Opinion
CIV-21-1139-F
05-27-2022
ARON DEVON HELM, Petitioner, v. CHAD DENNIS, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). Mr. Dennis has filed his Response to Petition for Writ of Habeas Corpus and Petitioner has filed a Reply (ECF Nos. 12 & 18). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
At five years old, L.W. moved in with her biological grandmother and Petitioner (no biological relation to L.W.). According to L.W., Mr. Helm began inappropriately touching her when she moved into the home, and the behavior continued for approximately six years. L.W. stated that Mr. Helm touched her private parts and made her watch “disgusting movies” with him. L.W. told her mother about the incidents and DHS was contacted. Following an investigation, Petitioner was arrested, charged and on September 10, 2018, a jury convicted Mr. Helm in Cleveland County District Court Case No. CF-2016-1093 of: (1) three counts of lewd or indecent acts to a child under age 16 and (2) one count of lewd or indecent proposals to a child under age 16. (ECF No. 1:1 & 12-3:1). The trial court sentenced Petitioner to three life sentences and 25 years incarceration, respectively.
On February 27, 2020, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Helm's conviction. (ECF No. 12-3). On February 25, 2021, Petitioner filed an Application for Post-Conviction Relief in the Cleveland County District Court. (ECF No. 12-4). On June 22, 2021, the district court denied the application and on November 17, 2021, the OCCA affirmed the denial. (ECF Nos. 12-6 & 12-8). On December 6, 2021, Mr. Helm filed a habeas Petition in this case, alleging:
• Prosecutorial misconduct;
• Failure to properly instruct the jury;
• Ineffective assistance of appellate counsel;
• Improper admission of allegedly prejudicial testimony; and
• Denial of the opportunity to prepare a proper defense.(ECF Nos. 1:7, 8, 10, 15, 21, 25; 18:8-17).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) governs this Court's power to grant habeas corpus relief. Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Coddington v. Sharp, 959 F.3d 947, 952 (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 state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
For claims adjudicated on the merits, “this [C]ourt may grant . . . habeas [relief] only if the [OCCA's] decision ‘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.'” Hanson v. Sherrod, 797 F.3d 810, 814 (10th Cir. 2015) (citation omitted). “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) (citation omitted). The deference embodied in § 2254(d) “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 102-103 (citation omitted).
This Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson, 797 F.3d at 824. “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]” Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of clearly established federal law. See Owens, 792 F.3d at 1242.
“A state court's decision is ‘contrary to' clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.'” Id. (citations 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.” Id. (citation omitted).
The “unreasonable application” prong requires the petitioner to prove that the state court “identifie[d] the correct governing legal principle from [Supreme Court] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Id. (citation omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.'” Id. (citations omitted, emphasis in original). So, to qualify for habeas relief on this prong, a petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1242-43 (citation omitted). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In sum, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 101-02. Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Id. at 102.
Finally, a federal habeas 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, 135 S.Ct. 2187, 2199 (2015). In other words, when the state appellate court makes a factual finding, the Court presumes the determination to be correct; a petition can only rebut this presumption with clear and convincing evidence. See id. at 2199-22; see also 28 U.S.C. § 2254(e)(1).
If the state appellate court has not addressed the merits of a claim, the Court exercises its independent judgment. See Littlejohn v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013) (“For federal habeas claims not adjudicated on the merits in statecourt proceedings, we exercise our 'independent judgment[.]'”) (citation omitted). “And, even in the setting where we lack a state court merits determination, '[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.'” Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (internal citation omitted).
III. GROUND ONE
In Ground One, Petitioner alleges prosecutorial misconduct deprived him of a fair trial. (ECF Nos. 1:7, 22; 18:9). Specifically, Mr. Helm alleges that during closing argument, the prosecutor told the jury that Mr. Helm had screamed at the victim across the court room “this is your fault,” which left the victim thinking it was her fault. (ECF No. 1:22). According to Petitioner, the prosecutor's statement: (1) was false and (2) “was plan[n]ed in a way to have an emotional effect on the jury. It was never part of the evidence and there by caused the jury to be prejudice and caused plane [sic] error.” (ECF No. 1:22); see ECF No. 18:9. Petitioner raised the second part of Ground One in his direct appeal, but nowhere in state court did Mr. Helm argue the existence of prosecutorial misconduct based on the fact that the statement was false. See ECF No. 12-1:14-17.
A. Petitioner's Claim that the Prosecutor's Statement was False
The Court should conclude that the first part of Ground One-that the prosecutor's statement was false-is procedurally barred.
