Opinion
CIV-19-700-SLP
05-06-2020
DONTE LEMAR PAYTON, Petitioner, v. SCOTT CROW, Director Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, an Oklahoma prisoner appearing pro se, filed this action under 28 U.S.C § 2254 challenging his conviction and sentence for first degree manslaughter. Doc. 1. United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings as provided by 28 U.S.C. § 636(b)(1)(B), (C). Doc. 12. Respondent has responded. Doc. 21. Petitioner has not replied.
The undersigned recommends the court deny the petition.
I. Procedural background.
Petitioner, originally charged with first-degree murder for the shooting death of Lance Canter, was convicted of the lesser-included-offense of first-degree manslaughter in the Oklahoma County District Court, Case No. CF-2014-7586. The jury reached a verdict on the charge of first-degree manslaughter but could not reach a consensus on the punishment. Despite being told several times to continue deliberations, the jury had apparently become deadlocked, when the bailiff, without authorization, advised at least one juror that the trial judge would sentence the accused if the jury could not reach a consensus on the number of years Petitioner should serve. Soon after this exchange, the jurors were brought back into the courtroom where they advised the judge of their verdict regarding guilt and reported they could not reach a consensus on the punishment. Consistent with Oklahoma law, the trial court took over the sentencing, held a sentencing hearing, and sentenced Petitioner to life imprisonment with the possibility of parole.
Petitioner appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (“OCCA”) raising the same propositions of error raised in this petition:
I. THE TRIAL COURT ERRED IN FAILING TO COMPLY WITH THE LAW GOVERNING CONTACT WITH JURORS DURING DELIBERATIONS, IN VIOLATION OF OKLA. STAT. TIT. 22, § 894, AND PETITIONER'S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7, 19 AND 20, OF THE OKLAHOMA CONSTITUTION;
II. THE COURT'S IMPROPER COMMUNICATION WITH THE JURY INVITED JURORS TO AVOID THEIR DUTY TO ASSESS PUNISHMENT, AND THE JURORS ACCEPTED THE INVITATION, DEPRIVING PETITIONER OF THE RIGHT TO BE SENTENCED BY THE JURY;
III. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION;
IV. UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, IMPOSITION OF A LIFE SENTENCE IS EXCESSIVE AND SHOULD BE MODIFIED;
V. APPELLANT'S RIGHTS TO PRESENT A DEFENSE AND TO HAVE A JURY DETERMINE HIS GUILT OR INNOCENCE WERE VIOLATED BY THE TRIAL COURT'S ERRONEOUS REFUSAL TO INSTRUCT THE JURY ON SELF-DEFENSE AS PETITIONER'S THEORY OF DEFENSE IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS ARTICLE 2, SECTIONS 7, 19, AND 20 OF THE OKLAHOMA CONSTITUTION; and
VI. THE ACCUMULATION OF ERROR IN THIS CASE DEPRIVED PETITIONER OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE II, § 7 OF THE OKLAHOMA CONSTITUTION.
Doc. 21, Att. 4, at 2-3. Before addressing the merits of Petitioner's claims, the OCCA granted Petitioner's application for evidentiary hearing filed pursuant to Rule 3.11, Rules of Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. (2017). The trial court was instructed to consider the merits of Petitioner's first two propositions of error. See Supplemental Hearing Transcript Aug. 1, 2017; Aug. 2, 2017. (“Supp. Tr.”).
Respondent has attached relevant portions of the trial transcripts and the subsequent hearing transcripts to the Response. Doc. 21, Att. 2.
After considering the evidence presented in the hearing along with the supplemental briefs, the OCCA affirmed the conviction and sentence. Thereafter, Petitioner timely filed this Petition for Writ of Habeas Corpus. Doc. 1.
II. Evidence adduced at trial.
Petitioner's conviction arose from the shooting death of Lance Canter in October of 2014. Jacob Sheets, one of the State's primary witnesses, testified to the following sequence of events. Late that evening, Sheets, his girlfriend and a mutual friend, Ladra Morton, drove in a white Trailblazer to the Oklahoma City home of a man known to Sheets only as “BP.” Tr. II at 37. They intended to buy drugs. Id. at 37-38, 84. Upon their arrival, they found several people were already there including Petitioner, known to Sheets only as “Duke,” a person called “Neco” and an unidentified woman. Id. at 34-35, 91. Sheets bought an oxycodone pill from Neco. Id. at 37-38, 67.
