Ciancio v. Evans

Filing 15

OPINION AND ORDER by District Judge James H. Payne : Denying 1 Petition for Writ of Habeas Corpus. Petitioner also is DENIED a certificate of appealability. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
GARY PATRICK CIANCIO,
Petitioner,
v.
ROBERT PATTON, DOC Director,
Respondent.

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Case No. CIV 13-478-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 Lawton
Correctional Facility in Lawton, Oklahoma, attacks his conviction in Pittsburg County
District Court Case No. CF-2010-401 for Child Abuse by Injury. He sets forth the following
grounds for relief:
I.

The admission of improper character evidence and evidence of “bad
acts” deprived petitioner of the right to a fair trial.

II.

Petitioner failed to receive the effective assistance of counsel, as
guaranteed by the Sixth Amendment.

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 modifying

his sentence. Ciancio v. State, No. F-2011-568 (Okla. Crim. App. Dec.
7, 2012).
D.

Transcripts of petitioner’s pretrial, trial, and sentencing proceedings.

E.

Original Record in Case No. CF-2010-401.

Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus
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
Petitioner was convicted of the Child Abuse by Injury of three-year-old C.D. (Tr. I
249). The Oklahoma Court of Criminal Appeals (OCCA) set forth its factual findings of the
case as follows:
Ciancio was charged by Amended Information with one count of Child
Abuse by Injury, under Okla. Stat. tit. 21, § 843.5(A), during the time period
of September 19-22, 2010. Two specific acts of child abuse were named in the
Information: (1) “burning C.D. on the hand with a cigarette lighter, causing
1st and 2nd degree burns,” and (2) “hitting [C.D.] on the lower back, hips, and
buttocks area, causing severe purple contusions and petechiae.” The evidence
presented at Ciancio’s trial was more than sufficient to establish that Ciancio
committed these actions upon C.D. and that C.D. was injured thereby.
C.D. reported to numerous persons that the severe burn on his right
hand, discovered on September 22, 2010, was caused by Ciancio burning him
with a cigarette lighter and that the severe bruising on his right buttock, side,
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and lower back, which was discovered at the same time, was caused by
Ciancio spanking him with a black belt. Ciancio denied causing any of C.D.’s
injuries and presented a case at trial that the observed injuries were not caused
by him, i.e., that the burn was caused by C.D. touching a hot pot in the kitchen
and that the bruising was caused by C.D. jumping off furniture and other
things and repeatedly landing on his right side, while the family was at the lake
in Eufaula the previous weekend. Nevertheless, C.D.’s consistent statements
at the time, as well as his trial testimony, more than adequately established that
the source of his injuries was the mother’s boyfriend, Ciancio.1 Yet Ciancio’s
three-day trial included substantial amounts of other evidence that was not
relevant to these specific charges and that reflected very poorly on Ciancio
(and also C.D.’s mother, Jones).
Ciancio v. State, No. F-2011-568, slip op. at 1-2 (Okla. Crim. App. Dec. 7, 2012). 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).
Direct Appeal
Petitioner complains in Ground I that a significant amount of improper evidence
regarding his character was introduced by the State. He claims this evidence lacked any
probative value and served only to attack his character, resulting in prejudice to him. He
asserts in Ground II that his trial counsel was ineffective in failing to object to the prejudicial
evidence. Following the standards of Strickland v. Washington, 466 U.S. 668 (1984), the
OCCA addressed petitioner’s claims and denied relief:
In Proposition I, Ciancio argues that the State was allowed to present
improper and irrelevant character and “bad acts” evidence, that this evidence
was unduly prejudicial, that the State did not provide adequate pretrial notice
of this evidence, and that Ciancio’s jury was not given any kind of limiting
instruction about how such evidence could be considered. Since none of these
challenges were raised at trial, however, this claim has been waived, and we
review only for plain error.

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“And the testimony of nurse practitioner Cynthia Sanford further supported this conclusion.”
Ciancio, No. F-2011, slip op. at 2 n.2.

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In Proposition II, Ciancio acknowledges that “most” of the evidence
challenged in Proposition I was introduced without objection from his counsel.
In fact, defense counsel failed to object to all of the now-challenged evidence
addressed herein. Hence this Court focuses its analysis on Ciancio’s
Proposition II ineffective assistance claim. In order to establish ineffective
assistance of counsel, Ciancio must demonstrate that the performance of his
counsel was deficient and unreasonable and that he was prejudiced thereby.
And to establish prejudice, Ciancio must demonstrate a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.
The State presented evidence to Ciancio’s jury that in addition to
burning C.D. with the lighter and severely bruising him by spanking him with
the belt, Ciancio would punish C.D. (and his sister B.R.) by making them eat
red peppers, making C.D. bite into a bar of soap, dragging C.D. out of bed and
kicking him, and that Ciancio threatened to give the children a “swirly” in the
bathroom. The State also presented evidence that after telling C.D. to “shut
up” and making C.D. dance, Ciancio hit C.D. on the head with a paintball gun.
These incidents were not alleged as part of the child abuse count charged
against Ciancio and apparently did not injure C.D., but they certainly painted
a negative picture of Ciancio and his character as a “care provider” and were
unfairly prejudicial, particularly regarding Ciancio’s sentence. The suggestion
that Ciancio may have threatened to break down a door during a fight with
Jones was likewise potentially prejudicial. . . .
Perhaps most potentially prejudicial at trial (and quite unfairly so) were
various references to concerns about possible sexual abuse by Ciancio--none
of which were objected to by defense counsel. [Department of Human
Services Child Welfare Investigator] Sharon Godwin testified that a second
forensic interview was done of C.D., this time “for sexual abuse,” after “sexual
abuse was brought up during the case.” Although defense counsel clarified
with Godwin that sexual abuse was not charged in the case against Ciancio,
counsel failed to clarify with Godwin that there was apparently no evidence
whatsoever that Ciancio had sexually abused C.D. or (B.R.) or even an
allegation that he had done so. Hence the repeated references to potential
“sexual abuse” and a “sexual abuse interview” done by Godwin were
potentially quite unfairly prejudicial to Ciancio.
Later in Ciancio’s trial, evidence was brought out by both the State and
defense counsel that C.D. may have been sexually abused by a previous
boyfriend of Jones’--in whose care she left her children while she was away
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at military school. But this evidence was also entirely irrelevant to the charges
against Ciancio and seemed likely to create additional, prejudicial sympathy
for the victim C.D., for potential crimes committed against him by someone
else, and may well have contributed unfairly to the sentence of 25 years given
by the jury in this case.
This Court is quite disturbed by the amount of irrelevant character
evidence and other improper evidence that was allowed into evidence at
Ciancio’s trial, which was not objected to and was sometimes further
developed by Ciancio’s own counsel. This Court is convinced that this
evidence did not impact the jury’s finding of guilt against Ciancio, which was
well supported by the evidence presented at trial and by the victim’s consistent
statements about how he was injured by Ciancio. We need not decide
Ciancio’s Proposition I claim regarding whether the trial court’s failure to
exclude this evidence (and failure to give the jury a limiting instruction of this
evidence), sua sponte, amounted to plain error. Rather, this Court finds that
defense counsel’s total failure to object to this improper and potentially
prejudicial evidence, as well as counsel’s further development of some of this
improper evidence, constituted inadequate performance of counsel and that
there is a reasonable probability that this improperly admitted evidence
unfairly increased the sentence that Ciancio received from the jury for his
single-count conviction of Child Abuse by Injury. Consequently, this Court
finds that Ciancio has established ineffective assistance of trial counsel and
that his sentence of imprisonment for 25 years should be modified to
imprisonment for 15 years.
Ciancio, No. F-2011-568, slip op. at 2-6 (citations and footnotes omitted) (emphasis in
original).
Habeas Corpus Claims
The record shows that the trial court admitted irrelevant character evidence and other
improper evidence, and petitioner’s attorney failed to object to this evidence and even
developed some of the improper evidence. Furthermore, there were no limiting instructions
regarding this evidence.
. . . As a general matter, federal habeas corpus relief does not lie to
review state law questions about the admissibility of evidence, see Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991), and federal courts may not interfere with
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state evidentiary rulings unless the rulings in question rendered “the trial so
fundamentally unfair as to constitute a denial of federal constitutional rights,”
Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989).
Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir.), cert. denied, 534 U.S. 1068 (2001).
Strickland requires a petitioner to show that (1) his counsel’s performance fell below
an objective standard of reasonableness, 466 U.S. at 687-88, 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 OCCA found that under Strickland, petitioner’s trial
counsel was ineffective in his representation, but counsel’s deficiencies only affected
petitioner’s sentence, not the jury’s finding of guilt. Ciancio, No. CF-2010-401, slip op. at
6.
This court finds the OCCA correctly determined that the jury’s guilt/innocence
decision was not affected by the improper evidence admitted through trial counsel’s
ineffectiveness.

See Strickland, 466 U.S. at 694.

Regarding petitioner’s sentence

modification, the OCCA has statutory authority to modify a sentence. See Okla. Stat. tit. 22,
§ 1066 (2001); see also Livingston v. State, 795 P.2d 1055, 1058 (Okla. Crim. App. 1990).
Furthermore, if a state appellate court has authority to exercise its own discretion and modify
a jury sentence on appeal as a matter of state law, no due process violation occurs when it
does so. Carbray v. Champion, 905 F.2d 314, 317-18 (10th Cir. 1990) (citing Clemens v.
Mississippi, 494 U.S. 738, 746 (1990)). See also Cheadle v. Dinwiddie, No. CIV-07-939-C,
2008 WL 281521, at *5 (W.D. Okla. Jan. 31, 2008), aff’d, No. 08-6045, 278 Fed. Appx. 820,
823-24, 2008 WL 2097428, at *2 (May 20, 2008), cert. denied, 555 U.S. 1109 (2009).
The United States Supreme Court has held that “[c]ases involving Sixth Amendment
deprivations are subject to the general rule that remedies should be tailored to the injury
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suffered from the constitutional violation and should not unnecessarily infringe on competing
interests.” United States v. Morrison, 449 U.S. 361, 364 (1981). Here, the OCCA’s sentence
modification conformed to the requirements of Morrison, and there was no constitutional
violation.
After careful review, this court finds the OCCA’s determination of petitioner’s claims
was not contrary to or an unreasonable application of federal law. See 28 U.S.C. §
2254(d)(1). The court further finds the OCCA’s decision was not based on an unreasonable
determination of the facts presented at trial. See 28 U.S.C. § 2254(d)(2). Therefore, federal
habeas corpus relief is not warranted.
Certificate of Appealability
Under the Antiterrorism and Effective Death Penalty Act of 1996, a Certificate of
Appealability may not issue unless “the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the
petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (internal quotation omitted). Because petitioner has not made that
showing, he is denied a certificate of appealability.
ACCORDINGLY, petitioner’s petition for a writ of habeas corpus is DENIED, and
this action is DISMISSED in its entirety. Petitioner also is DENIED a certificate of
appealability.
IT IS SO ORDERED this 4th day of March 2015.

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