Huff v. Crow

Full title: ANDREW WALLACE HUFF, Petitioner, v. SCOTT CROW, Respondent.

Court: United States District Court, Western District of Oklahoma

Date published: Jun 24, 2024

No. CIV-22-51-PRW (W.D. Okla. Jun. 24, 2024)

Opinion

CIV-22-51-PRW

06-24-2024

ANDREW WALLACE HUFF, Petitioner, v. SCOTT CROW, Respondent.

AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE

Petitioner Andrew Wallace Huff (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Respondent filed a response, (Doc. 19), along with portions of the record, including the preliminary hearing transcript (P.H. Tr.), pretrial hearings transcript (Hearing Tr.), jury-trial transcripts (Tr. Vols. I-III), exhibits (State's Ex.), and the state trial court record (R.). (Doc. 20).¹Petitioner filed a reply brief. (Doc. 27). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DENIED.

1 Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court record will refer to the original pagination. Except for capitalization, all quotations are verbatim unless otherwise noted.

I. Factual Summary

Petitioner and his wife Brenda had three children - M.H., K.H., and L.H. - all of whom Petitioner adopted. (State's Ex. 30, at 5:00). The family moved to a trailer near Petitioner's father, Jeff Huff, at some point between November 2015 and February 2016. (Tr. Vol. III, at 346; State's Ex. 30, at 2:50). Around May 20, 2016, J.W. stayed with the Huff family and L.H. went to visit family in Missouri. (Tr. Vol. II, at 202-203, 271, 326). In 2016, all of the children were under the age of sixteen: M.H. was born in February 2001, K.H. was born in April 2005, J.W. was born in December 2004, and L.H. was born in March 2003. (Id. at 202-03).

Petitioner's father, Jeff Huff, testified that the trailer was in very good condition when Petitioner and his family moved in. (Tr. Vol. III, at 347). The trailer did not have urine stains or feces on the carpets, or trash and clothing piled up throughout the house, or standing water in the sinks. (Id.) Additionally, the home had the capability for running water. (Id.) Dennis Mull, Petitioner's father-in-law, testified that by early March 2016, the house was dirty, but inhabitable. (Id. at 366-67). Jeff Huff testified that when he had the opportunity to see the trailer between February 2016 and June 2016, the condition was “horrid,” with trash on the floor and a strong odor of urine. (Id. at 348-49).

In June 2016, investigators from the Oklahoma Department of Human Services and the Lincoln County Sheriff's Office found the property in very poor condition. (State's Ex. 1-24). The home was extremely hot and did not have air conditioning. (Tr. Vol. II, at 251, 277, 354). Investigators saw piles of animal feces throughout the house, including in the children's bedroom, and they smelled both urine and feces. (Id. at 231, 277, 305, 309). The odor was such that one investigator testified he had to go outside because he became physically sick. (Id. at 239). Trash blocked the house's back door and generally covered the floors of the home. (Id. at 277; State's Exs. 7, 8, 13, 16, 18, 20, 21). On the kitchen counters were stacks of dirty dishes and rotting food, while the kitchen sink had stagnant water. (Tr. Vol. II, at 235, 277, 299; State's Ex. 6).

Investigators also saw a cat in the bathtub, which they believed to be either sick or dead. (Tr. Vol. II, at 238-39, 354; State's Ex. 24). They also found a trash bag in the bathroom filled with used feminine hygiene products and dirty toilet paper. (Tr. Vol. II, at 238, 262-63, 278, 310; State's Ex. 22). The house had been without running water for a period - Petitioner stated the home had been without running water for a week, while Jeff Huff testified the water pump had gone bad and the house had been without water for three or four weeks. (Tr. Vol. II, at 278, 296-97, 310; Tr. Vol. III, at 353; State's Ex. 32, at 13:28:15-13:29:00).

Petitioner had what he called a “naturalist home” where “clothing [was] optional inside.” (Tr. Vol. II, at 207; State's Ex. 32, at 13:21:45-13:24:25, 13:34:10-13:34:15). Petitioner explained that the children tried to cover their fronts with their arms, but Ms. Huff walked around topless and Petitioner often walked around in his boxers. (State's Ex. 32, at 13:34:15-13:34:40). Petitioner stated that M.H. “like[ed] to go topless most of the time,” but “very rarely w[ould] she walk without her lower half” covered. (Id. at 14:38:4514:39:50).

Petitioner described various instances in which he and/or M.H. were together while less-than-fully clothed. Petitioner stated he popped M.H.'s back, gave her a hug, and gave her a back massage when she was topless. (Id. at 14:46:25-14:47:00). Petitioner also recalled one evening when he was “fooling around” with Ms. Huff in their bedroom and M.H. and L.H. entered the room. (Id. at 14:47:00-14:47:50). The family went to the living room and M.H. got on the chair with Petitioner, and Petitioner could not recall if he still had an erection. (Id.) Another time, Petitioner walked into his bedroom naked to find his daughter on the bed. (Id. at 14:55:57-14:56:30). And on one occasion, M.H. wore a towel while Petitioner sat completely naked behind her trying to get lice out of M.H.'s hair. (Id. at 14:56:30-14:58:15). And - although it is unclear whether either were unclothed -Petitioner also admitted giving M.H. a massage on her legs on the family couch in March or April of 2016. (Id. at 14:49:20-14:51:00). Petitioner described starting at M.H.'s feet and showed the investigator that he massaged all around the leg, stopping at mid-to-upper-thigh. (Id.)

In two separate interviews with investigators, Petitioner admitted to messaging M.H. on Facebook. (State's Exs. 30, 31, 32). He told M.H. that conversing online was their “safety net,” a completely private area where they could talk about anything no matter “how weird it gets,” and where she should treat him like a friend rather than a dad. (State's Ex. 30, at 7:35-8:25; State's Ex. 32, at 13:46:20-13:47:00). Petitioner sent messages to M.H. with a scantily clad anime cartoon, stating that Petitioner and M.H. could chat about anything and trying to role play.² (State's Ex. 25). Petitioner admitted to deleting portions of his conversation with M.H. from his phone. (State's Ex. 31, at 2:55-3:20).

2 Petitioner admitted he used the name “funnyman” on Facebook Messenger, the name appearing on the text messages. (State's Exs. 25, 30, at 26:50-27:15; Tr. Vol. II, at 27677).

In one of the exchanges, Petitioner asked M.H. how she wanted to start the role play, and after M.H. responded she did not know, Petitioner wrote: “O come on Iv read some of your other texts I think u have a idea about how to start . .. .lick...” followed by a smiling devil emoji. (State's Ex. 25). When asked about what it means to lick in the context of his text message with M.H., Petitioner stated M.H.'s friends “talk about licking and kissing.” (State's Ex. 31, at 4:50-5:03). He stated that M.H. had messaged a boy about licking their face and chest, and because M.H. did not want to correspond about it verbally, he “typed in lick” via text message (to which he received no response). (State's Ex. 32, at 13:45:4013:46:20, 13:47:40-13:48:30). When asked what Petitioner would be licking, he said “I don't know, a neck, lick the face.” (State's Ex. 31, at 5:03-5:13).

Petitioner admitted sending M.H. a message that said, “Well then I'll hold you tenderly and softly whisper to you, then lightly kiss your neck.” (Id. at 5:45-5:55). Petitioner stated he thought the message was appropriate to send because M.H. was upset about a breakup and was not talking to anyone. (Id. at 5:55-6:05, 25:35-26:00). But in a second interview, Petitioner contended he sent the message because M.H. was physically and emotionally upset regarding an incident that took place in an online game. (State's Ex. 32, at 13:49:40-13:51:25).

Petitioner also stated he and Ms. Huff noticed their collection of dildos and toys were found in different locations in the house, and they suspected M.H. (Id. at 13:43:1513:45:35). So, they bought a pink vibrating dildo and told M.H. to use it behind closed doors and wash it after use, but they found it all over the house as well.³(Id. at 13:43:3513:44:15, 14:34:10-14:35:50). Investigators recovered a sex toy from Petitioner's home on July 3, 2016, consistent with the one Petitioner described in his June 17, 2016, interview. (Tr. Vol. II, at 316; State's Ex. 26). Further, investigators found a book entitled “Letters to Penthouse” in the master suite. (State's Ex. 17).

3 Mr. Mull also testified that Brenda Huff told him that M.H. used a sexual device when she was eleven or twelve years old. (Id. at 372-73). Mr. Mull also talked with Petitioner about the device. (Id. at 374).

II. Procedural History

The State charged Petitioner in Lincoln County, Case No. CF-2016-172, with four counts of child neglect (Counts One, Two, Three, and Four) and one count of child sexual abuse (Count Five). (R., at 57-58). At the conclusion of the three-day trial, the jury found Petitioner guilty of all five counts. (Id. at 124-28). The trial judge sentenced Petitioner to 25 years of imprisonment on Counts One, Two, Three, and Four and 30 years of imprisonment on Count Five, with the sentences to be served concurrently with each other. (Id. at 155-57). The Oklahoma Court of Criminal Appeals (“OCCA”) denied Petitioner's direct appeal. (Doc. 10, at Ex. 1). Petitioner then filed an application for post-conviction relief in the Lincoln County District Court, which was denied. (Id. at Exs. 10-12, 15). On appeal, the OCCA affirmed the denial of Petitioner's application. (Id. at Ex. 18). Petitioner then filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1). The Petition is at issue.

III. General Considerations for Habeas Review

A. 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).

B. Exhaustion of State Remedies

“[A] state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court.” Davila v. Davis, 582 U.S. 521, 527 (2017). “The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “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.'” Fairchildv. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006)). 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); see also Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir 2015) (stating that fair presentation “requires that the petitioner raise in state court the substance of his federal claims . . . including] not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief”) (internal quotation marks and citation omitted).

C. Procedural Default

“Under the doctrine of procedural default, claims that are defaulted in state court on adequate and independent state procedural grounds will not be considered by a habeas court.” Simpson v. Carpenter, 912 F.3d 542, 570 (10th Cir. 2018) (internal quotation marks, alteration, and ellipsis omitted); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”). “A state procedural default is ‘independent' if it relies on state law, rather than federal law.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). “A state procedural default is ‘adequate' if it is firmly established and regularly followed.” Id.; see Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002).

“[T]he state bears the burden of proving the adequacy of a state procedural bar in order to preclude federal habeas review.” Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 901 (10th Cir. 2019) (quoting Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999)). “But a defendant complaining of such a conflict needs, ‘at a minimum,' to provide ‘specific allegations . . . as to the inadequacy of the state procedure.'” Id. (quoting Hooks, 184 F.3d at 1217).

“A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Martinez, 566 U.S. at 10. Cause requires a petitioner to show that “something external to the petitioner, something that cannot be fairly attributed to him, impeded his efforts to comply with the State's procedural rule.” Tryon v. Quick, 81 F.4th 1110, 1139 (10th Cir. 2023) (quoting Maples v. Thomas, 565 U.S. 266, 280 (2012)). “[T]o establish prejudice, the [petitioner] must show not merely a substantial federal claim, such that ‘the errors at . . . trial created a possibility of prejudice,' but rather that the constitutional violation ‘worked to his actual and substantial disadvantage.'” Shinn v. Ramirez, 596 U.S. 366, 379-80 (2022) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

Further, “a credible showing of actual innocence lets a petitioner overcome . . . a procedural default.” Fontenot v. Crow, 4 F.4th 982, 1029 (10th Cir. 2021). “To make a credible showing of actual innocence, a petitioner 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.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014).

D. Anticipatory Procedural Bar

When a claim is unexhausted, and a petitioner did not raise it to the OCCA on his first opportunity, it is subject to denial on the basis of anticipatory procedural bar. The OCCA has ‘repeatedly stated that Oklahoma's Post-Conviction Procedure Act is not an opportunity to raise new issues, resubmit claims already adjudicated, or assert claims that could have been raised on direct appeal.'” Fontenot, 4 F.4th at 1023 (quoting Rojem v. State, 925 P.2d 70, 72-73 (Okla. Crim. App. 1996)); see also Williams, 782 F.3d at 1212 (“Oklahoma requires a post-conviction relief applicant to raise all grounds for relief which he actually knows or should have known through the exercise of due diligence in his original application for relief.”). Thus, because the instant Petitioner has previously filed a direct appeal and a post-conviction action, if he were to return to state court to exhaust claims he has not yet raised in state court, he would be raising them in a second application for post-conviction relief, and they would be procedurally barred. See Cummings v. Sirmons, 506 F.3d 1211, 1222-23 (“readily” concluding that a claim, raised for the first time in habeas petition and, therefore, unexhausted, was procedurally barred: “[a]lthough the claim is technically unexhausted, it is beyond dispute that, were [petitioner] to attempt to now present the claim to the Oklahoma state courts in a second application for postconviction relief, it would be deemed procedurally barred”) (citing Okla. Stat. tit. 22, § 1086).

In such a situation, the court considers Petitioner's claim denied on the basis of anticipatory procedural default. See Lott v. Trammell, 705 F.3d 1167, 1193 (10th Cir. 2013) (holding an argument that a petitioner's trial was rendered fundamentally unfair was subject to an anticipatory procedural bar when it was not raised on direct appeal to the OCCA); see also Grant v. Royal, 886 F.3d 874, 901-02 (10th Cir. 2018) (applying the anticipatory procedural bar to a procedural due process claim and noting that “under Oklahoma's Uniform Post-Conviction Procedure Act, only claims which were not and could not have been raised on direct appeal will be considered in post-conviction proceedings”) (internal quotation marks and brackets omitted); Williams, 782 F.3d at 1212 (defining “anticipatory procedural default” as a situation “where a petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be procedurally defaulted on remand”). “[A] federal court may nevertheless consider claims subject to an anticipatory procedural bar:” (1) if the petitioner alleges “cause” and “prejudice” or (2) “the petitioner has made a credible showing of actual innocence.” Frost, 749 F.3d at 1231 (internal quotation marks omitted).

IV. Analysis

Petitioner raises twenty grounds for relief. In Ground One, Petitioner asserts the State obtained a videotaped interview in violation of his Fifth Amendment right to counsel and it should not have been admitted at trial. (Doc. 1, at 7-9). In Ground Two, Petitioner asserts the hearsay statements introduced at trial violated his right to a fair trial, his due process rights, and the Confrontation Clause. (Id. at 9-10). In Ground Three, Petitioner asserts the admission of other crimes evidence violated his rights to a fair trial and to due process. (Id. at 11-12). In Ground Four, Petitioner contends the trial court deprived him of a fair trial when it failed to give the jury an instruction on other crimes. (Id. at 12-14). In Ground Five, Petitioner asserts the evidence presented at trial was insufficient to establish guilt. (Id. at 14-15). In Ground Six, Petitioner asserts the trial court did not give the correct jury instruction for Count Five (child sexual abuse). (Id. at 15-17). In Ground Seven, Petitioner contends prosecutorial misconduct related to the jury instructions for Count Five. (Id. at 17-19). In Grounds Eight and Twelve, Petitioner asserts his trial counsel was constitutionally ineffective. (Id. at 19-20, 27-29). In Ground Nine, Petitioner contends his sentence is excessive. (Id. at 21-22).

Petitioner also raises claims originating in his post-conviction action in state court. In Grounds Ten through Nineteen, petitioner raises various claims of error at the trial level and further asserts his appellate counsel was ineffective for not raising them on direct appeal.⁴ (Id. at 22-46). Finally, in Ground Twenty, Petitioner alleges the cumulative effect of the errors deprived Petitioner of a fair trial. (Id. at 47-48).

4 Ground Eleven only asserts ineffective assistance of appellate counsel and Ground Twelve only asserts an error at the trial court level. The other claims assert both.

For the reasons stated below, each of Petitioner's claims should be denied.

A. Ground One: Petitioner Is Not Entitled to Relief on His Fifth Amendment Claim Because the OCCA Reasonably Held Petitioner Did Not Unambiguously Request an Attorney During a Custodial Interview.

In Ground One, Petitioner contends his videotaped interview with Michael Vaught, an investigator with the district attorney's office, was conducted in violation of his Fifth Amendment right to counsel. (Doc. 1, at 7). He asserts the interview “should have been stopped” after he asked Mr. Vaught how to get paperwork to get a lawyer, stated that he did not know how to get a lawyer, and asked how to get a lawyer for his wife. (Id.) Petitioner contends he believed Mr. Vaught's response was such that he would only get a lawyer if he talked to Mr. Vaught and that he only gave his statement on that premise. (Id.) Further, Petitioner alleges that Mr. Vaught did not bring the paperwork as promised. (Id. at 7-8). Respondent contends Ground One should be denied on the merits. (Doc. 19, at 44-59). For the reasons stated below, the undersigned recommends Ground One be denied.

1. The Clearly Established Law.

An individual who “is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning . . . . must be warned prior to any questioning . . . that he has the right to the presence of any attorney, and that if he cannot afford an attorney one will be appointed for him throughout the interrogation.” Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id. at 474.

