Opinion
21-6062
06-08-2021
In re: MEGAN NICOLE HAMMERS, Movant.
(D.C. No. 5:16-CV-00244-HE) (W.D. Okla.)
Before McHUGH, MORITZ, and EID, Circuit Judges.
ORDER
Megan Nicole Hammers seeks authorization to file a second or successive 28 U.S.C. § 2254 habeas application. We deny authorization.
Ms. Hammers was convicted in Oklahoma state court of child abuse based on injuries to her six-month-old son. She was sentenced to eighteen years in prison. The Oklahoma Court of Criminal Appeals (OCCA) affirmed her conviction and sentence on direct appeal. Ms. Hammers then filed a pro se § 2254 habeas application, which the district court denied. She did not appeal from the denial. She subsequently filed applications for post-conviction relief in state court, but her attempts were unsuccessful.
Ms. Hammers now seeks authorization to file a second or successive § 2254 habeas application. She contends she has newly discovered evidence to support her new claims of ineffective assistance of appellate counsel and lack of subject matter jurisdiction. To be entitled to authorization based on new evidence, Ms. Hammers must show:
. . . the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
. . . the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [her] guilty of the underlying offense.28 U.S.C. § 2244(b)(2)(B)(i), (ii).
In her motion, Ms. Hammers identifies four claims of ineffective assistance of appellate counsel. She contends appellate counsel was ineffective for failing to raise: (1) a claim that prosecutions based on "Shaken Baby Syndrome" are unreliable; (2) a Brady claim about the suppression of medical evidence; and (3) a claim that expert testimony from the State's witnesses was scientifically unreliable. But she fails to show that the factual predicate for these claims could not have been discovered through the exercise of due diligence prior to filing her first habeas application.
Brady v. Maryland, 373 U.S. 83 (1963).
For her fourth claim, she contends: "Trial Counsel was ineffective for failing to consult with an expert witness or obtain experts such as Dr. David Ayoub, M.D. or Dr. Michael Holick, Ph.D., M.D., thus resulting in ineffective assistance of Appellate Counsel." Mot. for Auth. at 20 (boldface omitted). She asserts this claim is based on "newly discovered evidence" that was "not discoverable at the time of [her] first prosecution." Id. (boldface omitted). The newly discovered evidence consists of statements from Dr. Ayoub and Dr. Holick suggesting alternative theories other than child abuse for some of her son's injuries. Although Ms. Hammers did not obtain these expert statements until 2018 and 2019, she does not explain why she could not have obtained them through the exercise of due diligence prior to filing her first habeas application. In that application, Ms. Hammers included a claim that her trial counsel was ineffective for failing to consult with an expert. And she also knew at the time of her first habeas application that her appellate counsel had failed to consult with an expert when filing her direct appeal. In its decision affirming her conviction on direct appeal, the OCCA noted the lack of support for her claim of ineffective assistance of trial counsel based on the failure to present expert testimony. See Movant's App., Vol. 1 at 204 ("Hammers claims counsel should have explored or presented different evidence, including expert evidence contradicting the State's experts . . . [but] Hammers offers no affidavits from experts suggesting that, in this case, medical evidence would have supported another cause for the victim's injuries.").
Moreover, even if the expert testimony could be considered newly discovered evidence, Ms. Hammers has failed to show that "the facts underlying [her] claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [her] guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(ii). The State presented six expert witnesses in support of its case. In the trial court's denial of Ms. Hammers's post-conviction application, in which she raised a similar claim, the court noted that neither of the two experts that Ms. Hammers presented-Dr. Ayoub and Dr. Holick-suggested that her son's injuries could not have resulted from child abuse. Instead, Ms. Hammers's experts offered only alternative theories for how her son could have acquired bone fractures. But Ms. Hammers's son had other injuries and neither of her experts "address[ed] or explain[ed] the severe injuries to [the victim's] eyes . . . or the brain volume loss and extensive increase in cerebral spinal fluid he suffered." Movant's App., Vol. 3 at 890. And two of the state's experts, Dr. Yanovitch and Dr. Baird, "testified that the types and extent of injuries they observed in [the victim's] eyes and brain, respectively, were inconsistent with accidental trauma and consistent with abuse, more specifically rapid acceleration/deceleration forces from abusive shaking." Id. at 890-91. The trial court found that there was nothing in the statements from Ms. Hammers's experts that served "to rebut or undermine the expert medical testimony of Dr. Yanovitch or Dr. Baird." Id. at 890. Given the other expert testimony at trial and the failure of Ms. Hammers's experts to offer alternative theories for all of the victim's injuries, Ms. Hammers has failed to show by clear and convincing evidence that, but for constitutional error, no reasonable juror would have convicted her of child abuse.
Ms. Hammers also seeks to bring a claim that the state district court lacked subject matter jurisdiction. She contends that the factual predicate for this claim was not available until the Supreme Court's decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). She also suggests that she can raise a jurisdictional claim at any time, but that is not correct. We noted in Prost v. Anderson, 636 F.3d 578, 592 (10th Cir. 2011), that "lack of jurisdiction is not one of the two authorized grounds upon which a successive § 2254 motion may be filed." And in the § 2255 context, we held that a federal prisoner's motion challenging the trial court's jurisdiction was a second or successive § 2255 motion subject to the authorization requirement in § 2255(h). See In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008).
A legal decision is not new evidence. And, even if it were, Ms. Hammers does not adequately explain how her claim of lack of subject matter jurisdiction is based on McGirt. In McGirt, the Supreme Court determined that the territory in Oklahoma reserved for the Creek Nation since the 19th century remains "'Indian country'" for purposes of exclusive federal jurisdiction over "'certain enumerated offenses'" committed "within 'the Indian country'" by an "'Indian.'" 140 S.Ct. at 2459 (quoting 18 U.S.C. § 1153(a)). But the Court explained that "nothing" it said in McGirt "could unsettle Oklahoma's authority to try non-Indians for crimes against non-Indians on the lands in question." Id. at 2460. Because there is nothing in Ms. Hammers's motion to suggest that she is an "Indian," McGirt has no impact on Oklahoma's jurisdiction to try her in state court.
Ms. Hammers has failed to meet the standard for authorization in § 2244(b)(2). Accordingly, we deny her motion. This denial of authorization "shall not be appealawble and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).