Sheets testified that he often gave other people rides, and so when Petitioner asked Sheets to drive him to another house in Oklahoma City to pick up a buddy, Sheets agreed. Id. at 38-39, 81-82. Morton, who also testified for the State, rode along in the passenger seat. Petitioner sat in the back seat directly behind Sheets and because Sheets was not familiar with Oklahoma City, Petitioner gave him directions to the house. Id. at 39-40.
When they arrived at their destination, a group of men standing outside told Sheets to get his car out of the street. Petitioner left the Trailblazer to help Sheets back into the driveway. Id. at 40-42. Petitioner then showed Sheets a gun he had brought with him, id. at 43, 105, and said, “When I tell you to drive, drive.” Id. at 40. Canter came out of the house, got into the backseat of the car with Petitioner, and Petitioner told Sheets to “drive.” Id. at 40-41, 88.
Shortly thereafter, Petitioner told Canter, “I'm going to kill you,” and shot Canter in the hand and cheek. Canter screamed, “Take it.” Id. at 43-45, 105-06. Petitioner then shot Canter in the head and chest. Id. at 42-44, 106. Petitioner directed Sheets to make a turn and stop the car. Petitioner opened the door and dumped Canter's body on the street. He then told Sheets to “just get us home.” Id. at 46.
Later that night, Sheets and his girlfriend returned to his mother's Newcastle home, and Sheets and his mother drove to the Oklahoma City Police Department and reported the murder to Oklahoma City Police. Later, Sheets provided the police with Petitioner's phone number and identified a picture of Petitioner as the man he knew as “Duke.” Id. at 61-63, 80; Tr. III at 54-55. Morton, the other passenger in the Trailblazer, also told detectives Petitioner had shot Canter and testified to the same. Tr. II at 132, 137, 148, 154; Tr. III at 61, 81, 223-24.
Petitioner testified at trial in his own defense. He admitted shooting Canter, but contradicted the testimonies of Sheets and Morton, stating Canter had brought the gun with him as part of a gun sale involving Sheets. Tr. III at 238, 240, 249. Petitioner testified that not long after getting into the vehicle, Canter pointed the gun at him and then at Sheets, but when Canter became momentarily distracted, Petitioner successfully grabbed it away during a short “tussle.” Id. at 239-40, 246-47, 253. Petitioner, allegedly fearing for his life, shot Canter the first time in the hand and face. Id. at 240, 252-56. Then Petitioner shot Canter at least twice more in the head and chest because Canter allegedly had “lurched towards [him].” Id. at 240, 254-55. Petitioner explained that Canter's alleged movement after the first shot had scared him, because he did not know if Canter had any other weapons. Id. at 240, 253. According to Petitioner, Sheets exited the vehicle and “dumped the kid on the street.” Id. at 241, 257. Although he had “[p]robably” just killed a man, Petitioner admitted he did not call an ambulance or any other type of emergency responders that might have saved Canter's life. Id. at 257-58. Petitioner's claimed reason for not reporting the killing he had committed was that he “was scared.” Id. at 243, 258-59. Instead, Petitioner fled to Lawton the next day with a friend “to get rid of the gun” and stayed there, still in possession of the gun, until his arrest a week later. Id. at 243. During his voluntary interview with detectives, Petitioner did not state he had killed Canter in self-defense; again, Petitioner claimed he was “scared” to do so. Id. at 265-66, 269, 271-72.
III. Standard of review.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires this Court to apply a “difficult to meet” and “highly deferential standard” in federal habeas proceedings under 28 U.S.C. § 2254; it “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks omitted). When a petitioner includes in his habeas application a “claim that was adjudicated on the merits in State court proceedings,” a federal court shall not grant relief on that claim unless the state-court decision:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;
or
(2) 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.
