Taylor v. McCollum

Filing 26

OPINION AND ORDER by Judge Ronald A. White: Denying 1 Petition for Writ of Habeas Corpus 2254 and denying certificate of appealability (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
WESLEY A. TAYLOR,
Petitioner,
v.
JIMMY MARTIN, Warden,
Respondent.

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Case No. CIV-16-462-RAW-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. [Doc. 1]. Petitioner, a pro se prisoner in the custody of the
Oklahoma Department of Corrections, is currently incarcerated at the North Fork Correctional
Center in Sayre, Oklahoma. Following a jury trial, Petitioner was convicted of one count of sexual
abuse of a child under twelve (12), in violation of 21 O.S.Supp.2011, § 843.5(F), in Okfuskee
County District Court Case No. CF-2014-60.

He was sentenced to life imprisonment in

accordance with the jury’s recommendation.
Petitioner is attacking his conviction and sentence and sets forth eight grounds for relief
within the § 2254 petition:
I.

The trial court erred by improperly admitting hearsay evidence.

II.

Petitioner was fundamentally denied a fair trial by the admission of prejudicial,
cumulative evidence and improper bolstering.

III.

The trial court erred by admitting propensity evidence.

IV.

Petitioner was denied a fair trial due to prosecutorial misconduct.

V.

The trial court erred by failing to order a presentence investigation.

VI.

Petitioner was prejudiced by ineffective assistance of counsel.

VII.

Cumulative errors deprived Petitioner of a fair trial.

VIII.

Petitioner’s sentence is excessive.

Respondent concedes that the Petitioner has exhausted his state court remedies for the
purpose of federal habeas corpus review and that the § 2254 petition is timely filed. [Doc. 8 at 2]. 1
The grounds for relief within the § 2254 petition were presented to the Oklahoma Court of
Criminal Appeals (“OCCA”) on direct appeal. 2 Petitioner did not file an application for postconviction relief in the state district court.
The following have been submitted for consideration in this matter:
A.

Petitioner’s direct appeal brief.

B.

State’s brief in Petitioner’s direct appeal.

C.

Summary Opinion affirming Petitioner’s judgment and sentence.

D.

State court record.

E.

Transcripts.

F.

DVD - State’s Exhibit 1.

Standard of Review

Under the Antiterrorism 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

1

This court's record citations refer to the CM/ECF page numbers in the upper right-hand
corner of each document.
2
Petitioner’s § 2254 petition was filed on October 24, 2016. [Doc. 1]. On February 22,
2018, Petitioner filed a “motion to supplement the record on 2254 appeal” in light of Murphy v.
Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted, 138 S.Ct. 2026 (2018). [Doc. 21]. This
court denied Petitioner’s motion to supplement, explaining that review under § 2254(d)(1) “is
limited to the record that was before the state court that adjudicated the claim on the merits,” and
that “under the exhaustion requirement of 28 U.S.C. § 2254(b), a habeas petitioner challenging a
state conviction must first attempt to present his claim in state court.” [Doc. 25]. In the instant
case, Petitioner has not exhausted the proposed Murphy claim. Id.
2

(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).

Factual Background
Jolanda Williams and various family members shared a home in Little, Oklahoma, towards
the end of 2013. [Doc. 9-3 at 191-93; Doc. 1 at 5]. Others in the home included Ms. Williams’
sister, Vita Ledbetter; Ms. Williams’s daughter, Randi Nauni, and her husband, Murphy, along
with their two children; and Ms. Williams’ son, Nathan Nauni, and his two children. Id. It was
also during this time that Nathan’s girlfriend, Precious Severs, and her two children, R.S., a sixyear-old, and C.J.S., a three-year-old, moved into the residence. Id. at 194.
Precious worked with Nathan at a casino, and often worked a night shift. Id. at 193, 195.
Ms. Williams regularly took care of R.S. and C.J.S. when Nathan and Precious went to work. Id.
at 195. Ms. Williams and R.S. bonded during this time and had a great relationship. Id. at 19495.
R.S. occasionally stayed with her grandmother, Rachael Taylor, in Okemah, a city located
in Okfuskee County, Oklahoma. [Doc. 9-3 at 196; Doc. 9-4 at 31]. Petitioner, Ms. Taylor’s
husband, was also present in the home from time to time. [Doc. 9-4 at 40, 44, 136-38]. The child
had a close relationship with Ms. Taylor, but at some point, the child no longer wanted to go to
her grandmother’s residence, and preferred staying with Ms. Williams. [Doc. 9-3 at 196-97; Doc.
9-4 at 21].
Ms. Williams, Ms. Nauni, and Ms. Severs started to notice significant behavioral changes
within a few months of the child moving to Ms. Williams’ residence. [Doc. 9-3 at 197; Doc. 9-4
at 8, 21-22]. In particular, R.S. was getting in trouble at school and was withdrawn at home, and
started playing naughty with other children by taking off their clothing and touching their private
areas. [Doc. 9-3 at 198, 207-08; Doc. 9-4 at 9].

3

Ms. Williams spoke to R.S. multiple times, explaining that the behavior was not
appropriate. [Doc. 9-3 at 197-202]. Ms. Severs also told her child that she “wasn’t supposed to
be playing like that” while under the covers with other kids. [Doc. 9-4 at 24]. Eventually, in an
effort to understand why R.S. was acting out, Ms. Williams asked the child “Has anybody ever
touched you like that?” [Doc. 9-3 at 202]. R.S. dropped her head for a moment, and then looked
up, stating “Yes, they have, Grandma Jo, and it was Alan [the Petitioner].” Id. After that, R.S.
started crying. Id. Ms. Nauni was also present and heard the child’s statement about the Petitioner.
[Doc. 9-3 at 209; Doc. 9-4 at 10].
R.S. told Ms. Williams that she had been at Ms. Taylor’s house and that her grandmother
and Petitioner were drinking beer. [Doc. 9-3 at 204]. Later that night, the child was on a pallet
next to the bed, near Petitioner, and Petitioner put his hands in the child’s panties and started
touching the child’s vagina. Id. at 204-05. The child’s grandmother was sleeping on the opposite
side of the bed next to the wall. Id. at 205. R.S. started crying and said “Grandma.” Id. The
child’s grandmother did not wake up, but the Petitioner stopped when R.S. called for her
grandmother. Id. Ms. Williams did not ask the child whether Petitioner had touched her on more
than one occasion, but she did ask “Why didn’t you tell somebody?” Id. R.S. told Ms. Williams
that she did not want “her mom to get mad,” and did not want “to make her grandma sad.” Id. at
206. The child also told Ms. Williams that her grandma usually slept on the side of the bed closest
to the pallet, but on that night, Petitioner was sleeping closest to the pallet. Id.
Ms. Williams and Ms. Nauni told the child’s mother about the abuse when she returned
from work. [Doc. 9-4 at 25]. Ms. Severs testified that, once she found out about the abuse, she
cried and “didn’t know what to do,” and “didn’t know how to handle it,” but knew “[she] had to
report it.” Id.
The following morning, R.S. asked her mother if Ms. Williams and Ms. Nauni had told her
about Petitioner, and asked her mother, “Are you mad at me?” Id. at 26. Ms. Severs told her child,
“No, I’m so proud of you for telling it.” Id. Ms. Severs then asked, “Baby, will you tell me . . . so
I can hear it from you, what happened?” Id. At that time, R.S. told her mother that Petitioner
touched her “in her private areas.” Id. R.S. later said “Mama, it would hurt and I would cry.” Id.
at 27.
4

The child’s mother filed a police report and cut off all ties with Petitioner. Id. at 30. The
child’s poor behavior and acting out sexually with other kids stopped after R.S. shared what
happened and was no longer around Petitioner. [Doc. 9-3 at 208-09; Doc. 9-4 at 14].
Laurie Mallinson, a child advocate and forensic interviewer, conducted a video recorded
forensic interview with R.S. on January 17, 2014. [Doc. 9-4 at 69, 71-72; DVD - State’s Exhibit
1]. The child’s statements to Ms. Williams, Ms. Nauni, and Ms. Severs were consistent with her
interview and testimony at trial. R.S. maintained that Petitioner touched her private spot. [Doc.
9-4 at 85-87, 92; DVD - State’s Exhibit 1 at 9:45-10:38, 16:00-22:00]. R.S. explained that
Petitioner touched her while she was sleeping on a pallet inside her grandmother’s bedroom, where
Petitioner and her grandmother were on the bed beside her. [Doc. 9-4 at 88-92; DVD - State’s
Exhibit 1 at 16:00-22:00]. Petitioner, while lying on the side of the bed closest to the child, reached
over and put his hand under her panties and touched her vagina multiple times. [Doc. 9-4 at 9194, 96].
Okemah Police Officer Jon Owens interviewed Petitioner at the police department. Id. at
121. Petitioner indicated to Officer Owens that R.S. was a good kid, and he denied touching the
child inappropriately. Id. at 123. Petitioner also told the officer that R.S. was there “a lot,”
referring to the times R.S. would visit her grandmother at the Okemah residence. Id. at 123-24.
Petitioner could not explain to the officer why R.S. would make up allegations against him, other
than “maybe because Precious didn’t like him.” Id. at 123, 126-27. Petitioner confirmed that the
child would sleep in the room with Petitioner and Ms. Taylor, and that the couple drank a lot of
alcohol during that period of time. Id. at 125-27.
Ms. Taylor alleged during the trial that she had heard two different stories and that she
wanted to know what happened. Id. at 41-42. The child’s grandmother told the jury that she would
go to bed at the same time as Petitioner, that Petitioner would watch T.V. and that she would go
to sleep first, and that she did not know what Petitioner did while she was sleeping. Id. at 52. Ms.
Taylor explained that she was drinking alcohol and taking sleep medication during the time period,
which made her drowsy. Id. at 52-53. Ms. Taylor also testified that she slept on the side of the
bed closest to the child’s pallet when the child stayed overnight, and that she did not remember

5

R.S. sleeping next to Petitioner, but admitted that “[R.S.] wouldn’t lie about it” if the child said
otherwise. Id. at 44-46, 50-54.
Petitioner took the stand and denied inappropriately touching the child. Id. at 143-44, 147,
168, 176. Petitioner, who goes by the name “Alan,” explained that he had moved with Ms. Taylor
to the house in Okemah in November of 2012, and that he was arrested (on unrelated charges)
shortly thereafter. Id. at 133-34, 136, 148. Petitioner was apparently in jail from December of
2012 until March of 2013, and following his release, he returned to the home and was living with
Ms. Taylor from March of 2013 until June of 2013. Id. at 136. At that point, according to
Petitioner, the couple had an argument and he moved to Tulsa. Id. at 136-37. Then, in October of
2013, he moved back in with Ms. Taylor at the house in Okemah. Id. at 137-38. Lastly, in
November of 2013, the couple moved to a trailer in Wetumka, a town in neighboring Hughes
County, Oklahoma. Id. at 138.
Petitioner acknowledged that R.S. would stay throughout the day at the couple’s home in
Okemah from time to time, and according to Petitioner, the child stayed overnight approximately
four times. Id. at 139. Other statements from Petitioner were also consistent with the child’s story.
Notably, Petitioner agreed that on at least one occasion he had slept on the side of the bed closest
to the child’s pallet, and that Ms. Taylor had fallen asleep before Petitioner. Id. at 165. Petitioner
was unable to remember the date when he had slept next to the child, but he specifically told the
jury that he remembered drinking “maybe four hurricanes” (which he described as beer) that day
before sleeping beside R.S. Id. at 166-67. At an earlier point in the trial, Petitioner told the jury
that he would drink “at least a 12 pack” when the children were present. Id. at 160-61.

Ground I: The trial court erred by improperly admitting hearsay evidence.
Petitioner claims in Ground I that he “was denied fundamental due process and a fair trial
when the State was allowed to introduce hearsay evidence without restraint,” explaining that
“[u]nder State Statute it is error for the trial court to admit this type of hearsay without holding a
reliability and trustworthy hearing mandated by Title 12 O.S.2011 § 2803.1.” [Doc. 1 at 10]. In
relevant part, 12 O.S.2011, § 2803.1 provides as follows:
6

A. A statement made by a child who has not attained thirteen (13) years of
age . . . which describes . . . any act of sexual contact performed with or on the
child . . . by another, is admissible in criminal and juvenile proceedings in the
courts in this state if:
1. The court finds, in a hearing conducted outside the presence of the jury, that the
time, content and totality of circumstances surrounding the taking of the statement
provide sufficient indicia of reliability so as to render it inherently trustworthy. In
determining such trustworthiness, the court may consider, among other things, the
following factors: the spontaneity and consistent repetition of the statement, the
mental state of the declarant, whether the terminology used is unexpected of a child
of similar age or of an incapacitated person, and whether a lack of motive to
fabricate exists; and
2. The child . . . either:
(a.)

testifies or is available to testify at the proceedings in open
court . . . , or

(b.)

is unavailable . . . as a witness. When the child . . . is unavailable,
such statement may be admitted only if there is a corroborative
evidence of the act.

12 O.S.2011, §§ 2803.1(A)(1) and (A)(2). Petitioner acknowledges (within his brief filed with the
OCCA) that a hearing was held prior to trial, that several witnesses testified in court, that his
motion in limine was denied, and that the State’s motion to admit prior statement of child witnesses
into evidence was granted. [Doc. 8-1 at 19-20]. Even so, he complains that the trial court failed
to state for the record the particular facts and circumstances to support a finding that R.S.’s pretrial statements were reliable, and that “there is no record of the court determining whether or not
R.S. was ‘available’ or competent to testify.” Id. at 20. Pointing to a portion of the child’s
preliminary hearing testimony (regarding whether certain princess stories “really happened”), he
argues that the child was not “available” or competent to testify, even if she was physically present,
because she “could not distinguish truth from fiction.” Id. at 18-20.
In response, Respondent claims Ground I should be denied. Respondent claims Petitioner
has failed to show that the OCCA’s ruling in this case was contrary to, or an unreasonable
application of Supreme Court precedent, or an unreasonable determination of the facts. [Doc. 8 at
8-9]. Respondent points to several cases and the testimony of R.S. and witnesses, contending that
Petitioner does not raise a federal constitutional issue, that Petitioner has instead raised a State law
evidentiary claim, and that Petitioner has failed to show the trial court’s failure to explain its
7