Waivers of counsel must be voluntary, knowing, and intelligent. Edwards v. Arizona, 451 U.S. 477, 482 (1981). “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484. Additionally, “an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85. “But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,” it is not necessary for law enforcement to cease questioning. Davis v. United States, 512 U.S. 452, 459 (1994).

2. The OCCA's Ruling

On direct appeal, Petitioner argued he had articulated his desire to obtain counsel during his custodial interview with Mr. Vaught. (Doc. 19, at Ex. 2, at 22). But he asserted Mr. Vaught did not discuss Petitioner's request, instead “leverag[ing] [Petitioner's] belief that [he] could help [Petitioner] obtain counsel and provide a favorable report to [his] boss, the District Attorney, to gain additional, prejudicial information in violation of [Petitioner's]” Fifth Amendment right against self-incrimination. (Id. at 21-22). The OCCA rejected Petitioner's claim:

[Petitioner] argues his Fifth Amendment right against self-incrimination was violated after District Attorney Investigator Vaught failed to heed his request for an attorney and continued to question him. [Petitioner] did not file a motion to suppress his statements to Vaught, nor did he object at trial prior to the admission of the video of this interview. Accordingly, we review this claim for plain error. Van White v. State, 1999 OK CR 10, ¶ 44, 990 P.2d 253, 267. We use the plain error test found in Simpson v. State, 1994 OK CR 40, ¶¶ 3, 11, 23[,] 30, 876 P.2d 690, 694-95, 698. Under that test, we determine whether [Petitioner] has shown an actual error, which is plain and obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id., 1994 OK CR 40, ¶ 30, 876 P.2d at 701. See also Jackson v. State, 2017 OK CR 5, ¶ 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395; Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.

In Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), the Supreme Court held that prior to questioning by police officials, a defendant, who is in custody or otherwise deprived of his freedom of action in any significant way, must be advised of his constitutional rights, specifically, his right to remain silent and his right to counsel. “[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The defendant's request for counsel must be unambiguous so that a reasonable police officer would understand the request to be for an attorney. Davis v. United States, 512 U.S. 452, 459. “If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-62.

After [Petitioner's] arrest, Vaught interviewed him. Prior to commencement of the interview, Vaught read [Petitioner] his Miranda rights. [Petitioner] stated, “I don't know how to get a lawyer” and asked, “[h]ow do I go about getting a lawyer?” Vaught asked [Petitioner] if he still wanted to speak with him after he made his ambiguous statements about an attorney. Thereafter, [Petitioner] executed a waiver of his Miranda rights and continued speaking with the investigator.

[Petitioner] did not request an attorney, he simply asked how he could get one for him and his wife, apparently to represent them at trial. His statements were not an unambiguous request for legal representation during the interview as requested by Davis, but were at best, a request for information about hiring an attorney in the future. Cf. LaFevers v. State, 1995 OK CR 26, ¶¶ 4-9, 897 P.2d 292, 298-300 (no Miranda violation where the appellant initially waived his Miranda rights, but when asked by police to give body samples, he told them he would after he spoke with a lawyer; when police asked him if he wanted to end the interview, the appellant declined and affirmatively agreed to continue to talk with police). We find [Petitioner] did not unambiguously request an attorney and he waived his right to counsel. Consequently, no error and therefore, no plain error occurred. Tryon v. State, 2018 OK CR 20, ¶ 35, 423 P.3d 617, 632. Proposition I is denied.

(Doc. 10, at Ex. 1, at 3-6) (some citations abbreviated).

3. The OCCA Reasonably Applied Clearly Established Law.

The OCCA reasonably determined Petitioner's statements to Mr. Vaught were not obtained in violation of the Fifth Amendment. First, the undersigned notes that the OCCA's factual findings were not unreasonable. The record reflects that Mr. Vaught went over a Miranda-waiver form with Petitioner prior to the interview. (Tr. Vol. II, at 319-20; State's Ex. 29; State's Ex. 32, at 13:14:55-13:15:30). Mr. Vaught asked if Petitioner had any questions, and the following exchange took place:

Petitioner: I don't know how to get a lawyer. I mean, how do I go about getting a lawyer for my wife and I? Because we generally do stuff together.

Mr. Vaught: I'll be happy to talk to you about that.

Petitioner: Especially since I'm not allowed to talk to my wife.

Mr. Vaught: I think you probably will be. Let me ask you this, with these directions in mind, do you, do you have a problem talking to me now, or would you rather -

Petitioner: I'll talk to you. I don't have a problem with it.

(State's Ex. 32, at 13:15:30-13:16:00). Petitioner then signed the Miranda waiver form while Mr. Vaught reiterated that Petitioner did not need to speak with him. (State's Ex. 29; State's Ex. 32, at 13:16:45-13:17:15). After Petitioner signed the form, Mr. Vaught said: “Seriously . . . if you have questions about getting an attorney, um, the paperwork, I'll see if I can actually get it for you when we go back over, so you got it in your hand when you go back to your cell, and they'll start the process for you a little more quickly.” (State's Ex. 32, at 13:17:15-13:17:35). Petitioner then changed topics. (Id. at 13:17:3513:17:45).

Plaintiff's questions about obtaining counsel did not amount to an unambiguous request for legal representation. See Farris v. Broaddus, 418 Fed.Appx. 694, 696 (10th Cir. 2011) (holding state court did not unreasonably find that an individual in custody asking when she would go before a judge and when she would get a lawyer did not clearly and unambiguously request counsel); Horner v. Bryant, 683 Fed.Appx. 674, 676 (10th Cir. 2017) (denying COA where the petitioner's “statements [were] too ambiguous and equivocal to amount to an invocation of his right to counsel [when] he asked whether it was possible for him to speak to a lawyer, but never requested to do so even after the detective told him he could”); United States v. Lux, 905 F.2d 1379, 1382 (10th Cir. 1990) (no clear error where the trial court found the defendant had not made a clear or equivocal invocation of her right to counsel when she “ask[ed] how long it would take if she wanted a lawyer and if she would have to stay in jail while she waited for a lawyer”). Thus, the OCCA did not unreasonably find that Petitioner did not unambiguously express his desire for an attorney, and the admission of Petitioner's subsequent statements did not violate his right to counsel.⁵

5 Petitioner's reliance on Michigan v. Jackson, 475 U.S. 625 (1986), is misplaced as the Supreme Court overturned it. See Montejo v. Louisiana, 556 U.S. 778, 797 (2009) (“Michigan v. Jackson should be and now is overruled.”). Additionally, as Petitioner recognizes, Jackson involved the right to counsel protected by the Sixth Amendment. (Doc. 27, at 3). But the Sixth Amendment right to counsel attaches “only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688 (1972). Here, the interview took place on June 17, 2016, (Hearing Tr. 33), and the information was not filed until June 27, 2016, (Doc. 19, at Ex. 6, at 3). So, Petitioner's right to counsel under the Sixth Amendment had yet to attach.

For the reasons stated above, Ground One should be denied on the merits.⁶

6 Petitioner makes various allegations in the Petition and reply brief asserting that he was coerced into signing the Miranda waiver. (Doc. 1, at 7-8; Doc. 27, at 1-2). To the extent he attempts to make a constitutional claim separate from the Fifth Amendment claim raised on direct appeal, such a claim is unexhausted. See supra § III.A. And because the claim does not assert actual innocence and Petitioner did not show cause or prejudice, the claim would be subject to an anticipatory procedural bar. See supra § III.D.

B. Ground Two: Hearsay-Related Claims

In Ground Two, Petitioner contends the trial court admitted out-of-court statements into evidence that were testimonial in nature and inadmissible as hearsay. (Doc. 1, at 9). Petitioner presents two examples: (1) three witnesses - Larry Stover, Sabrina Tice, and Michael Vaught - all testified regarding what they were told about “the water situation” at Petitioner's residence; and (2) the prosecutor stated at the sentencing hearing that K.H. said he was thankful to go to school and have clean clothes. (Id.) Thus, Petitioner contends his right to a fair trial, his right to due process of law, and his rights under the Confrontation Clause were violated. (Id.) Respondent argues Ground Two should be denied in its entirety. (Doc. 19, at 60-80). For the reasons stated below, the undersigned recommends Ground Two be denied.

1. The OCCA's Ruling

The OCCA rejected the hearsay and Confrontation Clause claims raised in the Petition:⁷

7 In addition to the allegations in Ground Two, on direct appeal Petitioner also raised hearsay and Confrontation Clause claims based on testimony from Deputy Stover and Dennis Mull about statements Ms. Huff made. (Doc. 19, at Ex. 2, at 25-28). Because Petitioner did not raise these claims in this action, the portions of the OCCA's decision addressing those claims are not included.

[Petitioner] claims the admission of hearsay evidence deprived him of a fair trial and violated his confrontation right. He specifically references evidence regarding the lack of running water at the Huffs' trailer home . . . and a statement made by the prosecuting attorney regarding a conversation he had with K.H.

We review this claim for plain error as [Petitioner] failed to object at trial to any of the instances about which he now complains. Tryon, 2018 OK CR 20, ¶ 38, 423 P.3d at 632. As set forth in Proposition I, we utilize the test for plain error found in Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

Pursuant to 12 O.S.2011, § 2801(A), hearsay is defined as a statement, made by the declarant, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted.

[Petitioner] references several witnesses' testimony that they were told there was no running water in the trailer. Stover, Vaught and Deputy Tice were told there was no water in the trailer for longer than a week. J. Huff, [Petitioner's] father who lived adjacent to the Huff's trailer, stated the trailer had been without running water for “three or four weeks” at the time of [Petitioner's] arrest.

While the testimony of the witnesses about what another person told them regarding the status of running water in the Huff trailer was hearsay by definition, its admission did not constitute plain error. Nothing about this testimony affected [Petitioner's] substantial rights. The complained of testimony reflected that of J. Huff who testified about the trailer's lack of

running water based upon his own personal knowledge. Thus, the hearsay statements were cumulative to his testimony.

Furthermore, [Petitioner] admitted the trailer had no running water in his statement to Vaught. [Petitioner's] characterization of evidence regarding the lack of running water to the home as “critical” to the child neglect charges is ridiculous. The pictures of the Huff trailer show that even if there was running water in the trailer, it certainly was not used to clean it. Furthermore, authorities who saw the Huff children testified they were dirty and smelly. Therefore, any running water also was not used to clean the children. Finally, the condition of the trailer was such that it could not have occurred in a few days. We find that while the hearsay evidence was admitted in error, there was no plain error in the admission of the evidence because it had no effect on [Petitioner's] substantial rights, Cf. Martinez v. State, 2016 OK CR 3, ¶ 54, 371 P.3d 1100, 1114 (where hearsay evidence was cumulative to proper testimony about an undisputed issue, it could cause no prejudice; thus, its admission was harmless).

[Petitioner] contends the prosecutor made an argument at sentencing repeating hearsay statements K.H. made to him prior to the sentencing hearing, i.e., that the child was happy to have clean clothes and go to school. The evidence code, other than the provisions applicable to a claim of privilege, does not apply to sentencing proceedings. 12 O.S.2011, § 2103(B)(2). Therefore, this claim fails. There was no error and thus, no plain error in the prosecutor's sentencing argument. Mack, 2018 OK CR 30, ¶ 6, 428 P.3d at 329.

[Petitioner] finally argues . . . the prosecutor's reference during sentencing to a conversation he had with K.H. violated his rights under the Confrontation Clause. The Confrontation Clause guarantees the right of a defendant in a criminal trial to be confronted with witnesses against him. Crawford v. Washington, 541 U.S. 36, 42 (2004). The admission of testimonial hearsay against a defendant where the declarant does not testify and the defendant had no right of cross-examination of the declarant violates the Confrontation Clause. Id. at 51-52. Testimonial hearsay includes statements made during custodial interrogation, affidavits, prior testimony not subject to cross examination by the defendant or statements which the declarant would reasonably expect to be used prosecutorially. Id.

Concerning the use of K.H.'s statements to the prosecutor during sentencing, the Confrontation Clause is inapplicable to sentencing in non-capital cases.

Williams v. Oklahoma, 358 U.S. 576, 584 (1959). Accordingly, no error occurred from the admission of the subject statements.

As there was no error, there was no plain error. Tryon, 2018 OK CR 20, ¶ 42, 423 P.3d at 633. Proposition II is denied.

(Doc. 10, Ex. 1, at 6-13) (some citations abbreviated).

2. Plaintiff's Hearsay-Related Claim Should Be Denied.

a) State Law Claims Are Not Cognizable in a Federal Habeas Action.

Respondent first contends Petitioner's hearsay claim is based purely on state law, which cannot serve as the basis for habeas relief. (Doc. 19, at 66-68). The undersigned agrees. An argument based on state law is not a cognizable claim in a federal habeas action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). So, Claim Two should be denied to the extent Petitioner argues this court should grant relief solely because the testimony violated Oklahoma law prohibiting the admission of hearsay statements.

b) Petitioner Did Not Exhaust His Fair Trial and Due Process Claims Related to the Admission of Hearsay Evidence in State Court.

Respondent next argues that Petitioner's claim that the admission of hearsay evidence violated his right to a fair trial and due process of law was not exhausted and is subject to an anticipatory procedural bar. (Doc. 19, at 68-71). The undersigned agrees.

The heading for the relevant section of Petitioner's brief on direct appeal states:

NUMEROUS INSTANCES OF THE INTRODUCTION OF INADMISSIBLE HEARSAY VIOLATED [PETITIONER'S] CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW, AND CONFRONTATION.

(Doc. 19, at Ex. 2, at 22). But the body of Petitioner's argument does not reference the rights to a fair trial or due process. (Id. at 22-28). Petitioner's reference to constitutional issues in the heading is insufficient to fairly present his claim. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.”); Cole v. Zavaras, 349 Fed.Appx. 328, 331 (10th Cir. 2009) (holding “claims were not presented to the state courts as federal constitutional claims” where the appellant “state[d] in a conclusory fashion that the alleged error violated his federal constitutional rights, but he cite[d] no federal case law to support those claims and does little to connect the claim with the rights he alleged were violated”); Zilm v. Harpe, 2024 WL 69957, at *17 (N.D. Okla. Jan. 5, 2024) (finding the Petitioner's decision to bookend[ ] a state-law claim with unexplained references to ‘a fundamentally unfair trial' and ‘the constitutional burden of proof'” does not show that he fairly presented his Fourteenth Amendment claim to the OCCA”) (internal quotation marks omitted). Thus, Petitioner failed to exhaust these claims.

Unless Petitioner shows cause and prejudice for failing to bring the constitutional due process and unfair trial claims on direct appeal or makes a showing of actual innocence, they are subject to an anticipatory procedural bar. See supra § III.D. Petitioner does not make a claim of actual innocence, but made an apparent attempt to establish cause and prejudice in his reply brief:

since he put this to the court from direct appeal and the OCCA he was not allowed to put it on the post-conviction appeal since it had already been raised was instructed by his appeal attorney to raise ground not raised in direct appeal but would be able to under habeas claim.

(Doc. 27, at 9).⁸Although Petitioner's argument is unclear, he appears to contend he was advised by his appellate attorney that he could not raise these claims in his post-conviction action because they were not raised on direct appeal but that he could nevertheless raise them in his habeas claim. But the acts of an attorney providing advice about obtaining post-conviction relief does not constitute cause for purposes of avoiding a procedural bar. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012) (“[T]he failure of Mr. Banks's post-conviction counsel to present his claim cannot serve as cause for the default.”). Petitioner also argues:

The State says that once a topic is brought up its then barred, and if its not brought up on direct appeal then its barred but isn't that why the statutes have a post-conviction for grounds not raised on direct appeal, a petitioner can not raise ineffective assistance [of] appellate counsel on direct appeal but when a petitioner does on a post-conviction the state says its barred, it's the only place to show all grounds that the courts should consider.

(Doc. 27, at 8). While Petitioner is correct that an Oklahoma prisoner can raise ineffective assistance of appellate counsel for the first time in a post-conviction action, Ground Two does not make such a claim. Thus, this portion of Ground Two should be denied because it is unexhausted and would be barred if Petitioner returned to state court to raise it.

8 Petitioner also raises a variety new arguments in his reply brief not raised in the Petition. (Doc. 27, at 4-9). The undersigned does not reach these new claims in the analysis of Ground Two. See Windsor v. Patton, 623 Fed.Appx. 943, 947 (10th Cir. 2015) (“[T]he ineffective assistance claim was raised for the first time in Windsor's reply and the district court did not err in not reaching it.”). The undersigned notes, however, that many of these allegations are raised in Ground Sixteen. (Doc. 1, at 36-37).

c) Alternatively, Petitioner's Constitutional Claims Should Be Denied on the Merits.

