserted that a theory of his defense was that a family friend, Ms. Deanna Harp Wilson, who was known as "Mama Dee" to the child victim and her siblings, had manufactured the accusations against Petitioner in an effort to obtain custody of the child victim and her siblings. Response, Ex. 1, at 23-24. Petitioner further argued that his defense "theory involved the actions and possible sexual misdeeds of [Mr.] Ferrell, the boyfriend of Ms. Wilson's daughter, who lived with Ms. Wilson for several years." Id. at 24. As presented by Petitioner's defense counsel during a bench conference, those "sexual misdeeds" involved Mr. Ferrell's guilty plea to a second-degree rape charge that did not involve the child victim in Petitioner's case or her siblings. (TR 908).
The OCCA rejected this claim, finding that the "trial court did not abuse its discretion in limiting [Petitioner's] cross-examination of State's witness Deanna Wilson." Response, Ex. 3, at 4. The OCCA further found that "[a]s there was sufficient information presented to the jury to allow it to evaluate Wilson as a witness we find no Sixth Amendment violation occurred." Id. Finally, the OCCA found that the evidence Petitioner "sought to admit through Wilson lacked relevance, was speculative and remote, and its probative value was substantially outweighed by its danger of confusing the jury" and therefore Petitioner "was not denied the opportunity to present his defense." Id.
There was no evidence presented at Petitioner's trial that Mr. Ferrell had any illicit contact with the child victim. Thus, any testimony by Ms. Wilson concerning Mr. Ferrell's criminal conviction was irrelevant. The statements by C.S.'s sister, K.L., during a forensic interview that she believed Ms. Wilson had convinced the child victim to accuse Petitioner of the offenses were presented to the jury. (TR 642, 667-68). Petitioner's defense counsel argued in closing that Ms. Wilson wanted to get the children away from Petitioner, that she did so by convincing the child victim to accuse Petitioner of the offenses, and that this theory was supported by the testimony of "K.L." that Ms. Wilson was "putting them up to that so that she can come get them to live with her." (TR 1378). Thus, Petitioner was not deprived of an opportunity to present his defense theory regarding Ms. Wilson.
Petitioner has not demonstrated that he was so unfairly prejudiced by the trial court's evidentiary ruling that his entire trial was rendered fundamentally unfair. Accordingly, the OCCA's determination was not contrary to or an unreasonable application of clearly-established Supreme Court authority. Petitioner is not entitled to habeas relief concerning this claim.
VII. Prosecutorial Misconduct
Petitioner contends that he was denied a fair trial because the prosecutor "ma[d]e untrue, unfounded remarks to the jury for no other reason than to paint me as some kind of predatory monster." Petition, at 10. Petitioner raised a claim of prosecutorial misconduct in his direct appeal. It is not clear whether Petitioner is attempting to present the same claim of prosecutorial misconduct in this Court. Petitioner does, however, state that he raised this claim in his direct appeal. Therefore, it is assumed that he is asserting the same prosecutorial misconduct claim he presented in his direct appeal.
Petitioner argued in his direct appeal that the prosecutor committed unconstitutional misconduct depriving Petitioner of a fair trial (1) by improperly vouching for the credibility of the State's witnesses, (2) by improperly eliciting sympathy for the child victim, (3) by improperly accusing the defense of wrongdoing, and (4) by presenting facts to the jury that were not admitted into evidence. Response, Ex. 1, at 27-33.
The OCCA reviewed each of Petitioner's prosecutorial misconduct claims for plain error in light of his defense attorney's failure to object to the prosecutor's comments during the trial. The OCCA found no plain error. First, the OCCA found that the prosecutor did not vouch for the witnesses' credibility. Second, the OCCA found that "[a]lthough the prosecutor's comment in closing argument likely evoked sympathy for the victim, she did not overtly seek sympathy for the victim and her comment was properly based upon the evidence." Response, Ex. 3, at 5. Third, the OCCA found that the prosecutor "did not accuse defense counsel of wrongdoing but properly challenged [Petitioner's] defense in light of the evidence." Id. Finally, the OCCA found that the prosecutor "did not argue facts outside the record during closing argument but her comments were reasonable inferences that could be drawn from the evidence." Id.
