Barnett v. Addison
Filing
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OPINION AND ORDER by District Judge James H. Payne : Denying 1 Petition for Writ of Habeas Corpus (2241/2254) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ERIC JOSE BARNETT,
Petitioner,
v.
CARL BEAR, Warden,
Respondent.
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Case No. CIV 12-204-JHP-KEW
OPINION AND ORDER
This matter is before the court on petitioner’s petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Petitioner, an inmate currently incarcerated at Joseph Harp
Correctional Center in Lexington, Oklahoma, attacks his conviction and sentence in
Okmulgee County District Court Case No. CF-2009-002 for Second Degree Felony Murder.
He sets forth the following grounds for relief:
I.
Trial court’s refusal to instruct jury on theory of defense deprived
petitioner of his Sixth and Fourteenth Amendment rights.
II.
Trial court’s exclusion of extrinsic evidence of victim’s violent
character from jury deliberation violated the Sixth and Fourteenth
Amendments.
III.
Prosecutorial misconduct deprived petitioner his right to a fair trial
under the Sixth and Fourteenth Amendments.
IV.
Petitioner was denied effective assistance of counsel in violation of the
Sixth and Fourteenth Amendments.
V.
Petitioner’s conviction for Second Degree Felony Murder must be
vacated because the merger doctrine prohibits using the act that caused
the decedent’s death as the predicate felony in a felony murder
prosecution.
VI.
Under the unique circumstances of this case, imposition of a 23-year
sentence for a 17-year-old offender is excessive and should be
modified.
VII.
The accumulation of errors deprived petitioner of a fair trial and reliable
verdict.
The respondent concedes that petitioner has exhausted his state court remedies for the
purpose of federal habeas corpus review. The following records have been submitted to the
court for consideration in this matter:
A.
Petitioner’s direct appeal brief.
B.
The State’s brief in petitioner’s direct appeal.
C.
Summary Opinion affirming petitioner’s judgment and sentence.
Barnett v. State, 263 P.3d 959, No. F-2009-698 (Okla. Crim. App.
2011).
D.
Petitioner’s petition for rehearing and motion to recall the mandate,
filed in the Oklahoma Court of Criminal Appeals on November 21,
2011.
E.
Order Granting Petition for Rehearing in Case No. F-3009-698, entered
February 1, 2012).
F.
Petitioner’s Application for Evidentiary Hearing on Sixth Amendment
Claims, filed in Case No. F-2009-698 on April 20, 2010.
G.
Order ruling on the parties’ motions in limine by the Oklmulgee County
District Court in Case No. CF-2009-02, filed on May 29, 2009.
H.
Petitioner’s reply brief in his direct appeal.
I.
Transcripts of petitioner’s jury trial and sentencing.
Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus
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relief is proper only when the state court adjudication of a claim:
(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.
28 U.S.C. § 2254(d).
Facts
The Oklahoma Court of Criminal Appeals (OCCA) set forth the facts of this case in
its Opinion affirming petitioner’s conviction and sentence:
Appellant lived with his mother and younger sister in Okmulgee,
Oklahoma. On the evening of August 21, 2008, he and two friends were
standing outside his house when the decedent, Vernon Sutton, and another man
pulled up to the house, got out of the car, and walked toward them. Sutton
apparently knew one of the men standing with Appellant from prison.
Appellant noticed that Sutton had one blue eye. A black man with one blue
eye had raped his mother years before and had been convicted of the crime.
Appellant went inside and told his mother that the man who had raped her was
standing in the yard.
Appellant’s mother came outside to confront Sutton, who was in fact
the convicted rapist who had assaulted her. She asked him if he remembered
her. Sutton smiled and said he knew where he was. Appellant’s mother
angrily demanded that he leave. When he refused, Appellant picked up a
length of lumber and went toward Sutton. Sutton prepared to fight, but a
passing Okmulgee police officer intervened. When Appellant’s mother
explained who Sutton was, the officer made him leave the premises. Sutton
smirked at Appellant and his mother and told them he would be back, and that
he “had something” for them.
Almost a month later, Appellant received a text from one of his friends,
Breylon Griffin, who had been present during the confrontation with Vernon
Sutton. Griffin’s text told Appellant “dat n*gg*r’s ova here” at another house
in Okmulgee. Appellant called Griffin and learned that Sutton was visiting
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with some other men at a house in Okmulgee. Appellant called Jennifer
McNac and asked her to give him a ride to that location. She initially refused
but then changed her mind. Appellant was already walking toward the
location when McNac picked him up.
As they neared the house, Appellant put the hood of his jacket over his
head and covered his face with a bandana. When they reached the house
where Vernon Sutton and others were standing, Appellant leaned out and fired
three or four shots, fatally striking Sutton in the chest and abdomen. Five days
after the shooting, Appellant told police in an interview that he was out of
town when the shooting happened. At trial, Appellant admitted the shooting,
but said he killed Sutton because he was afraid Sutton would come back to
harm his family.
Barnett v. State, 263 P.3d 959, 961-62, No. F-2009-698, slip op. at 2-3 (Okla. Crim. App.
2011). The OCCA’s factual findings are entitled to a presumption of correctness, unless
petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. §
2254(e)(1).
Ground I
Petitioner alleges in Ground I that the trial court’s refusal to instruct the jury on his
theories of (1) self defense, (2) defense of another, and (3) the lesser-included offense of heat
of passion manslaughter deprived him of his rights to due process and a fair trial. The
respondent asserts this is an issue of state law that is not cognizable in federal habeas corpus.
In a habeas corpus proceeding attacking a state court judgment based
on an erroneous jury instruction, a petitioner has a great burden. Lujan v.
Tansy, 2 F. 3d 1031, 1035 (10th Cir. 1993), cert. denied, 510 U.S. 1120
(1994). A state conviction may only be set aside in a habeas proceeding on the
basis of erroneous jury instructions when the errors had the effect of rendering
the trial so fundamentally unfair as to cause a denial of a fair trial. Shafer v.
Stratton, 906 F.2d 506, 508 (10th Cir. 1990), cert. denied, 498 U.S. 961
(1990). “An omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Id. at 155. The degree of
prejudice from the instruction error must be evaluated in the context of the
events at the trial. United States v. Frady, 456 U.S. 152, 169 (1982).
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Maes v. Thomas, 46 F. 3d 979, 984 (10th Cir.), cert. denied, 514 U.S. 1115 (1995).
During his trial, petitioner requested that the jury be instructed on self-defense and the
defense of others. (Tr. III, 12-14; Dkt. 7-3). The trial court denied the request, reasoning as
follows:
THE COURT: Okay. With that, the Court’s going to deny the request
for instruction on self-defense and/or defense of another. We’re going to
adopt the State’s objection and argument as the basis for that and just find, as
a matter of law, that the evidence is wholly lacking on--on evidence of
imminent danger to Mr. Barnett or his family. In fact, the evidence shows that
he left the safety and security of his home, left his mother, armed himself, and
went in the direction of where the decedent Mr. Sutton was.
Also, just note for the record, on the way there was a police officer in
the area. He did not seek any type of help or assistance from the police officer.
In fact took it upon himself to take matters in his own hand and play God and
extinguish the life of Mr. Sutton.
Also the evidence is uncontroverted that Mr. Barnett was the aggressor
in this matter. And there is absolutely no evidence that at the date or time of
the homicide that Mr. Sutton committed any type of overt act, gesture, or
threat to the victim. In fact, he was several blocks away visiting with other
individuals when he was gunned down in the street.
So for those reasons, and those are alternative reasons, the request again
for self-defense and/or defense of another is denied.
(Tr. III, 18-19; Dkt. 7-3).
On direct appeal the OCCA denied relief on this issue as follows:
. . . An instruction of a theory of defense is required “when evidence
has been introduced at trial that is adequate to raise that defense, i.e., to
establish a prima facie case” of that defense. Malone v. State, 168 P.3d 185,
196 (Okla. Crim. App. 2007). Appellant’s claim must fail. Evidence that
Appellant feared Sutton does not raise an issue of self defense or defense of
another, where the evidence showed that Appellant had no reasonable belief
that he or his family were in imminent danger of being attacked or killed by
Sutton at the time Appellant used deadly force. Instruction Nos. 8-2, 8-6,
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OUJI-CR(2d); Perryman v. State, 990 P.2d 900, 903-04 (Okla. Crim. App.
1999). . . .
Barnett, No. F-2009-698, slip op. at 4 (Dkt. 6-3).
