Opinion
CIV-20-227-PRW
03-26-2021
ALEX MOORE, Petitioner, v. JEORLD BRAGGS, Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, appearing pro se, 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 proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Respondent filed his response to the petition, Doc. 16, along with state court records, Doc. 18, and Petitioner replied. Doc. 24. For the reasons set forth below, the undersigned recommends the Court deny habeas corpus relief.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination. Except for capitalization, quotations are verbatim, unless otherwise specified.
I. Factual background.
This case arises from Petitioner's conviction for killing his cellmate, Todd Bush, at the Northfork Correctional Facility in Sayre, Oklahoma, on March 6, 2014. Moore v. State, 443 P.3d 579, 581 (Okla. Crim. App. 2019); see also Doc. 16, Ex. 4. Around 8:00 p.m. correctional officers heard someone yelling about an inmate “down” on the top tier in Petitioner's cell. Moore, 443 P.3d at 582. Officer Robert Hubbard ran to Petitioner's cell, where he observed through the window Petitioner and Mr. Bush kneeling on the floor and Petitioner holding Mr. Bush around his chest and shaking him. Id. Officer Hubbard called for medical assistance and then unlocked and entered the cell. Id. Officer Hubbard determined Mr. Bush had no pulse and he began administering CPR. Id. During this time Officer Christopher Hill arrived at the cell and took Petitioner out to a common area to wait. Id. Officer Hill then took over administering CPR on Mr. Bush from Officer Hubbard. Id. When medical personnel arrived, they transported Mr. Bush to the hospital where medical officials pronounced him dead. Id.
When prison officials asked Petitioner what had happened to Mr. Bush, he stated he did not know but explained that Mr. Bush “liked to drink” and had fallen off his bunk. Id. But investigators had observed bruising and abrasions on Mr. Bush's face, neck, and upper chest that were inconsistent with Mr. Bush falling off his lower bunk, which was only two feet off the ground. Id. Additionally, investigators believed the lacerations on Mr. Bush's body as well as petechial hemorrhaging in both of his eyes were the result of him struggling against an attacker who beat him up and then asphyxiated him while in the cell. Id. The medical examiner confirmed these beliefs after examining Mr. Bush's body and determining Mr. Bush died from asphyxiation due to strangulation after suffering several blows to his head, face, and chest. Id. Petitioner and Mr. Bush were the only two people inside the cell when Mr. Bush was beaten and strangled. Id.
II. Procedural background.
The State of Oklahoma tried Petitioner for first-degree murder in Beckham County District Court Case No. CF-2015-9. Id. at 581. At trial, Petitioner's defense was that Mr. Bush died from an accidental fall from his bunk. Id. at 583. The jury rejected Petitioner's defense and found Petitioner guilty as charged. Id. at 581. Per the jury's recommendation, the trial court sentenced Petitioner to life without the possibility of parole. Id.
Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA) in Case No. F-2017-710. Doc. 16, Ex. 4. The OCCA affirmed Petitioner's conviction and sentence in a published opinion. Moore, 443 P.3d at 588. Petitioner then proceeded to this Court seeking habeas corpus relief. Doc. 1.
III. Standard of review for habeas relief.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this Court's power to grant habeas corpus relief. See 28 U.S.C. § 2254(d). A petitioner is entitled to federal habeas relief only if a State court's merits-based adjudication of his or her claim “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.” Id. “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) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice system, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington, 562 U.S. at 99; see also Johnson v. Williams, 568 U.S. 289, 301 (2013). In assessing a State court's merits-based decision, this Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015); see also Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). Clearly established federal law consists of Supreme Court holdings in cases where the facts are similar to the facts in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). 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 the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.” Id. (internal quotation marks omitted). “It is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Id. (internal quotation marks omitted).
The “‘unreasonable application' prong requires [the petitioner to prove] that the state court identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.” Id. (internal quotation marks and brackets omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.'” Id. (internal quotation marks omitted). So to qualify for habeas relief on this prong, a petitioner must show “‘there was no reasonable basis' for the state court's determination.” Id. at 1243 (quoting Cullen, 563 U.S. at 188). “In other words, ‘so long as fairminded jurists could disagree on the correctness of the state court's decision,' habeas relief is unavailable.” Id. (quoting Harrington, 562 U.S. at 101); 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)). The Court presumes the factual determination to be correct and a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
IV. Petitioner's habeas claims.
Petitioner raises six grounds for relief in his habeas corpus petition. He alleges: (1) his “rights to due process and a fair trial were violated by the improper admission of bad character evidence”; (2) his “rights to a fair trial consistent with due process of law [were violated] by the admission into evidence of excessively gruesome photos”; (3) “the prosecutor's concerted and amplified efforts to define the concept of beyond a reasonable doubt by negative inference deprived [Petitioner] of a fair trial”; (4) Petitioner “was denied his constitutional right to testify in his own behalf when neither his attorney nor the court discussed waiver of that right on record”; (5) Petitioner “was denied the reasonable effective assistance of counsel guaranteed him by the Sixth Amendment”; and (6) “the accumulation of error in this case deprived [Petitioner] of due process of law, ” in violation of the 5th and 14th Amendments and Article II, § 7 of the Oklahoma Constitution. Doc. 1, passim.
A. Ground One.
In Ground One, Petitioner asserts the trial court improperly admitted other crimes evidence, depriving him of due process and a fundamentally fair trial. Doc. 1, at 5. The undersigned finds no basis for habeas relief.
1. Clearly established law.
Petitioner's argument primarily focuses on the trial court's admission of evidence in violation of Oklahoma law. Id. But in a habeas action, a federal court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state court's interpretation of its own law “‘binds a federal court sitting in habeas corpus.'” Williams v. Trammell, 782 F.3d 1184, 1195 (10th Cir. 2015) (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)). “Nevertheless, when a state court admits evidence that is ‘so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.'” Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)); see also Williamson v. Parker, 705 Fed.Appx. 677, 681 (10th Cir. 2017) (“Although federal habeas relief does not extend to the remedying of state law evidentiary errors, an exception applies when a state court admits evidence that is so unduly prejudicial that it renders the trial fundamentally unfair.” (citation and internal quotation marks omitted)). So the Court's concern is not whether the trial court admitted the evidence in violation of Oklahoma law but whether the OCCA reasonably determined the evidence did not render Petitioner's trial fundamentally unfair. See, e.g., Ochoa, 669 F.3d at 1144 (holding the question of whether evidence renders a trial fundamentally unfair is made “without regard to whether the evidence was properly admitted pursuant to state law” (citing Estelle, 502 U.S. at 67-68)); see also Wilson v. Schnurr, 820 Fed.Appx. 796, 804 (10th Cir. 2020) (noting that “federal habeas review is not available to correct state law evidentiary errors” and, after construing the petitioner's evidentiary claim as one “alleging a violation of his constitutional due-process rights, ” explaining that “the essence of the [court's] inquiry” was “whether the admission of the [evidence] rendered the proceedings fundamentally unfair” (internal quotation marks and alterations omitted)).
2. The State's introduction of other crimes evidence did not deprive Petitioner of due process or a fundamentally fair trial.
In his direct appeal, Petitioner complained the trial court erroneously admitted evidence of his involvement in two other violent incidents occurring at the Beckham County jail after Mr. Bush's death. Doc. 16, Ex. 1, at 14-22. In his habeas petition, Petitioner claims the admission of this evidence denied him a fair trial. Doc. 1, at 5.
The OCCA described the circumstances of the two attacks in its opinion:
The trial court admitted evidence under 12 O.S.2011, § 2404(B)2 showing that Appellant attacked an inmate and a detention officer in separate incidents occurring at the county jail while Appellant awaited trial in the present case. The first incident occurred on January 9, 2016 when, according to detention officer Chris Yeager, Appellant “balled up” his fists and struck his cellmate, Kevin Ezzell, on the back of the head inside their cell. This incident occurred after Yeager opened the cell door and responded to Ezzell's request for bedding. Appellant and Ezzell were the only two inmates inside the cell. Yeager testified that Appellant “was getting his hands up close to [Ezzell's] neck and shoulder region” while standing behind Ezzell. Yeager intervened and separated the two as Ezzell attempted to run out the open cell door. Yeager testified that Appellant's hands weren't coming off of Ezzell's neck and shoulder area, prompting him to pull Appellant off Ezzell. Appellant later said to the detention officer “tell that dude that I did him a favor because I could have waited ‘til y'all did meds and killed him.”
The second incident occurred on February 18, 2016, as detention officer Jason Crook was passing out medications in Appellant's pod. Appellant attempted to walk out of the pod to confront a jail captain about that morning's oatmeal
rations when he was stopped by another detention officer. Appellant then knocked off a stack of trays from the medication cart, pushed the cart out of the way and walked towards a hallway door. When Crook stepped around the medicine cart, Appellant came at the officer and put his hands on Crook's “head and shoulder area.” Crook and Appellant then fell to the ground. Crook was able to subdue Appellant despite Appellant having both hands on Crook's face with his thumbs going forward into the officer's eyes. When Crook knocked Appellant's hands away, Appellant grabbed the back of the officer's shirt.Moore, 443 P.3d at 583.
The trial court admitted the evidence under Oklahoma law “as proof showing absence of mistake or accident.” Id. (citing Okla. Stat. tit. 12, § 2404(B)). As required under Oklahoma law, the trial court instructed the jurors that they could not consider the evidence as proof of Petitioner's guilt or innocence on the charged crime but only for the limited purpose of determining the issue of Petitioner's alleged absence of mistake or accident. Id. at 583 n.3. Because Petitioner's counsel objected to the admission of the evidence at trial, the OCCA reviewed its admission for an abuse of discretion. Id. at 583.