The reference to “clearly established Federal law, as determined by the Supreme Court of the United States,” “refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
Federal courts may not extract clearly established law from the general legal principles developed in factually distinct contexts, and Supreme Court holdings must be construed narrowly and consist only of something akin to on-point holdings.Fairchild v. Trammell, 784 F.3d 702, 710 (10th Cir. 2015) (internal quotation marks and citation omitted).
Under § 2254(d)(1), a state-court decision is “contrary to” the Supreme Court's clearly established precedent if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405-06. A state court need not cite, or even be aware of, applicable Supreme Court decisions, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
A state-court decision is an “unreasonable application” of Supreme Court law if the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Williams, 529 U.S. at 407-08. “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Conversely, “[i]f a legal rule is specific, the range may be narrow,” and “[a]pplications of the rule may be plainly correct or incorrect.” Id. And “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410.
If a federal court determines that a state-court decision is either contrary to clearly established Supreme Court law or an unreasonable application of that law, or that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding, that court reviews de novo and may only grant habeas relief if the petitioner is entitled to relief under that standard. Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014).
IV. Analysis.
Respondent's contention that Petitioner is not entitled to habeas relief is convincing. Thus, the undersigned recommends the Petition for Writ of Habeas Corpus be denied.
A. Grounds one and two: ex parte communications with the jury.
In ground one, Petitioner challenges the trial court's communications with the jury after the jury had retired to deliberate. The jury sent several notes to the trial judge asking for information or definitions. Although attorneys for both sides signed the judge's responses, demonstrating they were aware of the questions and answers, neither Petitioner nor the jury was brought back into the courtroom as required for strict compliance with Oklahoma law, which Petitioner contends violated his constitutional right to be present during all critical stages of the trial. Additionally, Petitioner contends he was prejudiced when the bailiff informed the jury that, should it not reach a consensus on the appropriate sentence, the judge would take that issue from the jury and sentence Petitioner himself.
“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the district attorney and the defendant or his counsel, or after they have been called.” Okla. Stat. tit. 22, § 894.
After the jury retired to deliberate, it sent out five separate notes to the trial court. Tr. IV at 58; Court's Exs. 2-6. The first of the five notes asked, “What is Jacob's [sic] Sheets phone # (cell). We are reviewing cell phone histories.” Court's Ex. 2. The trial court responded in writing, telling the jury, “You have all the evidence which is proper for you to consider.” Id.
The second note asked, “What is the legal definition of perpetrated? We are hung up right now.” The trial judge answered, “a synonym would be ‘committed.'” Court's Ex. 3.
The third note asked, “Who determines the length and sentence for a manslaughter verdict?” The trial court responded, “The jury.” Court's Ex. 4.
The fourth note informed the judge that the jury had “a verdict, but cannot arrive at a consensus on length of sentence. Need advice.” The judge responded, “You have all the law and evidence which is proper for you to consider.” Court's Ex. 5.
The last note again stated the jury had “a verdict, but only if one juror can choose a shorter sentence which the others do not agree with.” The trial court responded, “Keep deliberating and try to come to a consensus.” Court's Ex. 6.
The Oklahoma law applicable to this case created a presumption of prejudice when a communication between a judge and jury occurs after the jury has retired for deliberations. See Givens v. State, 705 P.2d 1139, 1142 (Okla. Crim. App. 2011). The OCCA found the presumption of prejudice, as to these exchanges, was overcome because “the Court [was] convinced on the face of the record that no prejudice to the accused occurred.” Doc. 21, Att. 4, at 4.
The OCCA overruled Givens after Petitioner's conviction. See Nicholson v. State, 421 P.3d 890, 895 (Okla. Crim. App. 2018) (“[T]his presumption of prejudice unjustified when the trial court communicates with the jury in writing after affording counsel notice and an opportunity to be heard.”).
But the communication between the bailiff and the jury was more troubling, and at Petitioner's request, the OCCA remanded the case to the trial court for a hearing to decide whether Petitioner was prejudiced by that communication.
On August 1 and 2, 2017, the trial court held a hearing to determine whether Petitioner had been prejudiced by the bailiff's unauthorized instruction to the jury. The court subpoenaed those members of the jury the court could locate. They, the prosecutor, and defense counsel testified at the hearing. The record reflects that the jury was unanimous on the Petitioner's guilt before the deadlock on sentencing developed. Supp. Tr. at 19-21, 130-31.
M.R., the jury foreperson, testified that disagreements about the length of sentencing began early; while some jurors wanted a life sentence, “one juror . . . did not want to give hardly any time at all.” Id. at 11, 23. After two hours of deliberation, the foreperson had each juror state the least amount of time he or she would consider. Id. at 23. Those numbers, and a mathematical average, are documented on the back of Court's Exhibit 2. Id. at 22-23; Doc. 21, Ex. 3. M.R. noted that “a couple of [the jurors] were very headstrong about it and didn't want to change [their sentence recommendation].” Supp. Tr. at 23. M.R. recalled that after these minimum numbers were written down, jurors continued to fluctuate “back and forth” adding and subtracting years. Id. But although an earlier “average” number of approximately fifteen years had been reached by adding each term of years together and dividing by the number of jurors, there were some jurors who were unwilling to alter their opinions. Id. at 24. M.R. agreed that despite some progress, a few jurors became more polarized. Id. at 24.
M.R. testified that the bailiff spoke to him: M.R. interpreted the message as one from the trial judge that “if we all agree to it, then he could be the one to set the sentence.” Id. at 26. M.R. conveyed the message to the other jurors who then discussed whether they could ever agree. Id. at 28. Finally, every juror agreed they could not reach a consensus and agreed the court would need to decide the sentence. Id. at 29. M.R. made sure each juror agreed the court should sentence Petitioner because they were hopelessly deadlocked. Id. at 32.
M.R.'s account tracks the written notes he sent out to the trial court on behalf of the jury, twice informing the court that the jury could not arrive at a consensus as to the sentence. The supplemented record reflects that the bailiff communicated with the jury after the last note that instructed the jury to keep deliberating until it could reach unanimity despite the one holdout juror. Id. at 13-14. The bailiff conveyed to M.R., and through him to the jury, that the trial court would impose the sentence if the jurors could not unanimously agree on one. Id. at 14, 25-26, 42, 126. The inability to reach unanimity continued until the trial court brought the jury back into open court. Id. at 15, 27, 30, 6567, 148-49.
Jurors C.J., K.L., and K.H. each testified that the jury still could not reach a unanimous decision and remained deadlocked after the bailiff made the statement to M.R. Id. at 42-43, 56-57, 63, 66-67. Finally, according to three of the testifying jurors, each juror expected the trial judge to sentence Petitioner when they were brought back into open court. Id. at 31-32, 44, 65, 127, 140.
Although the jurors and the foreperson of the jury had slightly different memories about how and where the exchange occurred, they agreed the bailiff had informed them that if they could not reach a consensus on the sentence, the trial judge would take over the sentencing for them. Supp. Tr. at 15, 27, 30-32, 44, 65-67, 127, 140, 148-49.
The trial judge exercised his authority under Okla. Stat. tit. 22, § 927.1 to sentence Petitioner. Exercise of this statutory power is a discretionary act of the trial court that the OCCA reviewed for abuse of discretion. The OCCA held the trial court had not abused its discretion in sentencing Petitioner after finding the jury to be deadlocked on sentencing. Doc. 21, Att. 4, at 5. The OCCA further found the bailiff's unauthorized communication with the jury to be harmless error.
In the present case, the information conveyed to the jury by the bailiff was a correct statement of the law, was limited in scope and essentially the same as would have been given had the statute
been strictly followed. Judge Deason's response to the jury's final written question told the jury to keep deliberating and to try to reach a consensus on punishment. The record shows plainly that the jury was hopelessly deadlocked on punishment at the time of the bailiff's unauthorized communication. However, the jury had already unanimously found Appellant guilty of first-degree manslaughter. On this record we find that the presumption of prejudice was overcome by the State.Id. at 6-7 (internal quotation and citation omitted).
The OCCA reviewed for plain error Petitioner's challenge to the amount of time the trial court allowed the jury to deliberate sending the last note and Petitioner's contention that the trial court should have given an Allen charge.
An Allen charge derives its name from the supplemental jury instruction approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 50102 (1896). See Gilbert v. Mullin, 302 F.3d 1166, 1173 n.2 (10th Cir. 2002). In Allen, the court had given a lengthy instruction encouraging the jurors to consider the arguments of the jurors who did not agree with them on the issue of the defendant's guilt or innocence. Allen, 164 U.S. at 501-02.
The OCCA concluded:
that the time provided for deliberations was not unreasonable and there was no abuse of discretion in this regard. Appellant fails to show that the jury was distracted in its sentencing deliberations either from the trial court's failure to give an Allen charge or in the Court's decision to take the case from the jury after confirming on the record that the jury was deadlocked as to punishment.Id. at 7-8.
The decision of the OCCA is neither contrary to, nor an unreasonable application of the law to the facts. Thus, Petitioner is not entitled to habeas relief on the first two grounds he raises.
B. Ground three-ineffective assistance of counsel.
Petitioner contends trial counsel was ineffective: (a) in failing to object to the trial court's having taken the case from the jury for sentencing; (b) in failing to offer statements in Petitioner's defense at sentencing; and (c) in failing to object to other crimes evidence introduced at sentencing.
This Court reviews claims of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011).
Under the first part of the test, a court determines whether the attorney's representation was deficient. Attorneys are deficient when their mistakes are so serious that they stop functioning as “counsel” for purposes of the Sixth Amendment. Strickland, 466 U.S. at 687. In making this determination, the court presumes that counsel's performance is reasonable and might entail a sound strategy. Newmiller v. Raemisch, 877 F.3d 1178, 1196 (10th Cir. 2017). To overcome this presumption, a petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. This inquiry is “highly deferential,” and courts should avoid “the distorting effects of hindsight.” Id. at 689. After a “thorough investigation,” courts afford strategic decisions, even greater deference making them “virtually unchallengeable.” Id. at 690.
When a habeas petitioner alleges ineffective assistance of counsel, deference exists both in the underlying constitutional test (Strickland) and AEDPA's standard for habeas relief, creating a “doubly deferential judicial review.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Under this double deference, a court considers “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Ellis v. Raemisch, 872 F.3d 1064, 1084 (10th Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis in original)). The petitioner must show not only a deficiency in the representation but also prejudice. Strickland, 466 U.S. at 692. To establish prejudice, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
After identifying the correct standard for reviewing Petitioner's ineffective-assistance-of-counsel claims, the OCCA gave them short shrift: “Appellant fails to show that trial counsel was ineffective for the claims of ineffectiveness that are based on the existing record.” Doc. 21, Att. 4, at 9. Because the OCCA found “no actual error” regarding the trial court's sentencing him, Petitioner cannot show that he was prejudiced by counsel's failure to object. Id.
As for counsel's failure to present statements of Petitioner's mother, father, aunt, cousin, and girlfriend at sentencing, the OCCA held that Petitioner “fail[ed] to show by clear and convincing evidence a strong possibility that trial counsel was ineffective” in failing to present these statements. Id. The OCCA denied Petitioner's request for a hearing on that issue. Petitioner has not demonstrated that, had these witnesses been called to testify, the outcome of his trial or sentencing would have been different.
The OCCA implicitly denied Petitioner's final argument that his counsel was ineffective for failing to object to “other crimes” evidence allegedly introduced at the sentencing phase. Petitioner points to the Pre-Trial Sentence Report that referred to pending charges against Petitioner. Doc. 1, at 28-29. As Respondent points out, however, Petitioner has not shown the Pre-Trial Sentence Report negatively impacted Petitioner's sentencing. Doc. 21, at 2930.
The OCCA's decision finding counsel's representation to be effective is neither contrary to, nor an unreasonable application of Strickland.
C. Ground four-excessive sentence.
Petitioner contends the sentence rendered by the trial judge-life with the possibility of parole-was excessive in violation of the Eighth Amendment. Doc. 1, at 31. But habeas courts afford wide discretion to the state trial court's sentencing decision, and challenges to that decision are not generally constitutionally cognizable, unless it is shown that the sentence imposed is outside the statutory limits or unauthorized by law. See Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). Oklahoma law provides that the penalty for first-degree manslaughter is a minimum of four years of imprisonment and a maximum of life imprisonment, with the possibility of parole. Okla. Stat. tit. 21, § 715. Petitioner received the maximum sentence. The OCCA affirmed, finding that his sentence was not so excessive as to shock the conscience given his “senseless and brutal killing.” Doc. 21, Att. 4, at 10.
Generally, a habeas court's review of a sentence ends once the court determines the sentence is within the limitation set by statute. See Vasquez v. Cooper, 862 F.2d 250, 255 (10th Cir.1988). Here, Petitioner's sentence was within the statutory range of permissible punishment. Evidence adduced during the evidentiary hearing showed some members of the jury favored a much shorter sentence. But likewise, some members favored the exact sentence the trial court imposed. Petitioner's challenge to his sentence does not implicate the Eighth Amendment or any other constitutional rights. Thus, Petitioner is not entitled to habeas relief on this issue.
D. Ground five-failure to give a self-defense instruction.
Petitioner contends he was entitled to an instruction on self-defense, based solely on his own testimony that he was “scared” when he shot Canter. Doc 1, at 33. Jury instructions are matters of state law, and the only question on habeas review is whether omission of the instruction violated due process. “As a general rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas corpus proceedings, ‘unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law.'” Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997). Plaintiff's showing here does not meet that standard.
Under Oklahoma law, “[s]elf-defense is an affirmative defense which admits the elements of the charge, but offers a legal justification for conduct which would otherwise be criminal.” Davis v. State, 268 P.3d 86, 114 (Okla. Crim. App. 2011). A person is justified in using deadly force if a reasonable person in the circumstances and from the defendant's viewpoint would have reasonably believed that he was in imminent danger of death or great bodily injury. This is so even if the danger to life or personal security may not have been real. Okla. Stat. tit. 21, § 733; Davis, 268 P.3d at 114. The OCCA reasonably determined that Petitioner was not entitled to a self-defense instruction:
Appellant's own testimony shows that he unreasonably shot the victim after taking the gun away. No reasonable person in the circumstances and from the defendant's viewpoint would reasonably have believed that he or she was in imminent danger of death or great bodily injury from the unarmed victim. The victim here responded, quite naturally, by raising his left hand when the gun was aimed at him then moved around while being shot from the left side while seated. Appellant testified repeatedly that he opened fire on Canter because he was “scared” but that assertion, standing alone, is insufficient to warrant self-defense instructions. “‘The bare belief that one is about to suffer death or great personal injury will not, in itself, justify taking the life of [one's] adversary. There must exist reasonable grounds for such belief at the time of the killing.'” Davis, 268 P.3d at 114-15. Instruction on self-defense thus was not supported by prima facie evidence because Appellant's testimony uniformly showed no present imminent danger of being attacked or killed by Canter after he was disarmed. The trial court did not abuse its discretion in denying the defense instruction. Proposition V is denied.
Doc. 21, Att. 4, at 11-12. Because he was not deprived of due process, and his trial was not fundamentally unfair, Petitioner is not entitled to habeas relief on this ground.
E. Ground six-cumulative error.
Cumulative error analysis is an extension of harmless error analysis. See Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003). On habeas review, the Court evaluates whether cumulative errors “had substantial and injurious effect or influence in determining the jury's verdict.” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 629-33 (1993)).
In denying Petitioner's final ground for relief, the OCCA cited Neloms v. State, 274 P.3d 161, 171 (Okla. Crim. App. 2012) (the finding of one harmless error provides no “accumulation of error” upon which to grant relief for cumulative error). Petitioner is not entitled to habeas relief on this ground. V. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the court DENY the Petition for Writ of Habeas Corpus.
The undersigned advises the parties of their right under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2) to file an objection to the report and recommendation with the Clerk of Court. Any objection must be filed no later than May 27, 2020. Failure to make a timely objection to the report and recommendation waives the right to appellate review of both factual and legal questions 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 Magistrate Judge in this matter.