In this claim, Petitioner does not allege that the prosecutor's comments directly affected a specific constitutional right. Under these circumstances, unconstitutional prosecutorial misconduct is demonstrated "only when the misconduct is so egregious that it renders the entire trial fundamentally unfair." Cummings v. Evans, 161 F.3d 610, 618 (10th Cir. 1998)(citing Donnelly v. DeChristoforo, 416 U.S. 637, 642-648 (1974)). Whether a trial is rendered fundamentally unfair due to prosecutorial misconduct requires consideration of all of the surrounding circumstances, including the strength of the evidence presented during the trial. Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005).
Petitioner makes no attempt to demonstrate that the OCCA's decision was an unreasonable application of controlling federal law as determined by the Supreme Court or that the OCCA's decision was based on an unreasonable determination of the facts presented at his trial. Petitioner merely argues that "the State . . . should have known testimony used at trial [was] false." Petitioner's reply (Doc. # 35), at 12.
"Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony." Thornburg v. Mullin, 422 F.3d 1113, 1132 (10th Cir. 2005)(quotation marks and citation omitted). It is not improper for a prosecutor to direct the jury's attention to evidence that tends to enhance or diminish a witness's credibility. Id.
In his appeal, Petitioner referred to two statements by the prosecutor during closing arguments to support the claim of improper vouching. Petitioner alleged that these statements, "Why not make it up worse if you're making it up?" (TR 1410) and "There is no motive for these individuals to come up with this" (TR 1422), were impermissible vouching for the credibility of the State's witnesses. Neither of these statements constituted impermissible vouching as the prosecutor did not profess her personal belief that the witnesses were credible. These statements by the prosecutor were directed toward the evidence presented during the trial and by references to the jury's role in determining the witnesses' credibility, as set forth in the jury's instructions. (TR 1410).
In his appeal, Petitioner referred to one statement by the prosecutor to support the claim that the prosecutor improperly elicited sympathy for the child victim. In this statement, the prosecutor observed at the very end of closing arguments that "when [the child victim is] older, she'll remember that as her first sexual experience, what he did. You get to hold him accountable today. We ask that you do that and find him guilty on every count charged." (TR 1426). The OCCA found that the prosecutor "did not overtly seek sympathy for the victim and her comment was properly based upon the evidence." Response, Ex. 3, at 5. The prosecutor's single comment was a reasonable statement concerning the long-term effects of the offenses upon the child victim.
As to Petitioner's remaining claims of prosecutorial misconduct asserted in his direct appeal, the OCCA found that these claims lacked merit. The OCCA found, specifically, that "[t]he prosecutor did not accuse defense counsel of wrongdoing but properly challenged [Petitioner's] defense in light of the evidence" and "[t]he prosecutor did not argue facts outside the record during closing argument but her comments were reasonable inferences that could be drawn from the evidence." Id. Petitioner has not demonstrated with clear and convincing evidence that the appellate court's factual findings were wrong. 28 U.S.C. § 2254(e)(1). Nor has Petitioner demonstrated that any of the alleged instances of prosecutorial misconduct he urged in his direct appeal rendered his trial fundamentally unfair. Petitioner is not entitled to habeas relief concerning this claim.
VIII. Ineffective Assistance of Trial Counsel
Petitioner next contends that he was denied effective assistance of trial counsel. He asserted a Sixth Amendment claim of ineffective assistance of trial counsel in his direct appeal, basing the claim entirely on his trial counsel's failure to object to the instances of alleged prosecutorial misconduct asserted by Petitioner in the appeal. Petitioner contends that the issue was not adequately argued in his direct appeal, but Petitioner does not provide any specific argument in his Petition to support his Sixth Amendment claim.
In his reply brief, however, Petitioner expounds on the claim. He argues that his defense counsel provided constitutionally ineffective assistance because he refused to call a witness, J.C., to testify even though J.C. was "an eye witness to the events which took place the day [J.K.] King was at petitioner's house." Petitioner's reply, at 12. It is not clear from Petitioner's argument what those "events" were, although he alleges that J.C. "can testify that just about everything Jugata [sic] said was not true and Petitioner never touched her period, and he has never seen Petitioner touch, or kiss [C.S.] either." Id. at 13.