Under Oklahoma law, evidence of other crimes or bad acts is admissible for “limited purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. at 584. A trial court may admit the evidence if it is “probative of a disputed issue of the charged crime, ” provides a “visible connection between the crimes, ” is “necessary to support the State's burden of proof, ” if the proof of the evidence is “clear and convincing, ” and if its probative value outweighs “its prejudicial effect.” Kirkwood v. State, 421 P.3d 314, 316 (Okla. Crim. App. 2018).
The OCCA held the trial court did not abuse its discretion in admitting the evidence of Petitioner's other bad acts because it fell squarely within the terms of § 2404(B):
The principal issue at trial was whether Appellant killed Bush with malice aforethought or whether the victim died from an accidental fall. When asked what happened, Appellant told prison officials that Bush “liked to drink” and had fallen off his bunk bed. Defense counsel's cross-examination of the State's witnesses, like his closing argument, advanced the defense that Appellant's version of events was possible despite the considerable evidence showing Bush was beaten and strangled. Thus, the issue of Appellant's intent was squarely before the jury as was the defense's attempt to show reasonable doubt by defending the case with the notion that the victim's death was an accident.
. . . .
In the present case, evidence of Appellant's separate jail altercations occurring after Bush's killing was relevant to prove absence of mistake or accident as to the charged offense. The January 9, 2016, incident is highly similar to the charged offense. The record shows Appellant attacked his cellmate by punching him in the back of the head and grabbing his cellmate around the throat and shoulders. This attack occurred inside the jail cell both men shared. The February 18, 2016, incident is somewhat different from the charged offense but nonetheless similar enough to be admissible. During this second incident, Appellant attacked a detention officer outside his cell, put his hands on the officer's head and shoulder area and both men ended up on the floor before Appellant was subdued.
The setting and nature of the attacks for these two incidents are highly similar to the circumstances surrounding the charged offense. Although Appellant's subsequent victims were not fatally injured, all three incidents reveal similar attacks in which Appellant confronted a cellmate or detention officer. The repeated commission by Appellant of similar attacks was directly probative of the credibility of his claim that Bush's death was accidental. That is particularly so where, as here, Appellant expressly stated that he could have killed Ezzell, the victim of the January 9th attack, had he waited until the jail staff was handing out medication.
Despite Appellant's contrary assertions, the similarities of the charged offense and Appellant's attack against Ezzell and the detention officer were substantial enough to create a visible connection between all three. The other crimes evidence introduced in this case was highly probative of a material issue in the present case and was necessary to the State's burden of proof, in particular, refuting the defense claim at trial (based on Appellant's own words) that Bush's death could have been an accident. See Welch, 2000 OK CR 8, ¶ 13, 2 P.3d at 367. “In dealing with the relevancy of evidence, we begin with the presumption that in determining whether to admit such evidence, the trial judge should lean in favor of admission.” Id., 2000 OK CR 8, ¶ 14, 2 P.3d at 367 (internal quotation omitted). “When balancing the relevancy of evidence against its prejudicial effect, the trial court should give the evidence its maximum probative force and its minimum reasonable prejudicial value.” Id.
In the present case, the State bore the burden of proving that Appellant intentionally killed Bush. The challenged evidence tends to refute Appellant's claim that Bush's death was accidental and bolstered the State's considerable evidence showing malice aforethought. Despite its highly prejudicial nature, we find that the probative value of the other crimes evidence introduced in this case outweighed its prejudicial effect; that the evidence was necessary to the State's burden of proof; and the evidence
was properly admitted. There thus was no abuse of discretion. Proposition I is denied.Moore, 443 P.3d at 584-85.
The Court may presume, based on the OCCA's rejection of the claim, that it found the admission of the other bad acts evidence did not render Petitioner's trial fundamentally unfair. The Court should find that decision reasonable.
Petitioner argues the trial court's admission of the disputed evidence denied him a fair trial because it only served to demonstrate his “bad character” and it had no visible connection to his crime. Doc. 24, at 3-4. He further argues the evidence was not necessary to the State's burden of proof because there was “enough medical evidence to determine” the victim's cause of death was strangulation. Id. at 6. Yet it was Petitioner who first raised the issue of Mr. Bush's death being an accident, through his own words to investigators, and it was his counsel who pursued this cause of death theory at trial. See Moore, 443 P.3d at 583. Thus, the jury's consideration of the relevant evidence was necessary to dispute Petitioner's claim of an accident and was similar enough to the crime to be highly probative. The trial court also limited the jurors' consideration of the evidence. Id. Considering the entire proceedings, Petitioner has not shown that the OCCA unreasonably concluded the admission of the bad acts evidence did not render Petitioner's trial fundamentally unfair. See, e.g., Holland v. Allbaugh, 824 F.3d 1222, 1230 (10th Cir. 2016) (“Given the relevance of the statements to the charges and the debateability of their prejudicial impact in light of all of the evidence, [the petitioner] cannot show the OCCA was wrong in concluding their admission did not render his trial ‘fundamentally unfair.'”); see also Lott v. Trammell, 705 F.3d 1167, 1193-94 (10th Cir. 2013) (finding no fundamental unfairness through the admission of bad acts evidence where evidence of guilt was otherwise overwhelming). Therefore, the undersigned recommends denying habeas corpus relief on this ground.
B. Ground Two.
In Ground Two, Petitioner asserts the trial court improperly admitted gruesome photographs which deprived him of due process of law and a fundamentally fair trial. Doc. 1, at 7. The undersigned finds no basis for habeas relief.
1. Clearly established law.
Generally, “[f]ederal habeas review is not available to correct state law evidentiary errors, rather it is limited to violations of constitutional rights.” Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir. 2003) (internal quotation marks omitted); see Estelle, 502 U.S. at 68 (holding a federal court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States”). But when a habeas petitioner argues that the introduction of evidence violated the Constitution, this Court analyzes whether its admission was “so unduly prejudicial that it render[ed] the trial fundamentally unfair.” Payne, 501 U.S. at 825. “When, as here, a habeas petitioner challenges the admission of photographic evidence as violative of the Constitution, this court considers whether the admission of evidence so infected the trial with unfairness as to violate due process.” Weimer v. Allbaugh, 766 Fed.Appx. 728, 734 (10th Cir. 2019) (internal quotation marks and brackets omitted).
2. The OCCA reasonably concluded the trial court's admission of autopsy photographs of the victim did not so infect the trial with unfairness as to violate due process.
In his direct appeal, Petitioner complained the trial court erroneously admitted gruesome autopsy photographs of the victim, specifically State's exhibits 116, 117, 118, 129, 130, and 131, which Petitioner argued violated Oklahoma law and “contributed to a violation of [his] rights to a fair trial consistent with the due process of law.” Doc. 16, Ex. 1, at 23-26. In his habeas petition, Petitioner claims the admission of this evidence denied him a fair trial. Doc. 1, at 7. The OCCA reviewed this claim on the merits under its plain error review standard but found no reversible error:
The OCCA found Petitioner had failed to object to the admission of the photographs at trial and held he had waived review for all but plain error:
Appellant concedes that he did not object at trial to the admission of these photographs. He has therefore waived review of this claim for all but plain error. See Tryon v. State, 2018 OK CR 20, ¶ 59, 423 P.3d 617, 636-37, cert. denied, __ U.S. __, 139 S.Ct. 1176, 203 L.Ed.2d 215 (2019). To show plain error, Appellant must show an actual error, which is plain or obvious, affected his substantial rights. This Court will only correct plain error if the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Lamar v. State, 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294; 20 O.S.2011, § 3001.1.Moore, 443 P.3d at 585-86. The Tenth Circuit has stated that “Oklahoma's plain-error test is rooted in due process.” Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005).
State's Exhibits 116 and 117 showed Bush's exposed skull and the bruising underneath the hematoma observed externally on the left forehead which was discussed in the medical examiner's testimony. State's Exhibit 118 showed the victim's exposed brain. The medical examiner testified this photograph showed that the victim's brain was somewhat swollen. Further, the medical examiner observed with this photograph that there was no blood on the brain, signifying the blows to the head Bush received were nonfatal. These challenged photographs depicted the victim's injuries, illustrated the testimony of the medical examiner, and demonstrated the nonfatal nature of Bush's head injuries. This was particularly important because of the defense claim that the victim's death may have been accidental from a fall off the bed.
State's Exhibits 129, 130 and 131 showed the victim's internal neck organ after being removed by the medical examiner. State's Exhibit 129 is an overview of the internal neck organ. State's Exhibits 130 and 131 are close-up photographs showing the broken hyoid bone and the hemorrhage associated with that injury. The medical examiner acknowledged that the neck organ looked like a “red blob” in the overview picture. She used the two close-up shots of the broken hyoid bone and the related hemorrhage,
as pointed out by the forceps shown therein, to identify the location of this injury. This helped illustrate the medical examiner's conclusion that the victim died of asphyxia and that it would take a “tremendous amount of force” to break Bush's hyoid bone.
There is no question that some of these photographs were gruesome. But this alone does not make them inadmissible “so long as they are not so unnecessarily hideous or repulsive that jurors cannot view them impartially.” Bosse v. State, 2017 OK CR 10, ¶ 48, 400 P.3d 834, 853. None of the challenged photographs can be described as unnecessarily hideous or repulsive. The challenged photographs were relevant and properly admitted. These photographs were not unfairly prejudicial when considered both individually and collectively. Nor were they cumulative. “[T]he State was not required to downplay the violence involved or its repercussions.” Jones v. State, 2009 OK CR 1, ¶ 57, 201 P.3d 869, 885. There is no actual or obvious error. Proposition II is denied.Moore, 443 P.3d at 586.
“When a state court adjudicates a federal issue relying solely on a state standard that is at least as favorable to the applicant as the federal standard, [this Court] presume[s] an adjudication on the merits and appl[ies] AEDPA deference.” Thornburg, 422 F.3d at 1124. There is “no practical distinction” between the OCCA's plain error test and the federal due-process test, “which requires reversal when error ‘so infused the trial with unfairness as to deny due process of law.'” Id. at 1125 (quoting Estelle, 502 U.S. at 75). “Because the OCCA applied the same test [this Court] appl[ies] to determine whether there has been a due-process violation, [this Court] must defer to its ruling unless it ‘unreasonably applied' that test.” Id. (quoting 28 U.S.C. § 2254(d)). The undersigned concludes it did not.
At Petitioner's trial, the State was attempting to prove that Mr. Bush was beaten and died from strangulation-not an accidental fall as Petitioner claimed. Moore, 443 P.3d at 582-83. Exhibits 116, 117, and 118 were relevant to establish the nature of the trauma to Mr. Bush's head. The photographs also assisted the medical examiner in her description of the head injuries and their nonfatal nature, which was “particularly important because of the defense claim that the victim's death may have been accidental from a fall off the bed.” Id. at 586.
The Court presumes the OCCA's factual findings are correct on this issue as Petitioner has not rebutted the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Exhibits 129, 130, and 131 were relevant to show Mr. Bush's broken hyoid bone and associated hemorrhage, which supported the medical examiner's conclusion that Mr. Bush died of asphyxia after a “tremendous amount of force” was applied to his neck. Id. Because Petitioner disputed the cause of death, the OCCA's determination that the admission of these photographs, even though “gruesome, ” did not render Petitioner's trial fundamentally unfair was a reasonable one. Id. The undersigned therefore recommends the Court deny habeas corpus relief on this claim.
C. Ground Three.
Petitioner asserts in Ground Three that the “prosecution's concerted and amplified efforts to define the concepts of beyond a reasonable doubt by negative inference deprived [him] of a fair trial.” Doc. 1, at 8. In his direct appeal, Petitioner argued the prosecutor erred by attempting to illustrate through a hypothetical scenario the “difference between ‘beyond a shadow of a doubt' or ‘beyond all doubt' and ‘beyond a reasonable doubt'” during voir dire. Doc. 16, Ex. 1, at 28.
The OCCA rejected the prosecutorial-misconduct claim on the merits, holding:
Appellant complains that the prosecutor improperly defined “reasonable doubt” during voir dire. Appellant failed to object to any of the questions and comments he now challenges on appeal. Our review is thus limited to plain error. Robinson v. State, 2011 OK CR 15, ¶ 16, 255 P.3d 425, 431. Appellant fails to show actual or obvious error.
In the challenged passages, the prosecutor addressed with the venire panel whether they agreed that not all doubt was reasonable. During this discussion, the prosecutor mentioned the example of an oncoming car on a two-way highway and whether it was reasonable to pull off the road because the prospective juror may have doubt that the oncoming car would cross the center line. The consensus view was (unsurprisingly) that it was unreasonable to pull off the highway for an oncoming car on the mere chance it might cross the centerline. At one point, the prosecutor asked a prospective juror whether he agreed that beyond a reasonable doubt should not be equated to “beyond a shadow of a doubt” or “beyond all doubt” to which the prospective juror responded “[y]eah”.
“The manner and extent of examination of jurors is not ‘prescribed by any definite, unyielding rule, but instead rests in the sound discretion of the trial judge.'” Tryon, 2018 OK CR 20, ¶ 13, 423 P.3d at 627 (quoting Mayes v. State, 1994 OK CR 44, ¶ 15, 887 P.2d 1288, 1298). Here, the prosecutor's questions were well within the limits of proper voir dire. We have held that prosecutors may not define “reasonable doubt, ” Robinson, 2011 OK CR 15, ¶ 16, 255 P.3d at 432, but that is not what happened in this case. The State “may distinguish that standard from commonly heard phrases, and ask jurors not to hold the State to a higher burden of proof, as the prosecutor did here.” Id. The prosecutor used the example of the passing car to illustrate the well-established principle that not all doubt is reasonable. Appellant's jury was not left with an erroneous impression and the prosecutor's actions did not represent actual or obvious error. See, e.g., Phillips v. State, 1999 OK CR 38, ¶¶ 21-23, 989 P.2d 1017, 1028; Stewart v. State, 1988 OK CR 108, ¶ 21, 757 P.2d 388, 396. Because Appellant fails to show actual or obvious error, there is no plain error. Proposition III is denied.Moore, 443 P.3d at 586-87. The undersigned finds this a reasonable application of Supreme Court law.
1. Clearly established law.
Generally, “[t]o obtain habeas relief on a prosecutorial misconduct claim, a petitioner must show that the prosecutor's alleged misconduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Haak v. Whitten, 799 Fed.Appx. 621, 625 (10th Cir. 2020) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). But if prosecutorial misconduct prejudices a specific right such as the presumption of innocence, “a habeas petitioner need not establish the entire trial was rendered unfair, but rather that the constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right.” Torres v. Mullin, 317 F.3d 1145, 1158 (10th Cir. 2003). An allegation that a prosecutor erroneously attempted to define reasonable doubt for prospective jurors falls into the second category. See, e.g., Dodd v. Trammell, 753 F.3d 971, 990. (10th Cir. 2013) (analyzing the petitioner's claim that the prosecutor during voir dire “used certain tactics ‘to psychologically condition' jurors into thinking that the State need not prove its case beyond a reasonable doubt” under the “second category” to determine whether the prosecutor's comments deprived the petitioner of the presumption of innocence).
2. The OCCA reasonably concluded the prosecutor's reasonable doubt comments did not so prejudice the presumption of innocence as to result in a denial of that right.
The prosecutor made remarks during voir dire distinguishing “beyond a shadow of a doubt” or “beyond all doubt” and “beyond a reasonable doubt.” Moore, 443 P.3d at 586-87. The OCCA concluded the prosecutor's comments did not prejudice the Petitioner because the prosecutor did not attempt to define reasonable doubt but only illustrated for the potential jurors the “well-established principle that not all doubt is reasonable.” Id. at 587. Finding the prosecutor's comments did not leave “an erroneous impression” of the State's burden of proof with the jury, the OCCA held there was no “actual or obvious error” and denied relief. Id. The OCCA's reasonable decision on this issue is entitled to deference. See, e.g., Miller v. Mullin, 354 F.3d 1288, 1293 (10th Cir. 2004) (stating the court applies the “AEDPA's deferential standard of review to a claim of prosecutorial misconduct”).
Stating that “‘beyond a reasonable doubt' does not mean beyond ‘a shadow of a doubt or all doubt'” is “not a constitutional violation.” Thornburg, 422 F.3d at 1130. See Gordon v. Ward, 118 F. App'x. 434, 436 (10th Cir. 2004) (giving AEDPA deference to the OCCA's determination that “a prosecutor's comments during voir dire that ‘reasonable doubt' does not mean ‘beyond a shadow of a doubt' or ‘beyond all doubt' does not constitute plain error” and denying habeas relief because state court determination was not contrary to or an unreasonable application of clearly established federal law). Thus, the prosecutor's remarks stating as much did not render Petitioner's trial fundamentally unfair or so prejudice Petitioner's right to a presumption of innocence as to effectively deny him that constitutional right. Accordingly, Petitioner fails to show that the OCCA's adjudication of this issue was either contrary to, or an unreasonable application of, clearly established federal law. The undersigned recommends the Court deny habeas corpus relief on this ground.
D. Ground Four.
In Ground Four, Petitioner asserts he was denied his constitutional right to testify because neither his attorney nor the trial court discussed his waiver of the right on the record. Doc. 1, at 10. The undersigned finds Petitioner is not entitled to federal habeas corpus relief on this issue.
1. Clearly established law.
“[I]t cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49 (1987). But the Supreme Court has never mandated that a criminal defendant's waiver of the right to testify be memorialized on the record to be effective. See, e.g., Cannon v. Trammell, 796 F.3d 1256, 1273 n.9 (10th Cir. 2015) (“Nothing in this circuit, or any other . . . requires defendants to waive their right to testify on the record and we decline to adopt such a rule now. To the contrary, requiring judges to question each non-testifying defendant about his decision not to testify may result in defendants feeling pressured to give up their right not to testify.” (citing United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995)); see also Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir. 2016) (“[T]he Supreme Court has never articulated the standard for assessing whether a criminal defendant has validly waived his right to testify or determined who has the burden of production and proof under particular circumstances.”).
2. The OCCA's decision to decline Petitioner's request to presume an invalid waiver of his right to testify from a silent record was not contrary to or an unreasonable application of Supreme Court law.
On direct appeal, Petitioner argued his right to testify was denied because no record was made of him waiving his right. Doc. 16, Ex. 1, at 30-32. Tellingly, Petitioner does not assert that his attorney failed to advise him of his right to testify at trial if he so desired. Instead, he argues only that his waiver of the right should not be presumed from a silent record. See Doc. 1, at 10; see also Doc. 16, Ex. 1, at 32. The OCCA rejected Petitioner's argument:
Appellant complains there is nothing in the record to indicate he was advised, either by the trial court or by his own counsel, of his right to testify or that he wished to waive that right. Thus, Appellant complains that his constitutional right to testify in his own behalf has been violated. Appellant requests that we reverse his murder conviction and remand his case for a new trial.
This issue was not raised below. Our review is therefore limited to plain error. See Wackerly v. State, 2000 OK CR 15, ¶ 29, 12 P.3d 1, 12. Appellant fails to show actual or obvious error. He acknowledges that we have never imposed a formal requirement that the defendant's waiver of his right to testify be made on the record at trial. Although it is undoubtedly true that non-testifying defendants commonly make such waivers on the record, Appellant cites no authority requiring it. Indeed, the Tenth Circuit has held that:
[N]othing in this circuit, or any other . . . requires defendants to waive their right to testify on the record and we decline to adopt such a rule now. To the contrary, requiring judges to question each non-testifying defendant
about his decision not to testify may result in defendants feeling pressured to give up their right not to testify.
Cannon v. Trammell, 796 F.3d 1256, 1273 n.9 (10th Cir. 2015) (citing United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995)).
Nothing in the present record indicates that defense counsel frustrated Appellant's desire to testify. Nor does the record suggest in any way that Appellant wanted to testify. We decline Appellant's invitation to create new law and adopt a formal requirement that the trial court in every case advise defendants of their right to testify and obtain an on-the-record waiver of such right from non-testifying defendants. However, trial judges should exercise extreme caution when a defendant's counsel announces during a trial proceeding that their client does not wish to testify. The best practice unquestionably is to take the time to swear in the defendant on the record and outside the presence of the jury and ask simple questions regarding their choice not to testify in their own behalf. The time it takes to do so is a small price to pay for a clean and complete record.
In the present case, there is no actual or obvious error in light of controlling authority. Thus, there is no plain error. Proposition IV is denied.Moore, 443 P.3d at 587. The OCCA's determination on this issue was not contrary to, or an unreasonable application of, Supreme Court law. See, e.g., Cannon, 796 F.3d at 1273 n.9.
Without citing any Supreme Court case law, Petitioner argues generally that a court cannot presume waiver of a fundamental constitutional right from a silent record. Doc. 24, at 16. But “general rules . . . cull[ed] from Supreme Court cases as to [other] distinct constitutional rights simply cannot support relief . . . under the strict standards of AEDPA.” See Jenkins, 824 F.3d at 154 (holding that the petitioner's citation to two Supreme Court cases seeking to establish a need for an on-the-record waiver of the right to testify were inapposite because they did not “stand for the proposition that generalizable standards, which the Court has indicated amount to clearly established law in a particular context (i.e., the right to counsel), necessarily bind state courts in an entirely different context (i.e., the right to testify)”).
“The right to testify qualitatively differs from those constitutional rights which can be waived only after the court inquires into the validity of the waiver.” Pennycooke, 65 F.3d at 11. Because a criminal defendant can choose either to testify or not to testify depending on the facts and circumstances of the case, the decision is necessarily “an important part of trial strategy best left to the defendant and counsel without the intrusion of the trial court, as that intrusion may have the unintended effect of swaying the defendant one way or the other.” Id. And unlike the on-the-record colloquy required to waive the right to counsel, which is necessary precisely because the right is being waived without the advice of counsel, a defendant waiving his right to testify “is represented by counsel throughout the trial, and the court is entitled to- indeed should-presume that the attorney and the client have discussed that right.” Id. at 12.
Petitioner has presented no clearly established Supreme Court law contradicting the OCCA's decision denying this claim nor shown that it was objectively unreasonable. See, e.g., White v. Woodall, 572 U.S. 415, 419 (2014) (“Clearly established federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of th[e Supreme] Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” (internal alterations, citations and quotation marks omitted)). The undersigned therefore recommends the Court deny habeas corpus relief on this ground.
E. Ground Five.
Petitioner argues in Ground Five that his trial counsel was constitutionally ineffective for failing to: (1) object to the introduction of gruesome autopsy photographs; and (2) object to prosecutorial misconduct. Doc. 1, at 12; Doc. 16, Ex. 1, at 33-34. Citing Strickland v. Washington, 466 U.S. 668 (1984), the OCCA rejected the ineffective assistance of counsel claim on direct appeal holding:
Appellant complains that trial counsel was ineffective for failing to object to 1) the photographic exhibits challenged in Proposition II; and 2) the prosecutor's questions and comments during voir dire challenged in Proposition III. To prevail on an ineffective assistance of counsel claim, the appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
See Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787-88, 178 L.Ed.2d 624 (2011) (discussing Strickland, supra). We previously rejected Appellant's challenges both to the photographic exhibits as discussed in Proposition II and the prosecutor's voir dire as discussed in Proposition III. Trial counsel thus was not ineffective for failing to make these meritless objections. Jackson v. State, 2016 OK CR 5, ¶ 13, 371 P.3d 1120, 1123. Proposition V is denied.Moore, 443 P.3d at 587-88.
1. Clearly established law.
To establish ineffective assistance of counsel, Petitioner must demonstrate his attorney's performance was deficient and prejudicial. See Strickland, 466 U.S. at 690-91. A court will only consider an attorney's performance “deficient” if it falls “outside the wide range of professionally competent assistance.” Id. at 690. “[P]rejudice” involves “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“Surmounting Strickland's high bar is never an easy task.” Harrington, 562 U.S. at 105 (internal quotation marks omitted). This Court defers to the OCCA's merits determination of Petitioner's Strickland claim, and this “review is doubly deferential . . . because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . . .” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (internal quotation marks and citations omitted). On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101. “This is different from asking whether defense counsel's performance fell below Strickland's standard.” Id. This Court “must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Id. at 105. “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. This Court must “afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods, 136 S.Ct. at 1151 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).
2. Discussion.
a. Counsel's failure to object to the admission of autopsy photographs.
Petitioner faults his attorney for failing to object to the trial court's admission of several autopsy photographs. Doc. 1, at 12. But, as discussed above, the OCCA made a factual finding that the autopsy photographs were relevant and that their admission did not result in unfair prejudice. See supra § IV(B)(2). Because the trial court's admission of the photographs did not result in unfair prejudice to Petitioner, the Court should find the OCCA reasonably applied Strickland in rejecting this claim on direct appeal. Harrington, 562 U.S. at 105.
b. Counsel's failure to object to prosecutorial misconduct.
Petitioner also faults his attorney for failing to object to prosecutorial misconduct. Doc. 1, at 12. To “succeed on his counsel's failure-to-object claims, he must show that the underlying prosecutorial-misconduct claims themselves have merit.” Hanson, 797 F.3d at 837. As discussed, the OCCA's conclusion that the prosecutor's comments did not deprive Petitioner of the presumption of innocence was not an unreasonable application of federal law. See supra § IV(C)(2). For that reason, Petitioner “is likewise not entitled to relief on this claim of ineffective assistance of trial counsel.” Glossip v. Trammell, 530 F. App'x. 708, 739 (10th Cir. 2013); see also Willingham v. Mullin, 296 F.3d 917, 934 n.6 (10th Cir. 2002) (noting that where substantive claims have been rejected on the merits, “separate consideration of the associated ineffective assistance claims is unnecessary”).
3. Conclusion.
Petitioner has failed to demonstrate, with respect to either of his ineffective assistance of counsel claims, that his counsel's conduct was both deficient and prejudicial. He therefore cannot overcome the doubly deferential hurdle created by Strickland and § 2254(d) to obtain habeas corpus relief on his ineffective assistance of counsel claims. Harrington, 562 U.S. at 105.
F. Ground Six.
Finally, Petitioner alleges cumulative error denied him a fundamentally fair trial. Doc. 1, at 14. On direct appeal, the OCCA held:
We have held that a cumulative error argument has no merit when the Court fails to sustain any of the other errors raised by Appellant. Bivens v. State, 2018 OK CR 33, ¶ 35, 431 P.3d 985, 996. Such is the case here. Proposition VI is denied.Moore, 443 P.3d at 588. The undersigned finds this was a reasonable application of federal law.
1. Clearly established law.
“[T]he Supreme Court has never recognized the concept of cumulative error.” Bush v. Carpenter, 926 F.3d 644, 686 n.16 (10th Cir. 2019). Thus, “because there is no ‘clearly established Federal law' on this issue, ” it is questionable “whether a state appellate court's rejection of a cumulative error argument can justify federal habeas relief under the standards outlined in § 2254(d).” Id.
Assuming it is clearly established that cumulative error can violate the federal constitution, this Court looks only to “federal constitutional errors, and such errors will suffice to permit relief under cumulative error doctrine only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial's fundamental fairness.” Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir. 2013) (internal quotation marks omitted). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Bush, 926 F.3d at 686 (internal quotation marks and alterations omitted). It is a petitioner's burden to demonstrate “that the errors resulted in actual prejudice.” Id. (internal quotation marks omitted).
2. Discussion.
The undersigned concludes the OCCA's decision on Petitioner's cumulative-error claim was not contrary to or an unreasonable application of clearly established federal law. Petitioner has identified no errors which would prompt a cumulative-error analysis. See, e.g., Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998) (“Cumulative error analysis applies where there are two or more actual errors; it does not apply to the cumulative effect of non-errors.”). The undersigned therefore recommends the Court deny habeas corpus relief on this ground.
V. Recommended ruling and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court deny the petition for habeas relief.
The undersigned advises the parties of their right to object to this Report and Recommendation by April 16, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned 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 referred to the undersigned Magistrate Judge in this matter.