Gray v. Byrant
OPINION AND ORDER by District Judge James H. Payne : Denying 11 petitioner's Motion to Amend and Motion to Supplement his petition for a Writ of Habeas Corpus. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DARVIN WAYNE GRAY,
JASON BRYANT, Warden,
No. CIV 16-482-JHP-KEW
OPINION AND ORDER
Petitioner, a pro se prisoner, has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction in Muskogee County District Court Case No.
CF-2011-951 for First Degree Rape by Instrumentation (Count 1), Forcible Oral Sodomy
(Count 2), and Lewd Molestation (Count 3). He subsequently filed a motion to amend and
to supplement his habeas corpus petition (Dkt. 11), which now is before the Court. He,
however, has failed to submit a proposed amended petition and a statement of the reasons for
requesting permission to file an amended petition, as required by Local Civil Rule 9.2(c).
Even if the motion had been properly submitted, Petitioner is attempting to raise
unexhausted claims of ineffective assistance of trial counsel and prosecutorial misconduct
which were not presented to the Oklahoma Court of Criminal Appeals (“OCCA”) on direct
appeal or in his first application for post-conviction relief. Respondent alleges Petitioner’s
proposed new claims would be procedurally barred if he attempted to raise them in another
state post-conviction action.
Petitioner alleges in his motion to amend that his trial counsel was ineffective, because
he failed to:
conduct an investigation regarding the timing of the crimes;
show pictures to the jury that demonstrated the alleged crimes did not occur
an area hidden from sight;
present evidence that the victim had no visible physical injuries;
challenge the victim’s testimony by presenting certain witnesses who claimed
the victim sent a text message stating she had lied about Petitioner;
present evidence that the victim had run away with her boyfriend;
present evidence that Petitioner was happily married with a three-year-old son
at the time of the crimes and that the Department of Human Services
investigated his home but did not remove his child;
present a witness to challenge the victim’s testimony about a fire, whether
police officers were present, and mandatory meetings at work.
Petitioner also wants to add a claim to his petition that the prosecutor fabricated
evidence and told the jury that the crime occurred in an exclusive area which was hidden
from sight. In addition, the prosecutor allegedly failed to properly investigate the crimes and
made a false statement that Petitioner was in charge of the victim’s money.
Petitioner alleges these additional claims were exhausted on direct appeal and through
post-conviction proceedings. While Petitioner did raise claims of ineffective assistance of
trial counsel and prosecutorial misconduct in his direct appeal, those claims differed from the
claims he now proposes to add to his habeas petition. In his direct appeal, Petitioner made
the following claims concerning the alleged ineffectiveness of trial counsel:
[C]ounsel failed to move that the State elect which acts it was relying upon for
the basis of conviction and failed to request appropriate corresponding
instruction of the jury with regard to how such evidence was to be considered.
Though he did object, in a delayed manner, to [the trial court’s failure to grant
a mistrial], Counsel then failed to appropriately object to the multiple instances
of prosecutorial misconduct which occurred.
(Petitioner’s direct appeal brief, Dkt. 8-1 at 31) (internal citations omitted).
Petitioner’s claims of prosecutorial misconduct in his direct appeal concerned
allegations that the prosecutor attempted “to align the jury with and elicit sympathy for the
victim” during opening statements and closing remarks. Id. at 25. The prosecutor also
allegedly expressed contempt for Petitioner and improperly commented on Petitioner’s
failure to testify. Id. at 27
In his first post-conviction application, Petitioner raised claims of ineffective
assistance of trial counsel which were not raised in his direct appeal. Because those claims
could have been raised on direct appeal, but were not, the claims were waived pursuant to
Okla. Stat. tit. 22, § 1086. Gray v. State, No. PC-2016-605 (Okla. Crim. App. Sept. 13,
2016) (Dkt. 8-5).
To satisfy the exhaustion requirement, a claim must be presented to the State’s highest
court through a direct appeal or a post-conviction proceeding. Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). However, if Petitioner were to return to
the state courts with his unexhausted claims, the claims would be barred. See Steele v.
Young, 11 F. 3d 1518, 1522 (10th Cir. 1993) (holding that OCCA has clearly indicated that
Okla. Stat. tit. 22, § 1086, strictly prohibits raising claims that could have been raised earlier).
Furthermore, the Tenth Circuit has held that a habeas petitioner’s failure to raise an
ineffective assistance of counsel claim until his second application for state post-conviction
relief precludes federal habeas corpus review of the claims, unless the petitioner shows either
cause and prejudice or a fundamental miscarriage of justice. Moore v. Reynolds, 153 F.3d
1086, 1097 (10th Cir. 1998).
“Cases involving a fundamental miscarriage of justice ‘are extraordinary instances
when a constitutional violation probably has caused the conviction of one innocent of the
crime.’” Gilbert v. Scott, 941 F.2d 1065, 1068 n.2 (10th Cir. 1991) (citing McClesky v. Zant,
499 U.S. 467, 494 (1991)). Here, the Court finds Petitioner has not shown cause and
prejudice or made a colorable showing of factual innocence. Petitioner’s request to amend
his petition is denied.
As for Petitioner’s request to supplement the record, habeas review under 28 U.S.C.
§ 2254 “is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Petitioner is not entitled to
supplement the record.
ACCORDINGLY, Petitioner’s motion to amend and to supplement his petition for
a writ of habeas corpus (Dkt. 11) is DENIED.
IT IS SO ORDERED this 12th day of March, 2018.
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