The evidence at trial showed that petitioner was advised that the victim was located
a few blocks away. (Dkt. 7-2; Tr. II, 274). He then left his house with a 9 millimeter semiautomatic weapon and a bandana in his pocket and was picked up by a friend while walking
to the victim’s location. (Tr. II, 117, 286-89). The petitioner would not tell his friend where
they were going, but instead gave her turn-by-turn directions on how to get there. (Tr. II,
120-25). On their way to the victim, petitioner and the driver passed a police officer, but did
not stop and ask for help. (Tr. II, 121-22). As they tuned down the street where the victim
was located, petitioner lifted a hood over his head and wrapped the bandanna around his face.
(Tr. II 125-26). He then leaned out of the vehicle and fired three or four shots at the victim.
(Tr. II, 127-28). He remained calm the entire time and never indicated he was scared, upset,
or out of control. (Tr. II 129-31).
Under Oklahoma law, a defendant must show he reasonably believed that the use of
deadly force was necessary to protect himself from imminent danger of death or great bodily
harm. See Okla. Stat. tit. 21, § 733(A)(2); OUJI-CR 2d 8-2. There was no evidence
presented at trial that suggested petitioner’s actions were taken to protect himself or others
from imminent danger of death or great bodily harm. The court therefore finds the trial
court’s failure to give the requested jury instructions did not deny petitioner a fair trial, and
the OCCA correctly found that the trial court did not abuse its discretion in denying the
instructions. The court further finds that the refusal to give the requested instructions did not
rise to the level of a due process violation.
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As for the requested instruction on first degree heat-of-passion manslaughter, there
again is no evidence to support that instruction. Furthermore, “a petitioner in a non-capital
case is not entitled to habeas relief for the failure to give a lesser-included offense instruction,
‘even if in our view there was sufficient evidence to warrant the giving of an instruction on
a lesser included offense.’” Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (quoting
Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988)). Therefore, Ground I is meritless.
Ground II
Petitioner next alleges the trial court erred by not allowing extrinsic evidence of the
victim’s violent character to be presented to the jury. The respondent asserts this is an issue
of evidentiary state law that is not cognizable in federal habeas review.
The record shows that petitioner attempted to offer evidence of the victim’s violent
past as indicated by the victim’s two judgments and sentences. The first judgment and
sentence showed the victim had been convicted of Feloniously Pointing a Weapon and
Unlawful Possession of a Firearm, After Former Conviction of a Felony. The second
judgment and sentence was a conviction for Forcible Sodomy of petitioner’s mother. The
trial court denied the admission:
THE COURT: And the Court has marked for identification purposes
only as Court’s Exhibit No. 1, CRF-98-199, which is styled STATE OF
OKLAHOMA vs. VERNON SUTTON. It’s a certified copy of the judgment
and sentence wherein the Defendant Mr. Sutton was convicted or pled guilty
to feloniously pointing a firearm and unlawful possession of firearm after
former conviction.
Again, the Court’s going to find that there has been an insufficient
grounds or basis laid by the--by the Defense to support that. There has [sic]
been some conversations about some alleged jail time, et cetera, but it does not
specifically refer to this--this conviction, and we’d be just speculating as to
that’s what the Defendant Mr. Barnett is talking about.
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Likewise, the Court’s marked for identification purpose as Court’s
Exhibit No. 2, which is CRF-95-156, which is a forcible sodomy charge
against Mr. Vernon Lee Sutton. Again that’s a certified copy there. The
testimony has been about a rape some, I guess 13 years ago or whatever. I
don’t know that this is the same incident that they are talking about from the
face of it. But there’s certainly been sufficient testimony from several
witnesses of--of Mr. Sutton having committed that offense as against Ms.
Barnett.
And so, first of all, I don’t think this is relevant in that it is a forcible
sodomy conviction and not a rape conviction; and secondly, if it is related to
it, it’s certainly cumulative and more prejudicial than probative. Again, the
testimony’s already before the jury, and we’ll just let it stand on the oral
testimony of the witnesses that had talked about it. And, again, those have
been cumulative or been several in nature that have done that.
(Dkt. 7-2; Tr. III, 317-18).
The record shows that petitioner and four other witnesses testified about the
petitioner’s mother having been raped by the victim 13 years before the murder. (Dkt.
7-1, Tr. I, 218, 223; Dkt. 7-2, Tr. II, 37, 74, 231, 255, 260, 264, 274). This fact also
was mentioned in opening statements and closing arguments.
The OCCA reviewed this claim and found no abuse of discretion. Barnett, No.
F-2009, slip op. at 4 (citing Hancock v. State, 155 P.3d 796, 813 (Okla. Crim. App.
2007)). This court agrees that admission of the two judgments and sentences would
have been cumulative, petitioner suffered no prejudice from the trial court’s ruling,
and the trial was not rendered fundamentally unfair. Therefore, Ground II is not
cognizable in this habeas action and must be denied.
Ground III
Petitioner alleges in Ground III that he was denied a fair trial through
prosecutorial misconduct.
He specifically complains that the prosecution (1)
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improperly commented on the petitioner’s right to remain silent, and (2) told the jury
they had a duty to convict him. Petitioner did not object to these comments at trial,
but raised them on direct appeal, where the OCCA found the challenged comments
were not improper. Barnett, No. F-2009-698, slip op. at 4-5.
In a habeas corpus action, claims of prosecutorial misconduct are
reviewed only for a violation of due process. See Darden v. Wainwright, 477
U.S. 168, 181 (1986). “[N]ot every trial error or infirmity which might call for
application of supervisory powers correspondingly constitutes a failure to
observe that fundamental fairness essential to the very concept of justice.”
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (citations and quotations
omitted). In order to be entitled to relief, [petitioner] must establish that the
prosecutor’s conduct or remarks “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Id. at 643. This
determination may be made only after considering all of the surrounding
circumstances, including the strength of the state’s case. See Darden, 477 U.S.
at 181-82.
Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005), cert. denied, 547 U.S. 1181
(2006).
The record shows that when petitioner first was questioned by the police, he
lied and said he was at his sister’s house at the time of the shooting. (Dkt. 7-2, Tr. II
147-54, 254). At trial petitioner admitted he had not told the truth to the police. (Dkt.
7-2, Tr. II, 254). During closing arguments, the prosecutor stated:
PROSECUTOR: Okay, The alibi, Plan A’s gone. The police have
figured that one out. And the evidence shows it’s not true. So now yesterday
you heard Plan B for the first time. For the first time the Defendant takes the
stand and says, okay, I did it. But I did it because [the victim is] a bad guy and
did a lot of bad things. . . .
(Dkt. 7-3, Tr. III, 36-37).
In a similar case, the Supreme Court held that “[s]uch questioning makes no
unfair use of silence, because a defendant who voluntarily speaks after receiving
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Miranda warnings has not been induced to remain silent. As to the subject matter of
his statements, the defendant has not remained silent at all.” Anderson v. Charles,
447 U.S. 404, 408 (1980). Because comments on prior inconsistent statements do not
violate a petitioner’s right to remain silent, the court finds this comment did not have
a substantial and injurious effect on petitioner’s trial.
Petitioner also claims the prosecutor made an improper comment invading the
province of the jury.
The respondent argues that the prosecutor merely was
discussing the justice system and how each part functions, and there was no
constitutional violation in reminding the jury of this:
PROSECUTOR: The justice system in this country, in this country, is
like a chain. And it’s as strong as its weakest link. The police are one chain
in it. They did their job.
The witnesses that came and testified, people . . . who were there when
this victim took his last breaths on Earth, who came and told you what they
saw and what they observed, they are links in this chain.
This District Attorney’s Office in presenting its case is a link in the
chain. It’s our job to bring the facts to you and let you decide.
[Defense counsel] has a job. He’s part of it too. He’s a link in the
chain. He’s supposed to represent his client and he’s done so well.
The judge is a link in the chain. He’s supposed to tell you what the law
is that applies and ask you to follow it, to rule over this court.
But there’s also one more link left, and that’s you guys. You’re the
jury, and you’re a link in the chain of justice. And the chain is only as good
as its weakest link.
The facts are here. The law supports what you need to do under the
law. Don’t be the weak link. Do your duty. You know, just because the
choice may be difficult doesn’t mean it’s not the right one. Just because the
choice is something you think that’s harsh in some ways, and it’s a big
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responsibility for me, doesn’t mean it’s not the right decision. That’s why
people like you are asked to come to make tough decisions. In this case the
State submits it’s an obvious decision clearly. But it’s nonetheless tough. It’s
tough to make a decision about the life of someone, isn’t it? Very difficult.
Think about Vernon Sutton and who made the decision about his life.
Think about what kind of justice he got on the streets of Okmulgee. Give his
killer the appropriate justice it requires, a hearing with witnesses and evidence
and attorney and a just verdict from a jury. Find him guilty and hold him
accountable. That you very much.
(Dkt. 7-3, Tr. III, 54-56).
Inquiry into fundamental fairness requires examination of the entire
proceedings, including the strength of the evidence against the petitioner, both
as to guilt at that stage of the trial and as to moral culpability at the sentencing
phase. . . . Counsel’s failure to object to the comments, while not dispositive,
is also relevant to a fundamental fairness assessment.”
Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citations omitted), cert. denied, 540 U.S.
833 (2003). “Ultimately, we must consider the probable effect the prosecutor’s [statements]
would have on the jury’s ability to judge the evidence fairly.” Tillman v. Cook, 215 F.3d
1116, 1129 (10th Cir. 2000) (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir.
1998)).
After careful review, the court finds the prosecutor’s comments did not render
petitioner’s trial fundamentally unfair. The court further finds the OCCA’s determination
of this claim was not contrary to, or an unreasonable application of, federal law. See 28
U.S.C. § 2254(d). Ground III is without merit.
Ground IV
Petitioner alleges in Ground IV that he was denied the effective assistance of trial
counsel. He specifically claims that counsel failed to (1) object to prosecutorial misconduct,
(2) call petitioner’s mother and Kim Lyons to testify about the victim’s violent past, and (3)
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remove petitioner’s mother from the courtroom. On direct appeal petitioner simultaneously
filed an application for evidentiary hearing on claims of ineffective assistance of counsel.
The OCCA denied the application for evidentiary hearing and the claim on the merits:
. . . Ineffective counsel claims must overcome a strong initial
presumption that counsel rendered reasonable professional assistance, by
showing: (1) that trial counsel’s performance was deficient; and (2) that he
was prejudiced by the deficient performance. If Appellant demonstrates that
counsel’s representation was objectively unreasonable under prevailing
professional norms, he must also show that he suffered prejudice, defined as
a reasonable probability that, but for counsel’s unprofessional errors, the
outcome of the trial or sentencing would have been different. Hancock, 155
P.3d at 821. To warrant an evidentiary hearing under Rule 3.11(B)(3)(b)(I),
Appellant’s application and supporting materials must set forth “sufficient
information 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.” Reviewing Appellant’s application and his
arguments, we find no evidentiary hearing is required and no relief is
warranted. [This claim] is without merit.
Barnett, 263 P.3d at 962-63, No. F-2009-698, slip op. at 5-6.
To prevail on his claim of ineffective assistance of counsel, petitioner must show that
(1) his counsel’s performance fell below an objective standard of reasonableness, Strickland
v. Washington, 466 U.S. 668, 687-88 (1984), and (2) “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different,” id. at 694.
The Supreme Court has since expanded the application of Strickland in habeas corpus
proceedings:
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard. Were that the
inquiry, the analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a criminal conviction
in a United States district court. Under AEDPA, though, it is a necessary
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premise that the two questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an incorrect
application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000). A
state court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard itself.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (emphasis in original).
While the OCCA did not specifically cite to Strickland in denying relief, it did cite
Hancock v. State, 155 P.3d 796, 821 (Okla. Crim. App. 2007), cert. denied, 552 U.S. 1029,
which set forth the Strickland standard of review. Barnett, 263 P.3d at 962, slip op. at 5.
The fact that the OCCA did not cite to Strickland does not change the correctness of its
conclusion that counsel was not ineffective. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th
Cir. 1999) (noting the Circuit Court owes “deference to the state court’s result, even if its
reasoning is not expressly stated” (emphasis in original)).
With respect to the OCCA’s denial of petitioner’s application for an evidentiary
hearing, the OCCA has explained how it analyzes a claim under Rule 3.11, Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App (2007). Simpson v. State, 230
P.3d 888, 905-06 (Okla. Crim. App. 2010). “[W]hen we review and deny a request for an
evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule
3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to
be ineffective under the more rigorous federal standard set forth in Strickland.” Simpson,
230 P.3d at 906. The Tenth Circuit subsequently recognized and accepted “‘as a matter of
federal law’ that a Rule 3.11 ruling ‘operates as an adjudication on the merits of the
Strickland claim and is therefore entitled to deference under § 2254(d)(1).” Wilson v.
Trammell, 706 F.3d 1286, 1312 (10th Cir. 2013) (quoting Lott v. Trammell, 705 F.3d 1167,
1213 (10th Cir. 2013)).
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Petitioner complains that trial counsel failed to object to several instances of
prosecutorial misconduct, as set forth and denied in Ground III. Counsel’s failure to present
a meritless argument, however, does not constitute ineffective assistance of counsel. Martin
v. Kaiser, 907 F.2d 931, 936 (10th Cir. 1990) (citing Strickland, 466 U.S. at 691-96);
Willingham v. Mullin, 296 F.3d 917, 934 n.6 (10th Cir. 2002).
Petitioner next alleges counsel was ineffective in failing to call petitioner’s mother and
Kim Lyons as witnesses to testify about the victim’s violent past. Petitioner asserts trial
counsel had a fundamental misunderstanding about the trial court’s ruling as to Ms. Lyons,
and counsel failed to use his professional judgment as to petitioner’s mother.
Petitioner listed both his mother and Ms. Lyons as witnesses, and the prosecution filed
a motion in limine to preclude the testimony of either woman concerning sexual assaults by
the victim. The trial court’s order granting the motion, however, included a caveat that the
ruling was subject to change:
State’s Motion in Limine as to testimony concerning any sexual assault by
Vernon Sutton on any person is Sustained; provided said evidence may
become relevant if Defendant testifies of his own personal knowledge of said
sexual assaults prior to the shooting of Vernon Sutton, and said knowledge
was motivation for his shooting of Mr. Sutton.
(Dkt. 6-8).
Petitioner testified at trial, “I learned that [the victim] had raped another person.”
(Dkt. 7-2; Tr. II, 266). Therefore, petitioner was able to get before the jury the fact that he
know the victim also had raped someone other than his mother. The prosecution objected,
and petitioner’s counsel argued as follows:
COUNSEL: . . . I thought the ruling on the motion in limine was that
it couldn’t be proved with extrinsic evidence such as testimony from Ms.
Lyons. I thought that was the ruling of the Court’s ruling is that the Court was
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probably not going to allow Ms. Lyons to testify. But the only--I thought the
Court’s position was that there’s no way that she’s testifying unless there was
testimony that Eric Barnett knew about what happened to her because
otherwise it would be irrelevant.
THE COURT: Uh-huh.
COUNSEL: And that’s what--that’s what he’s doing now is he’s
testifying that after the August 21st incident, he learned about this other
allegation.
THE COURT: Okay. So let’s do this for simplicity sake: He’s already
said that prior to Mr. Barris’ objection. So that’s already before the jury as far
as the allegations of the other rape. Certainly not going to allow you to get
into the particulars of the other rape.
COUNSEL: Right.
THE COURT: I am not going to let you do that, so. But he can testify,
and then we need to just kind of move on without trying to do that. And I
understand where you’re going as far as his state of mind. It’s just the
complexity of how you’re going to get that in. So to the extent that answers
your question, he’s already answered that question. We need to move on.
Unless your-COUNSEL: Just to clarify the Court’s ruling, I can’t--I’m not--the
Court’s not going to allow me to prove it with extrinsic evidence like Ms.
Lyons’ testimony?
THE COURT: Well, I’m not-COUNSEL: (Interposing) The Court’s not-THE COURT: I’m not going to let her go into the particulars of the
rape. I’m not going to let her go and describe blow by blow whatever she can
get. Of course, I don’t know if I can stop her from testifying that between that
time period that she made--she made him aware of that because that’s what’s
important rather than the fact of it, that she made him aware of it. Because we
still don’t know where this--where it came from. I mean where--where he
learned of the allegations against Mr. Sutton.
COUNSEL: Right.
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THE COURT: Does that make sense?
COUNSEL: Yes, sir.
(Tr. II, 269-70; Dkt. 7-2).
Petitioner’s knowledge of Ms. Lyons’ rape allegation was admitted into evidence
through his testimony. (Tr. II, 266; Dkt. 7-2). As set forth in the above colloquy between
petitioner’s counsel and the trial court, Ms. Lyons’ testimony was only available to show
petitioner knew of her allegations against the victim, a fact that already had been entered into
evidence. Furthermore, it is unclear whether Ms. Lyons was the person who told petitioner
of her allegation. Her affidavit attached to petitioner’s application for an evidentiary hearing
does not mention that she informed him of her allegation, only that she told petitioner’s
mother. (Dkt. 67, 9-10). Therefore, it is unclear whether Ms. Lyons would have been
allowed to testify that she was the person who informed petitioner about her allegations
against the victim.
Petitioner claims his counsel was ineffective in not getting admitted Ms. Lyons’
testimony that petitioner knew of her allegations. Petitioner, however, testified that he knew
of the allegations, so the evidence actually was before the jury. Trial counsel’s failure to call
a cumulative witness does not demonstrate ineffectiveness, so petitioner’s claim concerning
this issue is meritless. See Medina v. Barnes, 71 F.3d 363, 367 (10th Cir. 1995) (holding that
petitioner’s counsel was not ineffective in failing to investigate or call cumulative witness).
Petitioner’s third claim of ineffective assistance of counsel asserts petitioner’s mother
should have testified at trial. The record shows that before the first witness was called, the
prosecution invoked the rule of sequestration, and the court directed any witnesses who were
present to wait outside the courtroom. (Tr. I, 178; Dkt. 7-1). Petitioner’s counsel requested
16
that petitioner’s mother and sister be exempted from the rule. (Tr. I, 178; Dkt. 7-1). The
court denied the request, stating, “I don’t know of any reason to allow an exception for Mrs.
Barnett since she’s a witness and may or may not testify depending on what Mr. Barnett-Eric Barnett testifies to. Id. The next day petitioner’s counsel advised the trial court that
petitioner’s mother would rather watch the proceedings than testify:
COUNSEL: . . . After court yesterday, Mrs. Barnett told me that she
wants to be present in the courtroom for her son’s trial regardless of--of her not
being allowed to testify. And she said that she would rather watch the trial
than be a witness. I discussed that with Mr. Barnett--Eric Barnett this
morning, and he said that he didn’t have a problem with that, with her not
testifying.
...
THE COURT: As long as she understands, that’s fine, and your client
understands that.
COUNSEL: Do--do you want to make a record with her?
THE COURT: Not necessarily. I mean, it’s actually Mr. Barnett that’s
running the risk of her staying in here. If you tell me you’ve discussed with
him and that-COUNSEL: Yes, sir, I did.
THE COURT: --he understands that, the consequence of her staying
in, that’s fine.
COUNSEL: Absolutely.
THE COURT: And you’re not planning on calling her?
PROSECUTOR: No, sir, I’m not. I’m not, so that’s fine. I just wanted
to be sure the record’s clear on that if it comes up later.
THE COURT: Okay. Thank you very much.
(Tr. II 8-9; Dkt. 7-2).
17
Petitioner maintains his mother’s testimony was critical to his defense. As noted
above, however, evidence that the victim had raped the mother repeatedly came out through
the testimony of four witnesses and petitioner himself. (Tr. I, 218, 223; Tr. II, 37, 74, 232,
255-56, 260, 264, 274) (Dkt. 7-1, 7-2). The only additional evidence petitioner’s mother
could have offered was whether she was the person who told petitioner about Ms. Lyons’
allegation. This information, however, was not a critical part of petitioner’s defense.
After careful review the court finds the OCCA’s adjudication of petitioner’s
ineffective assistance of counsel claims was not contrary to, or involved an unreasonable
application of, clearly established federal law. 28 U.S.C. § 2254(d). The court further finds
the OCCA’s decision was not 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)(2). This
ground for habeas relief fails.
Ground V
Petitioner claims in Ground V that his conviction for Second Degree Felony Murder
must be vacated, because the merger doctrine prohibits using the act causing the victim’s
death as the predicate in a felony murder prosecution. The OCCA denied relief on direct
appeal:
. . . Appellant argues that his conviction for second degree felony
murder violates the merger doctrine, or independent crime requirement,
recognized by our case law in Quillen v. State, 163 P.3d 587 (Okla. Crim. App.
2007), and earlier cases. Although the State charged Appellant in Count 2
with first degree malice aforethought murder, the trial court also instructed the
jury on the lesser included offense of second degree felony murder in the
commission of using a vehicle to facilitate the intentional discharge of a
firearm. The jury acquitted Appellant of first degree murder, but convicted
him of second degree murder in the commission of the underlying felony.
Counsel’s failure to object to the second degree felony murder instruction at
trial waived all but plain error. Eizember v. State, 164 P.3d 208, 236 (Okla.
18
Crim. App. 2007). We therefore consider whether Appellant’s conviction of
second degree murder in the commission of this underlying felony is plain
error; that is, an error which goes “to the foundation of the case,” or which
takes from a defendant “a right which was essential to his defense.” Simpson
v. State, 876 P.2d 690, 695 (Okla. Crim. App. 1994).
Under this Court’s merger doctrine, or independent crime requirement,
“[i]n order for the taking of human life in the commission of a felony to
constitute murder, the precedent felony must constitute an independent crime
not included within the resulting homicide.” Sullinger v. State, 675 P.2d 472,
473 (Okla. Crim. App. 1984). The merger doctrine is a historical feature of
our case law, and is not based on any statutory or constitutional text. Quillen,
163 P.3d at 589. . . .
Barnett, 263 P.3d at 963 (footnotes omitted).
Appellant argues persuasively that the predicate felony of using a
vehicle to facilitate the intentional discharge of a firearm is not independent
from the homicidal act of shooting Vernon Sutton, and that his conviction
therefore violates the merger doctrine set forth in Quillen. This case sharply
presents the question of whether the merger doctrine remains an appropriate
limitation of the statutory definition of second degree felony murder. After
careful consideration, the Court abandons this judicially created limitation on
second degree felony murder and overrules Quillen.
Id., 263 P.3d at 964. (emphasis in original).1
The OCCA concluded that “the current legislative classification of criminal homicides
by their respective degrees, defined by distinct factual elements, obviates the need for the
merger doctrine.” Id. at 969.
Appellant killed a human being in the commission of using a vehicle to
facilitate intentional discharge of a firearm. He is, at the very least, guilty of
second degree murder under the plain language of section 701.8(2) of Title 21.
His conviction for that offense is authorized by statute, and no plain error
1
Petitioner filed a petition for rehearing by the OCCA, alleging the overruling of Quillen
violated the ex post facto principles against retroactive judicial decisions. (Dkt. 6-4). The OCCA
granted the rehearing, but denied relief. Barnett v. State, 271 P.2d 80 (Okla. Crim. App. 2012; Dkt.
6-5).
19
occurred. To the extent that Quillen, and earlier cases recognizing the merger
doctrine as a limitation on the statutory definition of second degree felony
murder, . . . are inconsistent with our ruling today, those cases are overruled.
Id. at 970 (citations omitted).
This court finds that the issue in Ground V is a matter of state law that is not
cognizable in federal habeas corpus. “[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.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing 28
U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 (1995) (per curium)). “Habeas corpus is a
civil proceeding and the burden is upon the petitioner to show by a preponderance of the
evidence that he is entitled to relief.” Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir. 1964)
(citing Teague v. Looney, 268 F.2d 506 (10th Cir. 1959)). Here, the court finds petitioner has
failed to present an argument supporting federal habeas relief for this claim.
Ground VI
In Ground VI petitioner alleges his 23-year sentence was excessive. The crime of
Second Degree Murder in violation of Okla. Stat. tit. 21, § 701.8 has a punishment range of
ten (10) years to life imprisonment. Okla. Stat. tit. 21, § 701.9. The OCCA denied relief on
this claim, finding the sentence “does not shock the conscience of the Court.” Barnett, 263
P.3d at 970.
We 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 the sentence imposed is outside the statutory limits or unauthorized
by law. See Haynes v. Butler, 825 F.2d 921, 923–24 (5th Cir. 1987), cert.
denied, 484 U.S. 1014 (1988); see also Handley v. Page, 398 F.2d 351, 352
(10th Cir. 1968). Generally, our review of a sentence ends once we determine
the sentence is within the limitation set by statute. See Vasquez v. Cooper, 862
20
F.2d 250, 255 (10th Cir. 1988).
Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000), cert. denied, 534 U.S. 887 (2001).
In this instance, the court finds petitioner’s sentence was within the statutory range
of permissible punishment, so habeas relief is not warranted.
Ground VII
Finally, petitioner asserts the accumulation of errors deprived him of a fair trial and
a reliable verdict. The OCCA found no error and consequently “no accumulation of error.”
Barnett, 263 P.3d at 970. This court agrees.
“Cumulative-error analysis applies where there are two or more actual errors. It does
not apply, however, to the cumulative effect of non-errors.” Hoxsie v. Kerby, 108 F.3d 1239,
1245 (10th Cir.), cert. denied, 522 U.S. 844 (1997) (citing United States v. Rivera, 900 F.2d
1462, 1471 (10th Cir. 1990)). See also Castro v. Ward, 138 F.3d 810, 832-33 (10th Cir.),
cert. denied, 525 U.S. 971 (1998); Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002), cert.
denied, 540 U.S. 833 (2003) (“When reviewing a case for cumulative error, only actual errors
are considered in determining whether the defendant’s right to a fair trial was violated.”).
Ground VII of the petition also fails.
ACCORDINGLY, petitioner’s petition for a writ of habeas corpus is DENIED, and
this action is, in all respects, DISMISSED.
IT IS SO ORDERED this 25th day of September 2015.
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