This particular ineffective assistance of trial counsel claim was not made in Petitioner's direct appeal. Petitioner asserts that he raised this issue for the first time in his post-conviction application. Petitioner's petition in error filed with the OCCA in his post-conviction appeal appeared to raise this claim. See Response, Ex. 6, at 8. The argument was based entirely on Petitioner's supposition as to what J.C.'s purported "testimony [would] prove. . . ." Id. Petitioner argued that his defense counsel provided ineffective assistance by refusing to call J.C. as a witness. Id.
In his post-conviction appeal, the OCCA did not address the merits of this particular Sixth Amendment claim and found only that because the issue of ineffective assistance of trial counsel had been raised and rejected in Petitioner's direct appeal, the issue was barred from further review by the doctrine of res judicata. Response, Ex. 7.
The OCCA's refusal to review the merits of the particular Sixth Amendment ineffective assistance of trial counsel claim Petitioner presents in his Petition constitutes a procedural default. The claim remains technically unexhausted because the OCCA did not address the new claim presented for the first time in his post-conviction proceeding. Nevertheless, if Petitioner attempted to raise this claim in a second post-conviction application, the Oklahoma courts would presumably find it to be procedurally barred under state laws requiring that all claims for relief be raised in an initial post-conviction application, unless the applicant provides sufficient reason for not asserting a claim in a prior application. See Okla. Stat. tit. 22, §§ 1086, 1089(D)(2). Under these circumstances, the issue is subject to an "anticipatory procedural bar." See Cummings v. Sirmons, 506 F.3d 1211, 1223 (10th Cir. 2007).
If a particular claim presented in a habeas petition was "defaulted in state court on an independent and adequate state procedural ground," the merits of the procedurally-defaulted claim will not be addressed in the federal habeas proceeding "unless cause and prejudice or a fundamental miscarriage of justice is shown." Johnson v. Champion, 288 F.3d 1215, 1223 (10th Cir. 2002)(internal quotation marks omitted).
The OCCA relied on an independent and adequate state ground in refusing to review the merits of Petitioner's Sixth Amendment ineffective assistance of trial counsel claim asserted in his post-conviction application. See Welch v. Workman, 607 F.3d 674, 687 n. 4 (10th Cir. 2010)("Under Oklahoma law, claims previously raised and rejected are barred by res judicata. . . . Both the res judicata bar to claims previously rejected and the waiver rule for claims not previously raised . . . are included in Okla. State. tit. 22, §§ 1086 and 1089, and both are regularly and even-handedly applied by the state courts.")(internal quotation marks and citation omitted).
Petitioner has asserted in his reply brief that his appellate counsel "ignored" "numerous issues" presented in his post-conviction application. Petitioner's reply, at 12. In his Petition, Petitioner has also asserted as a separate issue a claim of ineffective assistance of appellate counsel. Petitioner presented an identical claim of ineffective assistance of appellate counsel in his post-conviction proceeding. Applying the well-established standard for reviewing claims of ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668 (1984), the OCCA rejected this claim on its merits. Response, Ex. 7, at 2-4.
It appears that Petitioner is alleging that ineffective assistance of appellate counsel constitutes cause for his state-court procedural default. An independent constitutional violation of the right to effective assistance of counsel may constitute cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 488 (1986).
To establish "cause" sufficient to overcome the procedural bar based on ineffective assistance of appellate counsel, Petitioner must satisfy both prongs of the test established in Strickland; that is, he must show that his appellate attorney's representation fell below an objective standard of reasonableness and that counsel's errors prejudiced the defense. Id. at 687. "Judicial scrutiny of the adequacy of attorney performance must be strongly deferential: '[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" United States v. Blackwell, 127 F.3d 947, 955(10th Cir. 1997)(quoting Strickland, 466 U.S. at 689). "Moreover, the reasonableness of the challenged conduct must be evaluated from counsel's perspective at the time of the error." Id. Accord, Kimmelman v. Morrison, 477 U.S. 365, 381(1986); Strickland, 466 U.S. at 689. Prejudice, under the second prong, is shown by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim...to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
The Sixth Amendment does not "require counsel to raise, or even be cognizant of, all potential defenses." United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004). Indeed, the "process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986)(quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
In this case, Petitioner asserts that a witness, J.C., could have testified at his trial that the testimony of one of the prosecution's witnesses, J.K., "was not true." Petitioner's reply, at 13. At Petitioner's trial, J.K., who was then only 13 years old, testified that she was friends with C.S., the child victim, and that she sometimes went to C.S.'s house and spent the night there and that Petitioner once went to C.S.'s house and picked the girls up and took them to his house. J.K. testified that J.C., the child victim's stepbrother, who was one year older than C.S., also went to Petitioner's house with the girls. She described an incident in which she and C.S. were talking with J.C. in a bedroom at Petitioner's house and Petitioner came into the room and put his hands down J.K.'s pants. TR 949-50. She testified she was shocked and told him to quit, but he then started kissing her until she started crying, and he stopped. TR 951-53. She testified that C.S. and J.C. were staring at Petitioner. TR 954. She testified that Petitioner then told J.C., "This is how you treat a girl." TR 955. She testified Petitioner then started kissing C.S.'s neck but then stopped when she shrugged her shoulder and walked out into the living room. TR 956. J.K. testified that when she walked out of this bedroom she saw Petitioner "watching porn with his hands in his pants." TR 958. She testified that later that evening C.S.'s aunt, Ms. Penick, told the girls to take a bath, that Petitioner walked in to the bathroom and "used the bathroom," and that he then "pulled the curtain aside" and watched C.S. and J.K. in the bathtub. TR 962.
J.K.'s testimony was allowed under Burks v. State, 594 P.2d 771 (Okla. Crim. App. 1979), as evidence of a common scheme or plan. TR 936. The jury was instructed that the testimony could not be considered as proof of Petitioner's guilt or innocence. TR 937.
J.C. was subpoenaed to testify at Petitioner's trial, but was not called as a witness for the prosecution or the defense. Original Record, 147. Also, Petitioner's defense counsel received in discovery a DVD of a forensic interview with J.C. Transcript of Proceedings taken on April 2, 2012, at 4. Petitioner has presented no affidavit from J.C. that would support Petitioner's assertions as to what J.C.'s testimony would be or even if he would have testified at Petitioner's trial.
Based on Petitioner's allegations and the record, it appears that Petitioner's defense counsel made a conscious decision not to call J.C. as a witness. Petitioner apparently disagreed with that decision, but mere disagreement as to trial strategy will not support a claim of ineffective assistance. Smith v. Archuleta, 658 Fed. App'x 422, 437 (10th Cir. 2016)(unpublished op.).
In Petitioner's defense, defense counsel called two female witnesses. One of these defense witnesses was the child of a neighbor of Petitioner and Ms. Penick. The second witness was a niece of Ms. Penick. These witnesses testified that they had visited Petitioner's home, that he had not sexually assaulted or molested them, and that they had not witnessed Petitioner sexually assault anyone. However, Ms. Penick's niece, Ms. McDonald, testified on cross-examination that Petitioner had sent her inappropriate messages on her telephone of a sexual nature, had given her and C.S. alcohol, and had secretly maintained a file on his computer of sexually-explicit photographs of her.
Petitioner cannot show that defense counsel unreasonably failed to investigate or present admissible evidence or that there is a reasonable probability that the result of the trial would have been different even if the jurors had heard J.C.'s testimony. See Snow v. Sirmons, 474 F.3d 693, 730 n. 42 (10th Cir. 2007)(to show prejudice, habeas petitioner must show that testimony of uncalled witness would have been favorable and that witness would have testified); .
Because a claim of ineffective assistance of trial counsel based on Petitioner's trial counsel's failure to call J.C. as a witness would have proved meritless, Petitioner has not shown ineffective assistance of appellate counsel, and he has not shown cause for his state-court procedural default. See Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999)(if omitted issue is meritless, then counsel's failure to raise it on appeal is not constitutionally ineffective assistance).
