Opinion
CIV-22-148-D
04-11-2023
PRENTISS MORRIS, Petitioner, v. STEVEN HARPE, Director,[1] Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD ORREN, UNITED STATES MAGISTRATE JUDGE
Petitioner Prentiss Morris (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States Chief District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 4, 9). Respondent has filed a response (Doc. 14), along with portions of the record, including the jury trial transcript (Trial Tr. I and II), exhibits (State's Ex.), and the state trial court record (R.). (Doc. 16). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DENIED.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Factual Summary
On June 14, 2018, Petitioner had a sexual encounter with A.W. at her apartment. (Trial Tr. I, at 207, 212, 216; Trial Tr. II, at 434). Petitioner testified that the encounter was consensual. (Trial Tr. II, at 433-37). A.W. testified that it was not. (Trial Tr. I, at 213-17).
A.W., an adult with a number of physical disabilities, lived independently with the help of home nurses at the Bristow Village Apartment Complex in Bristow, Oklahoma. (Trial Tr. I, at 180-81, 183-84, 201-03). A.W. and Petitioner had met a few years prior to this incident, and Petitioner would visit A.W.'s apartment about once a week to watch movies, eat pizza, and drink beer together. (Id. at 205, 207). A.W. testified that she and Petitioner were friends and, although they had kissed, they had not had sex. (Id. at 20809). Upon learning that Petitioner was in a relationship with another woman, A.W. stopped seeing Petitioner. (Id. at 209-11).
On June 14, 2018, Petitioner came to A.W.'s apartment. (Trial Tr. I, at 212-13; Trial Tr. II, at 431-32). A.W. testified that Petitioner knocked on her door, and when she unlocked it and cracked it open to see who was outside, Petitioner forced the door open, causing A.W. to fall to the ground. (Trial Tr. I, at 213). A.W. testified that Petitioner appeared to be high on drugs, and he pulled her into the apartment by her hair and shut the door behind him. (Id. at 214, 217). Petitioner demanded money, and when A.W. said she didn't have any, he declared his intention to have sex with her. (Id. at 214). A.W. testified that she replied “[n]o, no, you can't do that. No, please, stop.” (Id.). Petitioner then dragged A.W. to her bedroom and told her to undress. (Id. at 214-15). A.W. testified that Petitioner put a dirty sock in her mouth, shoved her with pillows that hindered her breathing, placed a sharp object to her neck, and threatened “[y]ou holler, I'm gonna cut ya.” (Id. at 216). Petitioner then had sexual intercourse with A.W. (Id.; Trial Tr. II, at 433-37).
A.W. testified that after Petitioner left, she cried herself to sleep, and then woke up and took a shower. (Trial Tr. I, at 216-17). A.W. called her mother about the assault, and her mother helped her contact the police. (Id. at 186-87, 217). Bristow Police Officer Clinton Smee took A.W. to receive a sexual assault examination in Tulsa, Oklahoma, and assisted A.W. with setting up a forensic interview. (Id. at 188, at 264-65; State's Ex. 3).
II. Procedural History
The State charged Petitioner in Creek County (Bristow Division), Case No. BCF-2018-152, with one count of rape in the first degree after former conviction of a felony and one count of burglary in the first degree. (R., at 1). At the conclusion of his trial, the jury found Petitioner not guilty of first degree burglary but guilty of first degree rape, and the trial judge sentenced Petitioner to 20 years of imprisonment in accordance with the jury's recommendation. (Doc. 14, at Ex. 1; R., at 208, 211-15). Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (“OCCA”). (Doc. 14, at Ex. 3). Petitioner's direct appeal raised 11 propositions of error:
• (Proposition I) the trial judge erred by denying the motion to quash reference to the former felony;
• (Proposition II) the trial judge abused his discretion by improperly removing a juror for cause;
• (Proposition III) prosecutorial misconduct occurred when the prosecutor allegedly invoked sympathy for the victim, raised societal alarm, and improperly vouched for the credibility of the witness;
• (Proposition IV) the trial court erred in admitting testimony by the victim's mother regarding the victim's mental health issues;
• (Proposition V) Petitioner was deprived of his right to present a defense by being prohibited from using hearsay testimony of A.W.;
• (Proposition VI) A.W.'s testimony was not credible enough to meet the standard of beyond reasonable doubt on the element of consent;
• (Proposition VII) an evidentiary harpoon by the witness about Petitioner's drug use deprived him of a fair trial;
• (Proposition VIII) whether the trial court erred by failing to instruct the jury that Petitioner would have to register as a sex offender;
• (Proposition IX) evidence of other crimes regarding another investigation involving Petitioner was improperly presented and deprived Petitioner of a fair trial;
• (Proposition X) the admission of other crime evidence with no notice of intent to offer such evidence by the prosecutor was a violation of Petitioner's right to a fair trial and due process of law; and
• (Proposition XI) cumulative error deprived Petitioner of a fair trial.(Id. at Ex. 3, at 12-55). The OCCA affirmed Petitioner's conviction and sentence. (Id. at Ex. 5, at 27). Petitioner filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on October 4, 2021. (Id. at Exs. 6, 7).
While his direct appeal was pending before the OCCA, Petitioner filed an Application for Post-Conviction Relief in Creek County District Court. (Id. at Ex. 8) (the “First Application”). Petitioner's First Application contained seven grounds for relief:
• (First Application I) the trial court erred by allowing testimony of A.W. without a competency hearing;
• (First Application II) insufficient evidence of “force/violence” used against A.W., and the State failed to sufficiently prove the element of “threat of force/fear” to support Petitioner's conviction for first degree rape;
• (First Application III) ineffective assistance of trial counsel for failing to object to the absence of a competency hearing;
• (First Application IV) the trial court misled the jury when it instructed them as to the definition of consent;
• (First Application V) prosecutorial misconduct because the State was not able to prove every element of the crime by reasonable doubt;
• (First Application VI) due process violation due to the prosecution's failure to turn over evidence regarding the A.W.'s mental health; and
• (First Application VII) malicious prosecution led to a deprivation of due process.(Id. at Ex. 8, at 3-9). The state district court denied Petitioner's First Application on September 20, 2021. (Id. at Ex. 10).
On September 27, 2021, Petitioner filed a “Pro Se Supplement Motion for Post Conviction Actual Innocence Claim” with the Creek County District Court. (Id. at Ex. 11) (the “Second Application”). Because the state district court had already ruled on the First Application, it construed Plaintiff's “Supplement Motion” as a second application for postconviction appeal. (Id. at Ex. 14, at 1). Petitioner's Second Application contained six grounds for relief:
• (Second Application I) prosecutorial misconduct;
• (Second Application II) the trial court violated due process by failing to declare a mistrial and for allowing the prosecutor to violate a motion in limine regarding prior convictions;
• (Second Application III) ineffective assistance of appellate counsel for failing to raise issues regarding trial counsel's performance, issues with prosecutorial misconduct, and issues regarding alleged abuses of discretion by the trial court;
• (Second Application IV) ineffective assistance of trial counsel for failing to object to alleged malicious prosecution, failing to demur to the evidence, and alleging that trial counsel broke attorney/client privilege by discussing the proposed testimony of Petitioner while in court and within hearing range of the prosecutor; and
• (Second Application V) cumulative error.(Id. at Ex. 11, at 5-20). Petitioner's Second Application also contained an “actual innocence claim.” (Id. at Ex. 11, at 21-22).
While his Second Application was pending before the Creek County District Court, Petitioner began to seek recourse on the denial of his First Application from the OCCA. On October 19, 2021, Petitioner filed a post-conviction appeal with the OCCA. (Doc. 14, at Ex. 13) (hereinafter “First Application Appeal”). Although his appeal was purportedly from the denial of the First Application, (see id. at Ex. 13, at 25-26), his First Application Appeal brief set forth the five propositions and his claim of actual innocence from his stillpending Second Application (see id. at Ex. 13, at 2-24). On October 27, 2021, the Creek County District Court denied Petitioner's Second Application. (Id. at Ex. 14).
On January 19, 2022, the OCCA affirmed the denial of Petitioner's First Application. (Id. at Ex. 16). In the opinion, the OCCA held that:
[o]n appeal, Petitioner complains of the improper admission of “bad acts” evidence [Second Application II], the unconstitutional performance of his direct appeal counsel [Second Application III], and the intolerable presence of cumulative error [Second Application V]. These claims were not included in the post-conviction application presented to the District Court [the First Application]. Because the District Court had no opportunity to rule on the claims, they are not properly before us. See Rule 5.2, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App. (2022) (“The appeal to this Court under the Post-Conviction Procedure Act constitutes an appeal from the issues raised . . . and the findings of fact and conclusions of law made in the District Court ....”). In addition, [Second Application II and V] were presented and denied on direct appeal. This independently bars their consideration in post-conviction. See Battenfield v. State, 1998 OK CR 8, ¶ 4, 953 P.2d 1123, 1125 (issues previously raised are barred by the doctrine of res judicata).
In his remaining claims Petitioner asserts prosecutorial misconduct [Second Application I] and the ineffective assistance of trial counsel [Second Application IV]. These claims too either were, or could have been, raised on direct appeal and are not properly before us. See Maines v. State, 1979 OK CR 71, ¶ 774, 775-76 (issues which could have been raised on direct appeal are barred from post-conviction review).(Id. at Ex. 16, at 3-4).
On February 9, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1, at 14). The Petition is at issue.
III. Petitioner's Claims Are Barred From Review By the Doctrine of Anticipatory Procedural Bar.
In his Petition, Petitioner raises four grounds for relief:
• (Ground I) insufficient evidence of “force/violence” used against A.W., and the State failed to sufficiently prove the element of “threat of force/fear” to support his conviction for first degree rape (Doc. 1, at 5-6); see First Application II, supra;
• (Ground II) ineffective assistance of trial counsel for failing to object to the absence of a competency hearing (Doc. 1, at 6-8); see First Application III, supra;
• (Ground III) the trial court misled the jury when it instructed them as to the definition of consent (Doc. 1, at 8-9); see First Application IV, supra; and
• (Ground IV) due process violation due to the prosecution's failure to turn over evidence regarding the A.W.'s mental health (Doc. 1, at 9-11); see First Application VI, supra.
Petitioner concedes that he did not raise his grounds for habeas relief on direct appeal, but claims he raised each of them in his First Application. (Doc. 1, at 5-11). Respondent argues that Petitioner's grounds for habeas relief were not presented to the OCCA and thus were not exhausted in state court and should be denied as procedurally barred. (Doc. 14, at 14-30). The undersigned agrees with Respondent.
A. Habeas Petitioners Must Exhaust Claims In State Court Before Raising Them In Federal Court.
A review of the record shows that Plaintiff did not raise his four grounds for habeas relief with the OCCA prior to filing the instant Petition. “[A] state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court.” Davila v. Davis, ___U.S.___, 137 S.Ct. 2058, 2064 (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.'” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006)); see also 28 U.S.C. § 2254(b)(1)(A). 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 . . . includ[ing] not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief”) (internal quotation marks and citation omitted). “[T]he crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012). “A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution.'” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)). But a “‘[f]air presentation' requires more than presenting ‘all the facts necessary to support the federal claim' to the state court.” Bland, 459 F.3d at 1011 (quoting Anderson, 459 U.S. at 6).
Petitioner did not include the four grounds for relief listed in the instant Petition in his direct appeal to the OCCA. He did present them to the Creek County District Court in his First Application. (Doc. 14, at Ex. 8). Petitioner appealed the denial of his First Application to the OCCA, and attached a copy of the district court's order (see id., at Ex. 15, at 25-26), but he submitted an appeal brief containing only the arguments of his Second Application. (Id. at 1-24).This resulted in a failure to present the “substance” of Petitioner's instant grounds to the OCCA, and thus the claims are unexhausted. See Bland, 459 F.3d at 1011.
Although the Petition in Error contained a claim for ineffective assistance of trial counsel, it was not based on the same allegations of error as those alleged in the instant Petition. (Doc. 1, at 6-8; Doc. 14, at Ex. 13, at 15-21).
B. Claims That Are Unexhausted and That Would Be Barred When Presented to an Oklahoma Court Are Subject To an Anticipatory Procedural Bar In This Court.
If a claim is unexhausted, a federal court generally dismisses it without prejudice “so that the petitioner can pursue available state-court remedies.” Grant v. Royal, 886 F.3d 874, 892 (10th Cir. 2018) (internal quotation marks omitted). But, “dismissal without prejudice for failure to exhaust state remedies is not appropriate if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds.” Id. (internal quotation marks omitted). “To be independent, the procedural ground must be based solely on state law. To be adequate, the procedural ground must be strictly or regularly followed and applied evenhandedly to all similar claims.” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (internal citation and quotation marks omitted). If these requirements are met, the federal court applies an “‘[a]nticipatory procedural bar' [which] occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1140 n.7 (10th Cir. 2007). See also Williams, 782 F.3d at 1212 (explaining that anticipatory procedural default is “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”).
The four grounds for relief raised in the instant Petition all attack aspects of Petitioner's trial. Thus, Petitioner could have raised them in his direct appeal to the OCCA; but he did not. Under Oklahoma law, “issues that were not raised previously on direct appeal, but which could have been raised, are waived for further review.” Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App. 2013). This includes claims of ineffective assistance of trial counsel. See Harmon v. Sharp, 936 F.3d 1044, 1060 (10th Cir. 2019) (citing Sporn v. Oklahoma, 139 P.3d 953, 953-54 (Okla. Crim. App. 2006)).
The Tenth Circuit “has found Oklahoma's bar of claims not raised on direct appeal to be independent and adequate with respect to claims other than ineffective assistance of counsel.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) (emphasis added). Thus, Petitioner's Grounds I, III, and IV are clearly subject to Oklahoma's waiver rule and thus to this court's anticipatory procedural bar.
However, Petitioner also raises ineffective assistance of trial counsel in Ground II.
Federal courts are required to undertake a more thorough “adequacy” analysis when the claim involves ineffective assistance of counsel because of the potential that dismissal of a procedurally defaulted claim could infringe on a defendant's Sixth Amendment right to counsel. Thus, claims of ineffective assistance of trial counsel not raised on direct appeal are waived only when (1) trial counsel and appellate counsel are different, and (2) the ineffectiveness claim can be resolved upon the trial record alone.Padillow v. Crow, 2021 WL 1131715, at *6 (N.D. Okla. Mar. 24, 2021) (internal citations and quotation marks omitted), certificate of appealability denied, No. 21-5064, 2022 WL 1763391 (10th Cir. June 1, 2022), cert. denied, 143 S.Ct. 488 (2022). Here, Petitioner's trial counsel and appellate counsel were different. (Compare Doc., 16, at Ex. 2, at 1, jury trial transcript showing Jason Serner as counsel for Petitioner, with Doc. 14, at Ex. 3, at 1, direct appeal brief showing Lisbeth McCarty as counsel for Petitioner). Petitioner's ineffectiveness claim is that
counsel failed to object/contest to the absence of the victim's mental claims “alleged by the Prosecution” that would have showed “proof” of her alleged (mental conditions). Counsel also failed to get professional determination
(Psychiatrist) of the alleged mental health issues of [A.W.] to give (Petitioner) a full and fair opportunity to litigate.(Doc. 1, at 6-7). This claim could have been resolved by the OCCA on the trial record alone if Petitioner had included the claim in his direct appeal. Accordingly, the state court's procedural bar of Petitioner's attempt to now raise this ineffective assistance of trial counsel claim would be both independent and adequate, and thus Ground II is also subject to this court's anticipatory procedural bar.
C. Petitioner Cannot Overcome The Anticipatory Procedural Bar Of His Claims.
A federal court may consider claims that are defaulted in state court on adequate and independent state procedural grounds only if “the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). As set forth below, Petitioner cannot meet either of these exceptions.
1. Petitioner's Assertion Of Cause Cannot Overcome The Procedural Bar.
“Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (internal quotation marks omitted). Petitioner must show “prejudice arising from the errors that form the basis of [his] substantive claims” in order to establish the prejudice prong. Smith v. Allbaugh, 921 F.3d 1261, 1271 (10th Cir. 2019) (internal quotation marks omitted).
Petitioner argues that he did not bring his instant habeas grounds in his direct appeal because appellate counsel did not raise them. (Doc. 1, at 5-8, as to Grounds One, Two, and Three; see generally Doc. 17, at 2,). As shown above (see Section II), Petitioner did not assert any ineffective assistance of appellate counsel claim until his Second Application (Ground III). Petitioner's failure to include this claim in his First Application renders it procedurally barred under Oklahoma law because “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.” Williams, 782 F.3d at 1212. “This rule is rooted solely in Oklahoma state law, and is regularly and even-handedly applied by the state courts, making it both independent and adequate.” Fontenot v. Crow, 4 F.4th 982, 1024 (10th Cir. 2021) (internal citations and quotation marks omitted), cert. denied, 142 S.Ct. 2777 (2022). “[A]n ineffectiveassistance claim can serve as cause to excuse a procedural default only if that claim is not itself procedurally defaulted.” Wilson v. Allbaugh, 737 Fed.Appx. 413, 417 (10th Cir. 2018) (citing Edwards v. Carpenter, 529 U.S. 446, 453 (2000)).
Petitioner raised this ineffective assistance of appellate counsel in his First Application Appeal, but the OCCA found the claim unexhausted and did not decide the issue. (Doc. 14, at Ex. 16, at 3) (“These claims were not included in the post-conviction application presented to the District Court” and “[b]ecause the District Court had no opportunity to rule on the claims, they are not properly before us.”).
Because Petitioner has not shown cause, the Court need not address whether he suffered actual prejudice. See Simpson v. Carpenter, 912 F.3d 542, 571 (10th Cir. 2018) (“[Petitioner] must establish both cause and prejudice to overcome the state procedural bar, and [the court] must reject his . . . claim if he fails to show either requirement.”).
2. Petitioner Does Not Demonstrate A Fundamental Miscarriage Of Justice Sufficient To Overcome The Procedural Bar Of His Claims.
The fundamental miscarriage of justice exception to procedural default is “a markedly narrow one, implicated only in extraordinary cases where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (internal quotation marks and alteration omitted). The Supreme Court instructs that “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (quoting Schlup, 513 U.S. at 316).
Petitioner has asserted his actual innocence to excuse the procedural default of his claims. (Doc. 17, at 2). But Petitioner has failed to present any new evidence that he is actually innocent. See Rushing v. Havernek, 2022 WL 17333067, at *2 (10th Cir. Nov. 30, 2022) (“[A]lthough [the petitioner] invokes the miscarriage-of-justice exception, he identifies nothing suggesting, as the exception requires, ‘that he is actually innocent of the crime of conviction.'” (quoting Pacheco v. El Habti, 48 F.4th 1179, 1186 (10th Cir. 2022)).
D. Conclusion
The four grounds for relief raised in the Petition are subject to Oklahoma's waiver rule and thus this court's anticipatory procedural bar. Petitioner has not established cause or a fundamental miscarriage of justice to overcome this bar. The court should therefore deny habeas corpus relief.
IV. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned 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 May 2, 2023, 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.