1. Exhaustion as a Preliminary Consideration
The exhaustion doctrine, a matter of comity which has long been a part of habeas corpus jurisprudence, requires the court to consider in the first instance whether petitioner has presented his grounds for relief to the OCCA. "[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); see Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) ("A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
“Exhaustion requires that the claim be 'fairly presented' to the state court, which means that the petitioner has raised the 'substance' of the federal claim in state court.” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (citation omitted). This means “a federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
2. Procedural Bar/Anticipatory Procedural Bar
Beyond the issue of exhaustion, the Court must also examine how the OCCA adjudicated each of a petitioner's grounds for relief, i.e., whether the OCCA addressed the merits of a petitioner's grounds or declined to consider them based on a state procedural rule. “It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.' ” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. at 729). "The doctrine applies to bar federal habeas [relief] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. at 729-30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) ("When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them.”). “Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted).
3. Part of Ground One has not Been Exhausted and is Subject to an Anticipatory Procedural Bar
The Court should conclude that the first part of Ground One is procedurally barred. As stated, in Ground One, Petitioner alleges that the prosecutor committed misconduct by falsely telling the jury that Mr. Helm had screamed at L.W. across the courtroom that “this” was her fault. (ECF Nos. 1:22; 18:9). On direct appeal, Mr. Helm had argued that the prosecutor's words were improper attempts to elicit sympathy from the jury, but nowhere, either on direct appeal or in his Application for Post-Conviction Relief, did Petitioner argue that the statement was false. See ECF Nos. 12-1, 12-4, 12-7.
Because this part of Ground One has not been presented to the OCCA for adjudication, the Court should conclude that it is unexhausted. To exhaust this part of Ground One, Petitioner would have to return to state court and file an additional post-conviction application. See 22 O.S. § 1086. However, if Petitioner did so, the OCCA would likely find that the claim was procedurally barred under a theory of waiver. See 22 O.S. § 1086 ("Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application[.]”).
The Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground” barring habeas review. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (finding Oklahoma's doctrine of waiver to be independent and adequate). Under similar circumstances, the Tenth Circuit Court of Appeals has applied an anticipatory procedural bar to prevent habeas review. See Grant v. Royal, 886 F.3d 874, 893 (10th Cir. 2018) ("if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal.”).
As a result, Mr. Helm can only overcome the anticipatory procedural bar if he is able to demonstrate: (1) “cause and prejudice” for the default, or (2) that a fundamental miscarriage of justice has occurred. See Coleman v. Thompson, 501 U.S. at 750. "Cause” under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him, with the result being prejudice to the petitioner. Coleman v. Thompson, 501 U.S. at 753. To demonstrate a fundamental miscarriage of justice, a petitioner must make a "‘credible' showing of actual innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). That is, he must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 1232 (citation omitted). “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (citation omitted). Here, Mr. Helm states that he raised the issue “at both Post conviction and O.C.C.A.” (ECF No. 18:9). But the record belies Petitioner's claims and he offers no “cause and prejudice” to excuse the default, nor does he make any argument that a fundamental miscarriage of justice had occurred. See supra; see ECF Nos. 1 & 18. As a result, the Court should find that the part of Ground One based on an alleged false statement from the prosecutor during closing argument is procedurally barred from consideration on habeas review. See Grant v. Royal, 886 F.3d at 902 ('“Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim.”).
B. Petitioner's Claim that the Prosecutor's Statement was an Improper Attempt to Elicit Sympathy
The Court should conclude that the second part of Ground One-that the prosecutor's statement was an improper attempt to elicit sympathy from the jury- does not warrant habeas relief.
As stated, Petitioner raised this issue on direct appeal. See supra. After reviewing for plain error, the OCCA concluded that the alleged misconduct did not warrant such relief. (ECF No. 12-3:5-6). In doing so, the OCCA stated:
Review of the challenged remarks does not reveal prosecutorial misconduct at all, let alone error-plain or otherwise. The prosecutor's challenged comments were reasonable inferences based on the evidence as opposed to improper attempts to elicit sympathy for the victim. Helm was not deprived of a fundamentally unfair trial from the challenged comments.(ECF No. 12-3:5-6) (internal citations omitted). The OCCA's decision was reasonable and consistent with Supreme Court precedent.