Petitioner repeatedly asserts that he is innocent of the offenses. His assertion may be an attempt to argue that his defaulted claim should be reviewed under the fundamental miscarriage of justice exception to the procedural default doctrine. This exception to the procedural default doctrine applies only in cases where the habeas petitioner can show that the claimed errors "'probably resulted in the conviction of one who was actually innocent.'" Sellers v. Ward, 135 F.3d 1333, 1338(10th Cir. 1998)(quoting Schlup v. Delo, 513 U.S. 298, 327(1995)(internal quotations omitted)). See Herrera v. Collins, 506 U.S. 390, 404(1993)("The fundamental miscarriage of justice exception is available only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.").
Petitioner has not made a colorable showing of factual innocence. To be credible, a claim of actual innocence requires a litigant to present "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence, that was not presented at trial." Schlup, 513 U.S. at 324. Petitioner has failed to identify any new evidence that demonstrates his factual innocence, and a review of the lengthy record shows that substantial evidence of Petitioner's guilt was presented during his trial. Petitioner has not demonstrated "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. Therefore, Petitioner has not shown a fundamental miscarriage of justice, and the Court should not review the merits of his procedurally-defaulted Sixth Amendment claim.
IX. Excessive Sentence
Petitioner next contends that his punishment is grossly excessive. In reviewing a habeas petition, the Court "afford[s] wide discretion to the state trial court's sentencing decision, and challenges to that decision are not generally constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits or unauthorized by law." Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). Generally, such review of a sentence ends when it is determined that the sentence is within the limitation set by statute. Id.
Petitioner raised this claim in his direct appeal, and the OCCA rejected it, finding that "each of [Petitioner's] sentences are within the statutory range of punishment and under all the facts and circumstances of the case are not so excessive as to shock the conscience of the Court." Response, Ex. 3, at 5. Further, the OCCA found that the "trial court did not abuse its discretion when it ran the sentences consecutively." Id. at 6.
Petitioner has not alleged or demonstrated that his sentences are outside the statutory range of punishment for his habitual offender offenses or that the OCCA's decision was contrary to or an unreasonable application of Supreme Court jurisprudence. Petitioner is not entitled to habeas relief concerning this claim.
X. Cumulative Errors
Petitioner contends in Ground Seven, as he did in his direct appeal, that the cumulative effect of all of the previously-alleged errors deprived him of a fair trial. Having found no errors committed by the state district court, Petitioner's convictions and sentences cannot be unconstitutional due to cumulative error. Cumulative error is present when the "cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003)(quotation marks and citation omitted). "A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless." Id. (quotation marks and citation omitted).
The OCCA addressed this same issue in Petitioner's direct appeal and found that Petitioner "was not denied a fair trial by cumulative error." Response, Ex. 3, at 6. The OCCA's resolution of this claim was not contrary to, or an unreasonable application of, clearly-established federal law as determined by the Supreme Court. Petitioner is not entitled to habeas relief as to this claim.
XI. Ineffective Assistance of Appellate Counsel
Petitioner contends in Grounds Eight and Nine (designated Grounds Eight, Nine, and Ten in the Petition) that his appellate counsel provided constitutionally ineffective assistance. The claim is asserted in two parts. As support for the first part of this claim, Petitioner asserts that his appellate counsel inadequately asserted a claim of denial of effective assistance of trial counsel, including failing to assert that his trial counsel provided ineffective assistance by failing to call J.C. as a witness. In the second portion of this claim, Petitioner contends that his appellate counsel provided ineffective assistance by failing to include a claim that the trial court erred in allowing witnesses K.L. and J.K. to testify under Oklahoma's Burks rule. Petition, at 38. In his reply brief, however, Petitioner limits this claim to the assertion that his appellate counsel should have asserted a claim that the trial court erred in admitting the testimony of "the [Burk's] witness [K.L.]'s testimony during trial and the total lack of investigation by the state and trial counsel of this [Burk's witness's] testimony." Petitioner's reply, at 16.
Petitioner's appellate counsel presented seven grounds for reversal of Petitioner's convictions, including a claim that Petitioner was denied effective assistance of trial counsel. That claim was based on trial counsel's failure to object to several alleged instances of prosecutorial misconduct. The OCCA rejected the ineffective assistance of trial counsel claim in Petitioner's direct appeal.
