Opinion
CIV-22-622-D
02-01-2023
JAZMINE SHAWN'TE HOWARD, Petitioner, v. WARDEN ABOUTANAA EL HABTI, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Petitioner Jazmine Shawn'te Howard, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). Chief United States District Judge Timothy D. DeGiusti has referred this matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a Response in Opposition to Petition for Writ of Habeas Corpus (ECF No. 13), and Petitioner has replied (ECF No. 15). For the following reasons, it is recommended that the Petition be DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the death of Jose Miguel Lopez who was shot at least two times before his body was dumped off a bridge on the outskirts of town. Ms. Howard ultimately turned herself in to authorities. At trial, Ms. Howard testified in her own defense, admitting that she had shot and killed Mr. Lopez, but attempting to prove she had shot him in self-defense. 1
Ms. Howard testified that she met Mr. Lopez on the evening of June 9, 2017, outside an Oklahoma City bar where she had admittedly gone with the intent of procuring money for sexual services. She testified that when she met Mr. Lopez, she agreed to provide sexual services to him for a fee and accompanied him in his truck to a secluded area where he parked. While Ms. Howard was performing oral sex, Mr. Lopez abruptly got out of the truck, walked around to the passenger side, opened the door, and pulled Ms. Howard's head towards his crotch. She testified that Mr. Lopez also pulled on her arms. Although Ms. Howard testified that she was not sure what his intentions were, she became fearful because they were in a dark, secluded area with no one else around. She did not, however, testify that Mr. Lopez actually threatened her in any way. Rather, she testified that she was confused because it seemed like Mr. Lopez was trying to force her to do something she was already willing to do. Ms. Howard pulled a gun out of her purse and shot Mr. Lopez in the chest. Later, Ms. Howard and her boyfriend returned to the scene, put Mr. Lopez's body in the back seat of his truck, drove to a bridge over the Canadian River, and dumped the body over the side of the bridge.
Ms. Howard was charged with First Degree Murder. At the close of the trial, Ms. Howard requested that the trial court instruct the jury on several alternative theories including self-defense, second-degree depraved-mind murder, first-degree heat-of-passion manslaughter, and first-degree manslaughter while resisting criminal attempt. The trial court instructed the jury on second degree depraved-mind murder but rejected the other requested instructions. 2
Ms. Howard was convicted of Murder in the Second Degree in the District Court of Oklahoma County, Case No. CF-2017-4447. She was sentenced, in accordance with the jury's recommendation, to thirty years' imprisonment and assessed a $10,000 fine. (ECF No. 13-1). On direct appeal to the Oklahoma Court of Criminal Appeals, Case No. F-2019-366, Ms. Howard raised six propositions of error:
1. that the trial court erred in failing to instruct the jury on the defense of self defense and the lesser included offenses of manslaughter in the first-degree heat of passion and manslaughter in the first-degree by resisting criminal attempt;
2. that the introduction of grotesque and disturbing photographs of the victim was unfairly prejudicial;
3. that “other crimes” evidence was improperly admitted and violated the provisions against evidentiary harpoons;
4. that prosecutorial error led to a fundamentally unfair trial;
5. that that Petitioner was deprived of effective assistance of counsel; and
6. that cumulative error deprived Petitioner of a fair trial.(ECF No. 13-1). The OCCA affirmed Petitioner's conviction and sentence. (ECF No. 13-1).
Ms. Howard filed an Application for Post-Conviction Relief (APCR) in the trial court raising the same propositions she had raised on direct appeal. (ECF No. 13-5). The trial court denied the APCR (ECF No. 13-7), and Ms. Howard appealed, raising the following propositions of error:
1. that the Petitioner was deprived of effective assistance of appellate counsel;
2. that the trial court erred in failing to give an instruction on self-defense and the lesser included defenses of first-degree manslaughter heat of passion and first-degree manslaughter by resisting criminal attempt;3
3. that the trial court erred when it allowed the jury to perceive indirect evidence and conflicting evidence in the form of testimony given by an uncharged and unprosecuted accomplice and admitted gruesome photographs; and
4. that the trial court erred in allowing testimony and evidence in violation of the confrontation clause.(ECF No. 13-8). The OCCA affirmed the denial of Ms. Howard's APCR. (ECF No. 13-9).
In this habeas action, Ms. Howard presents the following grounds for relief:
1. the trial court's refusal to instruct the jury on the defense of self-defense and the lesser included defenses of first-degree manslaughter by heat of passion and first-degree manslaughter by resisting criminal attempt denied Ms. Howard her right to due process;
2. the trial court's allowing introduction of grotesque and disturbing photographs violated Ms. Howard's right to a fundamentally fair trial;
3. the trial court's admission of other crimes evidence and prohibition against evidentiary harpoons violated state law as well as the due process clauses of the state and federal constitutions;
4. prosecutorial misconduct deprived her of a fundamentally fair trial;
5. ineffective assistance of counsel deprived her of a fair trial; and
6. the cumulative trial errors warrant a new trial.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this Court's power to grant habeas corpus relief. Under 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). 4
“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 5 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). Thus, 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). 6
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 fair-minded 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 state-court 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). 7
III. GROUND ONE: JURY INSTRUCTIONS
In her first ground for relief, Ms. Howard contends the trial court erred in failing to instruct the jury on her claim of self-defense as well as on the lesser included offenses of manslaughter, resulting in violation of her due process right to a fundamentally fair trial. Petitioner is not entitled to habeas relief on her first ground for relief.
A. Instruction on Self-Defense
Ms. Howard contends she was denied her due process right to a fundamentally fair trial when the trial court refused to instruct the jury on self-defense. “‘As 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 to due process of law.'” Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999) (quoting Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997)). “Thus, the burden on a petitioner attacking a state court judgment based on a refusal to give a requested jury instruction is especially great because ‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.'” Id. (quoting Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995)).
Under Oklahoma law, “[s]elf-defense is an affirmative defense which admits the elements of a charge, but offers a legal justification for conduct which would otherwise be criminal.” McHam v. State, 126 P.3d 662, 667 (Okla. Crim. App. 2005). In this case, the OCCA determined that the trial court had not abused its discretion in failing to instruct the jury on self-defense: 8
Fear alone is not enough to justify one person to take the life of another. Under Oklahoma law, a person is justified in using deadly force if a reasonable person in the same circumstances, and with the defendant's viewpoint, would reasonably have believed that she was in imminent danger of death or great bodily injury. Whether Appellant's fear was objectively reasonable is a moot point, because she never even claimed to have had the degree of fear necessary to justify lethal force.(ECF No. 13-1:4) (internal quotations and citations omitted).
The OCCA's decision is not contrary, or an unreasonable application of federal law, nor is it an unreasonable application of the law to the facts in this case.
B. Instruction on Lesser Included Offenses
Ms. Howard contends she was denied her right to a fundamentally fair trial when the trial court refused to instruct the jury on the lesser include offenses of manslaughter in the first degree by heat of passion and manslaughter in the first degree by resisting criminal attempt.
As the Tenth Circuit has recognized, the Supreme Court “has never recognized a federal constitutional right to a lesser included offense instruction in non-capital cases[.]” Tiger v. Workman, 445 F.3d 1265, 1268 (10th Cir. 2006) (internal quotation marks and citations omitted). Because there is no Supreme Court ruling on this issue, the OCCA's rejection of this ground for relief is not reviewable in this habeas action.
IV. GROUND TWO: ADMISSION OF POST-MORTEM PHOTOGRAPHS
In her second ground for relief, Ms. Howard contends her due process right to a fundamentally fair trial was violated when the trial court unnecessarily allowed the introduction of “gruesome” post-mortem photographs into evidence. The photographs 9 depicted the victim's body which had been dumped off a bridge, was not found for several days, and was in a state of decomposition. According to Ms. Howard, the photos to which she objects were unnecessary and irrelevant because other, less gruesome photographs were introduced to demonstrate the fact of the victim's death and the nature of the bullet wounds.
Respondent contends this claim was not properly raised as a constitutional claim before the State courts and that, in any case, there is no clearly established federal law stating that the introduction of irrelevant, prejudicial photographs can result in a due process violation. But the OCCA framed this issue as one implicating Ms. Howard's right to a fair trial-the essence of due process. What is more, the Tenth Circuit Court of Appeals recently recognized that the Supreme Court has, indeed, considered the admission of irrelevant, prejudicial evidence in the context of a possible due process violation.
In Johnson v. Martin, 3 F.4th 1210, 1230 (10th Cir. 2021), cert. Denied, __ U.S. __, 142 S.Ct. 1189 (2022), the Tenth Circuit stated:
[T]he Supreme Court has expressly considered whether “the introduction of . . . evidence . . . violated the Due Process Clause of the Fourteenth Amendment” by using the “analytical framework” provided by the prosecutorial-misconduct inquiry in Donnelly (which Darden followed, 512 U.S. 1, 12 (1994). We have done the same, even after House's holding clarifying the role of clearly established10
federal law under AEDPA. Specifically, in Hooks v. Workman, we reached the merits of the petitioner's due-process claim alleging admission of prejudicial and irrelevant evidence without questioning the existence of clearly established federal law. 689 F.3d 1148, 1180 (10th Cir. 2012); see also id. (explaining that petitioner “is entitled to relief only if an alleged state-law error . . . ‘was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process'” (quoting Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002)). And we did so despite noting the absence of clearly established federal law supporting several of the petitioner's other claims. See id. at 1170 (finding no clearly established law requiring OCCA “to account for and apply” particular statistical theory to evidence of petitioner's IQ score), id. at 1175 (noting no clearly established federal law for claim arising from removal of juror for cause). Thus, we reject the State's argument that Johnson's claim fails for want of clearly established federal law.Johnson v. Martin, 3 F.4th 1210, 1230 (10th Cir. 2021), cert. denied, __ U.S. __, 142 S.Ct. 1350 (2022).
Donnelly v. DeChristoforo, 416 U.S. 637 (1974).
Darden v. Wainwright, 477 U.S. 168 (1986).
House v. Hatch, 527 F.3d 1919 (10th Cir. 2008).
The OCCA reached the merits of Ms. Howard's due process claim:
In Proposition II, Appellant claims the admission of unnecessarily gruesome photos of the victim denied her a fair trial. The State offered a number of photos of the victim's body, which had been dumped under a bridge and was not discovered for several days. The trial court excluded some photos, but rejected Appellant's concerns about others. The court's ruling is reviewed for an abuse of discretion. Bosse v. State, 207 OK CR 10 ⁋ 48, 400 P.3d 834, 853. We have recognized that gruesome photographs may distract the jury from the issues before them and instead provoke an emotional response. See, e.g., Sattayarak v. State, 1994 OK CR 10, ⁋ 8, 887 P.2d 1326, 1330. On the other hand, the State is not generally required to “sanitize” the evidence to suit the defendant's wishes. See Harris v. State, 2004 OK CR 1, ⁋ 40, 84 P.3d731, 748. The record here shows the court thoughtfully considered the probative value and unfairly prejudicial effect of the photos at issue. While some may have been startling, we cannot say the trial abused its discretion in which ones it admitted. We also note that the jury found Appellant guilty of the lesser form of homicide, and that it recommended a11
sentence considerably below the maximum available. Accordingly, we find no unfair prejudice in the admission of these photos, and thus no grounds for relief.(ECF No. 13-1:6-7).
The reasoning of the OCCA regarding this issue is sound. The OCCA's decision is neither contrary to nor an unreasonable application Supreme Court law. Further, the OCCA did not unreasonably determine the facts in light of the evidence presented in the State court proceeding. Habeas relief is not warranted on this ground.
V. GROUND THREE: OTHER CRIMES EVIDENCE
Ms. Howard contends she was denied a fair trial when the prosecutor questioned her about charges brought against her for having violated a restraining order. The line of questioning was used to impeach Ms. Howard's testimony that she had “never been in trouble before.” The OCCA determined the evidence was properly introduced:
In Proposition III, Appellant claims the prosecutor improperly questioned her about a prior act of misconduct. We disagree. In her direct examination, Appellant said she had never been in trouble before. This broad declaration of good character opened the door to specific instances of conduct which undermined that assessment. . . . Appellant points out that while she had pled guilty to Violating a Victim's Protective Order, she had not been formally sentenced for that offense at the time of this trial. But given the route used for impeachment here, it was the conduct-not the conviction-which was relevant.... The prosecutor's reference to Appellant's prior misconduct in cross-examination was proper.(ECF No. 13-1 at 7.)
As Respondent notes, Ms. Howard's argument primarily focuses on the trial court's admission of evidence in violation of Oklahoma law. But in a habeas action, a federal 12 court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state court's interpretation of its own law “‘binds a federal court sitting in habeas corpus.'” Williams v. Trammell, 782 F.3d 1184, 1195 (10th Cir. 2015) (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)). “Nevertheless, when a state court admits evidence that is ‘so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.'” Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)); see also Williamson v. Parker, 705 Fed.Appx. 677, 681 (10th Cir. 2017) (“Although federal habeas relief does not extend to the remedying of state law evidentiary errors, an exception applies when a state court admits evidence that is so unduly prejudicial that it renders the trial fundamentally unfair.” (citation and internal quotation marks omitted)). This Court's concern, therefore, is not whether the trial court admitted the evidence in violation of Oklahoma law but whether the OCCA reasonably determined the evidence did not render Petitioner's trial fundamentally unfair. See, e.g., Ochoa, 669 F.3d at 1144 (holding the question of whether evidence renders a trial fundamentally unfair is made “without regard to whether the evidence was properly admitted pursuant to state law” (citing Estelle, 502 U.S. at 67-68)); see also Wilson v. Schnurr, 820 Fed.Appx. 796, 804 (10th Cir. 2020) (noting that “federal habeas review is not available to correct state law evidentiary errors” and, after construing the petitioner's evidentiary claim as one “alleging a violation of his constitutional due-process rights,” explaining that “the essence of the 13 [court's] inquiry” was “whether the admission of the [evidence] rendered the proceedings fundamentally unfair” (internal quotation marks and alterations omitted)).
Based on the OCCA's rejection of Ms. Howard's proposition of error, this Court may presume the OCCA did not find the impeachment evidence rendered her trial fundamentally unfair. The OCCA's decision was reasonable, and habeas relief is not warranted on this ground.
VI. GROUND FOUR: PROSECUTORIAL MISCONDUCT
Ms. Howard contends the prosecutor improperly questioned her about prior inconsistent statements she had made during plea negotiations even though introduction of such statements is limited under Oklahoma law. Ms. Howard further contends that the prosecutor improperly argued that she had previously lied and that the jury should not believe Ms. Howard's testimony because of her inconsistent statements. Additionally, Ms. Howard frames the prosecutor's questioning her about prior criminal misconduct as prosecutorial misconduct. As discussed above, this claim of prosecutorial misconduct is without merit.
Generally, “[t]o obtain habeas relief on a prosecutorial misconduct claim, a petitioner must show that the prosecutor's alleged misconduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Haakv. Whitten, 799 Fed.Appx. 621, 625 (10th Cir. 2020) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 64 (1974)). But if prosecutorial misconduct prejudices a specific right, “a habeas petitioner need not establish the entire trial was rendered unfair, but rather that the 14 constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right.” Torres v. Mullin, 317 F.3d 1145, 1158 (10th Cir. 2003).
In this case, the Court must review to determine whether Ms. Howard's trial was rendered fundamentally unfair by the alleged instances of prosecutorial misconduct. As the Tenth Circuit has recognized, there is no per se rule against referring to a defendant's testimony as a lie. United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir. 1999).
The OCCA rejected Ms. Howard's assertions of prosecutorial misconduct regarding prior inconsistent statements allegedly made during plea negotiations:
[Ms. Howard] complains that the prosecutor inquired about statements she made to a police detective which were inconsistent with her testimony. She claims these statements were inadmissible because they were made during plea negotiations. See O.S. 2011 § 2410. While the record is not clear whether the statements meet Section 2410(A), the record is clear that it was defense counsel who first inquired about them in his direct examination of Appellant. This opened the door to cross-examination from the prosecutor about the same material 12 O.S. 2011 § 2410(B). ...
Appellant also complains that in closing argument the prosecutor told the jury that it shouldn't believe anything [Ms. Howard] says.” That assessment was based on the many inconsistent statements Appellant had given about what happened on the night of Lopez' death. In fact, it was Appellant's strategy to openly admit the falsity of these prior versions when she took the witness stand. The prosecutor's closing comments were based on the evidence and were proper.... In summary, we find nothing improper in the prosecutor's questions or closing arguments.(ECF No. 13-1:7-8). 15
Fair-minded jurists could agree that Ms. Howard received a fair trial. The OCCA's decision was neither contrary to, or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the state court record. Thus, habeas relief is not warranted on this ground.
VII. GROUND FIVE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Ms. Howard contends her trial counsel was ineffective in failing to object to the prosecutor's questions about her prior misconduct. See Ground Three. She further contends trial counsel was ineffective in failing to object to the prosecutor's questions about her prior inconsistent statements given to a police detective. See Ground Four.
To establish ineffective assistance of counsel, a petitioner must demonstrate her attorney's performance was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 690-91 (1984). A court will only consider an attorney's 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 proceeding would have been different.” Id. at 694.
“Surmounting Strickland's high bar is never an easy task.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks omitted). This Court defers to the OCCA's merits determination of Petitioner's Strickland claim, and this “review is doubly deferential . . . because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment....” Woods v. Etherton, 578 U.S. 113, 136 (2016) (internal quotation marks 16 and citations omitted). On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101. “This is different from asking whether defense counsel's performance fell below Strickland's standard.” Id. This Court “must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Id. at 105. “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. This Court must “afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods, 136 S.Ct. at 1151 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).
Having previously found that Ms Howard was not prejudiced by the underlying grounds for relief, see supra at 12-15, the OCCA denied Ms. Howard's request for an evidentiary hearing and determined she had not been prejudiced by counsel's strategic decisions. See (ECF No. 13-1: 9-11). This Court has previously found the underlying arguments supporting Ms. Howard's ineffective assistance of counsel claims to be without merit. Thus, Ms. Howard has not demonstrated her counsel's representation prejudiced her. Habeas relief is not warranted on this ground.
VIII. GROUND SIX: CUMULATIVE ERROR
In her final ground for relief, Ms. Howard asserts that the cumulative effect of alleged errors denied her due process right to a fundamentally fair trial. 17
Cumulative error is present when the “cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002) (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc)). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of trial is such that collectively they can no longer be determined to be harmless.” Id. (quoting Rivera, 900 F.2d at 1470). Because this Court has found no instances of harmless error, the cumulative effect analysis in not applicable to this case.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be DENIED. Petitioner is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court by January 17, 2023 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is 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). 18
This Report and Recommendation terminates the referral by the District Judge in this matter. 19