King v. Parker
Filing
24
OPINION AND ORDER by Judge James H Payne , denying certificate of appealability ; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (pll, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JEROME KING, SR.,
Petitioner,
vs.
DAVID PARKER, Warden,
Respondent.
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Case No. 09-CV-319-JHP-PJC
OPINION AND ORDER
Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by Petitioner
Jerome King, Sr., a state prisoner appearing pro se. Respondent filed a response to the petition (Dkt.
# 9), and provided the state court record necessary for resolution of Petitioner’s claims (Dkt. #s 9
and 10). Petitioner filed a reply (Dkt. # 14). For the reasons discussed below, the Court finds the
petition for writ of habeas corpus shall be denied.
BACKGROUND
On the evening of September 15, 2004, cousins T.W. and L.W. visited the home of Petitioner
who was the boyfriend of L.W.’s mother. Both girls were fifteen (15) years old. After they were
unable to make telephone contact with an aunt for a ride home, the girls stayed overnight. During
the course of the evening, Petitioner provided alcoholic drinks to the girls. When he was alone with
L.W., he felt her buttocks, kissed her and tried to put his tongue down her throat. Later, he carried
T.W. into his bedroom and had sexual intercourse with her against her will.
As a result of those events, Petitioner was arrested and charged with Second Degree Rape
(Count 1) and Lewd Molestation (Count 2), both After Former Conviction of Two or More Felonies,
in Tulsa County District Court, Case No. CF-2005-771. On October 16-19, 2006, Petitioner was
tried by a jury. At the conclusion trial, the jury found Petitioner not guilty of Count 2, but guilty of
Count 1, after two felony convictions, and recommended a sentence of thirty-two (32) years
imprisonment and $10,000 “restitution.” On November 2, 2006, the trial judge sentenced Petitioner
in accordance with the jury’s recommendation, but struck the portion of the verdict imposing
“restitution.” Petitioner was represented during trial by attorney Steven Vincent.
Petitioner perfected a direct appeal in the Oklahoma Court of Criminal Appeals (“OCCA”).
Represented by attorney Andreas T. Pitsiri, Petitioner raised the following propositions of error:
Proposition 1: Admission of other crimes evidence prejudiced the jury, deprived Mr. King
of his fundamental right to a fair trial and warrants reversal of his conviction
and sentence.
Proposition 2: Prosecutorial misconduct deprived Mr. King of a fair trial and constituted
fundamental error.
Proposition 3: Mr. King was prejudiced by ineffective assistance of counsel.
Proposition 4: Appellant’s sentence of thirty-two (32) years imprisonment is excessive,
should shock the conscience of this court and should be favorably modified.
Proposition 5: The cumulative effect of all these errors deprived Mr. King of a fair trial.
Proposition 6: This Court should remand Mr. King’s case to the District Court of Tulsa
County with instructions to correct the judgment and sentence by an order
nunc pro tunc.
See Dkt. # 19, Ex. 1. In an unpublished summary opinion filed January 22, 2008, in Case No. F2006-1213 (Dkt. # 19, Ex. 3), the OCCA affirmed the Judgment and Sentence of the trial court, but
remanded the case for correction of the Judgment and Sentence, nunc pro tunc, to reflect that
Petitioner had been convicted of Second Degree Rape in violation of Okla. Stat. tit. 21, § 1114
(2001).
2
On August 4, 2008, Petitioner, appearing pro se, filed an application for post-conviction
relief in the state district court claiming that he had been denied effective assistance of counsel. See
Dkt. # 19, Ex. 4. By order filed September 10, 2008, the state district court denied post-conviction
relief. See Dkt. # 19, Ex. 5, attached “Exhibit # A.” Petitioner appealed. By order filed January 12,
2009, in Case No. PC-2008-924, see Dkt. # 19, Ex. 6, the OCCA denied Petitioner’s motion to
supplement the record and affirmed the denial of post-conviction relief. The OCCA recognized the
following “primary allegations” of ineffective assistance of trial counsel: (1) trial counsel “ignored
Petitioner’s desire to waive a trial by jury in favor of a judge trial”; (2) trial counsel “refused to
discuss or entertain [Petitioner’s] defense to the charges”; (3) trial counsel “did no investigation
what-so-ever”; (4) trial counsel “did not subpoena certain defense witnesses for trial”; and (5) trial
counsel “did not adequately prepare Petitioner to testify at trial.” Id. The OCCA also discussed
Petitioner’s claim that his trial counsel suffered from a conflict of interest and that he did not learn
of the circumstances underlying the alleged conflict of interest until May of 2008. Id. However,
the OCCA barred the claim, finding that Petitioner’s allegations “fall far short of establishing that
the newly acquired information to which he refers constitutes ‘newly discovered evidence’ of the
type necessary for post-conviction relief.” Id. (footnote omitted).
On May 27, 2009, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1).
In his petition, Petitioner identifies four (4) grounds for relief, as follows:
Ground 1:
Denied counsel of choice in violation of the Sixth Amendment.
Ground 2:
Denied conflict-free assistance of counsel in violation of the Sixth
Amendment.
Ground 3:
Constructively denied the assistance of counsel inviolation of the Sixth
Amendment.
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Ground 4:
Denied the effective assistance of counsel in violation of the Sixth
Amendment.
1.
Petitioner’s counsel, Steven Vincent, did not make any investigation
concerning the facts of the case, nor did he make any inquiry upon
which to make a determination that no investigation was warranted.
2.
Defense counsel failed to even read the police reports concerning the
case.
3.
The police reports provided that the petitioner was in possession of
a gun at the time of the alleged criminal offense.
4.
As a direct result of having not read the police reports, defense
counsel elicited from the alleged victims that the petitioner had a gun,
during cross-examination.
5.
The state had elected not to elicit testimony regarding a gun prior to
the defense counsel harpooning his own client, the petitioner.
6.
The issue of the gun was the sole determining factor upon which the
jury decided to find the petitioner guilty, as reflected by their
unanswered “jury note.”
7.
Defense counsel never told or otherwise explained to the petitioner
what the “second page” meant.
8.
Defense counsel never prepared, nor discussed with petitioner that he
would be testifying in his own defense.
9.
As a direct result of having not been prepared to testify, petitioner
testified that he had prior felony convictions.
10.
As a direct result of having not been prepared to testify, petitioner
testified that he did have a gun on the night in question.
11.
The issue of the petitioner being a felon in possession of a gun was
the reason the jury found him guilty of one charge, but not the other.
12.
Defense counsel never moved to exclude the alleged DNA evidence
and testimony upon the extraordinarily low DNA match of “one in
thirty-nine million.”
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13.
Defense counsel did not insist that the “jury note” be answered in
open court as required by statute.
14.
Had defense counsel acted upon the “jury note” petitioner would
have had an opportunity to review the police statements from alleged
victim (L.W.) and then learned that their [sic] was no mention of a
gun.
15.
As a direct result of having not been prepared to testify, petitioner
gave inconsistent answers, due to confusion, which gave the
appearance that he was a liar.
16.
Had the petitioner been prepared to testify, he would not have been
convicted.
17.
Petitioner has diligently sought his transcripts, without success, in
order to provide specific instances to support these claims.
18.
Petitioner has diligently sought the police reports and other
discovery, without success, in order to support these claims.
19.
Petitioner’s trial attorney, Steven Vincent, refuses to provide
petitioner with a financial accounting, and the Bar Association
refuses to order him to provide a full accounting.
20.
At the time petitioner mailed his pro se motions to the Tulsa County
District Court Clerk, he also mailed copies to Steven Vincent.
21.
When Mr. Vincent received (2) two of the pro se motions, attached
hereto as Exhibits (1) and (2), he actually personally scoffed about
them to me, and assured me the judge would ignore them.
22.
When the judge called me to testify, Mr. Vincent never told me that
I didn’t have to. If I had known I had a choice, I would not have
testified.
See Dkt. # 1. As part of his petition, Petitioner also appends a one-page list of the six (6) claims
adjudicated by the OCCA on direct appeal. Id., attached list. However, he provides no factual
support for the claims and fails to explain how he is entitled to habeas corpus relief under 28 U.S.C.
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§ 2254(d) as to those claims. Id. In response to the petition, Respondent asserts that Petitioner’s
claims do not justify relief under 28 U.S.C. § 2254(d), or are procedurally barred. See Dkt. # 9.
ANALYSIS
A.
Exhaustion/Evidentiary Hearing
Before addressing the claims raised in the petition, the Court must determine whether
Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b) and (c). See Rose v. Lundy, 455
U.S. 509, 510 (1982). Respondent states that Petitioner has exhausted his state court remedies as
to “some of the grounds raised.” See Dkt. # 19, ¶ 4. Respondent further contends that some claims
of ineffective assistance of counsel have never been presented to the OCCA but that in light of the
procedural posture of this case, it would be futile to require Petitioner to return to state court to
exhaust the claims by filing a second application for post-conviction relief. The Court agrees and
finds that Petitioner has exhausted available state court remedies.
In addition, the Court finds that Petitioner is not entitled to an evidentiary hearing. See
Williams v. Taylor, 529 U.S. 420 (2000).
B.
Claims adjudicated by the OCCA
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides the standard to be
applied by federal courts reviewing constitutional claims brought by prisoners challenging state
convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain
federal habeas relief only if the state decision “was contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S.
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362, 402 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). When a state court
applies the correct federal law to deny relief, a federal habeas court may consider only whether the
state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S.
685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002).
1. Ineffective assistance of trial counsel
As part of his fourth ground of error, Petitioner asserts, as he did on direct appeal, that trial
counsel provided ineffective assistance during cross-examination of the victims when he elicited
from them that Petitioner was in possession of a gun on the night of the incident. In its summary
opinion affirming Petitioner’s conviction and sentence, the OCCA cited Strickland v. Washington,
466 U.S. 668 (1984), and ruled as follows:
Appellant first contends defense counsel improperly introduced other crimes
evidence when he cross-examined witnesses on whether they saw the defendant on
the night of the crime with a baseball bat, knife, or gun. Essentially, Appellant
argues that there was no apparent benefit in mentioning the gun and that any
associated prejudice of its mention caused the jury to impose a more severe
punishment. Counsels’ decision to mention the gun is evident from review of the
record. Appellant’s sub-proposition is without merit.
(Dkt. # 19, Ex. 3 at 6-7 (footnotes omitted)). In footnote 6 of the summary opinion, the OCCA
described trial counsel’s strategic attempts to discredit the victims’ credibility and to demonstrate
that the victims did not fear being shot if they did not assent to Petitioner’s advances. Id. at 7 n.6.
To be entitled to habeas corpus relief on his claim of ineffective assistance of counsel,
Petitioner must demonstrate that the OCCA’s unreasonably applied Strickland. Under Strickland,
a defendant must show that his counsel’s performance was deficient and that the deficient
performance was prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328
(10th Cir. 1993). A defendant can establish the first prong by showing that counsel performed below
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the level expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at
687-88. There is a “strong presumption that counsel’s conduct falls within the range of reasonable
professional assistance.” Id. at 688. In making this determination, a court must “judge . . . [a]
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690. Moreover, review of counsel’s performance must be highly deferential. “[I]t
is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.” Id. at 689. Counsel’s performance
must be “completely unreasonable” to be constitutionally ineffective, “not merely wrong.” Hoxsie
v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997). To establish the second prong, a defendant must
show that this deficient performance prejudiced the defense, to the extent 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.” Id. at 694; see also Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v.
Ward, 179 F.3d 904, 914 (10th Cir. 1999).
Based on the trial record, the Court finds Petitioner has failed to satisfy the deficient
performance prong of the Strickland standard. Defense counsel’s efforts to discredit the victims’
credibility was within the realm of sound trial strategy in the face of overwhelming evidence of
Petitioner’s guilt.1 The trial transcripts reflect that L.W. mentioned the gun in her written statement
1
The jury heard the testimony of the victims, T.W. and L.W., their aunt, Tameka Johnson, the
SANE nurse examiner, Deborah Edgmon, the Tulsa police officers involved in the case, and
the forensic scientists responsible for testing the physical evidence, including DNA
evidence. The victims’ testimony was strong and consistent. See Dkt. # 10-10, Tr. Trans.
at 21-86; 10-7, Tr. Trans. at 329-401; 10-8, Tr. Trans. at 402-412. The SANE nurse testified
that she observed a small tear in T.W.’s posterior fourchette and that the tear was consistent
with the history provided by T.W. Id. at 443, 452, 470. She also observed “lots of white
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to police. See Dkt. # 10-10, