Opinion
CIV-21-704-PRW
01-14-2022
TYLER JAY YOUNG, Petitioner, v. MARK BOWEN, Warden, et. al., Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his conviction of Murder in the First Degree - Child Abuse in the District Court of Cleveland County, Case No. CF-2015-1396. Respondent has responded to the Petition and filed the relevant state court records. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.
I. Background
In 2017, Petitioner was convicted, following a jury trial, of Murder in the First Degree-Child Abuse. Doc. No. 1 at 1. The state trial court sentenced Petitioner to imprisonment for life without parole. Id. Following his conviction, Petitioner filed an appeal with the Oklahoma Court of Criminal Appeals (“OCCA”), raising only ineffective assistance of counsel. Doc. No. 1 at 2; Doc. No. 20-2. The OCCA affirmed Petitioner's conviction on April 16, 2020. Doc. No. 20-1.
The facts relevant to this action were summarized by the OCCA and appear to be relatively undisputed between the parties.
Two year old E.W. was rushed to Norman Regional Hospital on August 2, 2015, because she was unresponsive. E.W. was in the sole care of Appellant at the time. Appellant and E.W. had visited Walmart earlier[, ] leaving Walmart at about 3:30 p.m. Their visit was recorded on video, and E.W. seemed in a normal state of health.
Appellant called E.W.'s mother[, ] Jessica Berry[, ] at about 3:55 p.m. reporting that E.W. was unconscious. He told Berry that E.W. slipped in the bathtub and something was not right. Berry heard E.W. moaning over the phone, but E.W. would not respond to her voice.
Appellant then called 911 saying that E.W. slipped in the bathtub and hit her head. Appellant told 911 that E.W. was bruised on her stomach because she was limp and he tried to give her CPR.
The Norman Fire Department arrived at about 4:06 p.m. E.W. was lying on her back on the floor. She was lethargic and in critical condition. Appellant told emergency responders that E.W. fell face first in the tub. Emergency responders noticed that E.W. was bruised on the right side of her abdomen.
Upon arriving at Norman Regional Hospital, emergency room physicians suspected a head injury. Subsequent testing showed bleeding in the abdomen, but did not show a head injury. Arrangements were made to have E.W. flown to St. Francis Hospital in Tulsa, as the nearer pediatric hospitals in Oklahoma City were at capacity.
As the medical teams were transferring E.W. from the emergency room to the helicopter, E.W.'s vital signs crashed. CPR chest compressions were started and E.W. was rushed back to the E.R. A surgeon was called to intervene and stop the internal bleeding.
Dr. John Chace began surgery and found nearly a liter of blood in E.W.'s abdomen. E.W. lost vital signs again during the surgery. Despite efforts of the medical team, they were unable to save E.W. E.W. was then taken to the Oklahoma Medical Examiner's office.
The medical examiner, Dr. Mary Goolsby, testified that she observed bruises on E.W.'s face, the back of her head, and the front and back of her torso. E.W. had bleeding and lacerations to her internal organs, including a complete transection of the pancreas. In her years of experience[, ] she had never observed a child with the extent of these injuries. She did agree that some of the injuries could be caused by CPR. She testified however that the injuries were caused by blunt force trauma; either one or more severe blows to the middle of the body as if the abdomen was compressed to the point where it's hitting the spine. She had only observed a transacted pancreas in adults involved in car wrecks. She testified that the abdominal injuries were not caused by accidental trauma.
The examination of E.W.'s head revealed bruises to the back of the head; and subdural hemorrhages. Dr. Goolsby believed the head injuries were recent to death. Dr. Goolsby opined that the death was caused by blunt force injuries to the torso and head.
The physicians from Norman Regional were asked about the Medical Examiner reports. Dr. Marshall Rea, emergency room doctor, testified that the brain bleed was not enough to show at [the] time of the CT administered at the hospital. Dr. Rea testified that he had only seen a transacted pancreas in high speed vehicle accidents and that it would take a significant amount of force to cause the injuries. Rea also testified that if the child had been struck in the head the night before as reported in the M.E. report, there would be visible signs of injury and the child would not be walking around in Walmart one minute and unconscious the next. There would not be an abrupt mental status change.Doc. No. 20-1 at 2-4.
