Opinion
Case No. CIV-19-908-F
12-30-2020
DARREN THOMAS TERRELL, Petitioner, v. SHARON McCOY, WARDEN, Respondent.
REPORT AND RECOMMENDATION
Petitioner Darren Thomas Terrell, an Oklahoma prisoner appearing pro se, brings this action for habeas relief pursuant to 28 U.S.C. § 2254. (ECF No. 30) (Amended Petition for Habeas Corpus). United States District Judge Stephen P. Friot referred this matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Respondent has filed a Response, (ECF No. 31), to which Mr. Terrell has replied. (ECF No. 32).
Mr. Terrell filed his Amended Petition at the direction of this Court, after Judge Friot determined his original petition contained both exhausted and unexhausted claims. See (ECF No. 27).
It is recommended that habeas relief be DENIED.
I. PROCEDURAL BACKGROUND
Mr. Terrell was charged with one count of distribution of a controlled dangerous substance (methamphetamine) within 2,000 feet of a park or school and one count of conspiracy to deliver a controlled dangerous substance, both after former conviction of two or more felonies. He was tried before a jury and convicted on both counts in the District Court of Beckham County, Case No. CF-2016-30. Mr. Terrell was sentenced to eighteen years' imprisonment on each count, to be served concurrently.
Mr. Terrell appealed his conviction to the Oklahoma Court of Criminal Appeals (OCCA) raising one proposition of error based on prosecutorial misconduct. Mr. Terrell contended the prosecutor, in violation of state law, erred in presenting evidence of Mr. Terrell's previous felony convictions, improperly exposing the jury to evidence demonstrating that Mr. Terrell had previously received parole and suspended sentences:
"During the trial's second stage, the prosecutor introduced Department of Corrections' records he referred to as a "pen pack." (Tr. 351) The exhibit contained, among other things, five prior judgments and sentences reflecting that the sentences imposed had been partially or entirely suspended. See State's Ex. 12 (Judgments and Sentences for Case Nos. CF-2008-735 (Kay County), CF-2008-691 (Kay County), CF-2002-81 (Murray County), CF 2001-134 (Beckham County), CF-2001-67 (Beckham County). The exhibit also revealed that several of the suspended sentences had been revoked. See State's Ex 12 (Case Nos. CF-2007-144 (Kay County), CF-2001-134 (Beckham County), CF-2001-67 (Beckham County)."(ECF No. 31-2:7).
Mr. Terrell cited OCCA cases which stood for the proposition that it is improper for the prosecutor to inform the jury that a portion of a defendant's prior sentence was suspended or that a defendant had been paroled from a previously-imposed sentence.
"'This Court finds error where evidence concerning the actual length of time served for a prior conviction is introduced.' Hamey v. State, 2011 OK CR 10, ¶ 24, 256 P.3d 1002, 1007 (citing Martin v. State, 1983 OK CR 168, ¶11 20-22, 674 P.2d 37, 41-42). In Hunter v. State, 2009 OKCR 17, ¶ 8,208 P.3d 931, 933, this Court found plain error where the prosecutor read the entire supplemental information to the jury, apprising jurors that portions of the defendant's sentences for prior convictions had been suspended. The holding in Hunter is based on the rationale that 'Jurors should not hear about, and thus be encouraged to speculate on, probation and parole policies.' Id., 2009 OK CR 17, ¶ 9, 208 P.3d at 933." (ECF No. 31-2:8).
The OCCA reviewed the proposition for plain error because the introduction of the evidence was not challenged in the trial court. In determining that the prosecutor's comments did not rise to the level of prosecutorial misconduct, the OCCA overturned the line of cases holding otherwise and cited by Mr. Terrell:
Today, we recognize that the rule announced in Hunter is simply unworkable. Jurors are free to consider the relevant proof of a prior conviction including any evidence that a defendant previously received probation, suspension, or deferral of a sentence and any acceleration or revocation of such a sentence. See Honeycutt v. State, 1967 OK CR 154, 18-20, 432 P.2d 124, 128 (finding proof of suspension of sentence by trial court proper proof of former felony conviction). The receipt of a probationary term may be viewed as supporting both greater and lesser punishment depending on the facts of the case. The jury as a whole can make this determination.(ECF No. 30-1:3-4).
On October 21, 2019, Petitioner filed an Application for Post-Conviction Relief (APCR) in the Beckham County District Court raising six propositions of error including "Prosecutorial misconduct in both the guilt and sentencing phases of trial." (ECF No. 31-8: 14-18). This Court has reviewed Mr. Terrell's APCR, wherein Mr. Terrell argued, among other things, that the prosecutor had engaged in prosecutorial misconduct in the guilt phase of the trial by failing to produce exculpatory evidence. He also argued, as he did on direct appeal, that the jury had been improperly exposed to information concerning his prior suspended sentences and access to parole. The trial court denied Mr. Terrell's APCR. Mr. Terrell filed a Notice of Intent to Appeal the district court's post-conviction findings on May 18, 2020. On May 26, 2020, however, his appeal was dismissed upon his own motion.
The Court takes notice of the docket sheet in Beckham County District Court Case No. CF-2016-30. See Order Dismissing Appeal. www.oscn.net (Doc. No. #CC20052600000174) (last accessed December 8, 2020).
In his original habeas petition before this Court, Mr. Terrell attempted to raise the same issues he had unsuccessfully raised in his APCR. Noting that his Petition was a "mixed petition" raising both exhausted and unexhausted claims, this Court recommended his Petition be dismissed unless Mr. Terrell filed an amended petition raising only his exhausted claim.
II. GROUNDS FOR HABEAS RELIEF
Mr. Terrell did file an Amended Petition. But in his Amended Petition, he attempts to raise two distinct grounds for relief under the overarching claim of prosecutorial misconduct. First, Mr. Terrell raises the same ground for relief asserted on direct appeal—that the prosecutor had improperly presented evidence and argument exposing to the jury Mr. Terrell's previous felony convictions, some of which had resulted in suspended sentences or parole, in some cases followed by revocation of suspended sentences or parole.
Second, Mr. Terrell contends statements made during the prosecutor's opening statement constituted prosecutorial misconduct. The prosecutor introduced himself and told the jury he was a minister at a near-by church. He went on to invite the jury to attend services at his church. As noted, Mr. Terrell did not raise this ground for relief on direct appeal nor in his APCR. Thus, this ground for relief has not been presented to the state courts.
III. LAW REGARDING EXHAUSTION
A federal court cannot grant habeas relief unless the petitioner has exhausted his state-court remedies by presenting substantially the same federal claim or claims to the state's highest court. See 28 U.S.C. § 2254(b)(1)(A); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(b), (c)). To properly exhaust, a petitioner "must 'fairly present' his claim in each appropriate state court . . ., thereby alerting that court to the federal nature of the claim" and giving the State the first "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). The petitioner bears the burden of proving either that he properly exhausted the federal claim(s) or that there were no "available" state court remedies for him to exhaust. Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011); see also 28 U.S.C. § 2254(b)(1)(A), (B).
If a petition contains both exhausted and unexhausted claims, it is classified as a "mixed petition." See Rose v. Lundy, 455 U.S. 509, 510 (1982); Harris v. Champion, 48 F.3d 1127, 1131 (10th Cir. 1995). When faced with a "mixed petition," a district court "may either (1) dismiss the entire petition without prejudice in order to permit exhaustion of state remedies, or (2) deny the entire petition on the merits." Wood v. McCollum, 833 F.3d 1272, 1273 (10th Cir. 2016) (internal quotation marks and citation omitted). See also 28 U.S.C. § 2254 (b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
"The court may also permit the petitioner to delete the unexhausted claim(s) from his petition and proceed only on the exhausted claims, or, if the equities favor such an approach, it may stay the federal habeas petition and hold it in abeyance while the petitioner returns to state court to exhaust the previously unexhausted claims." Wood, 833 F.3d at 1273 (internal quotation marks and citation omitted).
IV. SUPPORTING ARGUMENTS
Respondent first addresses the merits of Mr. Terrell's claim alleging prosecutorial misconduct in the sentencing phase of the trial. Applying the standard of review set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA), Respondent contends the OCCA's holding was not contrary to, nor an unreasonable application of Supreme Court law, or an unreasonable application of the law to the facts in this case. (ECF No. 31).
As to the claim of prosecutorial misconduct during opening statements, Respondent has demonstrated that Mr. Terrell has not exhausted his state court remedies because he has never presented this claim to the trial court, much less to the OCCA. Thus, Respondent correctly argues that habeas relief cannot be granted on this mixed petition.
In his Reply to Respondent's Response (ECF No. 32), Mr. Terrell argues he has simply expanded his prosecutorial misconduct claim, "decorating" it and "strengthening" it. (ECF No. 32:2). This Court disagrees.