Even if Petitioner's singular reference to his right to a fair trial and due process of law were sufficient to exhaust his claims, the undersigned would recommend denying them. 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)). Thus, the relevant inquiry is “whether, considered in light of the entire record, [the contested evidence's] admission resulted in a fundamentally unfair trial.” Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002), abrogated on other grounds by Johnson v. Williams, 568 U.S. 289 (2013). “[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements . . . [the] federal court must tread gingerly and exercise considerable selfrestraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted).

The OCCA reviewed Petitioner's hearsay-related claims for plain error. (Doc. 19, at Ex. 1, at 7). “Oklahoma's plain-error test is rooted in due process.” Thornburgv. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005). There is “no practical distinction between the [the OCCA's] formulation[] of plain error . . . and the federal-due process test.” Id. Thus, the Court “must defer to [the OCCA's] ruling unless it unreasonably applied that test.” Id. (internal quotations and brackets omitted).

The OCCA's determination was not unreasonable. The OCCA found, and the record supports, that the hearsay testimony regarding the lack of running water was cumulative to non-hearsay evidence admitted at trial. See Cutshall v. Colorado, 2012 WL 2126843, at *11 (D. Colo. June 11, 2012) (finding the admission of hearsay did not render the petitioner's trial fundamentally unfair where the state appellate court found “the hearsay statement was cumulative to the [petitioner's] confession and other admissible testimony”). Further the OCCA reasonably found the hearsay testimony was not prejudicial because it had no effect on the outcome of the case; indeed, it was not critical to prove child neglect, as the condition of the trailer was poor enough to prove child neglect, even without considering the lack of running water.

The undersigned also finds the prosecutor's repetition of out-of-court statements during the sentencing hearing did not render Petitioner's trial fundamentally unfair. The OCCA held that the state's evidence code, other than provisions applicable to a claim of privilege, does not apply to sentencing proceedings. (Doc. 19, at Ex. 1, at 10) (citing OKLA. STAT. tit. 12, § 2103(B)(2)). Likewise, the federal rules of evidence do not apply to sentencings, except for rules relating to privilege. Fed.R.Evid. 1101(d)(3). Given that both state and federal evidence codes do not apply its hearsay prohibitions to sentencing proceedings, it follows that the out-of-court statements made by K.H. did not render Petitioner's trial fundamentally unfair.

Thus, even if Petitioner had exhausted his due process and unfair trial claims, they would fail on the merits.

3. Petitioner's Confrontation Clause Claims Should be Denied.

a) The Clearly Established Law

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. “This provision bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'” Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 5354 (2004)). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.

b) Out-of-Court Statements Repeated at a Sentencing Hearing Are Not Subject to the Confrontation Clause.

The OCCA did not unreasonably determine that the prosecutor's use of K.H.'s statements during the sentencing hearing did not violate the Confrontation Clause. The Supreme Court's decision in “Crawford concerned the use of testimonial hearsay statements at trial and does not speak to whether it is appropriate for a court to rely on hearsay statements at a sentencing hearing.” United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006). The Tenth Circuit recently held that “without controlling precedent from the United States Supreme Court, our court and other circuit courts have declined to apply the Confrontation Clause in the sentencing phase.” Menzies v. Powell, 52 F.4th 1178, 1222 (10th Cir. 2022), cert. denied, 144 S.Ct. 122 (2023); see also Williams v. Oklahoma, 358 U.S. 576, 584 (1959) (“[T]he sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court' information relative to the circumstances of the crime and to the convicted person's life and characteristics.”); Bustamante, 454 F.3d at 1202 (10th Cir. 2006) (“We see nothing in Crawford that requires us to depart from our precedent ‘that constitutional provisions regarding the Confrontation Clause are not required to be applied during sentencing proceedings.'”) (quoting United States v. Hershberger, 962 F.2d 1548, 1554 (10th Cir.1992)). Given this authority, the OCCA's decision was not unreasonable, and habeas relief should be denied.

c) Petitioner's Claim Alleging That Out-of-Court Statements Made by Jeff Huff Violated the Confrontation Clause Is Subject to an Anticipatory Procedural Bar.

Petitioner also asserts the testimony from Mr. Vaught, Deputy Stover, and Ms. Tice regarding statements made by Jeff Huff violated the Confrontation Clause. (Doc. 1, at 9). But Petitioner's Confrontation Clause argument to the OCCA only addressed “testimony from Deputy Stover and Dennis Mull regarding alleged third party conversations with Ms. Huff” - which Petitioner does not raise here - and the prosecutor's “reference to . . . a conversation he allegedly had with K.H.” (Doc. 19, at Ex. 2, at 27). And the OCCA did not consider testimony about Jeff Huff's statements in the context of a potential Confrontation Clause violation. (Id. at Ex. 1, at 11-13). Thus, Petitioner's Confrontation Clause claim regarding out-of-court statements made by Jeff Huff is unexhausted.

Unless Petitioner shows cause and prejudice for failing to bring the Confrontation Clause claim regarding Jeff Huff's statements on direct appeal or makes a showing of actual innocence, it is subject to an anticipatory procedural bar. See supra § III.D. As stated above, Petitioner's attempt to establish cause to excuse the anticipatory procedural bar for Claim Two does not suffice. And Petitioner does not make a showing of actual innocence. Thus, this portion of Petitioner's Confrontation Clause claim should be denied on the basis of anticipatory procedural bar.

C. Ground Three: The Admission of Bad-Acts Evidence

In Ground Three, Petitioner contends the trial court's admission of evidence regarding a Missouri deferred sentence for domestic assault violated his constitutional rights to a fair trial and due process of law.⁹(Doc. 1, at 11). Respondent argues that Petitioner's claim is solely a matter of state law and, alternatively, that the Court should reject the claim to the extent Petitioner contends the admission of the evidence rendered his trial fundamentally unfair.¹⁰(Doc. 19, at 80-91). For the reasons stated below, Ground Three should be denied.

9 In his reply brief, Petitioner addresses evidence raised in neither his Petition nor his argument on direct appeal. (Doc. 27, at 10-13). Because this evidence was first raised in relation to Ground Three in reply, the undersigned does not address it. See Windsor, 623 Fed.Appx. at 947 (10th Cir. 2015).

10 Respondent concedes, and the undersigned agrees, that Petitioner fairly presented his federal constitutional claim to the OCCA and thus exhausted Ground Three. (See Doc. 19, at 84 n. 27). The heading to Petitioner's claim made on direct appeal stated that the admission of the evidence “violated [Petitioner's] constitutional rights to a fair trial and due process of law.” (Doc. 19, at Ex. 2, at 28). Petitioner argued that “even if this evidence was relevant, its prejudicial nature so outweighed its probative value as to amount to a denial of due process.” (Id. at 29) (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994)). Petitioner thus expanded on the labels contained in the heading by arguing that the evidence violated his right to due process and cited federal law in support. While Petitioner's argument to the OCCA was somewhat perfunctory, the undersigned finds Petitioner raised and exhausted a fundamental fairness claim.

1. The Fourteenth Amendment Provides the Clearly Established Law for a Fundamental-Fairness Analysis

As addressed more fully above, see supra § IV.B.2.c, the Due Process Clause of the Fourteenth Amendment provides relief when evidence is so prejudicial it renders the trial fundamentally unfair. See Ochoa, 669 F.3d at 1144. So, the Court must consider “whether, considered in light of the entire record, [the contested evidence's] admission resulted in a fundamentally unfair trial.” Knighton, 293 F.3d at 1171.

2. The OCCA's Ruling

The OCCA rejected Petitioner's claim:

[Petitioner] maintains his right to a fair trial and due process was violated by the admission of the un-redacted video of his statement to Vaught. He argues he spoke about two prior arrests he had in Missouri, his hospitalization based upon a psychological hold after the first arrest and an accusation against him of domestic violence. On the video, [Petitioner] also mentioned an incident with Missouri public schools that involved attorneys and the State. [Petitioner] characterizes this information as inadmissible other crimes/bad acts evidence.¹¹

[Petitioner] failed to object to the admission of the video on this basis. Therefore, we review for plain error only. Kirkwood v. State, 2018 OK CR 9, ¶ 6, 421 P.3d 314, 317.

As set forth in Proposition I, we utilize the test for plain error found in Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

Generally, evidence of a defendant's prior bad acts or other crimes is inadmissible to show that he or she acted in conformity therewith on a particular occasion. This rule is codified at 12 O.S.2001, § 2404(B) and provides pertinently:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

“An act that is not a violation of the criminal law is nonetheless governed by § 2404(B) where it carries a stigma that could unduly prejudice an accused in the eyes of the jury.” Eizember v. State, 2007 OK CR 29, ¶ 75, 164 P.3d 208, 230. We find the complained of evidence was other crimes or bad acts evidence which was improperly admitted. However, we find its admission did not constitute plain error.

Where a defendant admits engaging in the conduct that resulted in the charges filed against him and sufficient other evidence is properly admitted to support the jury's finding of guilt, incidental but erroneous admission of evidence of other uncharged crimes is harmless. Cf. Malicoat v. State, 2000 OK CR 1, ¶ 38, 992 P.2d 383, 403 (the appellant admitted engaging in the conduct that caused the victim's death and other evidence showed the extent of her injuries; therefore, the incidental erroneous admission of pictures of other non-lethal injuries on the victim's body which did not result in criminal charges against the appellant, was harmless).

In the present case, [Petitioner] admitted he sent the subject messages to M.H. and he admitted engaging in other questionable behaviors with M.H. Moreover, the evidence of neglect was overwhelming, as was the evidence of exposure of all the children to inappropriate sexual material. Thus, [Petitioner] has failed to show this error affected the outcome of the proceeding. Accordingly, the error in admitting the un-redacted video was not plain error. Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 305. Proposition III is denied.

(Doc. 19, at Ex. 1, at 13-16).

11 Petitioner's argument is more limited in this action. He asserts only that “a deferred sentence in Missouri for domestic assault” should not have been admitted into evidence. (Doc. 1, at 11).

3. The OCCA's Finding Was Not an Unreasonable Application of Clearly Established Law.

The evidence at issue is part of the video of Mr. Vaught's interrogation of Petitioner, where Petitioner discussed his arrest in Missouri stemming from an argument with Ms. Huff, during which Petitioner admitted driving a pocketknife into a door. (State's Ex. 32, at 14:01:50-14:06:20). Petitioner stated L.H. called the police, asserting Petitioner was hurting Ms. Huff. (Id.) The OCCA held the admission of this evidence, while improper, did not constitute plain error. (Doc. 19, at Ex. 1, at 15). The undersigned finds that the OCAA did not unreasonably apply the plain-error test. See Thornburg, 422 F.3d at 1124 (“Oklahoma's plain-error test is rooted in due process,” so the Court “must defer to [the OCCA's] ruling unless it unreasonably applied that test.” (internal quotations and brackets omitted)).

In coming to its decision, the OCCA considered that Petitioner admitted sending M.H. text messages and engaging in “other questionable behaviors” with her. (Doc. 19, at Ex. 1, at 15). Additionally, the OCCA noted that the evidence of neglect and exposure of the children to inappropriate sexual material was “overwhelming.” (Id. at 16). The OCCA's consideration of the extensive evidence against Petitioner was an appropriate factor in determining that the admission of bad-acts evidence was not so prejudicial as to render the trial unfair. See Cyr v. Crow, 2023 WL 6864503, at *2 (10th Cir. Oct. 18, 2023) (“[I]n light of all the other evidence before the jury, this evidence did not render the trial fundamentally unfair.”), cert. denied, 144 S.Ct. 1014 (2024); Millsap v. Allbaugh, 2019 WL 1302548, at *15 (E.D. Okla. Mar. 21, 2019) (“The admission of the other crimes and bad acts evidence did not render Petitioner's trial fundamentally unfair ....There was strong evidence supporting the guilty verdicts and sentences in the case at hand, regardless of the admission of the other crimes and bad acts evidence.”).

Thus, Ground Three should be denied on the merits.

D. Ground Four: Failure to Provide Limiting Instruction to Jury Regarding Other Crimes Evidence

In Ground Four, Petitioner contends he “was denied the right to a fair trial because the trial court failed to provide the jury with the mandatory instructions on other crimes.”¹²(Doc. 1, at 12). Respondent argues Ground Four should be denied because Petitioner's claim is based on state law only and that his federal claim is unexhausted and subject to an anticipatory procedural bar. (Doc. 19, at 93-96). Alternatively, Respondent asserts Petitioner's trial was not rendered fundamentally unfair based on the asserted error in the trial court's instructions. (Id. at 96-98). The undersigned recommends denying Petitioner's claim because it is unexhausted and, alternatively, because it is not meritorious.

12 In his reply brief, Petitioner alleges his counsel was ineffective for failing to object to the jury instructions. (Doc. 27, at 13). This claim is addressed in the discussion of Ground Eight. See infra, § IV.H.3.c. Petitioner also addresses evidence not raised in either his argument on direct appeal or in the Petition, which the undersigned will not consider. See Windsor, 623 Fed.Appx. at 947.

1. Petitioner Did Not Exhaust Ground Four in State Court and It Would Be Procedurally Barred If He Raised It Now.

Respondent asserts Petitioner did not exhaust Ground Four as a federal constitutional claim, and that to the extent he exhausted the claim as a question of state law, this Court cannot reexamine it. (Doc. 19, at 93) (citing McGuire, 502 U.S. at 67-68) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). The undersigned agrees.

Although the heading for the relevant section of Petitioner's brief on direct appeal states that he “was denied his right to a fair trial because the trial court failed to provide his jury the mandatory instruction on other crimes,” the body of Petitioner's argument does not reference the denial of his right to a fair trial. (Id. at Ex. 2, at 30-31). Instead, Petitioner cited state law to assert that the trial court should have provided a limiting instruction with regard to bad-acts evidence. (Id.) Even if Petitioner's reference to the “right to a fair trial” in the heading references a federal constitutional issue, Petitioner did not fairly present this claim to the OCCA. See Gray, 518 U.S. at 163; Cole, 349 Fed.Appx. at 331; Zilm, 2024 WL 69957, at *17.

Petitioner contends he “brought the claim up on his post-conviction [which] is the earliest time that [he] could do so.”¹³(Doc. 27, at 15). However, Petitioner could have, but did not, raise this claim on direct appeal. (See Doc. 19, at Ex. 2). Thus, Petitioner failed to exhaust a federal constitutional claim based on the denial of a fair trial. Unless Petitioner shows cause and prejudice for failing to bring this federal constitutional claim on direct appeal or makes a showing of actual innocence, it is subject to an anticipatory procedural bar. See supra § III.D. Petitioner does not claim either. (Doc. 27, at 13-15). So, Petitioner cannot avoid the anticipatory procedural bar.

13 Petitioner may be referring to unrelated claims he addresses in his discussion of Ground Four in his reply brief.

Thus, Ground Four should be denied because it is unexhausted and would be barred if he returned to state court to raise it.

2. Alternatively, Ground Four Should Be Denied on the Merits.

Alternatively, Ground Four can be denied on the merits. The OCCA rejected Petitioner's claim that the trial court should have entered a limiting instruction regarding the other crimes evidence:

[Petitioner] contends the trial court should have, sua sponte, instructed the jury regarding the use of other crimes evidence addressed in Proposition III. [Petitioner] failed to object to the jury instructions, so review of this claim is for plain error. Lee v. State, 2018 OK CR 14, ¶ 4, 422 P.3d 782, 785. We again utilize the test for plain error found in Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

As shown above, no plain error occurred based upon the admission of the unredacted video. The evidence of [Petitioner's] guilt was overwhelming and Petitioner did not request a limiting instruction. Therefore, no plain error resulted from the trial court's failure to sua sponte issue a limiting instruction. Cf. Rutan v. State, 2009 OK CR 3, ¶ 78, 202 P.3d 839, 855 (where any error in admitting bad acts evidence was harmless and the appellant did not request a limiting instruction, no plain error occurred in the failure of the trial court to give a limiting instruction regarding the jury's use of the evidence). Proposition IV is denied.

(Doc. 10, at Ex. 1, at 16-17).

As addressed more fully above, see supra § IV.B.2.c, the Due Process Clause of the Fourteenth Amendment provides relief when the complained of conduct is so prejudicial it renders the trial fundamentally unfair. See Ochoa, 669 F.3d at 1144. So the Court must consider “whether, considered in light of the entire record, [the lack of an other-crimes jury instruction] resulted in a fundamentally unfair trial.” Knighton, 293 F.3d at 1171.

Because “Oklahoma's plain-error test is rooted in due process,” the Court “must defer to [the OCCA's] ruling unless it unreasonably applied that test.” Thornburg, 422 F.3d at 1124 (internal quotations and brackets omitted). The OCCA's decision was not unreasonable. It determined that the evidence of Petitioner's guilt was overwhelming, such that there was no plain error from the trial court's failure to issue a limiting instruction. As demonstrated by the summary of evidence, the OCCA's finding was not unreasonable. See supra § I.