In his post-conviction application, Petitioner alleged that he had been denied effective assistance of appellate counsel. The district court denied the application, and the OCCA affirmed. The OCCA applied the clearly-established standard set forth in Strickland, 466 U.S. at 687-89, and concluded that Petitioner had not shown that the trial court erred in finding that he had not been denied effective assistance of appellate counsel. Response, Ex. 7.
As previously found, Petitioner has not demonstrated that his trial counsel's performance was deficient with regard to the potential witness J.C. or a reasonable probability that the result of the trial would have been different had J.C. testified. Petitioner alleged in his post-conviction appeal that his appellate counsel should have argued that his trial counsel "failed to prepare and present a viable defense" and "never once subjected my accusers to any meaningful adversarial testing." Response, Ex. 6, at 8. Given the record in this case demonstrating that Petitioner's defense counsel thoroughly cross-examined each of the prosecution's witnesses, called witnesses in Petitioner's defense, and zealously represented Petitioner throughout his lengthy seven-day trial, Petitioner has not demonstrated that the OCCA's rejection of this particular Sixth Amendment claim was contrary to or an unreasonable application of the governing Strickland standard.
In a separate ineffective assistance of appellate counsel claim (designated Grounds Nine and Ten in the Petition), Petitioner asserts that his appellate counsel provided constitutionally ineffective assistance by failing to assert in his appeal a claim that the trial court erred in admitting into evidence the testimony of K.L.
The district court rejected this ineffective assistance claim, finding "[J.K.] was one of three Burks witnesses. Petitioner has made no showing that he was prejudiced by the omission of a proposition of error in the admission of this one Burks witness's testimony. Based upon this, appellate counsel was not ineffective." Response, Ex. 5, at 3.
As with the previous Sixth Amendment claim, the OCCA applied the clearly-established standard set forth in Strickland, 466 U.S. at 687-89, and concluded that Petitioner had not shown that the trial court erred in finding that he had not been denied effective assistance of appellate counsel. Response, Ex. 7.
As the district court found in addressing this particular ineffective assistance of appellate counsel claim, K.L., who is C.S.'s older sister (K.L. was fifteen years old at the time of the trial), was allowed to testify during Petitioner's trial under Oklahoma's Burk's rule and under Oklahoma evidentiary rules. In K.L.'s testimony, she described being molested and sexually assaulted by Petitioner in a similar manner to the incidents described by C.S., and K.L. also described pornographic images shown to her by Petitioner on his computer, similar to the testimony of C.S. that Petitioner showed her pornographic images on his computer. Given the consistency between K.L.'s and C.S.'s testimony, any claim in Petitioner's direct appeal that the trial court erred in admitting K.L.'s testimony would have been meritless.
Petitioner has not demonstrated that the OCCA's decision was contrary to, or an unreasonable application of, the clearly-established Strickland standard. Petitioner is not entitled to habeas relief concerning this claim.
XII. Sufficiency of Post-Conviction Proceedings
In Petitioner's tenth and final habeas claim (designated Ground 11 in the Petition), Petitioner asserts that the "Trial Court, the State of Oklahoma and the Oklahoma Court of Criminal Appeals decided on my Application for Post Conviction Relief without addressing a single issue." Petition, at 40.
Petitioner has not exhausted this claim by raising it in the state courts. However, district courts "may exercise ... discretion to bypass ... procedural issues and reject a habeas claim on the merits." Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004). See 28 U.S.C. § 2254(b)(2)(unexhausted claim may be dismissed if it is meritless).
A habeas petitioner's challenge to a state's "post-conviction procedures on their face and as applied to him . . . fail to state a federal constitutional claim cognizable in a federal habeas proceeding." Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993). Consequently, Petitioner has not asserted a viable federal habeas claim in his tenth ground for habeas relief, and he is not entitled to habeas relief with respect to this claim.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. The parties are advised of their respective right to file an objection to this Second Supplemental Report and Recommendation with the Clerk of this Court by March 27 , 2017, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Second Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10 Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10 Cir. 1996)("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.").
This Second Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 7 day of March, 2017.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE