Opinion
CIV-22-880-R
06-07-2023
JERRY L. RICHARDS, Petitioner, v. RICK WHITTEN, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Jerry L. Richards (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 7). United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Respondent filed a response (Doc. 16), along with portions of the record, including the jury-trial transcripts (Tr. Vol. I-III), exhibits (State's Ex.), and the state trial court record (R.). (Doc. 18).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 the morning of August 31, 2018, Petitioner, along with Deirdre Allen, Waylon Whitlow, and Herbert Schexnider, were drinking beer and running errands together in Mr. Schexnider's truck. (Tr. Vol. I, at 230-33, 236, 249-51; Tr. Vol. II, at 295, 301-02; Tr. Vol. III, at 510, 512-15, 519, 542-43). After stopping at Mr. Schexnider's granddaughter's house, Ms. Allen started driving the truck. (Tr. Vol. I, at 234-35; Tr. Vol. II, at 303-04; Tr. Vol. III, at 517-18). At some point between 2:30 p.m. and 2:45 p.m., Ms. Allen noticed Don Coleman's property, angrily remarked that he had raped her, turned into the driveway, and got out to knock on the door. (Tr. Vol. I, at 237, 243, 262; Tr. Vol. II, at 276; Tr. Vol. III, at 520-21, 537). Ms. Allen made it clear when she entered the driveway that she intended to fight Mr. Coleman. (Tr. Vol. III, at 546). Ms. Allen confronted Mr. Coleman when he answered the door and struck Mr. Coleman with her hands, starting a physical altercation. (Id. at 521, 548). Ms. Allen testified that Mr. Coleman had a gun in his hands. (Id. at 522). Despite the presence of the gun, she forced herself into Mr. Coleman's house and continued the fight. (Id. at 548-49). At this point, Ms. Allen blacked out momentarily from the alcohol. (Id. at 523).
Mr. Whitlow grabbed an axe off the porch and chased after Mr. Coleman. (Tr. Vol. II, at 479-80). Mr. Whitlow swung the axe toward Mr. Coleman, and Mr. Coleman used the rifle to attempt to block the axe. (Id. at 325-26). Mr. Whitlow then dropped the axe and started to fight for the rifle, pushing or kicking Mr. Coleman to the ground. (Id. at 278, 326-27). At this point, Petitioner struck Mr. Coleman with a hammer he had picked up from the porch. (Id. at 278, 329, 480, 484). At about this time, the rifle discharged as Mr. Whitlow struggled with Mr. Coleman for control of the weapon. (Id. at 279). Mr. Coleman, bleeding from his head, released his grip on the rifle as Petitioner struck him. (Id. at 347, 352, 481). Mr. Whitlow obtained control of the rifle and butted Mr. Coleman with the stock a couple of times while Mr. Coleman was conscious and yelling. (Id. at 279, 330-31, 352).
Petitioner admitted to OSBI Special Agent Derek White that he aimed the rifle at Mr. Coleman's body and shot one time. (Id. at 482-83). Petitioner knew he struck him because Mr. Coleman fell immediately. (Id.). Mr. Whitlow testified that he heard Petitioner scream “I shot him.” (Id. at 283). Authorities found a loaded shotgun on the porch next to Mr. Coleman's body. (Id. at 362, 384, 393; State's Ex. 1, at 4).
II. Procedural History
The State charged Petitioner in Lincoln County, Case No. CF-2018-160-B, with Murder in the First Degree - Felony Murder. (R., at 1). At the conclusion of the three-day trial, the jury found Petitioner guilty of Murder in the Second Degree - Felony Murder, a lesser-included charge. (Id. at 158). The trial judge sentenced Petitioner to 37 years of imprisonment. (Id. at 174-79). The Oklahoma Court of Criminal Appeals (“OCCA”) denied Petitioner's direct appeal. (Doc. 16, at Ex. 1).
Petitioner then filed a Pro Se Motion for Suspended Sentence in Lincoln County District Court, which was denied. (Id. at Exs. 4, 5). Petitioner also filed an Application for Post-Conviction Relief in Lincoln County District Court, which was also denied. (Id. at Exs. 6, 7). On appeal, the OCCA declined jurisdiction. (Id. at Ex. 8). Petitioner then filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1). The Petition is at issue.
III. Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep't of Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (internal quotation marks omitted). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be diametrically different and mutually opposed to the Supreme Court decision itself.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was objectively unreasonable.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
This court “must accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)).
This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
IV. Analysis
Petitioner raises four grounds for relief. In Ground One, Petitioner asserts he was denied a fair trial due to prosecutorial misconduct. (Doc. 7, at 5). In Ground Two, Petitioner asserts the trial court impermissibly allowed the introduction of hearsay evidence. (Id. at 6-7). In Ground Three, Petitioner asserts the ineffective assistance of trial counsel. (Id. at 8). In Ground Four, Petitioner asserts cumulative error denied him a fair proceeding. (Id. at 9). For the reasons stated below, each of Petitioner's claims should be denied.
A. Ground One: Petitioner Is Not Entitled to Relief Because the OCCA Reasonably Determined Petitioner Was Not Denied a Fair Trial.
In Ground One, Petitioner claims he has been denied due process and a fair trial in violation of the United States Constitution because of prosecutorial misconduct. (Doc. 7, at 5; Doc. 16, at Ex. 2, at 13-23). Specifically, he contends the prosecutor “repeatedly injected his personal opinion on the evidence, witness credibility, and [Petitioner's] guilt” during closing argument. (Doc. 16, at Ex. 2, at 15). In support, Petitioner cites multiple instances from the closing argument in which the prosecutor prefaced a statement with “I think” or “I don't think.” (Id. at 16-17) (citing Tr., at 568-69, 593, 596, 610, 612). Petitioner also contends the prosecutor's repeated use of leading questions resulted in an unfair trial. (Id. at 19-22) (citing Tr., at 230-31, 234, 274-76, 279-80, 365, 359). For the reasons stated below, the undersigned recommends Ground One be denied.
For each of his grounds for relief, Petitioner incorporated his appellate brief into the “supporting facts” sections of the form Amended Petition. (Doc. 7, at 5, 7-10).
1. Prosecutorial Misconduct Claims Are Reviewed Under Due Process Standards.
“The relevant question” when addressing inappropriate remarks made by a prosecutor “is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 367 (1974)). “In other words, in the habeas context, the petitioner must establish that the prosecutor's misconduct was ‘of sufficient significance to result in the denial of the [petitioner's right to a fair trial.'” Cole v. Trammell, 755 F.3d 1142, 1174 (10th Cir. 2014) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)). “An inquiry into the fundamental fairness of the trial requires an examination of the entire proceedings, including the strength of the evidence against the defendant.” Hanson, 797 F.3d at 843.
2. The OCCA's Ruling
The OCCA rejected Petitioner's allegations of prosecutorial misconduct:
[Petitioner] first argues that the prosecutor injected his personal opinion on the evidence, witness credibility, and his guilt during closing argument. He challenges six of the prosecutor's statements during closing argument prefaced with the phrase “I think” or “I don't think.” This Court permits the prosecutor to argue what he or she believes the evidence showed, as long as the argument is reasonably based on the evidence. Williams v. State, 2008 OK CR 19, ¶ 107, 188 P.3d 208, 228. Furthermore, this Court has held that phrases such as “I think...” and “I think you can infer...” are within the boundaries of argument allowed in closing argument. Carol v. State, 1988 OK CR 114, ¶ 7, 756 P.2d 614, 617. The use of such prefacing does not violate the prohibition against injecting a prosecutor's personal opinions. Id. Also, comments made in closing argument are not evidence and
[Petitioner's] jury was so instructed. Wall v. State, 2020 OK CR 9, ¶ 31, 465 P.3d 227, 235.
A review of the challenged remarks, in context, shows that the prosecutor was not telling the jury to abandon its duty and convict based on the prosecutor's own opinion, but rather that the prosecution's evidence supported a guilty verdict. The argument was based on the evidence and reasonable inferences from it. Therefore, the challenged remarks were not error and did not deny [Petitioner] a fair trial. Wall, 2020 OK CR 9, ¶ 31, 465 P.3d at 235 (observing counsel for the parties are permitted “a wide range of discussion and illustration in closing argument and counsel enjoy a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it.”)
Next, [Petitioner] argues that the prosecutor impermissibly used leading questions on direct examination of three of his witnesses. This Court has held that leading questions are permissible to develop preliminary matters not in dispute, to develop testimony of those with limited understanding of the information sought, and to revive the recollection of a witness. Powell v. State, 2000 OK CR 5, ¶ 79, 995 P.2d 10, 529; 12 O.S.2011, § 2611. Even in instances where the leading questions are not within one of these exceptions, this Court will not find prejudice where the answers are “inconsequential,” “cumulative to other trial testimony,” or “did not concern an issue critical to the case.” Powell, 2000 OK CR 5, ¶ 80, 995 P.2d at 530. The prosecutor in this case used leading questions as a means to avoid duplicative testimony on minor matters amongst the witnesses. The challenged questions established preliminary matters that were not in controversy. Because the prosecutor's leading questions involved preliminary matters, cumulative testimony, or undisputed testimony, his use of leading questions warrants no relief. In the one challenged instance where defense counsel lodged a leading question objection, the district court did not abuse its discretion in overruling the objection. The question that drew the objection was non-leading and the preceding leading question was one where the prosecutor posed the witness's previous answer in the form of a question to confirm and clarify the witness's response. See Wall, 2020 OK CR 9, ¶ 32, 465 P.3d at 235. Accordingly, we find that the prosecutor neither improperly injected his opinion during closing argument nor improperly used leading questions and that [Petitioner] has not been unfairly prejudiced or otherwise denied a fair trial.(Doc. 16, at Ex. 1, at 3-5). The OCCA noted that Petitioner “failed to object to most of the alleged misconduct” and that it “reviews alleged prosecutorial misconduct not met with objection for plain error only.” (Id. at 2). The OCCA also stated that “any rulings on challenged remarks met with objection will be reviewed for an abuse of discretion.” (Id. at 3). The OCCA therefore reviewed Petitioner's prosecutorial misconduct claims - all but one instance of an alleged leading question - under plain error review because the conduct in question was not objected to at trial.
“Oklahoma's plain-error test is rooted in due process.” Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005). There is “no practical distinction between the [the OCCA's] formulation[] of plain error . . . and the federal-due process test.” Id. Thus, the Court “must defer to [the OCCA's] ruling unless it unreasonably applied that test.” Id. (internal quotations and brackets omitted).
3. The OCCA Reasonably Determined That the Prosecutor's Remarks During Closing Argument Did Not Result in an Unfair Trial.
“[T]he Supreme Court has been clear that prosecutors must not inject their personal opinions about evidence into a trial.” O 'Byarnt v. Nunn, 2022 WL 17724698, at *8 (10th Cir. Dec. 16, 2022) (citing Darden, 477 U.S. at 180-83; id. at 189-92 (Blackmun, Brennan, Marshall and Stevens, JJ., dissenting); United States v. Young, 470 U.S. 1, 8-9 (1985); Donnelly, 416 U.S. 637, at 648 n.23)). “The purpose of this rule is to prevent the jury's misapprehension that the prosecutor possesses evidence not presented at trial and to avoid inducing the jury to trust the government's judgment rather than its own.” Id. (citing Young, 470 U.S. at 13).
“However, in Darden, Young, and Donnelly, even egregious violations of this rule were held not to render the trial fundamentally unfair because, in context, they would not have prejudiced the jury.” Id. Thus, “to determine that the OCCA's rejection of the prosecutorial misconduct claim was unreasonable, a jurist would need to view the prosecutor's few isolated comments in closing arguments as not just improper but capable of overpowering the jury's ability to make its own credibility determination.” Id. at *9.