decision for admitting R.S.’s statements rendered Petitioner’s trial fundamentally unfair. Id. at 1315. Respondent further claims that, “[w]hile Petitioner’s questions and R.S.’s answers about
Disney characters was somewhat confusing during the preliminary hearing, the entire issue was
made clear during trial” when the child denied that the stories really happened. Id. at 17.
The OCCA rejected Petitioner’s claim on direct appeal, finding as follows:
In Proposition One, Appellant contends that child hearsay statements were
erroneously admitted. Appellant made no contemporaneous objection on these
grounds at trial, waiving all but plain error. Simpson v. State, 1994 OK CR 40, ¶ 2,
876 P.2d 690, 692-93. To obtain relief, he must show a plain and obvious error
affected the outcome of the trial. The Court will correct plain error only when it
seriously affects the fairness, integrity, or public reputation of judicial proceedings,
or otherwise represents a miscarriage of justice. Hogan v. State, 2006 OK CR 19,
¶ 38, 139 P.3d 907, 923.
Appellant claims the complaining witness was not competent to testify at trial; and
that the court admitted child hearsay without “stat[ing] for the record the particular
facts and circumstances supporting [its] findings that such hearsay statements of
children are reliable,” as required by F.D.W. v. State, 2003 OK CR 23, ¶ 5, 80 P.3d
503, 504. We find the court’s failure to more particularly state the factual grounds
for its conclusions on the child declarant’s competency and reliability was, at most,
harmless error. The facts supporting the trial court’s conclusions are apparent from
the existing record. Any error did not seriously affect the fairness, integrity, or
public reputation of the proceedings. Proposition One is denied.
Taylor v. State, No. F-2014-1015, slip op. at 2 (Okla. Crim. App. Jan. 19, 2016) (unpublished).
[Doc. 8-3 at 2].
After carefully reviewing the documents filed herein, this court finds that the OCCA’s
decision is not an objectively unreasonable determination. The facts supporting the trial court’s
conclusions were more than adequate from the record.
Prior to the jury trial, the defense filed a motion in limine on October 10, 2014. [Doc. 9-7
at 39-40]. In short, Curt Allen, defense counsel, claimed R.S. was not a competent witness. Id.
Mr. Allen scrutinized the child’s prior testimony at the preliminary hearing (regarding whether
certain princess stories “really happened”) and argued R.S. was “unable to distinguish truth from
fiction.” Id. at 39. Counsel requested the court to “grant his motion in limine and prohibit the
State from offering the testimony of [R.S.].” Id. at 40.
8

On the same date, the State filed a motion to admit prior statements of child witnesses [sic]
into evidence. [Doc. 9-7 at 43-45]. The State reported that R.S. had been forensically interviewed
by one witness, Ms. Mallinson, and that the child had disclosed allegations of inappropriate sexual
contact by Petitioner to Ms. Nauni, Ms. Severs, and Ms. Williams. Id. at 43. The State was
confident that the “circumstances surrounding said interview and statements provide a sufficient
indicia of reliability so as to render them inherently trustworthy,” and further informed the court
that the child “will testify and or be available to testify at the trial of this matter.” 3 Id. The State
requested that the court “set a hearing to determine whether or not the above referenced statements
will be admissible pursuant to 12 O.S. § 2803.1 at the time of trial . . . .” 4 Id. at 44.
A hearing on the motions began on October 22, 2014, and was continued to October 27,
2014. [Doc. 9-2]. Ms. Nauni, Ms. Severs, Ms. Mallinson, and Ms. Williams testified in court, and
a copy of the child’s forensic interview (DVD - State’s Exhibit 1) was provided to the trial judge.
In sum, Ms. Nauni testified about the change in R.S.’s behavior during the exact time of her abuse,
and confirmed the same story and details surrounding R.S.’s disclosure of the abuse to Ms.
Williams. [Doc. 9-2 at 11-21]. Ms. Severs testified that, even after being told about the abuse by
Ms. Williams and Ms. Nauni, she did not bring it up with R.S. or discuss what was said, and that
the child brought it up and independently provided the same description of abuse. Id. at 26-37.
Ms. Mallinson testified as to her credentials regarding forensic interviewing of children, discussed
her training, and described the “RATAC” protocol for interviewing children, which she utilized
when interviewing R.S. Id. at 43-50. Ms. Williams testified to the substantial behavioral changes
in R.S. during the time that the child said she was abused, and testified to the circumstances under
which R.S. disclosed the abuse and details of what was said. Id. at 60-71.
At the end of the hearing on October 27th, the prosecutor reminded the judge that defense
counsel’s motion in limine requested the court to rule that the child was not a competent witness
3

If a child is “unavailable” to testify, then § 2803.1(A)(2)(b) provides that “such statement
may be admitted only if there is corroborative evidence of the act.”
4
When determining whether hearsay statements made by a child witness in child sexual
abuse cases are sufficiently reliable, an Oklahoma trial court “may consider, among other
things,” the factors identified by the Supreme Court in Idaho v. Wright, 497 U.S. 805, 821-22
(1990) (“spontaneity and consistent repetition,” “mental state of the declarant,” “use of
terminology unexpected of a child of similar age,” and “lack of motive to fabricate”). See
12 O.S.2011, § 2803.1(A)(1).
9

to testify. Id. at 78. The Honorable Lawrence W. Parish then posed the following question to
defense counsel: “Well, I think before I can make a ruling on that, Mr. Allen, wouldn’t I need to
review the video?” Id. Mr. Allen agreed, and asked the court to review “the video and the
transcript of preliminary hearing.” Id. The prosecutor then provided caselaw to the trial judge,
explaining that “two different victims [within the caselaw] were found competent where it was
established [that] they knew the difference between a truth and a lie.” Id. at 78-79.
The court took additional time to review the preliminary hearing transcript and forensic
interview of R.S. In the preliminary hearing transcript, R.S. testified in detail about Petitioner
molesting her, where it happened, when it happened, who was present, and the exact sleeping
arrangements in the bedroom. [Doc. 9-1 at 10-48]. In the forensic interview of R.S., the child
provided the same details and explanations for how, when, and where she was molested by
Petitioner. [DVD - State’s Exhibit 1 at 9:45-10:38, 16:00-22:00]. On October 29, 2014, Judge
Parish granted the State’s motion to admit prior statements of child witnesses [sic] into evidence,
and denied Petitioner’s motion in limine. [Doc. 9-7 at 55]. Petitioner now claims, as he did on
appeal, that the trial court erred in admitting the hearsay statements without making a
determination of reliability as required by Oklahoma’s child-hearsay law, and that R.S. was not a
competent witness.
“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,
68 (1991). “Federal habeas review is not available to correct state law evidentiary errors; rather it
is limited to violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th
Cir. 1999); see also Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012). “In federal habeas,
we review state court evidentiary rulings to determine whether the error was so grossly prejudicial
that it fatally infected the trial and denied the fundamental fairness that is the essence of due
process.” Hooker v. Mullin, 293 F.3d 1232, 1238 (10th Cir. 2002) (quoting Williamson v. Ward,
110 F.3d 1508, 1522 (10th Cir. 1997)); see also Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.
2002).
A claim similar to Petitioner’s Ground I was asserted by another state prisoner in
Hamburger v. Allbaugh, Case No. 16-6281, 679 Fed.Appx. 665 (10th Cir. Feb. 14, 2017)
10

(unpublished). 5 Hamburger was convicted in Oklahoma state court of lewd acts with a child under
twelve. The OCCA affirmed his conviction, and Hamburger filed a § 2254 petition in federal
district court, arguing in part that the trial court improperly admitted a recording of a forensic
interview of the victim. The Circuit denied a Certificate of Appealability and dismissed the appeal,
and provided the following guidance regarding the state law claim:
To the extent that this argument is based on an alleged violation of Okla. Stat. tit.
12, § 2803.1, which requires a finding of reliability of child victim statements prior
to admission, such a claim is not cognizable under § 2254. See Estelle v. McGuire,
502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[F]ederal habeas corpus
relief does not lie for errors of state law.”). Instead, we look only to whether a
claimed evidentiary error was “so grossly prejudicial that it fatally infected the trial
and denied the fundamental fairness that is the essence of due process.” Revilla v.
Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (quotation and alteration omitted).
The Supreme Court has identified several factors relevant in determining whether
a child victim's interview is sufficiently reliable. Idaho v. Wright, 497 U.S. 805,
821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (identifying “spontaneity and
consistent repetition,” “mental state of the declarant,” “use of terminology
unexpected of a child of similar age,” and “lack of motive to fabricate”) abrogated
on other grounds by Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004). The OCCA reasonably weighed these factors in
concluding the interview was admissible. Hamburger complains that the
interviewer did not specifically discuss the difference between truth and lies with
the victim. The interviewer testified that although some jurisdictions prefer such a
discussion, it is not required by protocol. Hamburger does not direct us to any
clearly established federal law indicating that this factor alone renders a statement
unreliable. Accordingly, his claim fails.
Hamburger, 679 Fed.Appx. at 667.
The Circuit rejected another similar claim in Durbin v. Province, Case No. 11-7028, 448
Fed.Appx. 785 (10th Cir. Aug. 25, 2011) (unpublished). In that case, although the Oklahoma trial
court had conducted an in camera hearing before one witness testified, Durbin complained that the
trial court did not properly explain why the child hearsay statements were reliable. Id. at 787. The

5

A court can rely on an unpublished opinion to the extent its reasoned analysis is
persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not
precedential, but may be cited for their persuasive value.”).
11

Circuit denied Durbin’s request for a Certificate of Appealability and dismissed the appeal,
explaining as follows:
Mr. Durbin alleges that he was denied a fair trial because the trial court admitted
hearsay statements from prosecution witnesses without first conducting a hearing
as required by Okla. Stat. tit. 12 § 2803.1 to determine that such testimony was
reliable. Specifically, Mr. Durbin objects to the trial court's failure to . . . explain
its decision to admit the testimony of Wyndel Goodin after holding a hearing before
he testified.
Because this is an issue of state evidentiary law, we review only to ensure that the
state court's rulings did not violate the Constitution, laws, or treaties of the United
States. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
It is not the responsibility of a federal habeas court to cure errors from the state
court concerning state law. Id. at 67–68, 112 S.Ct. 475. We will only consider
state law evidentiary questions on habeas “if the alleged error was so grossly
prejudicial that it fatally infected the trial and denied the fundamental fairness that
is the essence of due process.” Revilla v. Gibson, 283 F.3d 1203, 1212 (10th
Cir.2002) (quotations omitted), cert. denied 537 U.S. 1021, 123 S.Ct. 541, 154
L.Ed.2d 430 (2002).
Durbin, 448 Fed.Appx. at 787 (footnote omitted). The Circuit ultimately agreed with the district
court’s magistrate judge, opining “that because Mr. Goodin’s hearsay statements largely
corroborated the testimony of the victim, the trial court’s failure to explain the basis for reliability
did not render Mr. Durbin’s trial fundamentally unfair.” Id.
As noted above, federal habeas review is not available to correct state law evidentiary
errors, and the Tenth Circuit has indicated that a trial court’s “failure to explain the basis for
reliability” of a child’s statements as contemplated under 12 O.S. § 2803.1 does not by itself
constitute a due process violation. See Durbin, 448 Fed.Appx. at 787; see also Gilson v. Sirmons,
Case No. CIV-01-1311-C, 2006 WL 2320682, *28 (W.D. Okla. Aug. 9, 2006) (holding that the
OCCA’s findings as to whether children were competent to testify were “based on factual
determinations and matters of state evidentiary law”). 6 Further, it should come as no surprise that
the trial court denied Petitioner’s motion in limine, which was based upon a small portion of the
child’s testimony at the preliminary hearing. [Doc. 9-1 at 33-34].

6

“[D]istrict court opinions have persuasive value only and are not binding as a matter of
law.” United States v. Worthon, 520 F.3d 1173, 1179–80 (10th Cir. 2008).
12

At trial, R.S. asked defense counsel to rephrase his question about the princess and the frog
and Belle, defense counsel complied, and the child clearly denied those stories really happened.
[Doc. 9-4 at 108]. The child promised to tell the truth, knew the difference between a truth and a
lie, and knew that it is wrong to tell a lie. [Doc. 9-4 at 82, 115]. The child’s testimony about the
sexual abuse, like before, was clear and concise, she was effectively cross-examined by defense
counsel, and Petitioner has failed to show that the child’s testimony was inconsistent with other
statements made by the child to the witnesses. The testimony of R.S. was corroborated by the
testimony of Ms. Nauni, Ms. Severs, Ms. Mallinson, and Ms. Williams. The observed behavior
of R.S. before, during, and following the alleged time of abuse, and testimony regarding the child’s
lack of desire to spend time at her beloved grandmother’s house during the alleged time of abuse,
reinforced the child’s testimony. Petitioner was not denied a fundamentally fair trial as a result of
the trial court’s admission of the complained of evidence.
Petitioner fails to show that the OCCA’s rejection of this claim was contrary to, or an
unreasonable application of Supreme Court precedent, or an unreasonable determination of the
facts. Petitioner’s Ground I is denied.

Ground II:

Petitioner was fundamentally denied a fair trial by the admission of

prejudicial, cumulative evidence and improper bolstering.
Petitioner next claims that the Fifth, Sixth and Fourteenth Amendments guarantee a
criminal defendant “due process and a fundamentally fair trial,” and that relevant evidence may be
excluded to protect these rights “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation
of cumulative evidence, or unfair and harmful surprise.” [Doc. 1 at 11]. Initially, he complains
that the State used the video of the child’s forensic interview (DVD - State’s Exhibit 1), along with
the trial testimony of the child, “to present its principal witness twice.” Id. He then argues that
“[d]uring the trial in this case at bar, R.S. testified, recounting the allegations of sexual abuse, after
the State had already presented the allegations through the testimony of Jolanda Williams, Randi
Nauni, Precious Severs, and played the recording of the forensic interview to the jury.” Id. at 12.

13

Petitioner essentially claims he should be granted a new trial because “[p]resenting the allegations
multiple times was cumulative and more prejudicial than probative.” Id.
In response, Respondent notes that Petitioner did not raise this objection at trial and that,
in his direct appeal brief, he simply “made a fleeting reference to the due process clause of the
United States Constitution.” [Doc. 8 at 18-19]. Respondent also directs the court’s attention to
cases such as Parker v. Scott, 394 F.3d 1302 (10th Cir. 2005) and Folks v. Mullin, Case No. 09CV-786-GKF-TLW, 2013 WL 162337 (N.D. Okla. Jan. 15, 2013) (unpublished), explaining that
“the appropriate inquiry upon review in a federal habeas proceeding with regard to state law
evidentiary issues is whether the admission of the evidence rendered the petitioner’s trial
fundamentally unfair,” and that “Petitioner’s Ground II must be denied.” Id. at 19-20, 22.
The OCCA rejected Petitioner’s claim:
Proposition Two claims that the trial court erred by admitting child hearsay
evidence and other testimony that was unduly cumulative and improper bolstering.
Appellant failed to timely object on these grounds at trial, waiving all but plain
error, as defined above. We find no error, and thus no plain error, in the admission
of the challenged evidence. Folks v. State, 2008 OK CR 29, ¶ 14, 207 P.3d 379,
383. Proposition Two is denied.
Taylor, slip op. at 2-3. [Doc. 8-3 at 2-3].
The claims in Petitioner’s Ground II raise no federal constitutional issue and are not
cognizable in this habeas corpus proceeding. A federal habeas court has no authority to review a
state court’s interpretation or application of its own state laws. See Bradshaw v. Richey, 546 U.S.
74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law . . . binds a
federal court sitting in habeas.”). And to the extent his claims may implicate constitutional rights,
Petitioner has failed to demonstrate that his trial was rendered fundamentally unfair.
In Parker v. Scott, 394 F.3d 1302, 1309 (10th Cir. 2005), a state prisoner claimed the trial
court erred when it allowed testimony from three witnesses “that impermissibly bolstered, or
‘vouched’ for,” a child victim’s credibility. Parker, like Petitioner, had been sentenced to life
imprisonment after an Oklahoma state court jury found him guilty of one count of sexual abuse of
a child. Id. at 1306. The Tenth Circuit reviewed the testimony of the witnesses and rejected
Parker’s due process claim:
14

