Opinion
CIV-22-48-HE
10-21-2022
O'NEAL SMITH, III, Petitioner, v. CARRIE BRIDGES,[1] Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner O'Neal Smith, III, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus challenging his conviction under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 5). Respondent has filed a Response (Doc. 15). For the reasons set forth herein, it is recommended that the Petition be GRANTED.
I. Procedural Background and Issues Presented
On January 10, 2018, a jury in Oklahoma County District Court convicted Petitioner of Robbery with a Dangerous Weapon and Assault and Battery with a Dangerous Weapon; on February 23, 2018, Judge Timothy R. Henderson sentenced Petitioner to forty years of imprisonment on each count, to run consecutively. (Doc. 1, at 1); Oklahoma County District Court, Case No. CF- 2016-7144; (see Doc. 1, at Ex. 1, at 1).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2016-7144&cmid=3443616 (Docket Sheet) (last visited October 21, 2022). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
Petitioner filed a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”) asserting six claims:
(1) “the State exercised preemptory challenges based on race;”
(2) the trial court erred in excluding testimony regarding exculpatory statements made by Petitioner and not allowing impeachment of a witness with prior inconsistent statements;
(3) Petitioner's multiple convictions and sentences for a single act violated the protection against double jeopardy;
(4) the trial court failed to issue the jury an alibi instruction;
(5) trial counsel was ineffective when he “failed to present evidence authenticating a bank statement showing a payment date from Julie Molina's account was her bank statement;” and
(6) “trial errors, when considered in a cumulative fashion, warrant a new trial.”OCCA Case No. F-2018-222;(Doc. 15, at Ex. 2, at 2-3). The OCCA affirmed Petitioner's conviction and sentence on July 30, 2020. (Doc. 1, at Ex. 1, at 10).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2018-222&cmid=123471 (Docket Sheet) (last visited October 21, 2022).
On June 10, 2021, Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County District Court. Oklahoma County District Court Case No. CF-2016- 7144 (see footnote 2); (Doc. 15, at Ex. 11). The Application set forth eight grounds for relief, including a “new discovery” that “the trial court abused its discretion when Judge Henderson showed bias favoring the female assistant district attorney for sexual acts.” (Doc. 15, at Ex. 11, at 10). The district court struck the Application for failure to comply with court rules. (Doc. 15, at Ex. 15).
On September 29, 2021, Petitioner filed a second Application for Post-Conviction Relief in the Oklahoma County District Court asserting six propositions of error:
(1) the State improperly introduced evidence of Petitioner's prior convictions during the trial;
(2) trial counsel was ineffective for failing to adequately cross-examine a key witness;
(3) the trial court abused its discretion when it denied Petitioner's request to check out trial transcripts;
(4) “the trial court abused its discretion when Judge Henderson showed bias favoring the female assistant district attorney for sexual acts;”
(5) the trial judge improperly presided over both Petitioner's preliminary hearing and the jury trial; and
(6) appellate counsel was ineffective for failing to raise the above trial errors on direct appeal.Oklahoma County District Court Case No. CF- 2016-7144 (see footnote 2); (Doc. 15, at Ex. 16); (see also Doc. 15, at Exs. 17, 18). The Application was denied on October 11, 2021. (Doc. 1, at Ex. 2, at 5). Petitioner appeal to the OCCA, and the OCCA affirmed the denial on January 10, 2022. OCCA Case No. PC-2021-1412; (Doc. 1, at Ex. 3, at 5).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2021-1412&cmid=131920 (Docket Sheet) (last visited October 21, 2022).
On January 14, 2022, Petitioner filed a timely Petition for Writ of Habeas Corpus in this Court, raising ten propositions of error:
(1) “the State exercised preemptory challenges based on race;”
(2) the trial court erred in excluding testimony regarding exculpatory statements;
(3) multiple convictions and sentences for a single act violated the protection against double jeopardy;
(4) the trial court failed to give the jury an alibi instruction;
(5) trial counsel was ineffective for failing to present evidence “authenticating a bank statement showing a payment date from Julie Molina's account was her bank statement;”
(6) “trial errors, when considered in a cumulative fashion, warrant a new trial;”
(7) “the State improperly introduced evidence of Petitioner's prior convictions during trial;”
(8) trial counsel was ineffective for failing to effectively cross-examine the State's key witness;
(9) “the trial court abused its discretion, when he denied Petitioner's request to check out the trial transcripts in preparation of the Application for Post-Conviction Relief;” and
(10) “Petitioner was denied a fair trial, when the trial judge showed bias and favoritism to the residing district attorney.”(Doc. 1, at 5-11).
II. 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). Generally, AEDPA requires deference by a federal court to a state court's adjudication of a claim on the merits. 28 U.S.C. § 2254(d), (e). However, “claims not ‘adjudicated on the merits' in state court are entitled to no deference.” Harmon v. Sharp, 936 F.3d 1044, 1057 (10th Cir. 2019) (quoting Fairchild v. Trammell, 784 F.3d 702, 711 (2015)).
Respondent concedes and the undersigned agrees that in Petitioner's case, “federal habeas review of the claim is not barred, and this Court should apply de novo review without deference under 28 U.S.C. § 2254(d).” (Doc. 15, at 12-13). See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (stating that “if the state court did not decide a claim on the merits, and the claim is not otherwise procedurally barred, we address the issue de novo and the § 2254(d)(1) deference requirement does not apply”). See also Cone v. Bell, 556 U.S. 449, 472 (2009) (observing that because the state court did not reach the merits of the petitioner's claim, federal habeas review was not subject to Section 2254(d) deference, and instead the claim would be reviewed de novo); Williams v. Trammell, 782 F.3d 1184, 1191 (10th Cir. 2015) (“We review de novo claims that the state court did not adjudicate on the merits.”).
III. Petitioner Is Entitled to Habeas Relief on Ground Ten.
As support for his Tenth Ground for Relief, Petitioner alleges that “[t]he trial judge was engaged in sexual relationship with the residing district attorney, who prosecuted Petitioner's case.” (Doc. 1, at 11). Respondent concedes that “habeas relief is warranted because the trial court's undisclosed sexual relationship with the prosecuting attorney during Petitioner's proceedings violated due process.” (Doc. 15, at 11). Respondent provides support for this concession with stipulations from Judge Tim Henderson and Assistant District Attorney Kelly Collins, produced in a direct appeal to the OCCA in a different matter, regarding their sexual relationship that was ongoing during the time period of Petitioner's trial. (Doc. 15, at Exs. 24, 25). Although raised in Petitioner's Application for Post-Conviction Relief, this claim was not adjudicated on the merits, as the OCCA found the claim procedurally barred for not being raised on direct appeal. (Doc. 15, at Ex. 19, at 2). Respondent concedes that the OCCA's holding was incorrect because Petitioner could not have raised this issue in his direct appeal, which was filed in January 2019, when the sexual relationship between Henderson and Collins was not revealed until March 2021. (Doc. 15, at 12). As set forth above, de novo review by this Court is appropriate.
Judge Henderson was assigned Petitioner's case on September 9, 2016, and he presided over both pre-trial motion hearings and the jury trial in which Petitioner was adjudicated as guilty. Oklahoma County District Court, Case No. CF-2016-7144 (see footnote 2). Attorney Collins prosecuted the case beginning September 29, 2016, and proceeded through the trial in January 2018, during which she argued pre-trial motions, conducted jury selection, conducted direct and cross examinations, and delivered closing arguments. Id.; (Doc. 15, at 18). The stipulations of both Henderson and Collins show their sexual relationship occurred between April 2016 and August 2018, a timeframe that encompasses Petitioner's case. (Doc. 15, at Exs. 24, 25).
Due process requires a fair trial free of actual bias. In re Murchison, 349 U.S. 133, 136 (1955). The Supreme Court has held that actual bias need not be shown, rather the question is whether the “average judge in his position is ‘likely' to be neutral, or whether there is an unconstitutional ‘potential for bias.'” Caperton v. A.T. Massey Coal, Co., Inc., 556 U.S. 868, 881 (2009). As conceded by the Respondent and supported by the Record, the Court should conclude that Petitioner is entitled to federal habeas relief in the form of a new trial based on the potential bias resulting from the sexual relationship between Judge Henderson and prosecuting attorney Kelly Collins.
IV. Remaining Grounds
In his other grounds for relief, Petitioner brings propositions of error regarding jury selection, the admission and exclusion of evidence, jury instructions, ineffective assistance of counsel, and other trial errors. (Doc. 1, at 5-11). The Court need not address these allegations in light of the recommendation for habeas relief on Ground Ten. See Cargle v. Mullin, 317 F.3d 1196, 1225, n.23 (10th Cir. 2003) (“Because of our decision to grant habeas relief on the basis of ineffective assistance of counsel and, alternatively, on the basis of cumulative error, we need not address any of petitioner's other claims.”).
V. Recommended Ruling and Notice of Right to Object
Based on the foregoing findings, it is recommended that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be GRANTED. It is further recommended that the Writ of Habeas Corpus be issued, unless within ninety (90) days of the entry of an Order adopting this Report and Recommendation, the State grants Petitioner a new trial or, in the alternative, orders him permanently released from custody.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by November 10, 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of both factual and legal issues contained therein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.