To demonstrate that the prosecutor's comments constituted misconduct in violation of the Constitution, Mr. Helm would have to show that the prosecutor's remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974). The OCCA applied this standard and concluded that Mr. Helm was not prejudiced by the challenged remarks. (ECF No. 12-3:5-6). The undersigned agrees. To determine whether a trial is rendered fundamentally unfair, the court examines the entire proceeding, “including the strength of the evidence against the petitioner . . . as well as [a]ny cautionary steps-such as instructions to the jury-offered by the court to counteract improper remarks.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006) (alteration in original) (internal quotation marks omitted). “‘[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Id.(alteration in original) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). “The ultimate question is whether the jury was able to fairly judge the evidence in light of the prosecutors; conduct.” Id.
Here, the OCCA reasonably concluded that no plain error existed with the challenged comments. “The prosecutor is allowed a reasonable amount of latitude in drawing inferences from the evidence ....” Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir. 1998) (citation omitted). Here, on cross-examination of L.W., defense counsel asked her: “So you know what it means to tell the truth and you know what it means - - you know that the testimony that you have could send Aron to prison, isn't that correct?” (Transcript of Jury Trial Proceedings had on the 12th day of June, 2018, Vol. II, at 255-256, State of Oklahoma v. Helm, Case No. CF-2016-1093 (Cleveland Co. Dist. Ct. June 12, 2018) (Trial Tr. Vol. II). In answer to this question, L.W. stated “Yes, sir.” (Trial TR. Vol. II at 256). Later, during the prosecutor's redirect examination of L.W., the prosecutor asked her “When everybody was taken from the home, how did you feel about that?” (Trial TR. Vol. II 275). L.W. answered: “Like it was my fault and if I would have kept my mouth shut maybe we could all still be together.” (Trial TR. Vol. II 275).
Based on the forgoing testimony, the OCCA reasonably concluded that the prosecutor's comments during closing argument constituted a reasonable inference based on the evidence. Furthermore, in light of the fact that the jury was instructed to “not let sympathy, sentiment or prejudice enter into [their] deliberations,” the undersigned agrees with the OCCA's conclusion that the challenged statements did not result in a fundamentally unfair trial. See Bland v. Sirmons, 459 F.3d 999, 10241026 (10th Cir. 2006). Accordingly, Petitioner is not entitled to habeas relief based on the alleged instance of prosecutorial misconduct.
O.R. 182.
IV. GROUND TWO
As stated, Mr. Helm was convicted of three counts of lewd or indecent acts with a child under 16, in violation of 21 O.S. § 1123(A)(2) and sentenced to life imprisonment on all three counts. See supra. As punishment for violating § 1123(A)(2), the statute provides:
Any person convicted of any violation of this subsection shall be punished by imprisonment in the custody of the Department of Corrections for not less than three (3) years nor more than twenty (20) years, except when the child is under twelve (12) years of age at the time the offense is committed, and in such case the person shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections for not less than twenty-five (25) years.21 O.S. § 1123(A)(2) (2017).
In Ground Two, Mr. Helm alleges that the three life sentences were “improper and excessive” because “[a]ll the paper work [for an enhanced sentence pursuant to a violation of 21 O.S. § 1123(A)(2)] was not completed and filed.” (ECF No. 1:22). Petitioner raised this issue on direct appeal, arguing that although the enhanced sentencing portion of Section 1123(A) was imposed, the jury was never instructed on finding that the victim was under twelve years old at the time of the offense, rendering the sentence improper. (ECF No. 12-1:7-13). Citing Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013), the OCCA found error in failing to instruct the jury on the age element, but ultimately deemed the error harmless. In doing so, the Court stated:
In his first proposition of error, Helm complains error occurred when the trial court instructed the jury on the range of punishment for lewd acts with a child under 12. He specifically argues this was error because he was not charged with or convicted of the crime of lewd acts
with a child under 12 and because the jury was not instructed on the age element. Helm thus asserts his sentence exceeds the appropriate range. As the jury instruction drew no objection at trial, our review is limited to plain error. Chadwell v. State, 2019 OK CR 14, ¶ 4, 446 P.3d 1244, 1246. ...
This Court recently addressed this same issue in Chadwell, 2019 OK CR 14, ¶¶ 3-8, 446 P.3d at 1246-1247. Therein we found "[l]ewd acts with a child under 12 is not a different or separate crime from lewd acts with a child under 16.” Id., 2019 OK CR 14, ¶ 5, 446 P.3d at 1246. Section 1123(A) simply provides different sentencing ranges depending on the age of the victim. We thus found the victim's age is an element for purposes of sentencing and failure to submit this element to the jury is error. Id., 2019 OK CR 14, ¶¶ 6-7, 446 P.3d at 1246-47 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (any fact increasing the maximum penalty beyond the prescribed statutory maximum must be submitted to the jury and found beyond a reasonable doubt); Alleyne v. United States, 570 U.S. 99, 103 (2013) (any fact increasing the mandatory minimum penalty is an element and must be submitted to the jury)). Such error, however, is subject to harmless error analysis. Chadwell, 2019 OK CR 14, ¶ 7, 446 P.3d at 1247 (citing Neder v. United States, 527 U.S. 1, 4 (1999)). An error is harmless if "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (internal quotation marks omitted). The evidence presented at trial overwhelmingly showed the victim was under the age of 12 at the time Helm committed each of the charged offenses. Given this uncontroverted evidence, we find that the instructional error was harmless beyond a reasonable doubt. Thus, finding no plain error occurred, Proposition I is denied. (Exhibit 3 at 24).(ECF No. 12-3:2-4).
Normally, issues concerning jury instructions are issues of state law not cognizable in a federal habeas proceeding. See Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005) (noting that "[a]s a general rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas corpus proceedings, unless they are so fundamentally unfair as to deprive petitioner of a fair trial and . . . due process of law”). However, when an element is omitted from a jury instruction, the error is subject to harmless error review. See Neder v. United States, 527 U.S. 1, 4 (1999) (holding that the harmless error rule of Chapman v. California, 386 U.S. 18 (1967) applies to errors in the omission of an element in a jury instruction); Coddington v. Sharp, 959 F.3d 947, 953-54 (10th Cir. 2020).
On direct appeal, the state appellate court reviews for harmlessness under Neder/Chapman. Under Neder/Chapman, an error is harmless if "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder, 527 U.S. at 4, citing Chapman, 386 U.S. at 24. "When a state court's Chapman decision is reviewed by a federal court under AEDPA, 'a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.'" Davis v. Ayala, 576 U.S. 257, 269 (2015) (emphasis in original). This AEDPA limitation to Chapman is subsumed by the Brecht test for harmlessness, which is used by courts engaging in collateral review. Id. Under this test, a petitioner cannot gain relief for a trial court's error unless he can establish that the error "had [a] substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, (1993) (quotations omitted). In other words, the petitioner must establish actual prejudice. See id. As a result, to prevail on Ground Two in this Court, Mr. Helm must "show that he was actually prejudiced by” the trial court's failure to instruct the jury on the age element which was necessary to apply the enhanced sentence, "a standard that he necessarily cannot satisfy if a fairminded jurist could agree with the [OCCA's] decision that [the error] . . . met the Chapman standard of harmlessness.” Davis, 576 U.S. at 270.
Here, the OCCA adjudicated Petitioner's claim on the merits, finding that the error in failing to instruct the jury on the age element was harmless based on the evidence presented at trial which “overwhelmingly showed the victim was under the age of 12 at the time Helm committed each of the charged offenses.” (ECF No. 123:4). In light of the evidence at trial supporting the OCCA's conclusion, the Court should conclude that the OCCA's application of Neder/Chapman was reasonable.
For example, at trial, Misty Baldwin, forensic interviewer at the Mary Abbott Children's House, testified regarding her interview of L.W. According to Ms. Baldwin, Petitioner told L.W. that the inappropriate contact between them began when L.W. was six years old. (Transcript of Jury Trial Proceedings had on the 14th day of June, 2018, Vol. IV at 204, State of Oklahoma v. Helm, Case No. CF-2016-1093 (Cleveland Co. Dist. Ct. June 14, 2018) (Trial TR. Vol. IV). Ms. Baldwin also testified that L.W. had stated that the abuse continued until approximately one month before the interview, at which time she was almost eleven years old. (Trial TR. Vol. IV 174). In addition, the jury watched the videotaped interview of L.W. which corroborated Ms. Baldwin's testimony. See State's Exhibit 34, State of Oklahoma v. Helm, Case No. CF-2016-1093 (Cleveland Co. Dist. Ct.) at 23:19-23:40; 49:39-50:00.
At trial, L.W. testified the abuse began when she moved in with her grandmother and Petitioner and ended when L.W. moved in with her mother. (Trial TR. Vol. II 155, 209-210). Petitioner's wife testified that L.W. moved in when she was approximately five years old. (Transcript of Jury Trial Proceedings had on the 13th day of June, 2018, Vol. III at 131, State of Oklahoma v. Helm, Case No. CF-2016-1093 (Cleveland Co. Dist. Ct. June 14, 2018) (Trial TR. Vol. III). L.W.'s mother stated that L.W. moved in with her around March 2016. (Trial TR. Vol. III 146-147). Finally, the jury heard testimony that L.W. was born in 2005 and was thirteen years old at the time of trial in June 2018. (Trial TR. Vol. II 126, 140).
Based on the foregoing, the Court should conclude that the OCCA reasonably determined that based on the evidence presented at trial, any error in the jury instruction regarding the victim's age was harmless, thereby precluding habeas relief. V. GROUND THREE
In Ground Three, Petitioner argues that his appellate counsel was ineffective in numerous ways. (ECF Nos. 1:10, 21-25; 18:10). First, Mr. Helm alleges that on direct appeal, his appellate counsel failed to argue that his trial counsel had been ineffective for:
• failing to calling witnesses to rebut testimony following the denial of a motion in limine;
• failing to have another witness (S.T.) interviewed by the Mary Abbott House instead of privately by the District Attorney in her office;
• failing to insist that S.T. be removed from the courtroom when she admitted that her foster parents “told her what to say;”
• failing to object when the District Attorney gave S.T. “a statement in the form of a question” that would “cover” what S.T.'s foster parents had told her to say;
• failing to explain to the jury, during closing argument, why Petitioner had answered “I don't know” when he was asked why L.W. had made the allegations of sexual abuse against him; and
• failing to question S.T. regarding an inconsistent statement she had given about things she witnessed between L.W. and Petitioner.(ECF Nos. 1:21, 23, 24, 25; 18:10).
Mr. Helm also argues that appellate counsel was ineffective for:
• failing to discuss the case or the appellate brief with Petitioner before filing it in the OCCA and
• utilizing an undecided case which was pending in the OCCA in support of Petitioner's case.(ECF Nos. 1:21, 23, 25; 18:10).
A. Procedurally Defaulted Claims
In his Application for Post-Conviction Relief, Petitioner did not raise the claims alleging appellate counsel was ineffective for failing to assert trial counsel's ineffectiveness for:
• failing to insist that S.T. be removed from the courtroom when she admitted that her foster parents “told her what to say” and
• failing to object when the District Attorney gave S.T. “a statement in the form of a question” that would “cover” what S.T.'s foster parents had told her to say.See ECF No. 12-7. Because these claims have not been presented to the OCCA for adjudication, the Court should conclude that they are unexhausted. To exhaust these claims, Petitioner would have to return to state court and file an additional postconviction application. See 22 O.S. § 1086. However, if Mr. Helm did so, the OCCA would likely find that the claims were procedurally barred under a theory of waiver. See supra. As a result, the Court should apply anticipatory procedural bar to preclude habeas review. See supra. As discussed, Mr. Helm can overcome the anticipatory procedural bar if he is able to demonstrate: (1) “cause and prejudice” for the default, or (2) that a fundamental miscarriage of justice has occurred. See supra. But here, Mr. Helm offers no “cause and prejudice” to excuse the default, nor does he make any argument that a fundamental miscarriage of justice had occurred. See ECF Nos. 1 & 18. As a result, the Court should find that the ineffective assistance of appellate counsel claims that were not presented to the OCCA are procedurally barred from consideration on habeas review. See supra, Grant.
B. Remaining Claims
Mr. Helm presented the remaining claims of ineffective assistance of appellate counsel to the OCCA, who adjudicated the claims on the merits, stating:
Claims of ineffective assistance of appellate counsel may be raised for the first time on post-conviction, because it is usually a petitioner's first opportunity to allege and argue the issue. Logan [v. State], 2013 OK CR 2 at ¶ 5, 293 P.3d [969,] 973. In order to establish such a claim, Petitioner must show both (1) deficient performance, by demonstrating that his appellate counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for appellate counsel's unprofessional error, the result of his appeal would have been different. Logan, 2013 OK CR 2, ¶ 5, 293 P.3d at 973 (citing Strickland v. Washington, 466 U.S. at 668 (1984)). If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Strickland, 466 U.S. at 697. Petitioner doesn't establish why or how his direct appeal should have been different. He offers no facts or evidence which might establish how his jury erred in finding him guilty beyond a reasonable doubt. Petitioner has failed to establish that his appellate counsel was ineffective, and has failed to establish that the District Court erred or abused its discretion in denying his postconviction application.