In sum, we cannot conclude, even taking these witnesses’ testimonies together, that
Parker’s due process rights were violated. Although the testimony given by these
three witnesses arguably shows that they believed sexual abuse had occurred, in
context the testimonies do not fatally undercut the jury’s determination of
credibility in a case where both the child victim and the accused testified and were
subject to extensive cross-examination. Every witness called by one side will to
some extent reinforce each other’s testimonies if the testimony is consistent and
credible. The jury was able to weigh all of the testimony against the child’s trial
testimony. Given AEDPA’s deferential standard of review, the OCCA’s
conclusion that Parker’s due process rights had not been violated by the trial court’s
admission of this testimony, in the context of the entire trial, is a reasonable
application of Supreme Court precedent.
Parker, 394 F.3d at 1314.
Petitioner complains that the admission of R.S.’s testimony and the video of the child’s
forensic interview was error, but such claim alleges an error of state law, and Petitioner has failed
to show that the admission of R.S.’s testimony and the video of her forensic interview denied him
a fundamentally fair trial. See Folks v. Mullin, Case No. 09-CV-786-GKF-TLW, 2013 WL 162337
at *3-4 (N.D. Okla. Jan. 15, 2013) (unpublished).
Additionally, Ms. Williams, Ms. Nauni, and Ms. Severs testified about their own individual
experiences with R.S. regarding the sexual abuse allegations, and as noted in Parker, the testimony
did not impermissibly bolster the child’s credibility, thereby rendering Petitioner’s trial
fundamentally unfair. Ms. Williams, Ms. Nauni, and Ms. Severs, along with R.S. and Petitioner,
testified and were subject to cross-examination, and the jury was instructed to determine the weight
and credibility to give to the witnesses’ testimony. 7
Petitioner's Ground II is not cognizable in this federal habeas corpus proceeding, and
Petitioner has not shown that his trial was rendered fundamentally unfair. Habeas corpus relief on
Ground II must be denied.

7

See Jury Instruction No. 8, “General Closing Charge – Credibility of Witnesses.” [Doc.
9-7 at 90].
15

Ground III: The trial court erred by admitting propensity evidence.
Petitioner alleges in Ground III that the trial court erred by admitting propensity evidence,
or more particularly, testimony from the child regarding allegations of child molestation that
occurred in a trailer in another county. [Doc. 1 at 12-13]. Citing 12 O.S.Supp.2008, § 2414(B),
Petitioner argues that the State is required to “disclose the evidence, to the defendant, including
statements of witnesses or a summary of the substance of any testimony that is expected to be
offered, at least fifteen (15) days before the scheduled date of trial.” Id. at 13. Petitioner complains
that the State “elicited testimony from R.S. that she was sexually abused in a house and then in a
trailer,” and that it was “an abuse of discretion for the trial court to allow the State to elicit the
testimony . . . when the State had not disclosed to the defense their intent to offer such evidence
15 days before trial as required by statute.” Id. He notes that defense counsel “did not object to
the testimony regarding the trailer,” and that the State informed the jury during closing argument
that “[t]he second incident didn’t occur in Okfuskee County so that’s not before you here today.”
[Doc. 1 at 13; Doc. 9-5 at 40]. Petitioner then concludes that he is “entitled to a [n]ew [t]rial under
the 5th, 6th, and [14th] Amendments to the U.S. Constitution.” [Doc. 1 at 13].
Relying upon Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), Respondent contends once
again that Petitioner is alleging an error of state law and that a federal court conducting habeas
review does not grant habeas relief for errors of state law. [Doc. 8 at 23]. Respondent also sets
forth the following argument:
As the State argued on direct appeal, Petitioner’s argument that the State failed to
provide notice fifteen (15) days before trial in accordance with Okla. Stat. tit. 22,
§ 2414(B) is belied by the State’s Witness and Exhibit List filed on October 16,
2014, eighteen (18) days prior to trial. In the notice, the State included R.S.’s
testimony and the following description:
The State of Oklahoma anticipates that this witness will testify in
accordance with the testimony that she gave at the preliminary
hearing of this matter, which was conducted on or about the 22nd
day of May, 2014 an [sic] in accordance with the interview that she
gave at the at the [sic] Unzer Center in Shawnee, OK on the 17th of
January, 2014. (Exhibit 8, p. 45-46).
During the preliminary hearing, R.S. repeatedly testified she was molested by
Petitioner “[a]t her [Ms. Taylor’s] old house and her new house.” (Exhibit 4, p. 13).
16

R.S. testified Petitioner molested her on more than one night (Exhibit 4, p. 16). R.S.
specifically testified to the abuse by the Petitioner in the trailer in Wetumka, not
just the house in Okemah (Exhibit 4, pp. 13, 18-19). R.S. went into the same detail
about the abuse in the trailer during the preliminary hearing as she did at trial
(Exhibit 4, pp. 24-28; Exhibit 6, Vol. II, pp. 97-100).
[Doc. 8 at 24-25]. In summary, Respondent contends that Petitioner has “failed to show he
received inadequate notice about the propensity evidence under Section 2414(B), and that he was
denied a fundamentally fair trial.” Id. at 25. Respondent also argues that Petitioner has failed to
show the OCCA’s decision was based on an unreasonable determination of the facts in light of the
State court record. Id.
The OCCA found no merit in Petitioner’s claim:
In Proposition Three, Appellant contends the trial court erroneously admitted
sexual propensity evidence without the fifteen (15) day notice required by
12 O.S.2011, § 2414. The State points out that its discovery notice directly
referenced earlier testimony and statements detailing acts of molestation at different
times, in two different locations. Such evidence is generally admissible to show
propensity to commit the charged offense. Horn v. State, 2009 OK CR 7, ¶ 15, 204
P.3d 777, 781. Appellant has not shown inadequate notice of the State’s intent to
present this evidence, or any prejudice resulting from the alleged lack of notice.
Proposition Three is denied.
Taylor, slip op. at 3. [Doc. 8-3 at 3].
In James v. Martin, Case No. 14-5001, 567 Fed.Appx. 594, 597 (10th Cir. May 28, 2014)
(unpublished), the Circuit noted that 12 O.S.2011 § 2414 is patterned after Federal Rule of
Evidence 414. Prior thereto, in United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998), the
Circuit held that “Rule 414 on its face does not violate the constitutional guarantee of due process,”
and “also does not violate the Constitution’s promise of equal protection under the law.” The
Circuit explained that “[t]here are plausible reasons for the enactment of Rule 414,” and that “[t]he
government has a particular need for corroborating evidence in cases of sexual abuse of a child
because of the highly secretive nature of these sex crimes and because often the only available
proof is the child’s testimony.” Id.
In the instant case, R.S. testified, during the preliminary hearing and trial, that Petitioner
first molested her while she was staying the night with her grandmother in the Okemah house.
17

R.S. was molested while her grandmother was sleeping. In addition, during the preliminary
hearing and trial, the child testified that Petitioner subsequently molested her while she was staying
overnight with her grandmother in the Wetumka trailer. Petitioner later testified that he had moved
with Ms. Taylor from the house in Okemah, a town in Okfuskee County, to a trailer in Wetumka,
a town in Hughes County. Petitioner also acknowledged knowing what he was charged with but
denied ever touching R.S. in that manner. The prosecutor informed the jury during closing
argument that “[t]he second incident didn’t occur in Okfuskee County so that’s not before you here
today.” [Doc. 9-5 at 40].
The OCCA noted that the State’s discovery notice, filed 18 days prior to the trial, had
referenced the child’s earlier testimony and statements.

The OCCA explained that certain

evidence, such as testimony regarding acts of molestation at different times and in different
locations, is generally admissible to show propensity to commit the charged offense. The court
agrees, and in the case at hand, Petitioner has not shown inadequate notice of the State’s intent to
present this evidence, or any prejudice resulting from the alleged lack of notice. The child’s
testimony about the molestation in the Okemah residence provided ample evidence from which
the jury could convict Petitioner. The court is not persuaded that the jury concluded Petitioner
was guilty simply based on evidence of later abuse.
The Supreme Court has not issued a decision that calls into question the constitutionality
of 12 O.S.2011 § 2414, and the record does not reflect the evidence of later abuse in this case was
“so prejudicial in the context of the proceedings as a whole that [the defendant] was deprived of
the fundamental fairness essential to the concept of due process.” Castillo, 140 F.3d at 883 (citation
omitted). Ground III is denied.

Ground IV: Petitioner was denied a fair trial due to prosecutorial misconduct.
In Ground IV, Petitioner sets forth allegations of prosecutorial misconduct, insisting that
he was denied a fair trial. [Doc. 1 at 14]. He first claims the State “prejudiced the jury against
[Petitioner] by vouching for the credibility of R.S.,” explaining that “[i]t is pure fundamental error
for the State to elicit opinion evidence that the complaining witness is telling the truth.” Id. In
18

particular, he argues that the State vouched for the child’s credibility by eliciting testimony from
Ms. Taylor regarding the child’s sleeping arrangements. Id. He notes that defense counsel
objected to the State making Ms. Taylor “a human lie detector,” and that after the court overruled
the objection, the State repeatedly asked Ms. Taylor if she had previously stated (in a meeting prior
to trial) that “[R.S.] wouldn’t lie” about Petitioner sleeping on the side of the bed closest to the
child. Id. at 14-15. Next, Petitioner complains that the State began its closing argument by
invoking sympathy for the child, more specifically referring to a portion of the following statement
from the prosecutor: “ . . . I sat there and I thought and thought about what I could possibly come
in here and say to you all today to convince you to believe the word of a small, timid 7-year-old
girl over the word of a grown man.” [Doc. 1 at 15; Doc. 9-5 at 4]. He also complains about other
comments made by the prosecutor, arguing that the “prosecution vouched for R.S.’s credibility by
repeatedly calling [Ms. Taylor] a liar,” that the State “reiterated R.S. was taught not to lie and
knew the consequences for lying,” and that the State “juxtaposed their argument that R.S. was not
lying with an argument that Mr. Taylor had ‘every reason in the world not to tell the truth.’” [Doc.
1 at 16-17].
The OCCA rejected this claim:
Appellant argues in Proposition Four that prosecutorial misconduct denied him a
fair trial. Reviewing both the preserved instances of alleged misconduct, and those
waived by counsel’s failure to timely object for plain error as defined above, we
find the prosecutor’s alleged misconduct did not render the trial fundamentally
unfair, such that the jury’s verdict is unreliable. DeRosa v. State, 2004 OK CR 19,
¶ 53, 89 P.3d 1124, 1145. Proposition Four therefore requires no relief.
Taylor, slip op. at 3. [Doc. 8-3 at 3].
The OCCA’s decision was not unreasonable. “Generally, improper prosecutorial remarks
will not warrant federal habeas relief unless the remark ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Gipson v. Jordan, 376 F.3d 1193, 1197
(10th Cir. 2004) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[I]t is not
enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). “The ultimate
question is whether the jury was able to fairly judge the evidence in light of the prosecutors’
conduct.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006).
19

The test for whether a defendant’s trial was fundamentally unfair based on a
prosecutor’s comments proceeds in two steps: (1) the court first decides whether
the prosecutor’s comments were improper, and (2) if so, it examines their likely
effect on the jury’s verdict. The court thus must weigh any improper comments
against the strength of the evidence against the defendant.
United States v. Christy, 916 F.3d 814, 824 (10th Cir. 2019) (citations omitted).
Petitioner first claims that he was denied a fair trial based on prosecutorial misconduct,
complaining that the State was vouching for the child’s credibility by eliciting testimony from Ms.
Taylor. The court is not persuaded. Defense counsel objected to the State making Ms. Taylor “a
human lie detector,” but a prosecutor may cross-examine and impeach a witness regarding a prior
inconsistent statement of that witness. The State was attempting to show that while Ms. Taylor
may not remember Petitioner had slept on the outside of the bed, she did not disagree it was
possible. The prosecutor’s conduct was not improper.
The court further concludes that the jury was able to fairly judge the evidence in light of
the prosecutors’ conduct. Ms. Taylor, the child’s grandmother, ultimately agreed that R.S. would
not lie about whether Petitioner had slept on the same side of the bed as the child. [Doc. 9-4 at 5154]. This testimony was consistent with the testimony of the child and Petitioner.
Following the grandmother’s testimony, and on the same day of trial, the jury viewed the
video of the child’s forensic interview (DVD - State’s Exhibit 1) in court. [Doc. 9-4 at 72-73].
The jury also watched the child and Petitioner testify. R.S. testified that she knew the difference
between a truth and a lie, and her testimony in court matched her statements during the forensic
interview. Furthermore, Petitioner agreed that on at least one occasion he had slept on the side of
the bed closest to the child’s pallet, and that Ms. Taylor had fallen asleep before Petitioner. Id. at
165. The alleged prosecutorial misconduct, when viewed in light of the trial as a whole, did not
result in a fundamentally unfair proceeding, and the OCCA’s decision on this issue was consistent
with federal law.
Petitioner also complains that the State made improper closing arguments by invoking
sympathy for the child and vouching for the credibility of R.S., and that the State referred to Ms.

20

Taylor and Petitioner as liars. 8 That the prosecutor referred to the victim as a small, timid 7-yearold girl does not, in itself, invoke sympathy. 9 Nor is the court convinced that the State improperly
vouched for the credibility of the child,10 or that referring to testimony as a lie is per se
prosecutorial misconduct. 11

But the prosecutorial comments made during closing, even if

improper, when weighed against the strength of the evidence against the defendant, did not result
in a fundamentally unfair proceeding. See United States v. Fleming, 667 F.3d 1098, 1106 (10th
Cir. 2011) (“We need not decide whether the prosecutor’s comment . . . was improper, because
even if it were, [the defendant] has not demonstrated that the statement violated his substantial
rights.”).
Petitioner has failed to show that the OCCA’s rejection of his prosecutorial misconduct
claim resulted in a decision that was contrary to, or an unreasonable application of, federal law.
Petitioner has further failed to show that the OCCA’s rejection of his claim was based on an
unreasonable determination of the facts in light of the evidence presented in state court. The court
has reviewed the trial transcripts and considered the prosecutor’s comments in light of the entire
8

The court is mindful of the state court’s opening instruction to the jury. The jury was
instructed that “[i]t is your responsibility as jurors to determine the credibility of each witness
and the weight to be given the testimony of the witness,” and that “[i]t is the responsibility of the
attorneys to present evidence, to examine and cross-examine witnesses and to argue the
evidence. No statement or argument of the attorneys are evidence.” [Doc. 9-3 at 175; Doc. 9-7
at 79]. The jury was also instructed that “[a]fter the evidence is completed, I will instruct you on
the law applicable to the case. The attorneys are then permitted closing arguments. Closing
arguments are not evidence and are permitted for the purpose – purposes of persuasion only.”
[Doc. 9-3 at 177; Doc. 9-7 at 80].
9
Jury Instruction No. 8 provided in part that “[y]ou should not let sympathy, sentiment or
prejudice enter into your deliberations, but should discharge your duties as jurors impartially,
conscientiously, and faithfully under your oaths and return such verdict as the evidence warrants
when measured by these instructions.” [Doc. 9-7 at 90]. “A jury is presumed to follow its
instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000).
10
“A prosecutor may comment on and draw reasonable inferences from evidence presented
at trial.” Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005). “Argument or evidence is
impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating
a personal belief in the witness’ credibility, either through explicit personal assurances of the
witness’ veracity or by implicitly indicating that information not presented to the jury supports
the witness’ testimony.” United States v. Magallanez, 408 F.3d 672, 680 (10th Cir. 2005)
(quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.1990)).
11
See United States v. Robinson, 978 F.2d 1554, 1567 (10th Cir. 1992); see also United
States v. Hernandez–Muniz, 170 F.3d 1007, 1012 (10th Cir.1999) (“We have not, however,
established that referring to testimony as a lie constitutes per se prosecutorial misconduct.”).
21

proceeding. The court agrees with the OCCA’s determination that Petitioner was not deprived of
a fair trial. Ground IV is denied.

Ground V: The trial court erred by failing to order a presentence investigation.
In Ground V, Petitioner requests a new trial, or resentencing, arguing that the trial court
erred by failing to order a presentence investigation. Petitioner directs the court’s attention to
another Oklahoma statute, 22 O.S.Supp.2002 § 982(A), claiming a presentence investigation
should have been conducted prior to sentencing, and there “is no record of any presentence
investigation (PSI) being ordered, conducted, or waived.” [Doc. 1 at 18]. Petitioner provides no
explanation as to how a presentence investigation would have affected the outcome of his
sentencing hearing. The OCCA found no merit in this claim:
Proposition Five argues that the trial court’s failure to order a pre-sentence
investigation requires remand for re-sentencing. Neither party requested an
investigation before sentencing, waiving all but plain error as defined above.
Section 982(A) of Title 22 provides that upon conviction of a violent felony
offense, the court “shall require a presentence investigation.” Section 982(E)
provides that the required report “may be waived upon written waiver by the district
attorney and the defendant” and approval by the court.
Though the failure to comply with the statutory requirement of a written waiver
was plainly in error, Appellant was sentenced by jury to life imprisonment; and he
has not shown that the failure to conduct a pre-sentence investigation seriously
affected the fairness, integrity, or public reputation of the outcome at formal
sentencing. See Spuehler v. State, 1985 OK CR 132, ¶ 15, 709 P.2d 202, 205
(finding pre-sentence investigation would have had no effect on trial court’s
pronouncement of life sentence imposed by jury). Proposition Five is denied.
Taylor, slip op. at 3-4. [Doc. 8-3 at 3-4].
Petitioner now states, without explanation, that the trial court’s error has compromised his
right to due process and equal protection under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution. This court is not persuaded. The Supreme Court has recognized that,
“. . . in noncapital cases, the established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes.” Lockett v. Ohio, 438 U.S.
586, 604-05 (1978). In other words, the Constitution does not require a presentence investigation
22

prior to sentencing in a noncapital case. See Adams v. Dugger, 850 F.2d 1495, 1500 (11th Cir.
1988); see also Goseland v. Shelton, 2002 WL 1880759 at *5 (D. Kan. Aug. 15, 2002). Moreover,
Petitioner has failed to demonstrate that the lack of a PSI has rendered his trial fundamentally
unfair. Petitioner’s request for federal habeas relief in Ground V is denied.

Ground VI: Petitioner was prejudiced by ineffective assistance of counsel.
Petitioner next claims he was denied the effective assistance of trial counsel. [Doc. 1 at
19-23]. First, Petitioner claims defense counsel “failed to inquire of, challenge for cause, or use
peremptory challenges to remove biased jurors.” Id. at 20. Petitioner points to statements made
by certain jurors during voir dire, suggesting the jurors were biased since they had experiences
with crimes similar to the one charged or preconceived notions about punishment for such a crime.
Id. at 20-21. Next, he argues defense counsel was ineffective for failing to object to “propensity
evidence through the testimony of R.S. during trial,” alleging that the evidence of “another
touching” in a trailer “should have raised an objection as the State did not disclose their intent to
offer this evidence 15 days prior to trial.” Id. at 22. Lastly, he claims counsel was ineffective for
failing to object to statements made by the prosecutor during closing arguments, arguing that the
State was attempting to invoke sympathy for R.S. by referring to the child as a “small, timid 7year-old girl,” that the State repeatedly called his wife “a liar,” and that the State vouched for R.S.
and had “indirectly” called Petitioner “a liar.” Id. Respondent alleges the OCCA’s decision
denying this claim was consistent with Supreme Court law and was not an unreasonable
determination of the facts. [Doc. 8 at 41].
In denying the Petitioner’s ineffectiveness of counsel claim, the OCCA concluded as
follows:
Appellant’s Proposition Six alleges he was denied the effective assistance of trial
counsel; specifically, by counsel’s failure to (1) inquire, challenge for cause, or use
peremptory challenges to remove biased jurors; and (2) to preserve Appellant’s
other claims of error by proper objections. Reviewing this claim according to the
deficient performance/prejudice standard set forth in Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 2064[,] 80 L.Ed.2d 674 (1984), no relief is
warranted. Counsel’s allegedly unreasonable omissions neither individually nor
cumulatively create a reasonable probability of a different outcome at trial.
23

Proposition Six is therefore denied. Phillips v. State, 1999 OK CR 38, ¶ 103, 989
P.2d 1017, 1043 (claim of ineffective counsel can be denied for lack of Strickland
prejudice).
Taylor, slip op. at 4. [Doc. 8-3 at 4].
The Sixth Amendment guarantees criminal defendants the effective assistance of counsel.
To prevail on his claim of ineffective assistance of counsel, the defendant must prove deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficiency, the defendant must overcome the strong presumption that counsel’s conduct fell within
the wide range of professional conduct, including trial strategy. Id. at 689. To prove prejudice,
the defendant must show “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 provided additional guidance regarding 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 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). The Court further
explained:
Surmounting Strickland’s high bar is never an easy task. An ineffective-assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very
adversary process the right to counsel is meant to serve. Even under de novo
review, the standard for judging counsel’s representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the relevant proceedings,
knew of materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is all too tempting to second-guess counsel's
24

assistance after conviction or adverse sentence. The question is whether an
attorney’s representation amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or most common custom.
Establishing that a state court’s application of Strickland was unreasonable under
§ 2254(d) is all the more difficult. The standards created by Strickland and
§ 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so. The Strickland standard is a general one, so the range of reasonable
applications is substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
See Richter, 562 U.S. at 105 (internal citations and quotation marks omitted).
Petitioner first claims defense counsel was ineffective for failing to “inquire of, challenge
for cause, or use peremptory challenges to remove biased jurors,” suggesting that certain jurors
could not impartially consider the evidence based upon statements made during voir dire. [Doc.
1 at 20]. The court has carefully reviewed the transcript and is not persuaded. [Doc. 9-3 at 4-173].
The jurors affirmed that they could be impartial, and most notably, Defendant has not shown that
any of the jurors “had such a fixed opinion that he or she could not judge impartially.” Hale v.
Gibson, 227 F.3d 1298, 1319 (10th Cir. 2000), cert. denied, 533 U.S. 957 (2001). Defendant has
advanced no evidence to suggest that further inquiry during voir dire would have shown certain
jurors were biased. And, like Hale, which involved a similar ineffective assistance of counsel
claim, the undersigned notes there was no unequivocal statement by any juror that they were firmly
convinced Defendant was guilty and could not set aside the opinion. Id. at 1320. In short,
Petitioner has not established a Strickland violation. He has failed to show that he was prejudiced
by defense counsel’s failure to inquire of, challenge for cause, or exercise a peremptory challenge
against, jurors who said they could be impartial.
Petitioner next claims counsel was ineffective for failing to object to the admission of
propensity evidence, or more particularly, R.S.’s testimony regarding the other touching in the
trailer. [Doc. 1 at 22]. Petitioner claims the evidence “should have raised an objection as the State
did not disclose their intent to offer this evidence 15 days prior to trial.” Id. As explained in
Ground III above, however, the State’s witness and exhibit list was filed on October 16, 2014,
eighteen (18) days before trial. [Doc. 9-7 at 48]. The discovery notice referenced the child’s
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testimony at the preliminary hearing and her statements during the forensic interview. Id. The
OCCA explained that certain evidence, such as testimony regarding acts of molestation at different
times and in different locations, is generally admissible to show propensity to commit the charged
offense, and the OCCA determined that Petitioner failed to show he had inadequate notice of the
propensity evidence or was prejudiced by the admission of the evidence. [Doc. 8-3 at 3]. The
OCCA further determined that no relief is warranted on the Strickland claim. Id. at 4.
To establish prejudice under Strickland, Petitioner “must show that 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.” Strickland, 466 U.S. at 694. In this case, the failure to object to the evidence of later
abuse at the trailer neither individually nor cumulatively created a reasonable probability of a
different outcome at trial. As noted in Ground III above, the child’s testimony about the
molestation in the Okemah house provided ample evidence from which the jury could convict
Petitioner. Petitioner has failed to demonstrate prejudice under the second prong of the Strickland
test.
Lastly, Petitioner claims counsel was ineffective for failing to object to allegations of
prosecutorial misconduct.

Petitioner is convinced that the State was attempting to invoke

sympathy for R.S. by referring to the child as a “small, timid 7-year-old girl.” [Doc. 1 at 22].
Petitioner also complains that “[d]efense counsel did not object when the State repeatedly called
Rachel Taylor a liar,” and that the “State’s vouching for R.S. and indirectly calling Mr. Taylor a
liar were also not met with an objection.” Id. As noted in Ground IV above, the OCCA found the
prosecutor’s “alleged misconduct did not render the trial fundamentally unfair, such that the jury’s
verdict is unreliable.” [Doc. 8-3 at 3]. And, in deciding Petitioner’s Strickland claim, the OCCA
found any omission did not “create a reasonable probability of a different outcome at trial.” Id.
at 4. This determination was not unreasonable.
Counsel’s failure to object to the prosecutor’s comments cannot be deemed prejudicial and
does not constitute ineffective assistance of counsel. Petitioner cannot establish any reasonable
probability that the outcome of his trial would have been any different if defense counsel would
have objected to the prosecutor’s comments. Petitioner is unable to satisfy the prejudice prong,
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and Respondent correctly points out that “inquiry into counsel’s deficient performance is not
necessary.” [Doc. 8 at 49]. “We need not analyze both the performance and prejudice prongs of
the Strickland test if defendant fails to make a sufficient showing of one.” United States v. Hollis,
552 F.3d 1191, 1194 (10th Cir. 2009) (internal quotation marks omitted).
After careful review, the court finds the OCCA’s decision on Petitioner’s claim of
ineffective assistance of counsel was not contrary to, or an unreasonable application of Strickland,
and 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). Ground VI is denied.

Ground VII: Cumulative errors deprived Petitioner of a fair trial.
In Ground VII, Petitioner vaguely alleges that the cumulative effect of the errors listed in
Grounds I through VI deprived him of a fair trial. [Doc. 1 at 23].
In response, Respondent argues that Petitioner is not entitled to habeas relief, noting that
“[i]nsofar as Respondent has countered every allegation of error made by Petitioner with argument
and citation of authority and has contended that none of these assignments of error warrant federal
relief, there has been no accumulation of error which would justify reversal.” [Doc. 8 at 50].
The OCCA also found no merit in this claim:
Proposition Seven argues that cumulative error deprived Appellant of a fair trial.
We found that any error in the trial court’s failure to state more particularly the
grounds for admitting child hearsay was harmless, and reached the same conclusion
concerning the absence of a written waiver of pre-sentence investigation. We
likewise conclude that these minor errors had no cumulative prejudicial effect
warranting relief. Proposition Seven is denied.
Taylor, slip op. at 5. [Doc. 8-3 at 5].
“A cumulative-error analysis merely aggregates all the errors that individually have found
to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the
outcome of the trial is such that collectively they can no longer be determined to be harmless.”
Hanson v. Sherrod, 797 F.3d 810, 852 (10th Cir. 2015) (quotation omitted). In the instant case,
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R.S. testified in detail about Petitioner molesting her in Okemah (where it happened, when it
happened, who was present, and the exact sleeping arrangements in the bedroom). The child’s
testimony was reinforced by the testimony of several witnesses, and provided ample evidence from
which the jury could convict Petitioner. Petitioner has failed to show that any errors identified in
Grounds I through VI, when considered in the aggregate, had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Petitioner has failed to show that the OCCA’s decision was contrary to, or an unreasonable
application of, clearly established federal law as determined by the Supreme Court, and the
decision did not result in an unreasonable determination of the facts in light of the state court
record. This ground for relief must be denied.

Ground VIII: Petitioner’s sentence is excessive.
Petitioner alleges in Ground VIII that his life sentence is excessive and should be modified.
[Doc. 1 at 24]. The OCCA denied relief on Petitioner’s claim, finding as follows:
Appellant’s Proposition Eight argues the life sentence is excessive. This Court has
consistently held that where the punishment is within the statutory limits, the
sentence will not be modified unless, under all the facts and circumstances, it is so
excessive as to shock the conscience of the Court. Maxwell v. State, 1989 OK CR
22, ¶ 12, 775 P.2d 818, 820. The sentence here does not shock the conscience.
Proposition Eight is denied.
Taylor, slip op. at 5. [Doc. 8-3 at 5].
The OCCA’s rejection of this claim was not an unreasonable application of federal law.
Petitioner’s sentence is not grossly disproportionate to the severity of the crime. See Ewing v.
California, 538 U.S. 11, 21 (2003). Moreover, he has not shown that his sentence falls outside the
state statutory limits. In Dennis v. Poppel, 222 F.3d 1245 (10th Cir. 2000), cert. denied, 534 U.S.
887 (2001), the Tenth Circuit provided the following guidance:
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
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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 F.2d 250, 255 (10th Cir.
1988).
Dennis, 222 F.3d at 1258. Here, Petitioner’s life sentence was within the statutory range of
permissible punishment under Oklahoma law. A conviction of sexual abuse of a child under
twelve (12) carries a maximum penalty of life imprisonment. 21 O.S.Supp.2011, § 843.5(F).
After careful consideration of the circumstances of this case, this court finds the OCCA’s
decision of this claim was not contrary to, or an unreasonable application of, Supreme Court law.
Therefore, this claim is denied.

Certificate of Appealability
The court further finds Petitioner has failed to make a “substantial showing of the denial
of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2). In addition, he has not
“demonstrate[d] that reasonable jurists would find [this] court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate
of appealability shall be denied.
ACCORDINGLY, Petitioner’s petition for a writ of habeas corpus [Doc. 1] is DENIED,
and a certificate of appealability is DENIED.
It is so ordered this 12th day of March, 2020.

__________________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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