The factors utilized by the OCCA are consistent with those considered by the Supreme Court in holding a prosecutor's comments did not deprive a defendant of a fair trial. Darden, 477 U.S. at 181-82 (“The prosecutors' argument did not manipulate or misstate the evidence . . . .”); id. at 182 (“The trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence.”). Thus, the undersigned finds the OCCA reasonably applied the appropriate due process standard. See Morrison v. Pettigrew, 2020 WL 2104936, at *8 (N.D. Okla. May 1, 2020) (finding neither the OCCA's determination of the facts nor its application of Donnelly were unreasonable where it “reasoned that most of the prosecutor's comments were reasonable inferences from the evidence” and did not affect the outcome of the trial where “the prosecutor prefaced several statements with words like ‘I think.'”) (internal quotation marks omitted).
4. The Prosecutor's Use of Leading Questions Did Not Violate Petitioner's Right to Due Process.
Petitioner additionally contends he was denied a fair trial because the prosecutor repeatedly utilized leading questions on direct examination.(Doc. 16, at Ex. 2, at 19-22) (citing Tr., at 230-31, 234, 274-76, 279-80, 365, 359). Here again, the OCCA determined the prosecutor's conduct neither amounted to misconduct nor was prejudicial to Petitioner.
The undersigned notes that one of the instances about which Petitioner complains was a question by his own attorney on re-cross examination. (Tr., at 356).
The OCCA reasonably applied its plain-error analysis regarding the leading questions to which Petitioner's attorney did not object. Most of the questions related to facts not in dispute. For example, Petitioner points to leading questions addressing: (1) whether Petitioner, Mr. Richards, Mr. Schexnider, and Ms. Allen were together and drinking; (2) that the group went to Mr. Schexnider's granddaughter's home; (3) that the group went to Mr. Coleman's house; (4) that Ms. Allen was angry when she went to Mr. Coleman's door; (5) that Ms. Allen and Mr. Coleman began to fight; and (6) that Mr. Whitlow and Mr. Coleman struggled over the gun. (Tr., at 230-31, 234, 274-76). In another leading question, Mr. Whitlow rejected the premise of the leading question and provided a different answer. (Id. at 280). The OCCA found the questions did not violate Oklahoma law, and it is not apparent how these questions would have resulted in an unfair trial or otherwise prejudiced Petitioner. See Hicks v. Rudek, 2011 WL 3236225, at *7 (E.D. Okla. June 29, 2011) (rejecting the petitioner's complaint that “the prosecutor asked leading questions of his witnesses” where “defense counsel did not object at trial to most of the offending leading questions, and [the petitioner] has no[t] shown how he was prejudiced by the use of leading questions.”), report and recommendation adopted, 2011 WL 3236216 (E.D. Okla. July 28, 2011).
The only exchange which garnered an objection occurred in Mr. Whitlow's direct examination:
Q: At some point do you get the gun away from Don?
A: Yes, I do.
Q: And then you get the gun away from him, what do you do then?
A: I butted him a couple of times with it.
Q: You took the stock of the rifle and you hit him with it a couple of times?
A: Yes.
Q: Where?
[Defense counsel]: Object as to leading, Your Honor.
The Court: Sustained.(Tr., at 279). Here, counsel asked a leading question regarding a fact not in dispute - that Mr. Whitlow took the gun away from Mr. Coleman. Then, counsel simply rephrased the witnesses' answer to move the story along or for clarification. This exchange likewise did not violate Petitioner's due process rights as it was neither misconduct nor prejudicial.
For the reasons stated above, the undersigned recommends Ground One be denied.
B. Ground Two: Petitioner Is Not Entitled To Habeas Relief Due To Impermissibly Admitted Hearsay Evidence.
In Ground Two, Petitioner asserts “the trial court committed reversible error by permitting the [introduction] of hearsay evidence by the medical examiner.” (Doc. 7, at 6). He contends the medical examiner's testimony was “presented twice” and he was prejudiced as a result. (Id. at 7). Petitioner also incorporates his brief on direct appeal, in which he contended the medical examiner's autopsy report both bolstered the medical examiner's testimony and contained information not included otherwise in evidence - “information provided by law enforcement indicating Mr. Coleman had been ‘assaulted in his home by four men.'” (Id. at 24) (citing State's Ex. 9). Respondent asserts Petitioner's claim is rooted in state law and is not cognizable as a federal habeas claim. (Doc. 16, at 24-28).
1. The Clearly Established Law
An argument based on state law is not a cognizable claim in a federal habeas action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). Therefore, a federal court “may not provide habeas corpus relief on the basis of state court evidentiary rulings unless they rendered the trial so fundamentally unfair that a denial of constitutional rights results.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted).
2. The OCCA Ruling
Here, the OCCA concluded that the admission of the medical examiner's report was not prejudicial under the plain error standard:
[Petitioner] correctly argues, and the State concedes, that the district court erred in admitting the medical examiner's autopsy report because it is inadmissible hearsay. Martinez v. State, 2016 OK CR 3, ¶ 54, 371 P.3d 1100, 1114 (holding autopsy reports are inadmissible hearsay and do not fit within a hearsay exception); 12 O.S.2011, §§ 2801-2803. [Petitioner's] failure to object to the challenged report makes our review for plain error only and the relevant inquiry is whether its admission affected the outcome of the trial. Martinez, 2016 OK CR 3, ¶¶ 14, 53, 371 P.3d at 1108, 1113.
[Petitioner] contends that he was unfairly prejudiced because the autopsy report improperly bolstered the medical examiner's testimony and contained
an inaccuracy, namely that the victim had been attacked by four men. The report did not improperly bolster the medical examiner's testimony as it summarized her undisputed findings and she testified at trial and was subjected to cross-examination. Nor did the minor inaccuracy affect the trial outcome. [Petitioner] never contested that he attacked, then shot, the victim in the presence of his two confederates. See Martinez, 2016 OK CR 3,¶54, 371 P.3d at 1114. The fact that there was one less person than the report stated was of no consequence as multiple witnesses testified that the trio fought with the victim and that [Petitioner] fatally shot him. Therefore, we find [Petitioner's] claim that he was unfairly prejudiced from the admission of the medical examiner's report is without merit. This claim is denied.(Doc. 16, at Ex. 1, at 6-7).
3. Petitioner Did Not Allege a Cognizable Claim Because it is Based Solely on State Law.
Petitioner only argues the trial court erred by admitting hearsay evidence in the form of the medical examiner's report. (Doc. 7, at 6). He asserts the introduction of the evidence was prejudicial because it bolstered the medical examiner's testimony. (Id. at 7). Even construing the Petition liberally, Petitioner states nothing to suggest he is making a claim based on a violation of the United States Constitution or federal law.
The inquiry does not stop there, as Petitioner incorporates his brief on direct appeal into the Petition. But Petitioner's bolstering claim on appeal cites only to an Oklahoma Supreme Court case and an Oklahoma statute. (Doc. 16, at Ex. 2, at 24) (citing Hooks v. State, 19 P.3d 294, 307-08 (Okla. Crim. App. 2001); Okla. Stat. tit. 12, § 2803(8)(b)(c)). Petitioner's brief included a boilerplate statement incorporating “all evidence set out in Statement of the Facts and Propositions argued in this brief to support his claim that he was convicted and sentenced in violation of his rights under the United States and Oklahoma Constitutions.” (Doc. 16, at Ex. 2, at 23). But unlike his first and third propositions on appeal, in which he used the same language, Petitioner did not cite any portion of the United States Constitution.(Compare id. at 23-24 with id. at 13-23, 25-26). In a failure to exhaust context, the Tenth Circuit held “claims were not presented to the state courts as federal constitutional claims” where the appellant “state[d] in a conclusory fashion that the alleged error violated his federal constitutional rights, but he cite[d] no federal case law to support those claims and does little to connect the claim with the rights he alleged were violated.” Cole v. Zavaras, 349 Fed.Appx. 328, 331 (10th Cir. 2009). Similarly, the undersigned finds that Petitioner does not make a claim based on federal law by incorporating his appellate brief because the reference to the United States Constitution there was conclusory and without other support for a federal claim. Thus, Petitioner recommends that Ground Two be denied because it alleges only errors of state law. See Twobabies v. Patton, No. CIV-14-241-R, 2015 WL 9814364, at *11 (W.D. Okla. July 31, 2015) (noting a federal habeas court should not reexamine “the trial court's alleged misapplication of Oklahoma's hearsay statutes”), report and recommendation adopted, 2016 WL 205510 (W.D. Okla. Jan. 15, 2016).
Petitioner cited to a federal case, but it was related to the standard of review of his state law claim, not a basis for relief on federal law. (Doc. 16, at Ex. 2, at 24) (citing Koon v. United States, 518 U.S. 81, 100 (1986), for the proposition that “the trial court abuses its discretion [when it] makes an error of law”).
4. Alternatively, the Claim Should be Denied Even if the Petition Could be Construed as Bringing a Federal Claim.
A federal court “may not provide habeas corpus relief on the basis of state court evidentiary rulings unless they rendered the trial so fundamentally unfair that a denial of constitutional rights results.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted). The undersigned finds the OCCA properly applied that test, which has “no practical distinction” from the federal-due-process test. Thornburg, 422 F.3d at 1124. Petitioner's only claim of prejudice is that the medical examiner's report “bolstered the testimony of Dr. [Lisa] Barton, by having her testimony presented a second time and then submitted as an exhibit to the jury during deliberations,” thus the “evidence was over emphasized.” (Doc. 16, at Ex. 2, at 24).
Dr. Barton testified that she examined Mr. Coleman's body and performed an autopsy report which included her notes, findings, and conclusions. (Tr., at 463). She stated she reviewed a report from the scene investigator and reviewed scene photographs before performing the examination. (Id. at 465). She concluded Mr. Coleman's cause of death was a gunshot wound to the head because “there was a very large defect of the head” and “the top part of the head was removed from the body.” (Id. at 466). She testified the wound was “not necessarily consistent with a close shot,” but she “wasn't able to give a good determination of the range of fire because the body was starting to decompose.” (Id.). She also stated that she found the x-rays significant because they showed a “lead-snowstorm pattern,” meaning there were “enumerable fragments of small pieces of metal in the brain matter, and that's consistent with a high-powered rifle.” (Id. at 466-67). On cross-examination, Dr. Barton testified regarding ethyl alcohol in Mr. Coleman's vitreous humor - which may or may not have been caused by alcohol consumption. (Id. at 468-69). The autopsy report was consistent with Dr. Barton's testimony, although it did not include her discussion of the potential range of the shot or the source of ethyl alcohol. (See State's Ex. 9).
The OCCA reasonably rejected Petitioner's contention that the admission of Dr. Barton's autopsy report was prejudicial because it over-emphasized her testimony. While Dr. Barton testified Mr. Coleman died of a gunshot wound, that fact was not disputed at trial. The state put on evidence of Petitioner's confession to aiming at, shooting at, and striking Mr. Coleman with a rifle shot. (Tr., at 482-83). Mr. Whitlow also testified that Petitioner exclaimed that he shot Mr. Coleman in the immediate aftermath of the shot being fired. (Id. at 283). The defense's theory was that Petitioner acted either in self-defense or in the defense of others - not that he didn't shoot and kill Mr. Coleman. Given the strong evidence presented at trial that Petitioner shot Mr. Coleman, it was reasonable for the OCCA to find that Petitioner was not denied a fair trial by the autopsy's admission. Thus, the undersigned would deny Ground Two on the merits even if the Petition could be construed as bringing a federal claim.
C. Ground Three: Petitioner Alleges His Trial Counsel Was Constitutionally Ineffective.
In Ground Three, Petitioner contends his trial counsel was constitutionally ineffective because he failed to object to prosecutorial misconduct and to the introduction of hearsay evidence addressed in Grounds One and Two. (Doc. 7, at 8). He argues that “but for trial counsel's errors, the result of [his] trial would have been different.” (Doc. 16, at Ex. 2, at 26).
1. Strickland v. Washington is the Clearly Established Law on Ineffective Assistance of Counsel.
In order to succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy the standards of Strickland v. Washington, 466 U.S. 668 (1984), and show that his attorney's performance was both deficient and prejudicial. Id. at 687. An attorney's performance is deficient when it falls “outside the wide range of professionally competent assistance.” Id. at 690. The performance is prejudicial where “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Thus, prejudice is shown when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable,” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. The court must use a “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted).
2. The OCCA's Ruling
The OCCA held:
[Petitioner] claims he is entitled to relief because of ineffective assistance of trial counsel. He faults defense counsel for failing to object to the claimed prosecutorial misconduct and the introduction of hearsay evidence. This claim requires no relief.
This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel's performance was constitutionally deficient; and (2) whether counsel's performance prejudiced the defense so as to deprive the
defendant of a fair trial with reliable results. Strickland v. Washington, 466 U.S. 668, 687 (1984); Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. This Court need not determine whether counsel's performance was deficient if there is no showing of harm. See Malone, 2013 OK CR 1, ¶ 16, 293 P.3d at 207. The merits of the underlying claims involving prosecutorial misconduct and the introduction of hearsay have been considered and rejected in Propositions 1 and 2, respectively. [Petitioner] cannot prove the necessary prejudice resulting from defense counsel's failure to object to the challenged remarks and evidence. This claim is denied.(Doc. 16, at Ex. 1, at 7-8).
3. The OCCA Reasonably Applied Strickland .
As addressed above, the undersigned finds that the OCCA reasonably determined that Petitioner's allegations of prosecutorial misconduct did not deprive him of a fair trial. See supra § IV.A. Additionally, the OCCA reasonably determined that the admission of hearsay in the form of the medical examiner's autopsy report was not prejudicial. See supra § IV.B.4. “Because no underlying errors existed regarding the substantive claim[s], no prejudice ensued from counsel's failure to object in these instances.” Stepney v. Dowling, No. CIV-17-1164-R, 2018 WL 4102844, at *5 (W.D. Okla. July 31, 2018), report and recommendation adopted, 2018 WL 4100703 (W.D. Okla. Aug. 28, 2018). See Hanson v. Sherrod, 797 F.3d 810, 837 (10th Cir. 2015) (denying petitioner's claim of ineffective of counsel which was premised on a failure to object when the underlying claim was without merit); United States v. Batton, 527 Fed. App'x. 686, 689 (10th Cir. 2013) (no ineffective assistance of counsel for counsel's failure to object to a misstatement of facts in the absence of evidence that the misstatement itself constituted misconduct or influenced the jury's verdict). Thus, Petitioner's claim of ineffective assistance of counsel fails because the OCCA reasonably applied Strickland.
D. Ground Four: Petitioner Alleges the Cumulative Errors Denied Him a Fair Trial.
Petitioner argues the cumulative errors - those he brought in Grounds One, Two, and Three - denied him a fair trial. (Doc. 7, at 9; Doc. 16, at Ex. 2, at 26). The OCCA denied his claim on state-law grounds. (Doc. 16, at Ex. 1, at 8). Petitioner's cumulative error claim in this action should also be denied.
1. The Clearly Established Law
Respondent argues there is no clearly established federal law recognizing cumulative error as a ground for habeas relief. (Doc. 16, at 38). Indeed, the Tenth Circuit has “questioned] whether a state appellate court's rejection of a cumulative error argument can justify federal habeas relief under the standards outlined in § 2254(d)” because “the Supreme Court has never recognized the concept of cumulative error” and “because there is no ‘clearly established Federal law' on this issue.” Bush v. Carpenter, 926 F.3d 644, 686 n.16 (10th Cir. 2019). But “when a habeas petitioner raises a cumulative error argument under due process principles the argument is reviewable because ‘Supreme Court authority clearly establishes the right to a fair trial and due process.'” Hanson, 797 F.3d at 852 n.16 (quoting Darks v. Mullin, 327 F.3d 1001, 1017 (10th Cir 2003)). Thus, the Court should consider Petitioner's cumulative-error claim.
“In the federal habeas context, a cumulative-error analysis aggregates all constitutional errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 915 (10th Cir. 2019) (internal quotation marks omitted). “The cumulative-error analysis applies where there are two or more actual errors.” Id. (internal quotation marks omitted). A federal court also considers the impact of any constitutional claims that “have been individually denied for insufficient prejudice.” Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003) (holding because claims involving analysis of “substantive prejudice components essentially duplicate the function of harmless-error review,” “such claims should be included in the cumulative-error calculus if they have been individually denied for insufficient prejudice”); see also Underwood v. Royal, 894 F.3d 1154, 1187 (10th Cir. 2018) (“For purposes of our cumulative error analysis, we assume without deciding that the alleged prosecutorial misconduct constituted actual error and proceed accordingly.”); Grant v. Royal, 886 F.3d 874, 954-55 (10th Cir. 2018) (“[I]n resolving under the prejudice prong of Strickland Mr. Grant's ineffective-assistance claims based on counsel's [two] alleged failures . . . we have effectively assumed that counsel's performance was constitutionally deficient. And thus we are obliged to assess these two assumed errors in a cumulative-error analysis.”) (internal citation omitted).
2. The OCCA's Ruling
With regard to Ground Four, the OCCA held:
[Petitioner] claims that even if no individual error in his case merits relief, the cumulative effect of the errors committed requires either a new trial or favorable sentence modification. “The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal.” Tafolla v. State, 2019 OK CR 15, ¶ 45, 446 P.3d 1248, 1263. Although individual errors may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. Id. The commission of several trial errors does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the
proceeding. Id. And there can be no accumulation of error if there is no individual error. Lavorchek v. State, 2019 OK CR 13, ¶ 14, 443 P.3d 573, 578. There are no errors, considered individually or cumulatively, that merit relief in this case. This claim is denied.(Doc. 16, at Ex. 1, at 8).
3. The OCCA Reasonably Applied Clearly Established Law.
Although the OCCA did not find any constitutional errors,the Court considers the cumulative effect of allegations of constitutional error which were denied for lack of prejudice alone. Here, those were Petitioner's allegations of ineffective assistance of trial counsel for: (1) failing to object to prosecutorial misconduct; and (2) failing to object to the admission of hearsay.Given the strong evidence against him, even assuming Petitioner's counsel acted deficiently, the cumulative effect of the alleged errors did not result in a constitutionally unfair trial. See Madden v. Farris, No. CIV-13-1350-HE, 2014 WL 3900133, at *8 (W.D. Okla. Aug. 7, 2014) (“Because any rational trier of fact could have found beyond a reasonable doubt that Petitioner was guilty - despite the Confrontation Clause violation and trial counsel's failure to investigate - the undersigned finds that the OCCA could reasonably decide that cumulative error did not render Petitioner's trial fundamentally unfair.”). Thus Ground Four should be denied.
As addressed above, the OCCA's determination that Ms. Barton's report was improperly admitted hearsay evidence was based on state law. See supra § IV.B.2.
The OCCA explicitly limited its holding to Strickland's prejudice prong, noting it “need not determine whether counsel's performance was deficient if there is no showing of harm.” (Doc. 16, at Ex. 1, at 7).
V. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that the Petition for habeas relief (Doc. 7) be DENIED on all grounds.
The court advises the parties of their right to object to this Report and Recommendation by June 28, 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.