In reply, Petitioner cites Shannon v. United States, 512 U.S. 573, 579 (1994) for the proposition that the jury can become confused when presented with evidence related to the punishment and effect of a defendant's conviction. (Doc. 27, at 13-14). Shannon held that the Insanity Defense Reform Act does not require that federal courts give a jury instruction explaining the consequences of a verdict of not guilty by reason of insanity. 512 U.S. at 587. It does not address the subject matter of Ground Four - whether a trial was fundamentally unfair due to the failure to instruct a jury regarding bad-acts evidence. Accordingly, the undersigned does not find Shannon at all persuasive. Additionally, Petitioner cites Federal Rule of Evidence 404(b), which prohibits the use of other crimes evidence in federal criminal trials. (Doc. 27, at 14). The Federal Rules of Evidence, however, did not apply to Petitioner's trial. Although the OCCA determined the underlying evidence was improperly admitted under state law, that does not automatically mean the lack of a limiting instruction amounted to a constitutionally unfair trial.

Thus, even if Ground Four is not subject to the anticipatory procedural bar, it should be denied on the merits.

E. Ground Five: Sufficiency of the Evidence

In Ground Five, Petitioner asserts the evidence was not sufficient to support the guilty verdicts on the four counts of child neglect. (Doc. 1, at 14). Additionally, Petitioner contends “the jury was given two theories of which they could convict by general verdict or specific verdict.” (Id.) Respondent contends Ground Five should be denied because the OCCA reasonably rejected Petitioner's sufficiency-of-the-evidence claim and Petitioner's attempt to raise a claim regarding a “general” verdict is procedurally barred. (Doc. 19, at 98-112).

For the reasons stated below, Ground Five should be denied.

1. Jackson v. Virginia is the Clearly Established Law Regarding Sufficiency of the Evidence

The relevant inquiry for a challenge to the sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. “[A] state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was objectively unreasonable.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (internal quotation marks omitted). Thus, courts utilize a “twice-deferential standard” when addressing a sufficiency-of-the-evidence claim on § 2254 habeas review. Id.

2. The OCCA's decision

The OCCA found, in relevant part:¹⁴

14 The OCCA also determined the State presented sufficient evidence to convict Petitioner on Count Five for child sexual abuse. Because Petitioner limits his argument in this action to Counts One, Two, Three, and Four, (Doc. 1, at 14; Doc. 27, at 16-18), the portion of the OCCA's decision addressing Count Five is not included herein.

[Petitioner] challenges the sufficiency of the State's evidence to support his guilty verdicts. This Court follows the standard for the determination of the sufficiency of the evidence which the United States Supreme Court set forth in Jackson v. Virginia, 443 U.S. 307. Under this test, “[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Id. at 319]. A reviewing court must accept all reasons, inferences, and credibility choices that tend to support the verdict. Taylor v. State, 2011 OK CR 8, ¶ 13, 248 P.3d 362, 368. Circumstantial evidence can provide proof of an element of a crime. See Hamby v. State, 1986 OK CR 89, ¶¶ 4-7, 720 P.2d 345, 346.

The State was required to prove the following elements of the crime of child neglect beyond a reasonable doubt:

First, a person responsible for the child's health, safety, or welfare;

Second, willfully or maliciously;

Third, failed to provide adequate shelter, sanitation, hygiene, appropriate education; or

Fourth, failed to protect from exposure to sexual materials that are not age-appropriate;

Fifth, for a child under the age of eighteen.

[Petitioner] argues that the State failed to prove the third and fourth elements sufficiently.

His first argument is that the DHS worker testified that based upon her observations of the children “the conditions alone did not support a conclusion that any of the three children in the home” were abused or

neglected. This is a blatant misstatement of the testimony. Defense counsel asked the worker why the fact that M.H. was dirty caused the worker to believe she was abused. What the worker stated in response to that question was, “had her [M.H.] being dirty been the only concern, I would not have felt she had been abused or neglected.” It is clear that DHS initially became involved based upon a referral regarding sexual abuse, but the dirtiness of the children and the condition of the trailer led to further investigation of Huff and [Petitioner].

Secondly, [Petitioner] maintains that the State based much of its neglect case on the fact that the trailer had no running water and argues the most it could have been out was three or four weeks. The evidence showed that L.H. had been in Missouri since May 20, 2016, so [Petitioner] argues she likely would not have been in the trailer since the water went out. Both of these arguments completely ignore the State's evidence of the conditions inside the trailer which showed the trailer was virtually uninhabitable. Piles of animal feces lay throughout the trailer and the scent of animal urine and rotting food was overwhelming. Mounds of trash and clothing hid the floor from view. In the bathroom, a trash bag contained used toilet paper and feminine hygiene products. A dead cat lay in the bathtub. Stagnant water clogged the kitchen sink and it was piled high with dirty dishes.

J. Huff testified the trailer was clean and had running water immediately prior to the time the Huffs moved into it. He further testified that the State's exhibits depicting the inside of the trailer accurately showed how it looked between the dates of February of 2016 after the Huffs moved into it, until June of 2016. Even if the water was only out for one week prior to the Huffs' arrests, the abysmal conditions of the trailer existed far longer than one week. See Rutan, 2009 OK CR 3, ¶ 49, 202 P.3d at 849 (“[a]lthough there may be conflict in the testimony, if there is competent evidence to support the jury's finding, this Court will not disturb the verdict on appeal.”). [Petitioner's] argument that L.H. was not exposed to these horrible living conditions is simply incredible.

[Petitioner] also argues the State failed to sufficiently prove the fourth element of child neglect, i.e., that he failed to protect the children from exposure to sexual materials that are not age-appropriate. Again, [Petitioner] ignores the evidence of the wealth of sexual material lying around the trailer in plain sight of these young children. There were two dildos and a book called “Letters to Penthouse” lying out in the open in the master bedroom and bathroom. A pink dildo/vibrator was lying in the dining room in plain view. Notably, the Huffs gifted this dildo to M.H. sometime prior to June of 2016. Because these items were lying out in the open in the trailer, they were

readily accessible to all of the children. See Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682 (circumstantial evidence may be sufficient to support a conviction). Based upon the above evidence, any rational trier of fact could find [Petitioner] guilty of child neglect beyond a reasonable doubt.

Proposition V is denied.

(Doc. 19, at Ex. 1, at 17-25) (some citations abbreviated or omitted).

3. The OCCA's Application of Jackson Was Not Unreasonable.

In order to convict Petitioner of child neglect, the State had to prove Petitioner was responsible for the health, safety, or welfare of a child under the age of eighteen,¹⁵and either: (1) willfully or maliciously failed to provide adequate shelter, sanitation, or hygiene for the child; or (2) willfully or maliciously failed to protect the child from exposure to sexual materials that are not age-appropriate. (See Doc. 19, at Ex. 1, at 18); Instruction No. 4-37, OUJI-CR(2d); OKLA. STAT. tit. 21, § 843.5(C), (O)(2); id. tit. 10A, § 1-1-105(49)(a).

15 Petitioner does not challenge whether the children were under the age of 18 or whether Petitioner was responsible for their health, safety, or welfare.

It was not unreasonable for the OCCA to find that the State presented sufficient evidence. The State presented evidence that between February 2016 and June 2016, Petitioner's trailer was in filthy condition, with trash on the floor and a strong odor. (Tr. Vol. III, at 348-49). By June 2016, investigators testified they saw piles of animal feces throughout the house, including in the children's bedroom, and the home smelled of urine and feces. (Tr. Vol. II, at 231, 277, 309). The State showed that the back door was blocked by trash, which also covered the floors of the home. (Id. at 277; State's Exs. 7, 8, 13, 16, 18, 20, 21). Additionally, rotting food was on the kitchen counter, and the sink had stagnant water in it. (Tr. Vol. II, at 235, 277, 299; State's Ex. 6). Investigators found a cat in the bathtub which was either sick or dead. (Tr. Vol. II, at 238-39, 354; State's Ex. 24). Further, the house had been without running water for at least a week and up to three or four weeks. (Tr. Vol. II, at 278, 296-97, 310; Tr. Vol. III, at 353; State's Ex. 32, at 13:28:15-13:29:00). Viewing this evidence in the light most favorable to the prosecution, it was not unreasonable for any reasonable person to find the State proved the elements of child neglect beyond a reasonable doubt.

Petitioner's arguments to the contrary are not persuasive. First, Petitioner argues that “the water was out due to a malfunctioned pump, a new water pump was ordered and Petitioner had installed a hand pump as a temporary source along with running hose from Petitioner's Dad's house to fill[] the toilets by buckets.” (Doc. 1, at 14). But the OCCA reasonably found that the evidence presented at trial showed the “abysmal conditions of the trailer existed” far before the trailer was without water. (Doc. 19, at Ex. 1, at 20). In other words, the elements of child neglect were met even if the lack of water were not considered.

Petitioner also argues that no pictures of Petitioner's home showed evidence of feces. (Doc. 27, at 16). But the evidence of feces came from the first-hand testimony of Larry Stover and Michael Vaught. (Tr. Vol. II, at 231, 309). Further, Petitioner contends that “the DHS workers stated that the condition alone of the children did not support a conclusion that any of the kids had been neglected or abused.” (Doc. 1, at 14). The OCCA reasonably found this argument to be misleading, as Jessica Kennedy, a DHS investigator, testified that had M.H.'s “being dirty been the only concern, [she] would not have felt she had been abused or neglected,” but she also testified she had other concerns. (Tr. Vol. II, at 214). And the OCCA determined that the State presented sufficient evidence of the conditions inside the trailer, not just the physical condition of the children.

Petitioner also argues that although the kitchen sink had lots of dishes in it, “all sinks look this way when taken in the dark with a flash camera.” (Id.). While Petitioner may believe the evidence of dirty dishes is not compelling, the Court is required to view the evidence in the light most favorable to the prosecution. And that evidence showed a kitchen counter with rotting food and a sink with stagnant water - more concerning to the rational person considering sanitation and hygiene than the typical kitchen. (Tr. Vol. II, at 235, 277, 299; State's Ex. 6).

It was also not unreasonable to find that the State presented sufficient evidence regarding the alternate theory of child neglect - that Petitioner willfully or maliciously failed to protect each child from exposure to sexual materials that are not age-appropriate. The OCCA found that two dildos and a book entitled “Letters to Penthouse” in the master suite along with a pink dildo in the dining room were out in the open and readily accessible to the children. (Doc. 19, at Ex. 1, at 20-21). Thus, the State presented evidence, which viewed in the light most favorable to the prosecution, supports the OCCA's finding. (Tr. Vol. II, at 237, 313-18; Tr. Vol. III, at 351-52; State's Exs. 16, 17, 26, 33).

Petitioner contends that “any argument of sexual exposure accrued in Missouri[,] years prior to moving to Oklahoma.” (Doc. 1, at 14). But the evidence of exposure to sexual materials relied on by the OCCA was found in the trailer in Lincoln County, Oklahoma. Petitioner also argues that “the sexual devices were in the master bedroom in a night stand, not in plane view until it was opened.” (Id.) But Mr. Vaught testified that he found two sexual devices in the master bedroom “on top of the sink with a lot of other miscellaneous material.” (Tr. Vol. II, at 313). And Jeff Huff found a sexual device “laying in front of the upright freezer just off of the dining area.” (Tr. Vol. III, at 352). While Petitioner may believe the sexual devices were not in plain sight, the Court is obligated to consider the evidence in the light most favorable to the prosecution. Finally, Petitioner claims that any child with access to the internet is exposed to sexual materials that are not age appropriate. (Doc. 27, at 17). This argument is unrelated to the evidence presented at trial - that the children were exposed to dildos and a “Letters To Penthouse” book inside the home.¹⁶

16 Petitioner makes other, unrelated arguments in the reply brief. (Doc. 27, at 16-17). Because these arguments were first raised in relation to Ground Five in reply, the undersigned does not address them. See Windsor, 623 Fed.Appx. at 947.

For the reasons stated above, the OCCA did not unreasonably find the State presented sufficient evidence to convict Petitioner under either theory of child neglect.

4. Petitioner's Argument Regarding a General Verdict Is Procedurally Barred.

Petitioner states that “the jury was given two theories of which they could convict by general verdict or specific verdict.” (Doc. 1, at 14). On direct appeal, Petitioner noted that the State presented two theories of guilt on Counts One, Two, Three, and Four -Petitioner either: (1) failed to provide adequate shelter, sanitation, hygiene, or appropriate education to M.H., L.H., K.H., and J.W.; and/or (2) failed to protect the children from exposure to sexual materials that are not age appropriate. (Doc. 19, at Ex. 2, at 31-32). Petitioner asserted that “the trial court opted to provide general rather than specific separate verdict forms” so “it is impossible to determine which theory or evidence the jury relied on in making its decision to convict [Petitioner].” (Id. at 36). This is relevant, he contended, because some of the conduct presented at trial occurred in Missouri, not Oklahoma. (Id.). This claim should be denied because it is procedurally barred.

The OCCA dismissed Petitioner's general verdict claim because he failed to follow the court's rules:

[Petitioner's] separate claim within this proposition regarding the general verdicts found by the jury is waived. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), provides, “[e]ach proposition of error shall be set out separately in the brief” and that the argument in support of the proposition shall cite to the record and authorities.

[Petitioner] failed to comply with this rule.

(Doc. 19, at Ex. 1, at 25).

As discussed above, claims that are defaulted in state court on adequate and independent state procedural grounds will not be considered by a habeas court. See supra § III.C. “Rule 3.5(A)(5) is an adequate and independent state procedural rule.” Harmon v. McCollum, No. CIV-10-16-C, 2016 WL 886118, at *7 (W.D. Okla. Jan. 20, 2016), report and recommendation adopted, 2016 WL 890949 (W.D. Okla. Mar. 8, 2016); see also Cole v. Trammell, 755 F.3d 1142, 1176 (10th Cir. 2014) (claim was unexhausted and subject to a procedural bar where the OCCA, “consistent with OCCA Rule 3.5(A)(5), . . . treated [an] issue as not properly raised” where the petitioner “neither listed nor treated [an issue] as a distinct issue in his direct appeal brief”). Thus, this portion of Ground Five is procedurally barred.

Petitioner did not address cause and prejudice in his reply brief, so he failed to overcome the procedural defect. Further, the claim does not touch on actual innocence. Thus, the general verdict argument should be denied because it is procedurally barred.

F. Ground Six: Jury Instruction Error in Count Five

In Ground Six, Petitioner asserts the trial court should have instructed the jury on “which specific acts or proposals the jury could consider in determining guil[t] on Count 5.” (Doc. 1, at 15-16). Petitioner also notes that “much of the content given to the jury happened in Missouri not in Oklahoma.” (Id. at 16). Petitioner further contends “it is likely that the jury used the same evidence to find guilt in Count 5 as it had already in Count[s] 1-4” and there is a “strong possibility” that Petitioner “was punished twice for the same action.” (Id.)

Respondent urges the Court to deny Ground Six. (Doc. 19, at 112-28). Respondent first contends the instructional claim is a matter of state law and that a federal claim is subject to an anticipatory procedural bar because it is unexhausted. (Id. at 116-19). Alternatively, Respondent argues that the OCCA reasonably applied clearly established law in finding the error harmless. (Id. at 119-26). Finally, Respondent argues Petitioner's claim of double jeopardy is procedurally barred. (Id. at 126-27).

The undersigned recommends denying the jury instruction claim on the merits and denying the double punishment argument because it is procedurally barred.

1. Petitioner's Argument on Direct Appeal and the OCCA's Decision

On direct appeal, Petitioner argued that “the Notes on Use following [Instruction No. 4-39, OUJI-CR(2d)] direct trial courts to provide juries an additional instruction detailing the elements of the particular sexual abuse or sexual exploitation alleged by the State,” but that the trial court did not provide such an instruction. (Doc. 19, at Ex. 2, at 38). He asserted the error was not harmless because “much of the alleged conduct occurred in Missouri rather than Oklahoma.” (Id. at 39). He also contended that “the State referenced some of the same conduct, i.e., providing M.H. a sexual device, it used to support Count 5 as part of its proof for its Count 1 allegation that Mr. Huff neglected M.H. by failing to protect M.H. from exposure to sexual materials that are not age appropriate,” so “a strong possibility exists that [Petitioner] was punished twice for the same action.” (Id.) (quotation marks omitted) (citing OKLA. STAT. tit. 21, § 11(A)).

The OCCA denied relief:

[Petitioner] contends the trial court improperly instructed the jury regarding Count 5, child sexual abuse. He argues the jury should have been instructed regarding the specific acts and/or proposals that it could consider in determining guilt on Count 5. Review of this claim is for plain error since [Petitioner] lodged no objection to the jury instructions. Stewart v. State, 2016 OK CR 9, ¶ 25, 372 P.3d 508, 513-14. As set forth in Proposition I, we utilize the test for plain error found in Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701.

The jury was instructed on the elements of child sexual abuse as follows:

First, a person willfully or maliciously engaged in; Second, making lewd and indecent acts and proposals; Third, with a child under the age of eighteen.

The jury also received instruction that “malicious” means “a wish to vex, annoy or injure another person,” “willful” means “[p]urposeful,” and “lewd” means “obscene, indecent, lascivious, lecherous.”

Pursuant to A.O., 2019 OK CR 18, ¶ 10, __ P.3d at __, the jury should have been instructed on the underlying elements comprising child sexual abuse. These elements are found in Instruction No. 4-129, OUJI-CR (2d). As relevant here, lewd or indecent proposals are defined in that instruction as an oral, written or electronically generated lewd or indecent proposals to a child under sixteen for the child to have unlawful sexual relations or intercourse with any person. Lewd and indecent acts are defined in that instruction as looking upon, touching, mauling or feeling the body or private parts of a child under sixteen in a lewd or lascivious manner.

The State concedes the trial court did not give these additional instructions, but argues this omission was harmless. Although our decision in A.O., 2019 OK CR 18, ¶ 10, __ P.3d at __, requires instruction on the underlying acts comprising child sexual abuse, we agree that on the facts of this case, the error was harmless. Unlike in A.O., where no evidence was presented of the missing age element, ample evidence of the underlying elements of lewd or indecent proposals and lewd acts was presented in the present case. Furthermore, the jury was instructed on the definition of the word “lewd” which forms the basis of the conduct [Petitioner] was alleged to have committed and which is prohibited by Section 843.5(E).

In Stewart, 2016 OK CR 9, ¶ 26, 372 P.3d at 514, we held the omission of an element from a jury instruction is error, but such an error can be harmless. In making the harmlessness determination, “the inquiry is whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Id., 2016 OK CR 9, ¶ 28, 372 P.3d at 514; see also Neder v. United States, 527 U.S. 1, 17 (1999) (“[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.”).

As previously discussed, the evidence in this case is overwhelming. [Petitioner] himself described his numerous lecherous and sexually charged encounters with M.H. He admitted many of these involved touching and massaging M.H. while M.H. was topless (State's Exhibit 32). [Petitioner's] messages to M.H. undoubtedly conveyed his offers for licking and kissing M.H. and his desire for her to engage in sexual activity with him (State's Exhibit 25). [Petitioner] freely admitted sending the messages. [Petitioner]

was twenty-nine years old in June of 2016 and his daughter, M.H., was fifteen. The only possible inference from the evidence presented in this case is that [Petitioner] was grooming M.H. in order to attain his ultimate goal of engaging in sexual intercourse with her.

This record makes it clear “beyond a reasonable doubt that a rational jury would have found the defendant guilty [of child sexual abuse] absent the error.” Stewart, 2016 OK CR 9, ¶ 28, 372 P.3d at 514. Therefore, the error was harmless and had no influence on the outcome of the proceeding. Consequently, there was no plain error. See Barnard v. State, 2012 OK CR 15, ¶ 15, 290 P.3d 759, 764 (where the instructional error is harmless, it cannot “have affected [Petitioner's] substantial rights under our plain error test.”) Proposition VI is denied.

[Petitioner's] attempt to raise a separate claim within this proposition that his convictions violate statutory prohibitions against multiple punishment for a single act is waived because it is not contained in a separate proposition of error. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), provides pertinently, “[e]ach proposition of error shall be set out separately in the brief.”

(Doc. 10, at Ex. 1, at 25-29) (some citations abbreviated).

2. The OCCA Did Not Unreasonably Determine that Missing Elements From the Jury Instructions Amounted to Harmless Error.

a) The Court Should Find the Jury Instruction Claim is Exhausted Because the OCCA Considered the Claim in Constitutional Terms.

The Petition states that “the jury was given incorrect instruction” and that “no instruction was given” regarding specific acts or proposals. (Doc. 1, at 15-16). Respondent first asserts that Petitioner's claim on this point relies solely upon state law and thus this Court cannot review it. (Doc. 19, at 116). See McGuire, 502 U.S. at 67-68. Respondent argues in the alternative that any constitutional error was harmless. (Doc. 19, at 119-26). In reply, Petitioner argues the trial court's failure to issue a proper jury instruction was “purely unconstitutional.”¹⁷(Doc. 27, at 20). Thus, Petitioner loosely ties his claim to the United States Constitution, and the undersigned liberally construes the Petition to find the federal issue sufficiently raised.

17 Because Petitioner was addressing an argument raised by Respondent, the undersigned does not consider the issue raised for the first time in reply.

Respondent also argues that Petitioner did not exhaust the constitutional claim in state court. Indeed, Petitioner's argument on direct appeal did not assert that the jury instructions violated the United States Constitution. But “[a] state appellate court's sua sponte consideration of an issue not only satisfies § 2254's exhaustion requirement, but, more importantly for our purposes, also constitutes an adjudication on the merits that is ripe for federal habeas review.” Alverson v. Workman, 595 F.3d 1142, 1153 n.3 (10th Cir. 2010). The OCCA found that “the jury should have been instructed on the underlying elements comprising child sexual abuse.” (Doc. 19, at Ex. 1, at 26). Then, the OCCA cited Neder and applied harmless error. (Id. at 27-29). The OCCA's analysis constitutes “fair presentation” of Petitioner's constitutional claim for the purposes of exhaustion. See Black v. Dennis, CIV-22-63-SLP (Doc. 31, Report and Recommendation, at 12-13) (W.D. Okla. Jan. 27, 2023) (finding “Petitioner fairly presented a federal constitutional claim” where “the OCCA discussed th[e] issue in federal constitutional terms” when it “found the trial court erred by failing to instruct the jury on the elements” of a lesser offense and applied “the Neder/Chapman analysis”). Thus, Petitioner has exhausted the federal claim in state court, and this Court may consider it on the merits.

b) Clearly Established Law

“[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 to due process of law.” Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005) (quoting Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997)). “In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. Middleton v. McNeil, 541 U.S. 433, 437 (2004).

But “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder v. United States, 527 U.S. 1, 9 (1999) (emphasis in original). “[T]he omission of an element is an error that is subject to harmless-error analysis” - where “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'” Id. at 15 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17.

c) The OCCA's Determination Was Not an Unreasonable Application of Clearly Established Law.

The Court reviews the OCCA's finding of harmless error under the standard set out in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). See Fry v. Pliler, 551 U.S. 112, 121 (2007); see also California v. Roy, 519 U.S. 2, 5-6 (1996) (applying the Brecht standard on habeas review where the trial court made “an error in the instruction that defined the crime”). Under Brecht, the inquiry is “whether the error ‘had substantial and injurious effect or influence in determining the jury's verdict.'” 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If “grave doubt” exists about the harmlessness of the error, the Court must treat the error as though it had affected the verdict. See O'Neal v. McAninch, 513 U.S. 432, 435 (1995). “Grave doubt” exists where the issue of harmlessness is “‘so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.'” Bland, 459 F.3d at 1009-10 (quoting O'Neal, 513 U.S. at 435) (alteration in original). Thus, for Petitioner's claim to succeed, he “must show that he was actually prejudiced by [the jury instruction], 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 269. The OCCA did not unreasonably find the error to be harmless under the standard outlined in Neder (which is derived from Chapman).

The OCCA found “the jury should have been instructed on the underlying elements comprising child sexual abuse.” (Doc. 19, at Ex. 1, at 26). The relevant instructions are:

No person may be convicted of (lewd acts with)/(indecent proposals to) a child under sixteen unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the defendant knowingly and intentionally;

Second, made a/an oral/written/(electronically/computer generated) lewd or indecent proposal;

Third, to a child/(person the defendant believed to be a child) under sixteen years of age;

Fourth, for the child to have unlawful sexual relations/intercourse with any person; and

Fifth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child's age)/(used force/fear).

OR

First, the defendant knowingly and intentionally;

Second, (looked upon)/touched/mauled/felt;

Third, the body or private parts;

Fourth, of a child under sixteen years of age;

Fifth, in any lewd or lascivious manner; and

Sixth, the defendant (was at least three years older than the child)/(used force/fear).

Instruction No. 4-129, OUJI-CR(2d).

The OCCA found the evidence against Petitioner with regard to these elements was “overwhelming.” (Doc. 19, at Ex. 1, at 28). In support, the OCCA found:

• Petitioner described “numerous lecherous and sexually charged encounters with M.H.;”

• Petitioner sent messages to M.H. seeking to “role-play” with her, reminding her that they had an “open family;”

• Petitioner admitted touching and massaging M.H. while M.H. was topless;

• Petitioner offered to lick and kiss M.H. and desired for her to engage in sexual activity with him;

• Petitioner let M.H. sit on his lap while he had an erection;

• Petitioner was twenty-nine years old and M.H. was fifteen years old;

• The dates of many of the messages between Petitioner and M.H. were May 13 and 14, 2016;

• Petitioner “stated . . . that his family moved to Oklahoma in late 2015” and “nothing in the record shows any of the incidents [cited by the OCCA] occurred in Missouri;” and

• “The only possible inference from the evidence presented in this case is that [Petitioner] was grooming M.H. in order to attain his ultimate goal of engaging in sexual intercourse with her.”

(Id. at 23-24, 28). Given the breadth of evidence against Petitioner presented at trial that together established the omitted elements of child sexual abuse, the Court does not find the OCCA's harmlessness determination to be unreasonable. Therefore, Petitioner's missingelements claim in Ground Six should be denied on the merits.

3. Petitioner's Double Punishment Claim Is Procedurally Barred.

Petitioner's claim that there is “a strong possibility that [he] was punished twice for the same action” is procedurally barred. The OCCA found this claim was waived on direct appeal because it was “not contained in a separate proposition of error” in violation of OCCA Rule 3.5(A)(5). (Doc. 19, at Ex. 1, at 29). “Rule 3.5(A)(5) is an adequate and independent state procedural rule.” Harmon, 2016 WL 886118, at *7; see also Cole, 755 F.3d at 1176. Thus, this portion of Ground Six is procedurally barred.

Petitioner did not establish cause, prejudice, or actual innocence to sidestep the procedural bar. He contends that “the only time that [he] is allowed to bring up a constitutional claim is on the post-conviction and OCCA after that then the only proper place is habeas because the state remidys was exhausted and is now up to the higher court to review.” (Doc. 27, at 20). This is an inaccurate statement of the law and does not serve as cause to avoid procedural default. See Williams, 782 F.3d at 1212 (“Oklahoma requires a post-conviction relief applicant to raise all grounds for relief which he actually knows or should have known through the exercise of due diligence in his original application for relief.”). Thus, the double punishment portion of Ground Six should be denied on the basis of procedural default.¹⁸

18 The undersigned also notes that Petitioner's claim in state court was that he was subject to double punishment under OKLA. STAT. tit. 21, § 11(A). (Doc. 19, at Ex. 2, at 39). This claim is not cognizable on federal habeas review. See Smith v. Bridges, No. 23-6002, 2023 WL 2980318, at *1 (10th Cir. Apr. 18, 2023) (“Mr. Smith's double punishment claim under [OKLA. STAT. tit. 21, § 11] is not cognizable on federal habeas review.”).

G. Ground Seven: Prosecutorial Misconduct

In Ground Seven, Petitioner contends prosecutorial misconduct resulted in a violation of his rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments. (Doc. 1, at 17). Petitioner's argument is difficult to follow, but - in an effort to provide liberal construction - the undersigned reads it in concert with similar arguments he made to the OCCA. There, Petitioner asserted that at the preliminary hearing, the State “informed the court of its intention to correct” a defect in the information at the preliminary hearing by “replacing the language referring to sexual abuse with ‘making lewd and indecent proposals and lewd and indecent acts.'” (Doc. 19, at Ex. 2, at 40). Additionally, Petitioner contended that “the State also indicated its intent to amend the date range from February 15, 2015 to June 15, 2016, to May 1, 2016 to June 15, 2016, presumably because the evidence presented at the preliminary hearing demonstrated that the Huff family had lived in Missouri, not Oklahoma, for a portion of this alleged time frame.” (Id.) But the prosecutor did not make the amendments as to Count Five and read the “uncorrected Amended Information to the jury during its opening statement and referenced it in the closing argument.” (Id. at 41) (citing Tr. Vol. I, at 178-83, Tr. Vol. III, at 431); see also Doc. 1, at 17).¹⁹

19 Petitioner makes arguments in his reply brief unrelated to those raised in Ground Seven in the Petition or his corresponding argument on direct appeal. (Doc. 27, at 21-30). The undersigned does not address these arguments because they were raised for the first time in reply. See Windsor, 623 Fed.Appx. at 947.

Respondent argues Ground Seven is procedurally barred and, alternatively, without merit. (Doc. 19, at 128-140). The undersigned recommends bypassing the procedural bar and denying the claim on the merits.

1. The Court Should Exercise its Discretion to Bypass the Question of Procedural Bar.

The OCCA denied Petitioner's claim on procedural grounds:

[Petitioner] initially claims the State failed to amend the Information as it indicated it would after the preliminary hearing. We find [Petitioner] has waived this claim because he failed to move to quash the Amended Information and entered his plea to it at formal arraignment. Berry v. State, 1992 OK CR 41, ¶ 9, 834 P.2d 1002, 1005 (where the appellant entered a plea at formal arraignment, he waived any irregularities which may have occurred at preliminary hearing); Money v. State, 1985 OK CR 46, ¶ 5, 700 P.2d 204, 206 (same); Crawford v. State, 1984 OK CR 89, ¶ 14, 688 P.2d 347, 350 (irregularities in bind over order waived where the appellant entered a plea at formal arraignment); and Hambrick v. State, 1975 OK CR 86, ¶ 11, 535 P.2d 703, 705 (“When a defendant, upon arraignment, pleads to the merits and enters on trial, he waives . . . any irregularities [in the preliminary examination].”). Cf. Thompson v. State, 2018 OK CR 5, ¶ 4, 419 P.3d 261, 262 (review of the trial court's denial of appellant's motion to quash Supplemental Information waived where the appellant failed to timely assert that the evidence at preliminary hearing was insufficient before he entered his plea at formal arraignment); Brennan v. State, 1988 OK CR 297, ¶ 7, 766 P.2d 1385, 1387 (a plea on the merits operates as a waiver of preliminary hearing).

(Doc. 19, at Ex. 1, at 30-31).

Respondent asserts the claim is procedurally barred because: (1) the OCCA applied an independent procedural rule because it based its determination solely on state law; and (2) the procedural bar is “adequate based upon the OCCA's regular and even-handed application of wavier to claims such as this.” (Doc. 19, at 131) (citing Gordon v. State, 451 P.3d 573, 580 (Okla. Crim. App. 2019); Thompson v. State, 419 P.3d 261, 262 (Okla. Crim. App. 2018); Berry v. State, 834 P.2d 1002, 1005 (Okla. Crim. App. 1992); Brennan v. State, 766 P.2d 1385, 1387 (Okla. Crim. App. 1988); Money v. State, 700 P.2d 204, 206 (Okla. Crim. App. 1985); Crawford v. State, 688 P.2d 347, 350 (Okla. Crim. App. 1984); Hambrick v. State, 535 P.2d 703, 705 (Okla. Crim. App. 1975)). On the other hand, Respondent concedes there are “a handful of cases where the OCCA failed to apply all-out waiver to claims such as this.” (Doc. 19, at 132) (citing Cortez-Lazcano v. Whitten, 2002 WL 884921, at *16 (N.D. Okla. Mar. 24, 2022); Millsap, 2019 WL 1302548, at *4; Nealy v. State, 636 P.2d 378, 380 (Okla. Crim. App. 1981)). Respondent argues the procedural bar is adequate because “a procedural bar is adequate if it is applied evenhandedly to similar claims in the vast majority of cases.” (Id.) (emphasis added) (citing Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012)). At the very least, there is a split of authority on this point under Oklahoma law.

The undersigned recommends bypassing the procedural bar issue and deciding the case on the merits. “When questions of procedural bar are problematic . . . and the substantive claim can be disposed of readily, a federal court may exercise its discretion to bypass the procedural issues and reject a habeas claim on the merits.” Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2004); see also Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000) (“Before addressing Appellant's ineffective assistance arguments, we note that this case presents a number of complex issues concerning the applicability of Colorado's procedural bar to these claims. We need not and do not address these issues, however, because the case may be more easily and succinctly affirmed on the merits.”). The Court should exercise such discretion here.

2. The Prosecutorial Misconduct Claims Should Be Denied on the Merits.

The Information, filed on June 24, 2016, charged Petitioner with four counts of child neglect under OKLA. STAT. tit. 21, § 843.5(C), occurring between October 1, 2015, and June 15, 2016. (R., at 1-2). Count Five stated: “CHILD SEXUAL ABUSE - a FELONY, on or between the 15th day of February 2015 and the 15th of June, 2016, by willfully/maliciously sexually abusing M.H., a minor child, who was 14 years old at that time, by lewd or indecent proposal and by looking or touching upon her body in a lewd or lascivious manner.” (Id. at 2).

At the end of the February 17, 2017, preliminary hearing, the State moved to amend the Information to reflect a date range beginning May 1, 2016, through June 15, 2016, on all counts. (P.H. Tr., at 89). It further sought to amend Count Five “to strike ‘sexually abusing' and replace it with ‘making lewd and indecent proposals and lewd and indecent acts.'” (Id.) Petitioner's counsel “request[ed] and mov[ed] that the amendments . . . be set forth in an amended information so that there can be no . . . confusion as to what charges [Petitioner] is facing.” (Id. at 90). The State represented that it would file an amended information within ten days. (Id.) The trial court then accepted the amendments and found probable cause that Petitioner “committed the acts as alleged in Counts 1 through 5 and as amended by the dates and the verbal amendment with regard to the lewd or indecent acts and propositions.” (Id. at 90-91).

On February 23, 2017, the State filed an Amended Information. (R., at 57-58). The Amended Information changed the dates for Counts One through Four to reflect the underlying acts occurred on or between May 1, 2016, and June 15, 2016. (Id.) But Count Five stated: “CHILD SEXUAL ABUSE - A FELONY, on or between the 15th of February, 2015 and the 15th day of June, 2016, by willfully/maliciously making lewd and indecent proposals and lewd and indecent acts to M.H., a minor child, who was 14 years old at that time, by lewd or indecent proposals and by looking or touching upon her body in a lewd or lascivious manner.” (Id. at 58). Notably, the amendments to Count Five did not reflect the new beginning date put forth by the State at the preliminary hearing.

“The relevant question” when addressing inappropriate remarks made by a prosecutor “is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly, 416 U.S. at 643). “In other words, in the habeas context, the petitioner must establish that the prosecutor's misconduct was ‘of sufficient significance to result in the denial of the [petitioner's right to a fair trial.'” Cole, 755 F.3d at 1174 (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)). “An inquiry into the fundamental fairness of the trial requires an examination of the entire proceedings, including the strength of the evidence against the defendant.” Hanson, 797 F.3d at 843. “This determination may be made only after considering all of the surrounding circumstances, including the strength of the state's case.” Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018) (quoting Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005)).

Before determining whether any alleged prosecutorial misconduct caused Petitioner to receive a fundamentally unfair trial, it is imperative to determine the prosecutorial act or acts about which Petitioner complains. The Petition focuses on what the prosecutor told the jury and the effect it had on the jury. (Doc. 1, at 17) (alleging that “the jury was told by the ADA the unchanged dates,” “the ADA knowingly gave the jury both languages,” and “the jury likely focused on the language of lewd molestation”). On direct appeal Petitioner contended that “the State . . . read the uncorrected Amended Information to the jury during its opening statement and referenced this language again during its closing argument.” (Doc. 19, at Ex. 2, at 41). He argued that “the language contained in the Amended Information prejudiced [him] because it focused the jury more on the elements of lewd molestation than the charged offense of child sexual abuse and informed the jury this conduct had been occurring since February 2015 rather than May 1, 2016.” (Id. at 4142). Thus, the alleged misconduct is that the prosecutor read the Amended Information as filed when addressing the jury.²⁰

20 Respondent contends there is no clearly established law because the issue is whether the State erred in the way the Information was amended. (Doc. 18, at 134-35). But because the issue is whether the prosecutor's statements to the jury regarding the incorrect Information amounted to a due process violation, Respondent's argument should be rejected.

Liberally construed, Petitioner contends the prosecutor's recitation of the incorrect date range for Count Five prejudiced him because Petitioner lived in Missouri for part of that time. (Doc. 1, at 17; Doc. 19, at Ex. 2, at 41-42). The undersigned finds that even if the prosecutor engaged in misconduct of some sort, it did not render the trial fundamentally unfair. First, the undersigned notes that in reading the Amended Information to the jury, the prosecutor stated: “in said County of Lincoln and in the State of Oklahoma, Andrew Huff . . . did then and there unlawfully willfully, knowingly, and wrongfully commit the crimes.” (Tr. Vol. II, at 178-79). So, even though Petitioner lived in Missouri during some of the time period, the jury was on notice that the State alleged actions occurring in Lincoln County, Oklahoma. Second, the state presented significant evidence showing Petitioner committed Count Five between May 1, 2016, and June 15, 2016.²¹Petitioner and his family moved to their trailer between November 2015 and February 2016. (Tr. Vol. III, at 346; State's Ex. 30, at 2:50). Petitioner sent electronic messages to M.H. in May 2016 seeking to role play, using sexually suggestive language and emojis, and reminding her the messages were private and they had an open family. (State's Ex. 25). The undersigned agrees with the OCCA that this evidence from the correct relevant time period reasonably led to the conclusion that Petitioner was grooming M.H. in an effort to engage in sexual intercourse with her. (Doc. 19, at Ex. 1, at 28). Given the evidence, Petitioner cannot satisfy the stringent requirements for a due process violation with his argument relating to the dates of the alleged crimes.

21 As addressed above, see supra § IV.F.2, the state had to prove either: (1) Petitioner knowingly and intentionally made an oral/written/electronic lewd or indecent proposal(s) to a child under sixteen years of age (and at least three years younger than Petitioner) for the child to have unlawful sexual relations/intercourse with any person; or (2) Petitioner knowingly and intentionally looked upon/touched/mauled/felt the body or private parts of a child under the age of sixteen years old (and at least three years younger than Petitioner) in any lewd or lascivious manner. Instruction No. 4-129, OUJI-CR(2d).

Petitioner also argues that the prosecutor should not have retained language regarding “lewd or indecent proposals and lewd and indecent acts” in Count Five of the Amended Information because that language is from Okla. Stat. tit. 21, § 1123(A) instead of Okla. Stat. tit. 21, § 843.5(E) - the statute under which he was charged. (Doc. 1, at 17; Doc. 19, at Ex. 2, at 41). However, one avenue for the State to prove Count Five was by showing Petitioner made a lewd or indecent proposal to M.H. and another method was by proving that Petitioner touched M.H. in a lewd or lascivious manner. Instruction No. 4129, OUJI-CR(2d). The prosecutor could not have committed misconduct by accurately stating the law.

For the reasons stated above, Ground Seven should be denied.

H. Ground Eight: Ineffective Assistance of Trial Counsel

In Ground Eight, Petitioner asserts his trial counsel was constitutionally ineffective because he: (1) failed to timely request and review discovery; (2) failed to request and review “relevant or required jury instruction” for child sexual abuse; (3) “failed to object to rampant hearsay and blatant procedural misconduct,” which opened the door to prejudicial and inflammatory other-crimes evidence; and (4) failed to discover and/or present readily available evidence supporting the defense. (Doc. 1, at 19). Respondent contends the OCCA reasonably rejected Petitioner's claim raised in Ground Eight. (Doc. 19, at 140-161). The undersigned recommends denying Ground Eight on the merits.

1. Strickland v. Washington is the Clearly Established Law.

In order to succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy the standards of Stricklandv. 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 where “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Thus, prejudice is shown 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).

2. The OCCA's Decision

On direct appeal, Petitioner contended he was deprived of the effective assistance to counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. (Doc. 19, at Ex. 2, at 44-52). The OCCA rejected Petitioner's arguments:

[Petitioner] alleges his counsel was ineffective. He argues his counsel failed to do the following: to request discovery and file motions as addressed in Proposition I; to object to prejudicial hearsay as addressed in Proposition II; to redact the videos of his police interviews and object to other crimes evidence as addressed in Proposition III; to request an instruction on other crimes evidence as addressed in Proposition IV; to request a proper instruction on child sexual abuse as addressed in Proposition VI; and to object to alleged prosecutorial misconduct as addressed in Proposition VII. [Petitioner] further argues his counsel was ineffective for opening the door to evidence of other crimes and for failing to present readily available evidence in support of his defense. The last claim is the subject of [Petitioner's] Application for Evidentiary Hearing on Sixth Amendment Claim pursuant to Rule 3.11(B)(3)(b)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).

We review ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Malone, 2013 OK CR 1, ¶ 14, 293 P.3d at 206. The Strickland test requires an appellant to show: (1) that counsel's performance was constitutionally deficient; and (2) that counsel's deficient performance prejudiced the defense. Id., (citing Strickland, 466 U.S. at 687).

The Court begins its analysis with the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. [Petitioner] must overcome this presumption and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Bland v. State, 2000 OK CR 11, ¶ 113, 4 P.3d 702, 731 (citing Strickland, 466 U.S. at 697). To demonstrate prejudice an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel's unprofessional errs. Id., 2000 OK CR 11, ¶ 112, 4 P.3d at 731. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

This Court reviews an application under Rule 3.11(B)(3)(b) pursuant to the analysis set forth in Simpson v. State, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 905-06. We review and consider an appellant's application and affidavits along with other attached non-record evidence to determine whether the appellant has shown clear and convincing evidence of a strong possibility

that counsel was ineffective and should be afforded further opportunity to present evidence in support of his claim. Id.

We found in Propositions I-IV, VI and VII that [Petitioner] failed to show the occurrence of plain and reversible error. As a result, [Petitioner] has not shown his counsel was ineffective as alleged, i.e., he has failed to show a reasonable probability that the outcome of the trial would have been different but for counsel's failures. Runnels, 2018 OK CR 27, ¶¶ 38, 426 P.3d at 62324 (where no plain and reversible error occurred, no reasonable probability that the outcome of the trial would have been different but for counsel's failures was shown).

[Petitioner] also argues counsel was ineffective for opening the door to evidence of other crimes. During cross-examination of Vaught, defense counsel asked him if he knew of any crimes [Petitioner] committed before June 14, 2016. Vaught responded, “[n]ot within the State of Oklahoma.” Counsel then questioned Vaught about his knowledge of any harm which had occurred to the children from living in the Huff trailer and Vaught admitted he had no such knowledge. Thereafter, counsel asked Vaught if he contacted other district attorney offices “in any other county besides Lincoln or Pottawatomie to see if there were any similar crimes or cases against Mr. or Mrs. Huff?” At that point, a bench conference occurred during which a discussion transpired regarding Vaught's possible answer which might raise the issue of other investigations in Missouri. At the conclusion of the bench conferences, Vaught did not remember the question so defense counsel asked him if he caused “any investigation in the offices of any other district attorneys in Oklahoma besides Lincoln and Pottawatomie County as part of your investigation in this case?” Vaught responded in the negative.

Based upon this questioning, it is plain that defense counsel wanted the jury to know that [Petitioner] was not the subject of any additional investigations in Oklahoma with regard to his children. Defense counsel sought to minimize the State's evidence of neglect by having Vaught admit he did not know of any actual physical harm sustained by the children. The jury already knew that [Petitioner] had some involvement with authorities in Missouri because of his interview with Vaught. Eliciting the fact that there were no other investigations of [Petitioner] in Oklahoma served to support the theory that if the children suffered no actual physical harm and [Petitioner] was not the subject of any other investigations, the State's evidence was not sufficient to support a conviction. This was a reasonable strategy and counsel was not ineffective for using it. “So long as the choices are informed ones, counsel's decision to pursue one strategy over others is ‘virtually unchallengeable.'” Jones v. State, 2006 OK CR 5, ¶ 78, 128 P.3d 521, 545 (citing Strickland,

466 U.S. at 690-91). That the strategy was unsuccessful does not mean counsel was ineffective. Turrentine v. State, 1998 OK CR 33, ¶ 41, 965 P.2d 955, 971.

[Petitioner] finally contends defense counsel should have presented evidence that the water pump at the trailer was broken and that he attempted to replace the pump. This contention is the subject of [Petitioner's] Application for Evidentiary Hearing on Sixth Amendment Claim. [Petitioner] attaches to this application his own affidavit, an affidavit from an OIDS investigator and printouts from the business where he purchased the water pump.

The fact that the trailer had no running water was undisputed. In his interview with Vaught, [Petitioner] claimed the water pump had been broken for a week prior to his arrest and that he was trying to get a replacement pump. Based upon his attached materials, [Petitioner] did not try to get a replacement pump until two days before his arrest, which was also after DHS received the referral about the Huffs. Although [Petitioner] argues the date upon which the trailer had no running water was significant, none of the attached materials show the date upon which the water pump ceased functioning. Thus, these materials prove nothing about the length of time the trailer was without running water. J. Huff stated the trailer had been without water for “three or four weeks” prior to [Petitioner's] arrest. Again, the attached materials prove nothing and do not refute the State's evidence that the water was out for a significant period of time. The conditions inside the Huff trailer were horrible and disgusting. It is simply incredible that the trailer morphed into that state over a period of one week.

[Petitioner's] proffered materials in support of his Application for Evidentiary Hearing on Sixth Amendment Claim fail to show by clear and convincing evidence that there is a strong possibility that trial counsel was ineffective for failing to utilize or identify this evidence. Simpson, 2010 OK CR 6, ¶ 53, 230 P.3d at 905-06. Accordingly, his application is denied.

Because he has failed to provide sufficient proof to warrant an evidentiary hearing, [Petitioner] cannot show defense counsel was ineffective under the Strickland standard for failing to utilize this evidence. Simpson, 2010 OK CR 6, ¶ 53, 230 P.3d at 906. Proposition VIII is denied.

(Doc. 10, at Ex. 1, at 35-41) (some citations abbreviated).

3. The OCCA's application of Strickland was not unreasonable.

a) Failure to Request the Recorded Interviews in Discovery

Petitioner contended on direct appeal that his counsel failed to file a written discovery motion or make an oral request for discovery even though his counsel knew about the existence of the recorded interviews for months. (Doc. 19, at Ex. 2, at 45-47). Further, Petitioner contends his counsel did not review the interview, as the trial court questioned whether his counsel listened to it. (Id. at 46) (citing Tr. Vol. II, at 323).

The OCCA reasonably found the outcome of the trial would not have been different if trial counsel had made the discovery requests. As addressed in Ground One, counsel's review of the interview with Mr. Vaught would not have led to a successful objection for a Miranda violation because Petitioner did not unambiguously request counsel during the interview. See supra § IV.A.3. And the undersigned has repeatedly addressed the strength of the evidence against Petitioner. Thus, the undersigned recommends this portion of Ground Eight be denied.

b) Failure to Object to Hearsay

Petitioner complains his attorney failed to object to out-of-court statements regarding the status of running water in the house. (Doc. 1, at 19; Doc. 27, at 32). As addressed in Ground Two, the OCCA found they were cumulative to Jeff Huff's testimony - based on his personal knowledge - that the trailer was without running water for three or four weeks and that Petitioner admitted the trailer was without running water. (Doc. 19, at Ex. 1, at 7-8). Further, the OCCA noted that the lack of running water was not critical to proving the child neglect charges. (Id. at 8).

Petitioner also complained on direct appeal about additional hearsay statements and by reference asserted his counsel was ineffective for failing to object to them. He complained that Deputy Stover testified that Ms. Huff was aware of Petitioner's inappropriate text conversation with M.H., but Ms. Huff claimed not to have seen the message containing the word “lick.” (Doc. 19, at Ex. 2, at 25). Petitioner also complained that Mr. Mull testified about conversations he had with Ms. Huff - including about the clothing-optional policy in Petitioner's home and the purchase of a sexual device for M.H. (Id. at 25-26). The OCCA found the testimony was not hearsay under state law. (Id. at Ex. 1, at 9-10). That determination binds this court. See Williams, 782 F.3d at 1195 (“‘[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 testimony did not violate Oklahoma law, any objection by counsel would not have succeeded.

Petitioner also argued on direct appeal that at the sentencing hearing, the prosecutor recounted a conversation he had with K.H. about living with his foster family. (Doc. 19, at Ex. 2, at 27). The OCCA found that the state evidence code does not apply to the sentencing hearing. (Id. at Ex. 1, at 10-11). Bound by the OCCA's determination regarding state law, see Williams, 782 F.3d at 1195, the undersigned finds that any objection would have been overruled.

Therefore, the OCCA's finding that trial counsel's inaction regarding the hearsay evidence did not prejudice Petitioner is not unreasonable.

c) Failure to Object to Other Crimes Evidence and Request a Proper Instruction

Petitioner contends in his Petition, as he did on direct appeal, that his counsel should have objected to other crimes evidence and requested a proper limiting instruction. (Doc. 1, at 19; Doc. 19, at Ex. 2, at 47-48). As addressed in Ground Three, the OCCA found that the trial court admitted bad-acts evidence in violation of state law but that the admission did not constitute plain error. (Doc. 19, at Ex. 1, at 15). The OCCA's plain error analysis, which it adopted into its finding that trial counsel's failure was not prejudicial, focused on the significant evidence against Petitioner. (Id. at 15-16). This evidence included Petitioner's admissions regarding sending text messages to M.H. and engaging in “other questionable behaviors” with her. (Id. at 15). The OCCA relied on the same evidence in determining the trial court did not err in failing to issue a limiting instruction regarding the bad acts. (Id. at 16-17). The undersigned finds that the OCCA did not unreasonably find a lack of prejudice.

d) Failure to Request Proper Jury Instruction for Child Sexual Abuse

Petitioner argues his counsel was deficient by not requesting the proper jury instruction for the child sexual abuse charge, as addressed in Ground Six. (Doc. 1, at 19; Doc. 19, at Ex. 2, at 49). The OCCA found Petitioner failed to show a reasonable probability that the outcome of the trial would have been different if his counsel had requested a proper instruction for the same reason it denied the underlying claim. (Doc. 19, at Ex. 1, at 37). As addressed in Ground Six, the OCCA found that the trial court should have issued a jury instruction that included the underlying elements comprising child sexual abuse. (Id. at 26). However, the OCCA found the error harmless because the evidence presented against Petitioner was “overwhelming” and a jury would have found the defendant guilty of child sexual abuse with the correct jury instructions. (Id. at 28). Thus, it was not unreasonable for the OCCA to find a lack of prejudice under the Strickland standard.

e) Failure to Object to Prosecutorial Misconduct

Petitioner argues his counsel failed to object to prosecutorial misconduct. (Doc. 1, at 19; Doc. 19, at Ex. 2, at 49-50). The OCCA found Petitioner did not show a reasonable probability that the outcome of the trial would have been different had his counsel objected to any of the various forms of alleged prosecutorial misconduct for the same reason that it denied his direct allegations of misconduct. (Doc. 19, at Ex. 1, at 37).

As addressed in Ground Seven, Petitioner contended that the prosecutor committed misconduct by reading an incorrectly amended Information to the jury. (Doc. 19, at Ex. 2, at 30). For the reasons addressed above, see § IV.G.2, there was no reasonable probability that the outcome of the trial would have been different if counsel had objected to the incorrect Amended Information. Thus, the OCCA reasonably found no prejudice with regard to this claim.

f) Opening the Door to Other Crimes Evidence

Petitioner contends his trial counsel was ineffective by opening the door to other crimes evidence. (Doc. 1, at 19). On direct appeal, Petitioner's argument on this point revolved around his trial counsel's questioning of Mr. Vaught. (Doc. 19, at Ex. 2, at 4849). Petitioner's counsel asked Mr. Vaught if he knew of any crimes Petitioner committed before June 14, 2016. (Tr. Vol. II, at 329). Mr. Vaught responded, “not within the state of Oklahoma.” (Id.) Later, Petitioner's counsel asked Mr. Vaught if he had contacted any other counties besides Lincoln or Pottawatomie to see whether there were any similar crimes or causes against Petitioner or Ms. Huff. (Id. at 332). At that point the prosecutor asked to approach the bench and warned trial counsel that if Vaught were allowed to answer the question, he would answer affirmatively and discuss other investigations in Missouri. (Id. at 332-33). Although counsel stated to the court he was standing on his question, he restated his question to Mr. Vaught, this time asking whether he had caused any investigation in any other district attorney's office in Oklahoma. (Id. at 333). Petitioner argued that the only reasonable inference for the jury to draw from this was that Petitioner either committed or was investigated for other crimes outside of Oklahoma. (Doc. 19, at Ex. 2, at 48). He asserts it is unlikely that the other crimes evidence did not impact the jury's decision to convict and recommend sentences of 25 and 30 years of imprisonment. (Id. at 49).

To succeed on his claim, Petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks omitted). “Trial strategy includes determining how best to cross-examine witnesses.” Pickens v. Gibson, 206 F.3d 988, 1002 (10th Cir. 2000). The OCCA considered trial counsel's likely objective - showing the jury Petitioner was not subject to any additional investigations in Oklahoma. (Doc. 19, at Ex. 1, at 3839). The OCCA then found “this was a reasonable strategy and counsel was not ineffective for using it.” (Id. at 39). This finding - that trial counsel was not constitutionally deficient - was not an unreasonable application of Strickland.

g) Not Obtaining Emails Regarding the Trailer's Water Pump

Petitioner argues here and on direct appeal that his counsel was ineffective because he failed to discover and present readily available evidence about the trailer's water pump. (Doc. 1, at 19; Doc. 19, at Ex. 2, at 50-52). As part of a Notice of Extra-Record Evidence submitted to the OCCA under OCCA Rule 3.11(B)(3)(b)(i), (Doc. 19, at Ex. 3), Petitioner signed an affidavit stating he purchased a well water pump from Water Pumps Direct in February 2016, and emailed the company on June 13, 2016, about replacing the water pump. (Id. at 9). Petitioner asserted he gave his email logins and passwords to trial counsel and asked him multiple times about obtaining the emails regarding the water pump. (Id. at 7-8). The last time Petitioner asked his counsel about the emails, his attorney stated he “ran out of time.” (Id. at 8). An investigator with the Oklahoma Indigent Defense System signed an affidavit stating his trial counsel's files did not contain any documents pertaining to the water pump or Petitioner's efforts to replace it. (Id. at 10). Further, she confirmed with Power Equipment Direct, Inc., that Petitioner had attempted to replace the water pump on June 13, 2016. (Id.)

The OCCA found those affidavits failed to show by clear and convincing evidence that counsel was ineffective for failing to identify or utilize the evidence, such that Petitioner could not show defense counsel was ineffective under the Strickland standard. (Doc. 19, at Ex. 1, at 41). (Id.). In support, the OCCA noted it was undisputed that the trailer had no running water, as even Petitioner conceded the water pump had been broken for a week prior to his arrest. (Id. at 40). Further, the OCCA noted that Petitioner only attempted to get a replacement pump two days prior to his arrest, after DHS received the referral about the Huff family. (Id.) Additionally, the OCCA found that the materials presented by Petitioner did not show the date on which the water pump ceased functioning, so they did not conflict with Jeff Huff's testimony that the trailer had been without running water for three or four weeks. (Id.) Petitioner did not challenge these findings. Based on the limitations of the email evidence identified by the OCCA, the court's application of Strickland was not unreasonable.²²

22 In his reply brief, Petitioner identifies other evidence his trial attorney should have obtained. (Doc. 27, at 32-34). Petitioner did not raise these issues on direct appeal or in the Petition, so the undersigned does not consider them. See Windsor, 623 Fed.Appx. at 947.

I. Ground Nine: Excessive Sentences

In Ground Nine, Petitioner asserts his sentences are excessive because there was no evidence the children suffered physical, mental, or psychological harm. (Doc. 1, at 21). Thus, he contends the sentence was “unfair, and unduly harsh and disproportionate to the harm caused and the actual risks to society after the Petitioner was forced to sign his parental rights away.” (Id.) The undersigned recommends denying Petitioner's claim.

On direct appeal, Petitioner argued his sentence would shock the conscience of the court and thus should be modified in the interests of justice. (Doc. 19, at Ex. 2, at 54). The OCCA denied Petitioner's claim:

[Petitioner] claims his sentence is excessive. He makes no claim that his sentence lies outside the statutory range of punishment for his crime. He seeks modification of his thirty-year aggregate sentence. This Court will not

disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Baird v. State, 2017 OK CR 16, ¶ 40, 400 P.3d 875, 886.

[Petitioner] allowed his three children and a young family member to live in filth and squalor and exposed them to sexual materials far too mature for their ages. He sexually abused M.H. The trial court mercifully ran his sentences concurrently. [Petitioner] repeatedly refers to information contained in his Pre-Sentence Investigation Report. This is improper and we will not consider such information. 22 O.S.Supp.2017, §982. The jury found [Petitioner] to be deserving of significant punishment. Nothing about [Petitioner's] sentence shocks the conscience of this Court. Proposition IX is denied.

(Doc. 10, at Ex. 1, at 41-42).

The Court “afford[s] wide discretion to the state trial court's sentencing decision, and challenges to that decision are not generally constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits or unauthorized by law.” Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). “Generally, [the court's] review of a sentence ends once [it] determine[s] the sentence is within the limitation set by statute.” Id. “[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Ewing v. California, 538 U.S. 11, 21 (2003). Petitioner did not allege on direct appeal that his sentences exceeded the maximum allowed by statute, and he does not do so here. Thus, the Court finds Petitioner's claim is not cognizable and should be denied. See Parker v. Evans, 569 Fed.Appx. 611, 617 (10th Cir. 2014) (“Mr. Parker claims his sentence was excessive under Oklahoma law but fails to identify any federal constitutional violation, which is the core predicate for habeas relief. He has not even shown that his sentence falls outside the state statutory limits. The district court was indisputably correct in denying habeas relief on this claim ....”) (internal citations omitted).

For the reasons stated above, Ground Nine should be denied.

J. Claims Raised in Petitioner's Application for Post-Conviction Relief: Grounds Ten Through Nineteen.

In Grounds Ten through Nineteen, Petitioner identifies claims of trial error and asserts his counsel was ineffective for failing to raise them on direct appeal. After summarizing Petitioner's claims and the procedural history, the undersigned will consider the claims in the context of whether appellate counsel was ineffective for failing to bring the claims. Then, the undersigned will consider the claims as stand-alone claims. For the reasons stated below, the undersigned recommends that the ineffective assistance of appellate counsel claims be denied on the merits and the stand-alone claims be denied on the basis of a procedural bar.

1. Claims Raised in This Action

In Ground Ten, Petitioner makes a hodgepodge of claims. First, he contends that a vibrator shown to the jury was not purchased for M.H. - although Petitioner and Ms. Huff found her with it - but instead was a gift to Ms. Huff which had been thrown away because of an exploded battery. (Doc. 1, at 22). Petitioner also notes that a “vibrator given in Missouri never made it to Oklahoma due to it was thrown away during the move.” (Id. at 23). Additionally, Petitioner asserts he popped the backs of the children in Missouri, not Oklahoma. (Id.) So, he contends that the evidence presented to the jury was both beyond the statute of limitations and occurred across state lines. (Id.) Petitioner also contends that he was subject to double jeopardy because “the jury could use evidence to find guilt on Count 1 thru 4 that was already used to find guilt on count 5.” (Id.) Petitioner further “argues that a specific verdict form should have been used.” (Id.) He also contends his appellate counsel was ineffective for raising those claims on direct appeal. (Id. at 22).

In Ground Eleven, Petitioner contends his appellate counsel refused to address evidence and information about jurisdiction issues - namely regarding events presented to the jury that occurred in Missouri between 2012 and 2014. (Id. at 25).

In Ground Twelve, Petitioner asserts his trial counsel did not investigate the living conditions at his home, did not review his Facebook account to see his conversations with M.H, and did not see the information regarding his water pump. (Id. at 27). Petitioner asserts his attorney advised that he would have to seek permission from the district attorney regarding the evidence and later told Petitioner that he ran out of time. (Id.) Finally, Petitioner argues his trial counsel “refused [to] object and argue against that lack of evidence and the conflicting statements of the states witnesses and that the statements and document evidence didn't match.” (Id.)

In Ground Thirteen, Petitioner asserts the screenshots of the text messages presented to the jury were blurry and hard to read. (Id. at 29). Further, he argues that “when you look at the messages in a printed form from a computer, the messages is clearly not in a sexual manner.” (Id.) Petitioner also contends the prosecutor “showed his hands to up against his hip/groin stating that the petitioner had massaged M.H. there,” but in Petitioner's interview, “it was shown to describe that Petitioner would have a massage done by M.H. just above the knee due to Petitioner's bad right knee, Petitioner's feet and Petitioner's wife's back.” (Id.) He contends the prosecutor cherry-picked the evidence and used inflammatory statements, such as using lyrics to a song about “daddy's hands.” (Id. at 29-30). He contends the prosecutor knew that Petitioner was not charged with lewd molestation, “but still had the jury focus on this and even gave the jury instructions on how to find guilt on lewd molestation.” (Id. at 30). He also claims his appellate counsel was ineffective for raising these claims. (Id. at 29).

In Ground Fourteen, Petitioner asserts the investigative officers “moved items to different locations before taking a picture of the items shown to the jury.” (Id. at 31-32). Petitioner contends that moving the objects cast doubt regarding the original location of the items, and that because there is no proof of the original location, the evidence was unconstitutional. (Id. at 32). He also contends some of the evidence presented had zero connection to M.H. (Id.) For example, he asserts there is no evidence M.H. had ever touched or seen the “leopard print dildo,” which he contends was in the trash can due to an exploded battery. (Id.) Had DNA testing been conducted on the item, he asserts M.H.'s DNA would not have been found. (Id.) Petitioner also asserts the investigators had to break a lock to gain access to the “Penthouse Book” and sex toys, but they took a picture of it on the bed, which “contaminates the authenticity of its true location.” (Id.) He also contends his appellate counsel was ineffective for failing to bring this claim on direct appeal. (Id. at 31).

In Ground Fifteen, Petitioner claims that most of the evidence used to convict him occurred in Missouri between 2009 and 2014 - outside the scope of the Amended Information. (Doc. 1, at 34-35). Petitioner asserts only the water pump going out and the message he sent M.H. that included “lick” on Facebook occurred during the proper scope of the Amended Information. (Id. at 34). Petitioner also believed Mr. Vaught would only give him the “lawyer paper work” if he signed the waiver and that otherwise he “would not be given a lawyer.” (Id.) Additionally, he notes that the jury was told that because the date range on the Amended Information went back to February 15, 2015, the jury was allowed to consider information from when Petitioner lived in Missouri, so Oklahoma does not have jurisdiction. (Id. at 34-35). He also contends his appellate counsel was ineffective for failing to raise this claim. (Id. at 34).

In Ground Sixteen, Petitioner contends that the testimony of the investigating officers did not match the pictures admitted into evidence at trial. (Doc. 1, at 36). He notes that while the officers testified the house was covered in feces, the pictures do not show feces anywhere. (Id. at 36-37). Petitioner also notes the master bedroom was partially used as storage because they had moved from a larger house in Missouri. (Id. at 37). He contends boxes shown in the pictures contained clothes, shoes, toys, and books. (Id.) He contends the pictures shown to the jury do not show unlivable conditions despite testimony to the contrary. (Id.) Petitioner contends he does not have access to the original discovery despite his repeated requests to his trial counsel, the district attorney, and the court clerk. (Id.) He also asserts his appellate counsel was ineffective for failing to raise this claim. (Id. at 36).

In Ground Seventeen, Petitioner argues the jury was given the incorrect jury instructions, which was unconstitutional. (Doc. 1, at 39). He also contends his appellate attorney was ineffective for failing to raise the claim on direct appeal. (Id. at 39-40).

In Ground Eighteen, Petitioner argues there were discrepancies between Mr. Stover's and Mr. Vaught's testimony at the preliminary hearing and at trial. (Id. at 41-42). Petitioner does not cite any particular testimony from the preliminary hearing, but notes that Mr. Stover testified at trial that he did not need a warrant to enter Petitioner's home. (Id.) He contends that neither the prosecutor nor his attorney “challenge[d] the change of testimony” or questioned why Mr. Stover and Mr. Vaught's statements had changed. (Id. at 42). Petitioner also contends the evidence should be stricken because Mr. Stover admitted he felt he did not need a warrant to enter. (Id.) Finally, Petitioner contends his appellate counsel was ineffective for failing to raise this claim. (Id. at 41).

In Ground Nineteen, Petitioner contends he was unable to obtain DHS records regarding his children, including forensic interviews, despite requesting them from the district attorney, the trial court, and DHS. (Id. at 44-45). He contends these records “contradict the statements that have been made by the States witnesses” and infers that the documents must have been falsified because they continue to deny him access. (Id. at 45). He also asserts his appellate counsel should have raised this claim on direct appeal. (Id. at 44).

2. Procedural History

Petitioner filed an “Application for Post-Conviction” in the District Court of Lincoln County on May 3, 2021. (Doc. 19, at Exs. 7-12). There, Petitioner raised eleven claims.²³ (Doc. 19, at Ex. 7, at 6-24; Ex. 8 at 1-6). The district court denied Petitioner's Application. (Doc. 19, at Ex. 15). It found Petitioner's ineffective-assistance-of-counsel claim was without merit and the remainder of the claims were barred because they “could and should have been raised on direct appeal, but they were not.” (Id. at 3).

23 The first ten propositions raised in Petitioner's Application generally - but not identically - correspond to Grounds Ten through Nineteen in the instant Petition. In his eleventh proposition, Petitioner raised a cumulative error claim. (Doc. 19, at Ex. 9, at 6; Ex. 17, at 6). The undersigned addresses Petitioner's cumulative error claim in Ground Twenty.

Petitioner then filed a Petition in Error with the OCCA, seeking review of the district court's decision. (Doc. 19, at Ex. 17). “Except as related to his ineffective assistance of appellate counsel claim,” the OCCA found his claims procedurally barred. (Doc. 19, at Ex. 18, at 2). Then, the OCCA framed Petitioner's ineffective-assistance-of-appellate-counsel claim as follows:

Petitioner's remaining claim is that his appellate counsel was ineffective because appellate counsel inadequately raised or did not raise the grounds for relief he now raises in his application for post-conviction relief.

(Id. at 2-3). It then denied Petitioner's claim:

Claims of ineffective assistance of appellate counsel may be raised for the first time on post-conviction as it is usually a petitioner's first opportunity to allege and argue the issue. As set forth in Logan, 2013 OK CR 2, ¶ 5, 293 P.3d at 973, post-conviction claims of ineffective assistance of appellate counsel are reviewed under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 289 (2000) (“[Petitioner] must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel.”). Under Strickland, a petitioner must show both (1) deficient performance, by demonstrating that his counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonably probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 68789. And we recognize that “[a] court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).

We set forth in Logan that in reviewing a claim of ineffective assistance of appellate counsel under Strickland, a court must look to the merits of the issues that appellate counsel failed to raise. Logan, 2013 OK CR 2, ¶¶ 5-7, 293 P.3d at 973-74. Only an examination of the merits of any omitted issues will reveal whether appellate counsel's performance was deficient and also whether the failure to raise the omitted issue on appeal prejudiced the defendant; i.e., whether there is a reasonable probability that raising the omitted issue would have resulted in a different outcome in the defendant's direct appeal. Id.

We find no merit in the claim that Petitioner was denied effective assistance of appellate counsel as alleged in his post-conviction application. The PostConviction Procedure Act is not a substitute for direct appeal, nor is it intended as a means of providing a petitioner with a second direct appeal. Fowler, 1995 OK CR 29, at ¶ 2, 896 P.2d at 569; Maines v. State, 1979 OK CR 71, ¶ 4, 597 P.2d 774, 775-76.

(Id. at 4).

3. Ineffective Assistance of Appellate Counsel Claim

In Ground Eleven, Petitioner contends his appellate counsel was ineffective for failing to raise a few discrete issues raised in Ground Eleven and, more broadly, for not raising other issues addressed throughout the Petition. (Doc. 1, at 25). Indeed, as noted above, Petitioner contends his appellate counsel was ineffective in Grounds Ten, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Nineteen.

The OCCA expansively framed Petitioner's claim of ineffective assistance of appellate counsel by stating that Petitioner asserted his appellate counsel “inadequately raised or did not raise the grounds for relief he now raises in his application for postconviction relief.” (Doc. 19, at Ex. 18, at 2-3) (emphasis added). As a result, the OCCA consider the merits of all of Petitioner's underlying claims made in his “Application for Post-Conviction” and determined his appellate counsel was not constitutionally ineffective for failing to bring any of them on direct appeal. Although Petitioner's claim of ineffective assistance of appellate counsel was more narrowly tailored in state court, (Doc. 19, at Ex. 7, at 10; id. at Ex. 17, at 5, 7), “[a] state appellate court's sua sponte consideration of an issue not only satisfies § 2254's exhaustion requirement, but, more importantly for our purposes, also constitutes an adjudication on the merits that is ripe for federal habeas review.” Alverson, 595 F.3d at 1153 n.3. This effectively means that the OCCA addressed each of Petitioner's claims of ineffective assistance of appellate counsel on the merits, and thus its determination is entitled to deference.

The analysis of deficient performance and prejudice from Strickland, 466 U.S. 668, applies to ineffective-assistance-of-appellate-counsel claims. See Wood v. Carpenter, 907 F.3d 1279, 1294 (10th Cir. 2018); see also supra § IV.H.1. “A sufficiently meritorious omitted claim certainly can, by itself (or in relation to other issues that counsel did pursue), establish constitutionally deficient performance by appellate counsel.” Cargle v. Mullin, 317 F.3d 1196, 1205 (10th Cir. 2003). “‘When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue.'” Wood, 907 F.3d at 1304 (quoting Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001)). “The omitted issue's merits determine both deficient performance and prejudice.” Id.

“This 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), report and recommendation adopted, 2017 WL 1082473 (W.D. Okla. Mar. 22, 2017), cert. of appealability denied, 701 Fed.Appx. 717, 721 (10th Cir. 2017) (holding “reasonable jurists wouldn't debate the district court's assessment of Christian's ineffective-assistance-of-appellate-counsel claim”). Here, the OCCA denied Petitioner's ineffective-assistance-of-appellate-counsel claims because they lacked merit. (Doc. 19, at Ex. 18, at 4). That finding leads to the conclusion that the OCCA's Strickland analysis was reasonable. See Adair v. El Habti, No. CIV-22-231-R, 2022 WL 19333614, at *11 (W.D. Okla. Sept. 14, 2022), report and recommendation adopted, 2023 WL 2731051 (W.D. Okla. Mar. 30, 2023); Helm v. Dennis, No. CIV-21-1139-F, 2022 WL 2334994, at *10 (W.D. Okla. May 27, 2022), report and recommendation adopted, 2022 WL 2329140 (W.D. Okla. June 28, 2022); Dyer v. Farris, No. CIV-16-941-C, 2018 WL 5931129, at *6 (W.D. Okla. July 6, 2018), report and recommendation adopted, 2018 WL 5929637 (W.D. Okla. Nov. 13, 2018), aff'd, 787 Fed.Appx. 485 (10th Cir. 2019); Jackson v. Martin, No. CIV-12-702-W, 2013 WL 5656105, at *4 (W.D. Okla. Oct. 15, 2013), cert. of appealability denied, 572 Fed.Appx. 597 (10th Cir. 2014).

Additionally, throughout this Report and Recommendation, the undersigned has noted the significant evidence presented against Petitioner. That evidence - which need not be repeated here - serves as another reason why the OCCA's Strickland determination was not unreasonable.²⁴

24 Further, despite Petitioner's argument to the contrary, many of the claims raised in Grounds Ten through Nineteen were raised on direct appeal.

Thus, the ineffective assistance of counsel claim in Ground Eleven should be denied as well as the related claims in Grounds Ten, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Nineteen.

4. The Underlying Claims in Grounds Ten, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Nineteen Are Procedurally Barred.

The OCCA found that, with the exception of the ineffective-assistance-of-appellate-counsel-claim, the claims raised in Petitioner's application for post-conviction relief were procedurally barred because (a) any claims already raised on direct appeal were barred by res judicata and (b) any issues which could have been raised, but were not, were waived. (Doc. 19, at Ex. 18, at 2). These procedural bars are independent and adequate. See Fontenot, 4 F.4th at 1023. So, Petitioner can only bypass the procedural bar if he can show cause for the default and prejudice from a violation of federal law.

In Grounds Ten, Thirteen, Fourteen, Fifteen, Seventeen, Eighteen, and Nineteen, Petitioner asserts only that he did not raise the errors on direct appeal due to ineffective assistance of his appellate attorney. (Doc. 1, at 23, 30, 32, 35, 40, 42, 45). “A claim of ineffective assistance of appellate counsel can serve as cause and prejudice to overcome a procedural bar, if it has merit.” Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 747 (10^th Cir. 2016). “Because the OCCA rejected this claim on its merits, AEDPA limits our review.” Davis v. Sharp, 943 F.3d 1290, 1298 (10th Cir. 2019) (addressing whether ineffective assistance of appellate counsel was adequate “cause” for failing to raise an issue on direct appeal). As noted above, the OCCA did not unreasonably apply Strickland in denying Petitioner's claim that his appellate counsel was constitutionally ineffective. Thus, although Petitioner “asserts his appellate counsel's ineffective assistance amounts to cause for his procedural default .... this argument cannot succeed because he failed to show that he received ineffective assistance from his appellate counsel.” Rushing v. Havernek, 2022 WL 17333067, at *2 (10th Cir. Nov. 30, 2022) (citing Sherrill v. Hargett, 184 F.3d 1172, 1176 (10th Cir. 1999)).

For Ground Twelve - regarding trial counsel's failure to investigate the case in the ways Petitioner suggested, with counsel providing the excuse at trial that “he ran out of time” to obtain the information - Petitioner asserts he did not raise the issue on direct appeal because “new information was held outside of the record by” his trial counsel. (Doc. 1, at 27). However, Petitioner's claim is predicated entirely on facts known to him at that time he filed his direct appeal. Second, Petitioner does not provide any example about how his trial counsel “impeded his efforts to comply with the State's procedural rule” to file his claim on direct appeal. To the contrary, an affidavit attached to Petitioner's Notice of Extra-Record Evidence filed contemporaneously with his direct appeal notes that an investigator from the Oklahoma Indigent Defense System received the trial files from Petitioner's trial attorney. (Doc. 19, at Ex. 3, at 10). Thus, Petitioner's efforts to show cause for avoiding the procedural bar on Ground Twelve are insufficient.

For Ground Sixteen - in which Petitioner contends that the testimony of the investigating officers did not match the pictures admitted into evidence at trial - Petitioner asserts he did not raise the issue due to ineffective assistance of both his appellate attorney and his trial attorney. (Doc. 1, at 37). As addressed above, because Petitioner's ineffective-assistance-of-appellate-counsel claim is without merit, his appellate counsel's performance cannot amount to cause to excuse the procedural bar. Petitioner contends he told his trial counsel “numerous times to challenge the statements given and he refused to admit the evidence that contradicted the States testimony about the cleanliness of the children's rooms,” and that such evidence “would directly disprove the states witnesses testimony's.” (Doc. 1, at 37-38). That allegation does not show how counsel impeded Petitioner from bringing this ground on direct appeal. And while Petitioner contends his counsel “destroyed [his] file and all discover[y] in it,” the above-referenced affidavit shows the file existed at the time of the direct appeal. (Doc. 1, at 37; Doc. 19, at Ex. 3, at 10). Petitioner cannot establish cause to evade the procedural bar with regard to Ground Sixteen.

Thus, the underlying claims made in Grounds Ten, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Nineteen should be denied because they are procedurally barred.

K. Ground Twenty: Cumulative Error

In Ground Twenty, Petitioner alleges the cumulative effect of all the errors deprived him of a fair trial. (Doc. 1, at 47). Respondent contends Ground Twenty should be denied in its entirety. (Doc. 19, at 212-19). First, Respondent contends that there is no clearly established Supreme Court law regarding claims of cumulative error. (Id. at 214-15). Second, Respondent argues that to the extent Petitioner's claim asserts the claims raised in his cumulative error claim on direct appeal, it should be dismissed on the merits because, in the absence of constitutional error, Petitioner has no claim of cumulative error. (Id. at 215-17). Third, Respondent contends that the claim, to the extent it asserts the claims raised in his cumulative error claim in his post-conviction proceedings, should be denied because it is procedurally barred. (Id. at 217-18). Fourth, and finally, Respondent argues if the claim is viewed singularly as a combination of the cumulative error claims raised on direct appeal and in his post-conviction action, that claim is unexhausted and subject to the anticipatory procedural bar. (Id. at 218-19).

The undersigned recommends denying Ground Twenty on de novo review.

1. The Tenth Circuit Recognizes Cumulative Error as a Claim That Can Be Brought in a Habeas Action.

Respondent argues there is no clearly established federal law recognizing cumulative error as a ground for habeas relief. (Doc. 19, at 214-15). Indeed, the Tenth Circuit has “questioned] whether a state appellate court's rejection of a cumulative error argument can justify federal habeas relief under the standards outlined in § 2254(d)” because “the Supreme Court has never recognized the concept of cumulative error” and “because there is no ‘clearly established Federal law' on this issue.” Bush v. Carpenter, 926 F.3d 644, 686 n.16 (10th Cir. 2019). But “when a habeas petitioner raises a cumulative error argument under due process principles the argument is reviewable because ‘Supreme Court authority clearly establishes the right to a fair trial and due process.'” Hanson, 797 F.3d at 852 n.16 (quoting Darks v. Mullin, 327 F.3d 1001, 1017 (10th Cir 2003)). Thus, the Court should consider Petitioner's cumulative error claim.²⁵

25 Respondent recognizes the Tenth Circuit authority on this issue but makes the argument “for preservation purposes.” (Doc. 19, at 214).

2. Law Governing the Cumulative Error Analysis

“In the federal habeas context, a cumulative error analysis aggregates all constitutional errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Cuesta-Rodriguez, 916 F.3d at 915 (internal quotation marks omitted). “The cumulative-error analysis applies where there are two or more actual errors.” Id. (internal quotation marks omitted). A federal court also considers the impact of any constitutional claims that “have been individually denied for insufficient prejudice.” Cargle, 317 F.3d at 1207 (holding claims of ineffective assistance of counsel, prosecutorial misconduct, and Brady errors “should be included in the cumulative-error calculus if they have been individually denied for insufficient prejudice”); see also Underwood, 894 F.3d at 1187 n.25 (“For purposes of our cumulative error analysis, we assume without deciding that the alleged prosecutorial misconduct constituted actual error and proceed accordingly.”); Grant, 886 F.3d at 954-55 (“[I]n resolving under the prejudice prong of Strickland Mr. Grant's ineffective-assistance claims based on counsel's [two] alleged failure[s] . . . we have effectively assumed that counsel's performance was constitutionally deficient. And thus, we are obliged to assess these two assumed errors in a cumulative-error analysis.”) (internal citation omitted).

3. Petitioner's Claim of Cumulative Error Should Be Denied.

The following claims should be considered in Petitioner's assertion of cumulative error:

• Ground Six, because the OCCA considered the jury instruction claim under constitutional standards and found harmless error;

• Ground Seven, because the undersigned assumed prosecutorial misconduct when the prosecutor read the improperly amended Information to the jury but found any error was not prejudicial;

• Ground Eight, because the undersigned found the OCCA did not unreasonably find a lack of prejudice in the ineffective assistance of trial counsel claims: a) failure to request the recorded interviews in discovery or review them prior to trial; b) failure to object to alleged hearsay; c) failure to object to other crimes evidence or request a limiting jury instruction; d) failure to request the proper jury instruction for child sexual abuse; e) failure to object to prosecutorial misconduct; and f) not obtaining emails regarding the trailer's water pump; and

• the ineffective assistance of appellate counsel claims raised in Grounds Ten, Eleven, Thirteen, Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, and Nineteen, because they were denied for lack of prejudice.²⁶

26 The Tenth Circuit recognized that its “precedent is not entirely clear” with regard to cumulative error claims asserting the ineffective assistance of counsel. Frederick v. Quick, 79 F.4th 1090, 1135 (10th Cir. 2023). It notes that some of its “cases suggest that [courts] do not cumulate alleged errors by appellate counsel if those errors relate to conduct that occurred at trial,” but that other “cases have applied a cumulative error analysis to ineffective assistance claims directed at appellate counsel when there were also separate claims directed at trial counsel.” Id. The undersigned does not “decide which approach is correct because even if [the Court] cumulate[s] appellate counsel's alleged errors, [Petitioner] has not shown he is entitled to relief.” Id.

The OCCA addressed cumulative error on direct appeal, but its analysis included harmless state law errors and did not include claims of prosecutorial misconduct and ineffective assistance of counsel denied on lack of prejudice alone. (Doc. 19, at Ex. 1, at 42-43). On review in the post-conviction appeal, the OCCA found Petitioner's cumulative error claim procedurally barred, (id. at Ex. 18, at 2) (“Except as related to his ineffective assistance of appellate counsel claim, consideration of Petitioner's claims for relief are procedurally barred.”). But Petitioner could not have raised a cumulative error claim involving various allegations of ineffective assistance of appellate counsel until his postconviction action. So, the undersigned reviews this claim de novo. See Cargle, 317 F.3d at 1224 (“[T]he OCCA did not recognize and address the collective errors we have before us here ....[so] we address the issue de novo.”). A de novo review requires the court to ask whether the errors “collectively ‘had substantial and injurious effect or influence in determining the jury's verdict.'” Cargle, 317 F.3d at 1220 (quoting Brecht, 507 U.S. at 637).

Given the strong evidence against Petitioner - summarized throughout this Report and Recommendation - the cumulative effect of the errors deemed harmless did not have substantial and injurious effect or influence in determining the jury's sentence. See Madden v. Farris, No. CIV-13-1350-HE, 2014 WL 3900133, at *8 (W.D. Okla. Aug. 7, 2014) (“Because any rational trier of fact could have found beyond a reasonable doubt that Petitioner was guilty - despite the Confrontation Clause violation and trial counsel's failure to investigate - the undersigned finds that the OCCA could reasonably decide that cumulative error did not render Petitioner's trial fundamentally unfair.”). Thus, Ground Twenty should be denied.

V. Recommended Ruling and Notice of Right to Object.

For the reasons discussed above, the court 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 July 15, 2024, 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.