Therefore, the order of the District Court of Cleveland County denying Petitioner's application for post-conviction relief in Case No. CF-2016-1093 should be, and is hereby, AFFIRMED.(ECF No. 12-8:2-4). The Court should defer to the OCCA's decision and conclude that it is neither contrary to, nor an unreasonable application of, Supreme Court precedent.
1. Clearly Established Law
To succeed on his claims, Petitioner must demonstrate that his counsel's performance was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 688, 690-91 (1984). A court will only consider a performance “deficient” if it falls “outside the wide range of professionally competent assistance.” Id. at 690. “[P]rejudice” involves “a reasonable probability that, but for counsel's unprofessional errors, the result of the [direct appeal] would have been different.” Id. at 694. Notably, a court reviews an ineffective assistance of counsel claim from the perspective of counsel at the time he or she rendered the legal services, not in hindsight. See id. at 680.
“Surmounting Strickland's high bar is never an easy task.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks and citation omitted). “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [as] [t]he standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so.” Id. (internal quotations marks and citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. "[I]n analyzing an appellate ineffectiveness claim based upon the failure to raise an issue on appeal, [a court] look[s] to the merits of the omitted issue[.]” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citations and internal quotation marks omitted). "[O]f course, if the issue is meritless, its omission will not constitute deficient performance.” Id. Absent a "reasonable probability” that the omitted claim would have resulted in relief, there is no ineffective assistance of appellate counsel. Neill v. Gibson, 278 F.3d 1044, 1057 & n.5 (2001).
2. Denial of Habeas Relief Based on the OCCA's Holding
"[T]his Court has repeatedly held that when 'the OCCA addresses an ineffective assistance of appellate counsel claim on the merits, and concludes, in essence, that it would not have reached a different outcome had the appellate counsel raised the omitted claims on direct appeal, the Court can already be assured that appellate counsel's conduct was not prejudicial under Strickland.' ” Christian v. Farris, No. CIV-13-1325-C, 2017 WL 1088371, at *10 (W.D. Okla. Jan. 13, 2017) (unpublished report and recommendation) (citation omitted), adopted, 2017 WL 1082473 (unpublished district court order), certificate of appealability denied, 701 Fed.Appx. 717 (10th Cir. 2017). Based on that theory alone, this Court has denied habeas relief on ineffective assistance of appellate counsel claims, see id., and the Tenth Circuit has concluded "that reasonable jurists wouldn't debate the ... assessment[.]” Christian, 701 Fed.Appx. at 721. So, on this basis, the Court may find that the OCCA's Strickland analysis was a reasonable application of federal law and deny habeas relief on the portion of Ground Three which Petitioner exhausted. See Dyer v. Farris, No. CIV-16-941-C, 2018 WL 5931129, at *5-6 (W.D. Okla. July 6, 2018), adopted, 2018 WL 5929637 (W.D. Okla. Nov. 13, 2018) (unpublished district court order); see also Pradia v. McCollum, No. CIV-13-385-D, 2016 WL 3512034, at *12 (W.D. Okla. May 10, 2016), adopted, 2016 WL 3512264 (W.D. Okla. June 22, 2016); Jackson v. Martin, No. CIV-12-702-W, 2013 WL 5656105, at *1, *4 (W.D. Okla. Oct. 15, 2013) (collecting cases where this Court has held that a petitioner cannot establish appellate counsel's ineffectiveness where the OCCA has announced already that “the outcome of the state appeal would not have changed had appellate counsel raised the relevant claim” (citation omitted)), certificate of appealability denied, 572 Fed.Appx. 597 (10th Cir. 2014).
Based on the forgoing, the Court should conclude that habeas relief is not warranted on Ground Three.
VI. REMAINING GROUNDS
On page 15 of the Petition, Mr. Helm has alleged: (1) improper admission of allegedly prejudicial testimony; and (2) the denial of the opportunity to prepare a proper defense. (ECF No. 1:15). But Petitioner did not raise these issues in this format in either his direct appeal or post-conviction proceedings, rendering the claims unexhausted. See ECF Nos. 12-1, 12-4, 12-7. To exhaust these claims, Mr. Helm would have to return to state court, but the OCCA would likely find the claims waived as they could have been previously raised. See supra. Under such circumstances, the Court should apply anticipatory procedural default to bar these claims from consideration. See supra.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
It is recommended that the Court DENY the habeas Petition.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by June 13, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.