Petitioner filed the instant action seeking habeas relief and asserting ineffective assistance of trial counsel as his sole ground for relief. Petitioner's primary argument is that trial counsel was ineffective by failing to consult with and/or obtain a medical expert in preparing and presenting Petitioner's defense.
II. Standard of Review of Constitutional Claims
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) 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) “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). The AEDPA directs courts to “ensure a level of ‘deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).
Under this standard, a writ of habeas corpus will issue only if “a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of “clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).
“[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004). Consequently, federal habeas “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).
III. Procedural Bar
Petitioner contends his trial counsel provided ineffective representation by failing to consult with and/or retain a medical expert witness in both preparing and presenting Petitioner's defense. He raised the same claim on direct appeal, asserting that expert testimony was essential to establishing the timing of E.W.'s injuries, speculating that such testimony might have established E.W. sustained her injuries the day prior to being solely in Petitioner's care. Doc. No. 20-2 at 15, 17, 18. As noted, the OCCA denied relief on this ground.
In the present action, Petitioner again raises ineffective assistance of counsel, however, he now primarily contends that trial counsel should have done so in order to present testimony that E.W.'s injuries were the result of poorly performed CPR. Doc. No. 15 at 22-23, 26-28. This is a different claim than that raised on direct appeal. Indeed, on appeal, Petitioner criticized trial counsel for presenting a witness who testified that Petitioner had likely learned a method of CPR that is no longer taught because the method proved harmful. Doc. No. 20-2 at 15-16. Petitioner described such a witness as “entirely unhelpful to the defense.” Id. at 16.
Respondent aptly illustrates this distinction by noting the following differences between Petitioner's appellate and habeas briefs. On appeal, Petitioner stated the following:
The evidence regarding the timing of the injuries to E.W. were pivotal to a determination of Appellant's guilt, as there was no dispute that Mr. Young was the only person with E.W. at the time that symptoms of her internal injuries presented. If the defense had been able to establish through expert testimony that the fatal injuries to her were inflicted the day before he was entrusted to her, Mr. Young may have been able to cast sufficient doubt upon the State's case to persuade a jury to return a verdict of acquittal.Doc. No. 20-2 at 15. In the present case, Petitioner argues the following:
The evidence regarding the timing of the injuries to E.W. were pivotal to a determination of Petitioner's guilt. Mr. Young was the only person with E.W. at the apartment when he called 911 to help E.W., and shortly before that time E.W. appeared to be fine at Walmart.Doc. No. 15 at 26. Thus, on appeal, Petitioner argued that counsel was ineffective because expert testimony could have shown that E.W. was not in his care when she sustained her life-threatening injuries. In this action, Petitioner concedes she was in his care when she sustained her life-threatening injuries but now argues expert testimony might have shown her injuries were caused by poorly performed CPR. Clearly, Petitioner has raised significantly different claims.
This difference is significant because the law is clear that exhaustion of available remedies is required for § 2254 petitions. 28 U.S.C. § 2254(b)(1)(A). “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
“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)). Fair presentation requires that the “federal issue [be] 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); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (“[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.” (quotations omitted)).
Based on Petitioner's failure to properly present his current challenge to the OCCA, the Court would generally dismiss this claim and Petitioner would be provided an opportunity to return the state court. However, because the basis for this claim was clearly known to Petitioner at the time of his appeal, Oklahoma would deem the same claim waived and procedurally barred. King v. State, 29 P.3d 1089, 1090 (Okla. Crim. App. 2001) (“All claims which could have previously been raised [in the direct appeal or in a previous post-conviction proceeding] but were not are waived ....”). Accordingly, Petitioner has no prospect of obtaining relief in state court for this claim. In situations such as this, federal courts may apply an anticipatory bar. Anderson v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007) (“Anticipatory procedural bar occurs when the federal courts apply [a] procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” (quotations omitted)).
However, the Court in its discretion can still address the merits of a procedurally barred claim when it believes that doing so will best serve the interests of “judicial efficiency, conservation of judicial resources, and orderly and prompt administration of justice ....” United States v. Allen, 16 F.3d 377, 379 (10th Cir. 1994). In light of the slight similarity between the claims, the undersigned will address the merits of Petitioner's claim herein.
IV. Ineffective Assistance of Counsel
Petitioner asserts that trial counsel violated his duty to investigate potential defenses because in a medical intensive case such as this one, “[a] non-medical professional such as an attorney cannot properly evaluate the medical evidence in this case without the assistance of an expert. An important role of expert consultants beyond becoming a testifying expert witness is to assist the defense in evaluating, identifying, and developing evidence, and to help counsel [] test and challenge the prosecution's case.” Doc. No. 15 at 24. Petitioner contends that trial counsel should have presented medical expert testimony to support a defense theory that E.W.'s injuries were the result of Petitioner's poorly performed CPR. Id. at 23, 26-28. Though he also vaguely states, “[The] [t]rial attorney relied entirely on a ‘reasonable doubt' defense, choosing only to cross-examine the state's witnesses, rather than present any evidence of his own to establish plausible alternate theories to explain that anyone other than Mr. Young could have inflicted E.W.'s mortal injuries.” Id. at 32.
The OCCA denied relief on Petitioner's ineffective assistance claim, stating:
Appellant claims that he was denied effective assistance of counsel when his trial counsel utilized an unreasonable trial strategy without investigation. Specifically[, ] he argues counsel failed to consult with a medical expert and did not utilize expert testimony at trial. We review this claim under Strickland v. Washington, 466 U.S. 668, 104 (1984), requiring that Appellant show not only that counsel performed deficiently, but that Appellant was prejudiced by it. Id., 466 U.S. at 687. Evidence of deficient performance must overcome a strong presumption that counsel's actions constituted sound trial strategy. Id., 466 U.S. at 689. Prejudice is shown when counsel's deficient performance creates a reasonable probability that the result of the proceeding would have been different.
Appellant has also filed a motion for an evidentiary hearing in order to supplement the record with extrajudicial material supporting his claim of ineffective assistance of counsel. Rule 3.11(8)(3)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) allows an appellant to request an evidentiary hearing when it is alleged
on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial through the course of reasonable investigation. Warner v. State, 2006 OK CR 40, ¶ 207, 144 P.3d 838, 893.
Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Id.; see also Grissom v. State, 2011 OK CR 3, ¶ 80, 253 P.3d 969, 995; Simpson v. State, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 905-06.
To obtain an evidentiary hearing and supplement the record on appeal with additional evidence of ineffective counsel, Appellant must present clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to identify or utilize the available evidence. Rule 3.11(B)(3)(b). This burden is less onerous than Strickland's required showing of deficient performance by counsel and resulting prejudice. Simpson, 2010 OK CR 6, ¶ 53, 230 P.3d at 905-06.
The grant of an evidentiary hearing is not a finding that defense counsel actually was ineffective, but a preliminary finding of a strong possibility that warrants a further opportunity to support the claim. Conversely, the denial of a request for evidentiary hearing under Rule 3.11(B) necessarily embraces this Court's finding that Appellant has not shown a violation of Sixth Amendment under Strickland. Id.
Appellant's ineffective assistance of counsel claim is primarily based on trial counsel's failure to utilize a medical expert in the preparation and presentation of a defense case. Appellant argues that in such a medically intensive case an expert must be engaged. Appellant argues that the “[l]ack of a medical expert in such a medically intensive case prevented the presentation of any evidence on behalf of the defendant to undermine the State's case.” Appellant, however, has not shown what an expert might have added to the investigation or to Appellant's defense. Appellant engages in mere speculation to argue that an expert might refute the State's experts.
At the least, Appellant argues that the use of an expert might have
allowed him to enter into plea negotiations as a more informed defendant. He now claims that he went to trial entirely unaware that he essentially had no defense at trial. Appellant was offered a plea deal which would have wrapped all of his cases together for a sentence of less than the minimum for child abuse murder and he rejected the offer. Appellant has offered no evidence that additional expert opinion evidence of guilt, over and above what the State was going to present, would have caused him to accept a plea deal.
Appellant also claims that trial counsel's cross-examination of the State's medical witnesses appeared unprepared. The record belies this argument. Counsel pursued a strategy to cast reasonable doubt on the State's theory. Counsel developed this strategy by cross-examining the State's witnesses about the theory that E.W. was hit in the head the night before and that E.W.'s injuries were caused by improper administration of CPR. Defense counsel exhibited a very knowledgeable understanding of the expert testimony and was able to cause them to waiver on the opinions about differing theories, such as the head injuries occurring up to 48 hours before and the abdominal injuries being caused by improper CPR.
Next, Appellant challenges the failure of trial counsel to obtain films of the CT scans of E.W. taken at Norman Regional during her emergency room treatment. Appellant has not obtained these films, although the trial testimony shows that a CT scan was competed [sic]. Appellant asks this Court to order the Rule 3.11 hearing so the CT scans can be obtained through a quasi-discovery method. He claims he cannot now provide the CT scans or other medical imaging to an expert to determine whether an expert would even aid in the case; therefore, the hearing is absolutely necessary.
Appellant has not shown that trial counsel did not review these medical records. There are no affidavits attached to the Rule 3.11 motion showing that trial counsel was not provided the medical testing. Counsel filed a motion for discovery requesting such information and there is no indication that the State failed to comply with the request, except that the file obtained by Appellate counsel did not have copies of the CT scan.
Lastly, Appellant claims that the one expert presented by the defense
to show that he might have improperly performed CPR on E.W. was entirely unhelpful. Obviously, Counsel did some investigation in order to locate this witness. This witness confirmed that abdominal thrusts were taught between 2000 and 2005 to release airway obstructions in an unconscious patient.
Overall, Counsel's strategy to show that in a stressful situation, Appellant may have been overzealous in performing CPR and his heightened degree of stress might have caused him to perform CPR improperly. These theories were reasonable trial strategies given Appellant's statements to medical personal [sic] and to the police.
Appellant has not shown that Counsel's conduct fell below objective standards of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 687-88. Moreover, Appellant has not presented sufficient basis for a Rule 3.11 evidentiary hearing. There is no clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to utilize or identify additional evidence.
Appellant has not provided sufficient information in his motion for an evidentiary hearing to show that a hearing is warranted. See Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019). Appellant's claim of ineffective assistance of counsel is denied and his request for an evidentiary hearing is also denied.Doc. No. 20-1 at 5-10
To be entitled to habeas corpus relief on a claim of ineffective assistance of counsel, Petitioner must demonstrate the OCCA's adjudication of his claim was an unreasonable application of Strickland. Under Strickland, a defendant must show that his counsel's performance was deficient and establish the deficient performance was prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993).
A defendant can establish the first prong by showing that counsel performed below the level expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ....” Id. at 689. In making this determination, a court must “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690. Moreover, review of counsel's performance must be highly deferential. “[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689.
To establish the second prong, a defendant must show that this deficient performance prejudiced the defense, to the extent “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id. at 695.
In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks
whether it is “reasonably likely” the result would have been different. This does not require a showing that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable.Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (citations and quotations omitted).
If Petitioner is unable to show either “deficient performance” or “sufficient prejudice, ” his claim of ineffective assistance fails. Strickland, 466 U.S. at 700.
Thus, it is not always necessary to address both Strickland prongs.
A. Medical Records
As he did in his direct appeal, Petitioner states that his trial counsel, Irven Box, never obtained E.W.'s medical records. The record simply does not support such an assertion. Petitioner bases this contention solely on his assertion that when Petitioner's appellate counsel received Mr. Box's file, the medical records were not contained therein. Doc. No. 15 at 32.
However, as the OCCA noted, Petitioner has not provided an affidavit from trial counsel indicating he never obtained E.W.'s medical records. Moreover, Mr. Box filed a motion for discovery with the state trial court that encompassed E.W.'s medical records, see Doc. No. 20-7 at 2, and there is no indication in the record that the State failed to comply with counsel's request. The OCCA considered each of these factors in denying relief on Petitioner's ineffective assistance claim. Doc. No. 20-1 at 9. Thus, the Court concludes the OCCA's decision on this ground for relief was not unreasonable or contrary to federal law.
Additionally, the record shows Petitioner was represented by three attorneys during his trial. Doc. No. 20-6 at 1, 5. Although each of the three attorneys were employed by the same law firm, see id., Petitioner makes no mention of whether he attempted to obtain files from the other two attorneys.
B. Expert Witness
Finally, the Court addresses Petitioner's contention that trial counsel was ineffective based on his alleged failure to consult or retain an expert witness. As Respondent notes, Petitioner has made no real effort before this Court to establish that the OCCA's opinion was contrary to or an unreasonable application of clearly established law. The Supreme Court has “often explained that strategic decisions- including whether to hire an expert-are entitled to a ‘strong presumption' of reasonableness.” Dunn v. Reeves, ___ U.S. ___, 141 S.Ct. 2405, 2410 (2021). “Such decisions are particularly difficult because certain tactics carry the risk of ‘harm[ing] the defense' by undermining credibility with the jury ....” Id. (quoting Harrington, 562 U.S. at 108).
To prevail on a claim of failure to secure expert testimony, Petitioner must show how retaining expert witnesses would have bolstered his defense, refraining from pure speculation. Boyle v. McKune, 544 F.3d 1132, 1138 (10th Cir. 2008) (stating that the defendant failed to show that medical experts could have reached a conclusion regarding consent contrary to the conclusions reached by the nurses and supplied no evidence or convincing argument that medical testimony could support his claim). The Tenth Circuit has said that “the speculative witness is often a two-edged sword. For as easily as one can speculate about favorable testimony, one can also speculate about unfavorable testimony.” Id. Petitioners must provide specifics about the content of an expert witness's testimony. See Cummings v. Sirmons, 506 F.3d 1211, 1233 (10th Cir. 2007) (finding the petitioner failed to meet the first Strickland prong regarding failure to call an expert witness where he “never identified precisely what these purported experts would have testified to”); see also Waterhouse v. Hatch, 498 Fed.Appx. 811, 813 (10th Cir. 2012) (holding that counsel's failure to secure expert testimony was not prejudicial because the potential value of the expert testimony was speculative (citing Boyle, 544 F.3d at 1138-39)); United States v. Smith, 421 Fed.Appx. 889, 900 (10th Cir. 2011) (indicating that whether modified testimony would have increased chances of acquittal was speculative and insufficient to show prejudice (citing Boyle, 544 F.3d at 1140)).
Petitioner's claim that the end result of the proceedings would have been different had his counsel retained an expert witness is purely speculative. True, an expert witness may have helped his case if he testified that all of E.W.'s numerous injuries were obtained by a fall in the bathtub and poorly performed CPR. However, it is just as likely that an expert witness could have hurt his case, especially given the extent of E.W.'s injuries. See Boyle, 544 F.3d at 1139 (explaining that although hypothetical testimony might appear helpful, the prosecution's subsequent crossexamination could make calling the witness more damaging than beneficial); United States v. Hargrove, No. 03-20192-CM, 2013 WL 4787917, at *10 (D. Kan. Sept. 9, 2013) (“Any attempt by defendant to predict what the expert witness would say and how the jury would react to it is speculative. As such, defendant fails the second prong of Strickland[.]”).
Petitioner fails to establish either prong of the Strickland test, and certainly has not established the second one. He offers no specifics about who his trial counsel should have called. Furthermore, there is nothing in the record to suggest this testimony would have been favorable to Petitioner, much less could have changed the trial's outcome-additional medical testimony could just as easily be incriminating as exculpatory. This is a classic example of a speculative witness, and the Court has no basis to assume that expert testimony would favor Petitioner or that it would have changed the jury's verdict. Accordingly, the OCCA's decision that Petitioner could not meet the Strickland standard of ineffective assistance of counsel was reasonable.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by February 3rd , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.