Opinion
CIV-21-103-SLP
07-18-2022
CARL DOUGLAS CRICK, JR., Petitioner, v. SCOTT CROW, Director,[1] Respondent.
REPORT AND RECOMMENDATION
Petitioner Carl Douglas Crick, Jr. (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Petitioner filed a brief in support of the Petition. (Doc. 10). Respondent then filed a response (Doc. 15), along with portions of the record, including the jury-trial transcripts (Tr.) and the state court record (R.). (Doc. 16). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DENIED.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Factual Summary
Petitioner and Gayla Crick met in Sherman, Texas. (Tr., at 534). They had five children, including their two daughters, A.M.C and A. N.C. (Id. at 531-32, 534). The household was volatile - Petitioner was an alcoholic and the police were often at their home due to domestic disturbances. (Id. at 260). Additionally, and directly related to the crimes with which Petitioner was charged, A.M.C. and A. N.C. also testified that Petitioner sexually abused them over the course of years.
The trial transcript refers to Petitioner's older daughter as A.M.C. and his younger daughter as A. N.C. (Tr., at 532). Petitioner contends these designations are transposed and, despite acknowledging it is not relevant to the outcome in this matter, attempts to correct a “court reporter error” in his brief. (Doc. 10, at 5-6, n.1). The undersigned will refer to the daughters consistent with their identifying initials in the trial transcript.
The first instance of sexual abuse that A.M.C. remembers was when she was four years old and the family lived in Texas. (Id. at 257). She woke up from her sleep to see Petitioner in the hallway smoking and drinking. (Id.) He came to her bedroom and started touching her all over, including inside her vagina. (Id. at 258). A.M.C. was scared and did not know what to do, so she closed her eyes and blacked out. (Id.) A.M.C. testified Petitioner's abuse continued “pretty frequently” while they lived in Texas. (Id. at 259).
The family moved to Crescent, Oklahoma, in February 2002, when A.M.C. was eight years old and A. N.C. was eighteen months old. (Id. at 536). At first they lived with Petitioner's parents for about six months. (Id. at 537). It was at this house where A. N.C. first recalled an incident with her father. (Id. at 459). She was in bed with Petitioner and Ms. Crick when Petitioner picked her up, took her to the living room, and touched A. N.C. on top of her underwear. (Id. at 460).
The family moved to a house on Sanderson Street (“Sanderson House”) in August or September of 2002, where they lived until December 2004. (Id. at 537). A.M.C. and A. N.C. shared a bed at the Sanderson House. (Id. at 255, 469). Their bedroom was adjacent to their three brothers' bedroom, and the only way to enter their bedroom was to walk through the brothers' room. (Id. at 312-13, 499-501). Despite this, Petitioner carried A.M.C. or A. N.C. from their bedroom to the living room and sexually abused them on the couch. (Id. at 263-64, 465). Other incidents of abuse occurred on the bed they shared while the other sister was asleep. (Id. at 262, 468). These events happened at varying frequencies. (Id. at 264, 467-68).
The family moved to a house on Mulberry Street (“Mulberry House”) around December 2005. (Id. at 538). A.M.C. and A. N.C. had separate beds at this house, and their doorless bedroom sat at the top of a stairway. (Id. at 269, 322). A.M.C. testified Petitioner sexually abused her on her bed. (Id. at 269). She stated the abuse was worse at the Mulberry House and hurt more and sometimes made it difficult for her to walk. (Id. at 269, 282-83). A. N.C. testified that Petitioner sat on her bed and touched her twice per month. (Id. at 470-72). A. N.C. also testified that when she was nine years old, Petitioner took her downstairs and raped her. (Id. at 472-73).
S.V., a friend of A. N.C. 's, often spent the night at the Crick family home. (Id. at 574). When she stayed the night, she and A. N.C. slept in the living room on an L-shaped sectional couch downstairs. (Id. at 575-76). Around November 2013, S.V. woke up to Petitioner on top of her while she was sleeping. (Id. at 577). S.V.'s shirt was pulled up and her pants were unbuttoned. (Id. at 578). Petitioner touched outside of her bra and put his fingers inside her vagina. (Id.) S.V. tried to push Petitioner away, and after Petitioner did not respond, she yelled out for help. (Id. at 579-80). Petitioner got off of her and went to his room. (Id. at 580). A. N.C. woke up, and S.V. told her she had a nightmare and went back to bed. (Id.) S.V. spent the night again in December 2013, and again she was awakened by Petitioner on top of her and sexually assaulting her. (Id. at 581, 585-86).
In 2010, when A.M.C. was sixteen years old, she told Chief Kalon Barnett of the Crescent Police Department that her father had sexually abused her. (Id. at 274-75). Petitioner left the home, but called A.M.C. at work to tell her to recant the statement and that she would go to jail if she did not because she would be caught lying. (Id. at 276). She immediately arranged for a meeting with Chief Barnett and told him she needed to recant the statement because she lied. (Id. at 276-77). Chief Barnett told her to go to her forensic interview and that if she wanted to recant the statement after the interview, he would allow it. (Id. at 278). At her forensic interview, A.M.C. only referenced what had happened when was four years old in Texas and otherwise said nothing happened. (Id. at 278-79, 389). She testified she did not tell the interviewer the truth because she wanted her life back to normal. (Id. at 278, 281). A. N.C. also had a forensic interview at that time, but did not disclose any sexual abuse because Petitioner had told her not to tell anybody. (Id. at 388, 477).
II. Procedural History
The State charged Petitioner in Logan County, Case No. CF-2014-205, with the following:
• Count One: rape in the first degree (under 14) committed between January 1, 2002, and December 25, 2010;
• Count Two: rape by instrumentation (under 14) committed between January 1, 2002, and December 30, 2013;
• Count Three: lewd molestation committed between January 1, 2005, and January 30, 2014;
• Count Four: rape in the first degree (under 14) committed between January 1, 2005, and December 30, 2013;
• Count Five: lewd molestation committed between January 1, 2003, and June 30, 2003, and;
• Count Six: lewd molestation committed between January 1, 2003, and December 31, 2009.(R., at 66-67). At the conclusion of the four-day trial, the jury found Petitioner guilty of each count. (R., at 284-89). The trial judge sentenced Petitioner to life imprisonment on Counts One, Two, and Four and twenty years of imprisonment on Counts Three and Five - all running concurrently with each other and consecutive to a sentence of fifty years of imprisonment on Count Six. (R., at 343-45). The Oklahoma Court of Criminal Appeals (“OCCA”) denied Petitioner's direct appeal. (Doc. 15, at Ex. 1). The OCCA subsequently denied Petitioner's Petition for Rehearing. (Id. at Exs. 5, 6).
Petitioner then filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 and a brief in support. (Docs. 1, 10). The Petition is at issue.
III. Standard of Review
“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 Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “It is the petitioner's 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) (internal quotation marks omitted). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). 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 it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). Notably, “[i]t 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.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (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.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
This court “must accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)). This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
IV. Analysis
Petitioner raises one claim of relief, alleging the ineffective assistance of trial counsel. (Doc. 1, at 5). Petitioner claims his counsel was ineffective because they should have called various witnesses to testify. (Doc. 10, at 19-30). Petitioner also contends his counsel failed to object to improper testimony by a State's witness. (Id. at 31-34). Respondent contends Petitioner's claim should be denied on the merits. (Doc. 15).
As set forth fully below, Petitioner is not entitled to relief on his claim.
A. Strickland v. Washington is the Clearly Established Law on Ineffective Assistance of Counsel.
In order to succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy the standards of Strickland v. Washington, 466 U.S. 668 (1984), and show that his attorney's performance was both deficient and prejudicial. Id. at 687. An attorney's performance is “deficient” when it falls “outside the wide range of professionally competent assistance.” Id. at 690. The performance is prejudicial when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable,” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. The court must use a “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted).
B. The OCCA Applied Strickland to Petitioner's Claim.
The OCCA addressed Petitioner's claim as follows:
We review this claim under Strickland v. Washington . . . requiring that Appellant show not only that trial counsel performed deficiently, but that Appellant was prejudiced by it. 466 U.S. 668, 687 (1984). Deficient performance requires a showing of “errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Prejudice to the defense occurs when counsel's errors were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
To obtain an evidentiary hearing under Rule 3.11(B), Appellant must present clear and convincing evidence of a strong possibility that trial counsel was ineffective for failing to identify or utilize available evidence. This burden is less demanding than the Strickland standard itself. The grant of an evidentiary hearing is not a finding that defense counsel was ineffective, but a preliminary decision that the facts warrant a further opportunity to develop such a claim. On the other hand, the denial of a request for evidentiary hearing under the less demanding burden of Rule 3.11(B) necessarily implies a conclusion that the Appellant has not shown a violation of the Sixth Amendment under Strickland.
Reviewing Appellant's claim that counsel was deficient in failing to utilize certain testimony at trial, we find that Appellant's submissions of that supposed testimony do not clearly and convincingly show a strong possibility
that trial counsel was constitutionally ineffective. Appellant's motion to supplement the record and request for evidentiary hearing on this part of his claim are therefore denied.
Appellant next argues that trial counsel was deficient by failing to object to a prosecution witness's improper vouching for the credibility of the alleged victim. See Lawrence v. State, 1990 OK CR 56, ¶¶ 3-4, 796 P.2d 1176, 1777 (finding social worker's opinion testimony that child sexual abuse victims of a certain age “do not lie about these things” was reversible error). We find the vouching in Lawrence distinguishable from the statement here, which explained why a DHS investigator remained skeptical of a child's recantation and recommended continued services for the children involved. Counsel is not deficient for failing to make meritless objections. Jackson v. State, 2016 OK CR 5, ¶ 13, 371 P.3d 1120, 1123.
Because Appellant has not shown that counsel's alleged failure to utilize certain evidence, or object to certain testimony, was constitutionally deficient, or that these alleged errors denied Appellant a fair trial whose result is reliable, Proposition One is denied.(Doc. 15, at Ex. 1, at 2-4) (some citations omitted or modified).
C. The OCCA Reasonably Applied Strickland to Petitioner's Claim of Ineffective Assistance For Failing to Call Witnesses.
After the State rested its case, Petitioner's counsel rested without calling a witness. (Tr., at 608). At closing, Petitioner's counsel explained this strategy, noting that “in most of these cases[] we don't put on evidence” because “the prosecution hasn't proven their case beyond a reasonable doubt.” (Id. at 627). Petitioner's counsel noted that the only evidence the prosecution offered was from the accusers themselves, and dedicated the remaining portion of closing argument to highlighting discrepancies in the witnesses' testimony, arguing that their testimony did not make sense, and suggesting the three witnesses made up their stories together. (Id. at 628-50). Counsel also explained that Petitioner did not testify because he had entered a plea of not guilty and his denial had already been entered through the testimony of another witness. (Id. at 627).
Petitioner generally argues his counsel's strategy was flawed because “there was no coherent reason why all three girls would make these allegations against [him], no persuasive impeachment of any of the complaining witnesses and their factual assertions, and no witnesses presented for the defense - even though . . . several important defense witnesses were available and should have been called.” (Doc. 10, at 19-20). Petitioner contends the jurors expected to hear testimony from witnesses on his behalf based on comments made during voir dire. (Doc. 10, at 20) (citing Tr., at 16-20, 41-45, 131-35). Further, although he concedes his counsel was able to “muster some doubt as to [A.M.C.'s] testimony,” more evidence was needed in his defense. More specifically, Petitioner contends his counsel should have called Steven Byers, Corey Crick, Darlene Renee Treschl, Lovona Blevins, Patrick Nitzel, Robert Dodson, and “other witnesses” who “could have provided support for the defense theory of the case.” (Id. at 22-29).
1. Proposed Testimony by Witnesses Not Called at Trial
Petitioner contends Steven Byers would have testified that he was present when A. N.C. told Petitioner: “Mom and Joe made me say that stuff about you on a police report.” (Doc. 10, at 22). He also asserts Mr. Byers would have testified he was present when Gaila Crick told Petitioner, “when I come back things are going to be my way” and “it's going to be much worse on you” if Petitioner did not sign documents regarding a divorce settlement. (Id. at 23).
Petitioner asserts his son, Corey Crick, would have testified that he slept in the bedroom through which Petitioner would have had to walk to get to the room where A.M.C. and A. N.C. slept at the Sanderson House. (Id. at 24). Corey Crick purportedly would have testified that he found it “incredible that his father could have done this many times over several years without him or his brothers being awakened or disturbed by it.” (Id.) Further, Corey Crick would have testified although he came home late at night and unannounced, he never saw anything described by A.M.C. or A. N.C. (Id.)
Petitioner asserts his sister, Darlene Renee Treschl, would have testified S.V.'s testimony was inaccurate. Specifically, S.V. described an L-shaped sectional couch on which she was molested around November 2013. (Tr., at 576-79). Ms. Treschl would have testified she did not sell Petitioner the couch until December 20, 2013. (Doc 10, at 25; Doc. 15, at Ex. 3, at 3). Ms. Treschl also would testify she heard Gaila Crick threaten to “ruin” Petitioner during the divorce if he did not agree to certain terms and that a few days after the threat, Ms. Treschl was interviewed by the Oklahoma State Bureau of Investigation (“OSBI”). (Doc. 10, at 25). Ms. Treschel further would allege that OSBI Agent Dean “pressured her to admit to being molested by [Petitioner] when it was not true.” (Id. at 26). She would also state that Petitioner's work schedule “would have put [Petitioner] at work during the large portion of the time that the alleged assaults took place.” (Id.) Finally, Petitioner contends Ms. Treschel could have “provided examples of behavior by [A.M.C] inconsistent with being a sexual assault victim” and that Petitioner took A.M.C. to the doctor because he found out she was dating a much older man and he wanted to determine if she was sexually active. (Id. at 26-27).
Petitioner contends Lovona Blevins, a longtime friend of Petitioner, “would have brought a strong perspective to the defense because she is a sexual assault survivor herself, and is vigilant and observant about that type of behavior, and she saw none of it with [Petitioner], she believes him to be innocent, and she observed behavior and attitude by [A.N.C] inconsistent with being sexually assaulted by her father.” (Id. at 27). Ms. Blevins is also familiar with the Crick family homes and would have testified that she “finds it implausible that the sexual assaults could have happened the way as alleged by the girls.” (Id. at 28). Additionally, Ms. Blevins would testify that A. N.C. asked Ms. Blevins to use her cell phone, and she heard A. N.C. tell Petitioner she loved and missed him and she wanted to move back in and live with him. (Id. at 27). Finally, Ms. Blevins would testify that A. N.C. called Petitioner when she was in the hospital indicating she wanted Petitioner to visit her, but that Gaila Crick would not allow it. (Id.)
Petitioner asserts that Patrick Nitzel would have testified that Petitioner mostly worked a night shift and “the number of sexual assaults alleged over the years would have had to have occurred at a time when [Petitioner] was at work.” (Id. at 28).
Petitioner contends Robert Dodson was available to testify as a character witness who knew him as a “good guy,” helped him as a stranger, was a hard worker, and willing to help a friend in need. (Id. at 28-29).
Petitioner asserts other witnesses - Kenley Olson, Jessy Crick, Roberta Crick, Elizabeth Nan Biggs, Sam Hill, Tiffany Burns, Bill Moore, Tom Barnady, Shadow Schumacher, Michael Shelton, Kerri Jo Oswald, Heather Duenas, and Amanda Huddleston - “could have provided support for the defense theory of the case that the allegations were implausible, that the behavior of the girls was inconsistent with being abused by their father to the extent alleged, and that daily interaction with the family yielded no reason to believe that such abuse had occurred.” (Id. at 29).
2. Trial Counsel Was Not Deficient for Failing to Call the Witnesses.
Trial counsel's decision not to call any witnesses was a strategic decision. See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998) (“Generally, the decision whether to call a witness rests within the sound discretion of trial counsel.”); Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney.”); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) (“The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.”). “For counsel's actions to rise to the level of constitutional ineffectiveness, his strategic decisions must have been completely unreasonable, not merely wrong, so that they bear no relationship to a possible defense strategy.” Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (internal quotation marks and brackets omitted). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .” Strickland466 U.S. at 690.
Here, it appears Petitioner's counsel engaged in an investigation prior to making a decision not to call any witnesses. Indeed, all but one of the witnesses Petitioner contends should have been called were included on Petitioner's pre-trial witness list - which described possible testimony and included phone numbers at which the many of the witnesses could be reached.(R., at 153-163). Additionally, Petitioner's motion for evidentiary hearing filed with the OCCA included information from trial counsel's file: notes from interviews with Mr. Byers and Ms. Blevins, an affidavit signed by Mr. Byers, and a summary of Ms. Treschel's interview with Agent Dean. (Doc. 15, at Ex. 3, at 4, 1329). These documents indicate trial counsel was aware of these witnesses' possible testimony and also potential drawbacks to calling them at trial.
Mr. Dodson was not included on the witness list. (R., at 153-63).
Although Petitioner argues the jury expected to hear witnesses called in his defense, trial counsel explained in opening statement that it was possible the defense would not call a single witness. (Tr., at 242). And in closing argument, counsel explained why no witnesses were called. (Id. at 627). Counsel focused his argument on establishing reasonable doubt based on the State's presentation of the evidence. (Id.) Counsel focused on the differences between the witnesses' prior statements or testimony and what they stated at trial. (Id. at 628, 641, 643). Counsel also attempted to argue the witnesses' testimony was impossible based on the noise that would have been made in the close quarters of the house. (Id. at 629, 646). Counsel also argued that witnesses alleged Petitioner was drunk and had surgeries, and thus it wasn't plausible he was carrying his children around the home. (Id. at 645). Given that trial counsel's strategic decision not to call witnesses was made after an investigation and knowledge of the potential witnesses' testimony, the OCCA reasonably determined that Petitioner's attorneys' performance was not deficient.
3. The Failure To Call the Witnesses Was Not Prejudicial.
Even if trial counsel's decision not to call any witnesses was deficient, it was not prejudicial. None of the potential testimony is of such nature that there would be a reasonable probability that Petitioner would have been acquitted had the witnesses been called by defense counsel.
a. Steven Byers
Petitioner focuses on Mr. Byers's handwritten statement that he was present when A. N.C. told Petitioner that “Mom and Joe made me say that stuff about you on a police report.”(Doc. 10, at 22; Doc. 15, at Ex. 3, at 22). Although Petitioner argues this statement could mean that A. N.C. 's story was fabricated by Ms. Crick, the statement could also be interpreted as Ms. Crick encouraging a hesitant A. N.C. to tell the police the truth about what Petitioner did to her. Even if the statement could be interpreted as a recantation, A. N.C. still testified at trial that Petitioner raped her. (Tr., at 465-73). Maria Rosales-Lambert testified that victims of sexual assault sometimes recant and later reaffirm their allegations of sexual assault. (Id. at 376-77). Further, A.M.C. recanted her allegations against Petitioner, and the jury still convicted Petitioner after hearing A.M.C.'s testimony.
Counsel's notes regarding Mr. Byers indicate Mr. Byers attributed other statements to A. N.C. as well. (Doc. 15, at Ex. 3, at 22). But Petitioner does not reference these statements in his brief, and the Petition is not entitled to liberal construction because Petitioner is represented by counsel. Wilson v. Allbaugh, 2018 WL 11310302, at *1 n.3 (W.D. Okla. Aug. 7, 2018) (“This Court will not construct legal arguments for Petitioner, nor will it afford his counsel's filings liberal interpretation.”) (citing United States v. Fennell, 207 Fed.Appx. 916, 918 (10th Cir. 2006); Bakalov v. Utah, 4 Fed.Appx. 654, 657 (10th Cir. 2001)), adopted, 2018 WL 11310299 (W.D. Okla. Aug. 22, 2018).
The undersigned also notes that if Mr. Byers testified as to this statement, it would amount to double hearsay to the extent Petitioner tried to introduce the statement for the truth of the matter asserted. See Fed.R.Evid. 801(c). Thus, failing to introduce the statement for that purpose would not amount to deficient performance. Goode v. Carpenter, 922 F.3d 1136, 1157 (10th Cir. 2019) (“It is not deficient performance for counsel to fail to put on inadmissible or unavailable evidence.”).
Petitioner also asserts Mr. Byers could have advanced a theory that Ms. Crick made threats about her divorce with Petitioner. (Doc. 10, at 23). Petitioner contends this feeds into a theory that Ms. Crick “orchestrated these allegations as a divorce-advantage ploy.” (Id.) But, this potential testimony simply shows that Petitioner and Ms. Crick's divorce was contentious. It was not unreasonable for the OCCA to find that failing to advance this testimony was not prejudicial.
b. Corey Crick
Corey Crick's possible testimony regarding the layout of the Sanderson House is cumulative to other evidence in the record. A.M.C. and A. N.C. testified about the layout of the Sanderson House, noting that in order for Petitioner to take them to the living room, he would have had to go through their brothers' room. (Tr., at 264-65, 312-13, 321-22, 464, 499-501). A.M.C. further testified she did not ever recall waking her brothers up when Petitioner carried her through their room. (Id. at 265). Where “testimony is essentially cumulative,” the “evidence would not have caused the jury to reach a different result.” Humphreys v. Gibson, 261 F.3d 1016, 1021 (10th Cir. 2001) (internal quotation marks omitted); see also Snow v. Sirmons, 474 F.3d 693, 729 (10th Cir. 2007) (“Generally, counsel's failure to call witnesses whose testimony would be corroborative or cumulative of evidence already presented at trial is not deemed constitutionally deficient.”). Furthermore, the undersigned does not find Mr. Crick's proffered testimony that he was working mowing lawns when he was ten years old and kept odd hours would have changed the outcome of the case - A.M.C. and A. N.C. alleged abuse occurred over multiple years.(Tr., at 254, 467-68).
At a hearing the week before trial, trial counsel asked for a continuance - in part because Corey Crick was “a material witness and he [was] unavailable until after May 5.” (Doc. 15, at Ex. 8, at 2-3). Thus, counsel could not be deficient for failing to call him as a witness. See Goode, 922 F.3d at 1157 (“It is not deficient performance for counsel to fail to put on inadmissible or unavailable evidence.”).
c. Darlene Renee Treschl
Ms. Treschl may have testified that she sold Petitioner an L-shaped couch after S.V. alleged she was abused by Petitioner on an L-shaped couch. (Doc 10, at 25; Doc. 15, at Ex. 3, at 6). But, A. N.C. testified they had an L-shaped sectional couch when she was ten years old.(Tr., at 477-78). S.V.'s testimony that she was abused by Petitioner on an L-shaped couch is not inconsistent A. N.C. 's testimony, even if Ms. Treschel later sold Petitioner a different L-shaped couch. Thus, it would not have changed the outcome of the trial.
A. N.C. turned ten years old in 2010 - which was three years before S.V. testified Petitioner abused her. (Tr., at 532).
Testimony that Ms. Treschl heard Gaila Crick threaten to “ruin” Petitioner during the divorce if he did not agree to certain terms and that a few days after the threat, Ms. Treschl was interviewed by the OSBI, adds little to Petitioner's case - it shows Ms. Crick and Petitioner's divorce was contentious and that the OSBI was investigating Petitioner.
Ms. Treschel's potential testimony that OSBI Agent Dean pressured her to admit to being molested by Petitioner would have been designed to raise some doubt into the OSBI's investigation of Petitioner. But Agent Dean did not testify in the matter, and the State did not rely on the investigation in presenting its case.Thus, there is not a reasonable probability that the outcome would have changed had trial counsel elicited this testimony in Petitioner's case-in-chief.
Additionally, the undersigned notes that Petitioner's trial counsel had a strategic reason not to call Ms. Treschel, as the OSBI report of her interview with Agent Dean indicates she was physically assaulted by Petitioner as a teenager. (Doc. 15, at Ex. 3).
The failure to present Ms. Treschl's potential testimony regarding Petitioner's work schedule was not prejudicial. Even if Ms. Treschl had personal knowledge of Petitioner's work schedule, this evidence would not be inconsistent with A.M.C. and A. N.C. 's testimony of being abused at inconsistent intervals throughout their childhood. (Id. at 264, 467-68).
Petitioner contends Ms. Treschl could have “provided examples of behavior by [A.M.C.] inconsistent with being a sexual assault victim.” (Doc. 10, at 26). But the only example offered by Petitioner was that she “always want[ed] to see her father.” (Id.) Without more detail, this potential testimony would not have added much to Petitioner's defense. Further, this is consistent with and cumulative of A.M.C.'s testimony that after she told Chief Barnett that Petitioner had sexually assaulted her in 2010, she ran up to Petitioner, gave him a hug, and told him that she was sorry. (Tr., at 275).
Ms. Treschl may have also testified that Petitioner took A.M.C. to the doctor because he found out she was dating a much older man and he wanted to determine if she was sexually active. (Id. at 26-27). The undersigned does not find there is a reasonable probability the outcome of the case would have changed had this testimony been presented. Whatever the reason Petitioner took A.M.C. to the doctor, it does little to mitigate A.M.C.'s testimony that her father raped her. (Tr., at 283).
d. Lovona Blevins
Ms. Blevins's opinions that Petitioner's behavior was inconsistent with that of a perpetrator of sexual assault and that A. N.C. 's behavior was inconsistent with that of victim of sexual assault were inadmissible. Oklahoma law prohibits opinion by lay witnesses based on scientific, technical, or other specialized knowledge. Okla. Stat. tit. 12, § 2701. For a witness to provide an opinion based on scientific, technical, or other specialized knowledge, he or she must be “qualified as an expert by knowledge, skill, experience, training[,] or education” and: (1) the testimony must be “based upon sufficient facts or data;” (2) the testimony must be “the product of reliable principles and methods;” and (3) the witness must “appl[y] the principles and methods reliably to the facts of the case.” Id. § 2702. A “proffered lay opinion that [an individual] did not behave like a rape victim obviously does not meet these criteria for admissibility,” despite Ms. Blevins's “unfortunate past experience as a victim of sexual assault.” Barber v. Miller, 2011 WL 7117258, at *11 (W.D. Okla. Dec. 14, 2011), adopted, 2012 WL 279478 (W.D. Okla. Jan. 31, 2012). The same analysis applies to Ms. Blevins's opinion that Petitioner did not exhibit behavior consistent with a perpetrator of sexual abuse. Thus, this evidence would have been inadmissible as a lay opinion, and trial counsel's failure to present such testimony is not prejudicial. See Goode, 922 F.3d at 1157 (“It is not deficient performance for counsel to fail to put on inadmissible or unavailable evidence.”).
For the same reason, the failure to present the “other witnesses” who “could have provided support for the defense theory of the case that the allegations were implausible, that the behavior of the girls was inconsistent with being abused by their father to the extent alleged, and that daily interaction with the family yielded no reason to believe that such abuse had occurred” (Doc. 10, at 29) was not prejudicial.
Ms. Blevins also may have testified that A. N.C. asked her to use her cell phone during the time charges were pending and that she heard A. N.C. tell Petitioner she loved and missed him and she wanted to move back in and live with him, and that A. N.C. wanted to see Petitioner. (Doc. 10, at 27). There is not a reasonable probability that this testimony would have changed the outcome of the trial. A. N.C. testified that Petitioner sexually abused her. Further Ms. Rosales-Lambert testified that it is common for a child to continue to have feelings of love for a parent who sexually abused them, and Ms. Crick testified that A. N.C. was “pretty attached” to Petitioner growing up. (Tr., at 383, 566).
Finally, as addressed earlier, Ms. Blevins's potential testimony regarding the layout of the Crick family homes is cumulative to testimony at trial, and thus Petitioner was not prejudiced for his counsel's failure to have Ms. Blevins testify about it. See Humphreys, 261 F.3d at 1021.
e. Patrick Nitzel
Mr. Nitzel purportedly would have testified that Petitioner worked nights mostly and “the number of sexual assaults alleged over the years would have had to have occurred at a time when [Petitioner] was at work.” (Doc. 10, at 28). But, as noted above, this evidence is not inconsistent with A.M.C. and A. N.C. 's testimony of being abused at inconsistent intervals throughout their childhood. It is not reasonable to find that this testimony would have changed the outcome of the trial.
f. Robert Dodson
There is not a reasonable probability that Mr. Dodson's testimony that Petitioner was a “good guy” would have changed the outcome of the trial, in light of the testimony of A.M.C, A. N.C., and S.V. that Petitioner sexually abused them. Additionally, it would likely ring hollow to the jury in light of testimony that Petitioner was also physically abusive and often drunk. (Tr., at 259, 291, 349-50, 473-74).
D. Counsel's Failure to Object to Testimony on the Basis of Vouching Does Not Amount to Ineffective Assistance.
Petitioner contends his trial counsel should have objected to a portion of Rozetta Pugh's testimony because it constituted impermissible vouching. (Doc. 10, at 31-34). Ms. Pugh investigated cases related to children - including child sexual abuse cases - for the Oklahoma Department of Human Services and Child Protective Services. (Tr., at 433-35). In the summer of 2010, Ms. Pugh investigated the allegations made by A.M.C. against Petitioner. (Id. at 436-45). Ms. Pugh met with A.M.C. on June 24, 2010, observed A.M.C.'s forensic interview on June 28, 2010, and made a home visit with A.M.C. on June 30, 2010. (Id. at 437, 439, 441). A.M.C. had cut marks on her arms. (Id. at 437, 440).
Ms. Pugh testified that she had observed cut marks several times in adolescent and teenage girls who had been sexually abused. (Id. at 440).
After receiving a call from A.M.C.'s counselor indicating that A.M.C. wanted to speak with her, Ms. Pugh met with A.M.C. and her counselor on August 20, 2010. (Id. at 444). A.M.C. told her that she wanted to recant her allegations of sexual abuse against her father and that “she made it up” and “it didn't happen.” (Id. at 445). The portion of Ms. Pugh's testimony to which Petitioner contends his attorney should have objected relates to the conclusion of her investigation:
Q: So other than recommending counseling at that time, did you do anything else with regard to the investigation?
A: I recommend services recommended. When you close out an investigation at Child Protective Services, your options at that time were either services not needed or services recommended or court action. I could not recommend Court action since A.M.C. recanted, but I strongly felt like services needed to be in that home because of the cutting issue and because there were allegations of physical and sexual abuse. Even though the victim had recanted, I wasn't convinced that that was the truth, so I wanted services to be in that home.(Id. at 445) (emphasis added).
Petitioner contends Ms. Pugh's statement that she was not convinced that A.M.C.'s recantation was the truth “crossed the legal line” and amounted to vouching. (Doc. 10, at 32). He argues that “as understood by the OCCA, ‘vouching' occurs when an attorney or witness indicates a personal belief in the credibility of a witness, either through explicit assurances of the veracity of the witness or by implicitly indicating that information not presented to the jury supports the testimony of the witness.” (Doc. 10, at 31) (citing Bench v. State, 2018 OK CR 31, ¶ 90, 431 P.3d 929; Nickell v. State, 1994 OK CR 73, ¶ 7, 885 P.2d 670, 673). He contends “[t]his means that a witness, even an expert witness, is not permitted to testify as to whether a witness was either lying or telling the truth.” (Id.) (citing Lawrence v. State, 1990 OK CR 56, 796 P.2d 1176, 1177). Thus, he contends Ms. Pugh's testimony was “especially egregious[] and would be reversible error if preserved properly for appeal by a defense objection[] because [Ms.] Pugh not only told the jury that she did not believe [A.M.C.] when she recanted the allegations against [Petitioner]” but also “clear[ly] impli[ed] . . . that she believed [A.M.C.] and disbelieved [Petitioner].” (Id. at 33). Petitioner argues that Ms. Pugh's testimony “should have been met with an objection by defense counsel” and if “defense counsel had done so, the trial court could have admonished the jury or taken some other sort of corrective action.” (Id.)
Petitioner argues the OCCA's reasoning for finding no error on this claim - that Ms. Pugh's statement explained why she was skeptical of the recantation and recommended continued services at the home - was “obviously circular [and] nonsensical reasoning.” (Id. at 34). He contends “whether continued services were necessary is not relevant to any issue at trial,” the OCCA did not provide a reason Ms. Pugh “vouched for the complaining witness and essentially called [Petitioner] a liar,” and the OCCA did not address that the testimony was referenced in the closing argument. (Id.)
On direct appeal, the OCCA found that Ms. Pugh's testimony was distinguishable from its prior decision in Lawrence v. State, and determined that any objection to the testimony would have been meritless. (Doc. 15, at Ex. 1, at 4). The court reiterated the finding in its denial of Petitioner's petition for rehearing, stating that it “rejected [Petitioner's] premise that the challenged statements were improper vouching under Lawrence.” (Id. at Ex. 6, at 4).
Because the OCCA found that Ms. Pugh's testimony did not amount to vouching under Oklahoma law, the Court is bound by the OCCA's finding. See Williams v. Trammell, 782 F.3d 1184, 1195 (10th Cir. 2015) (“‘[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.'”) (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)). Because the underlying claim of vouching is meritless under Oklahoma law, the OCCA's finding that Petitioner's counsel was not deficient for failing to make a meritless objection is reasonable. See Lafler v. Cooper, 566 U.S. 156, 167 (2012) (“Because the objection upon which his ineffective-assistance-of-counsel claim was premised was meritless, Fretwell could not demonstrate an error entitling him to relief.”); Coones v. Shelton, 692 Fed.Appx. 498, 500 (10th Cir. 2017) (holding, where the Kansas Supreme Court rejected underlying claim of error on state law grounds, that the conclusion “that trial counsel was not ineffective for failing to raise a meritless objection . . . was reasonable”).
Petitioner also cited United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000) - both on direct appeal and in his brief in this action - for the proposition that reversal is required because Ms. Pugh's testimony amounted to improper vouching. (Doc. 10, at 33; Doc. 15, at Ex. 2, at 33). But in Velarde, the Tenth Circuit reversed a criminal conviction because the trial court failed to make a reliability determination as required by the Supreme Court's interpretation of Federal Rule of Evidence 702 in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Velarde, 214 F.3d. at 1208-11. In dicta, Velarde cited United States v. Charley, 189 F.3d 1251, 1267 (10th Cir. 1999), for the proposition that “testimony which essentially vouches for the truthfulness of another witness is impermissible. Id. at 1211. Charley, however, also addressed vouching in the context of the Federal Rules of Evidence. 189 F.3d at 1267 (“In general, expert testimony which does nothing but vouch for the credibility of another witness encroaches upon the jury's vital and exclusive function to make credibility determinations, and therefore does not ‘assist the trier of fact' as required by Rule 702.”). However, “the Federal Rules of Evidence do not apply to the trial in state court.” Perez v. Archuleta, 737 Fed.Appx. 419, 425 (10th Cir. 2018). Thus, Velarde is not persuasive.
V. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Petition for habeas relief (Doc. 1) be DENIED on all grounds.
The court advises the parties of their right to object to this Report and Recommendation by August 8, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court 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 and terminates the referral to the undersigned Magistrate Judge in the captioned matter.