V. ANALYSIS
After examining the record and the positions of the parties, this Court concludes Mr. Terrell has not exhausted his state-court remedies as to his claim based on the prosecutor's introductory statements made during his opening statement. Contrary to Mr. Terrell's argument, that ground for relief is not the same ground for relief raised before the state courts on direct appeal, nor was it raised in his APCR. This Court has already given Mr. Terrell the opportunity to amend his petition asserting only the one exhausted ground for relief. But Mr. Terrell ignored the Court's directive and filed the mixed Amended Petition now under review.
The Court further concludes it would be futile to hold Mr. Terrell's Amended Petition in abeyance because, should he wish to exhaust the newly raised prosecutorial misconduct claim, the OCCA would find that claim to be procedurally barred. Accordingly, this Court recommends denying the Amended Petition as provided in 28 U.S.C. § 2254 (b)(2).
A. Application of Anticipatory Procedural Bar
Mr. Terrell has not exhausted his state court remedies as to his newly asserted prosecutorial misconduct claim. To exhaust state remedies, a petitioner "must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion means providing "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 845, 119 S.Ct. 1728. Thus, because the newly-asserted prosecutorial misconduct claim was never presented to the state courts, it remains unexhausted.
A federal court may apply an anticipatory procedural bar to unexhausted claims when the court to which the petitioner would be required to return to meet the exhaustion requirement would now find the claims procedurally barred on an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). "In such a case there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims." Id. See also Rouse v. Romero, 531 Fed. App'x. 907, 909 n.5 (10th Cir. 2013) ("As we explained, anticipatory procedural bar occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it." (internal quotation marks omitted)); Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (same); Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002) (same).
Mr. Terrell does not address whether the OCCA's law regarding waiver of claims not raised on direct appeal is an independent and adequate basis for application of a procedural bar. The Court notes, however, that the Tenth Circuit Court of Appeals has found Oklahoma's waiver rule to be both independent and adequate. See Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) ("The waiver of claims not brought on direct appeal is based on state law, see 22 Okla. Stat. tit. 22 § 1086, and this court has found Oklahoma's bar of claims not raised on direct appeal to be independent and adequate with respect to claims other than ineffective assistance of counsel[.]") (internal citations omitted).
A petitioner can overcome an anticipatory procedural bar by demonstrating: (1) cause for the default and actual prejudice as a result of the alleged constitutional violation; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice because he is actually innocent. See Bondy v. Scott, 43 Fed. App'x. 168, 173 (10th Cir. 2002) (unpublished). "Cause under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." Griffin v. Scnurr, 640 Fed. App'x. 710, 720 (10th Cir. 2016) (unpublished) (internal quotation marks omitted). Mr. Terrell has not attempted to demonstrate that he is entitled to exception from the exhaustion requirement. For these reasons, this Court should apply an anticipatory procedural default to Mr. Terrell's prosecutorial misconduct claim based on statements the prosecutor made during his opening statement.
B. Due Process Claim
In his direct appeal to the OCCA, Mr. Terrell contended his sentence should be modified based on the evidence introduced during the sentencing phase of his trial to demonstrate he had been convicted of previous felonies. The OCCA acknowledged that the evidence "showed that several of [Mr. Terrell's prior sentences had been suspended in whole or in part, and in some instances, revoked for violations of the terms of suspension. Then in closing argument the prosecutor referenced Appellant's prior convictions and sentences, specifically mentioned the suspended sentences, and argued, "He's been given chance after chance after chance." (ECF No. 31-1:2-3).
As discussed, the OCCA overturned its own cases prohibiting a prosecutor from introducing evidence regarding parole and suspended sentences. In doing so, the OCCA held its existing rules of evidence were sufficient to prevent prosecutorial abuse in the second stage of criminal trials: "All evidence may be excluded if its relevance is substantially outweighed by the dangers outlined in 12 O.S. 2011, § 2403." Id.
The reversal of previous case law was, of course, simply a matter of state law unreviewable on federal habeas. 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. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (citation omitted).
But the OCCA went further, finding the statements made by the prosecutor to be appropriate:
Counsel should be permitted to discuss the relevant proof of prior conviction in closing argument. This Court has long recognized that both parties are afforded wide latitude to discuss the evidence, including reasonable inferences therefrom, and make recommendation as to punishment.(ECF No. 31-1:4). Mr. Terrell has cited no Supreme Court cases supporting his contention that the prosecutor's statements violated the Due Process Clause.
Thus, the decision of the OCCA is neither contrary to, nor an unreasonable application of Supreme Court law, nor does it represent an unreasonable application of such law to the facts in this case.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons cited herein, it is recommended the Mr. Terrell's Amended Petition for Writ of Habeas Corpus be DENIED.
Petitioner is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by January 18, 2021. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.
ENTERED on December 30, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE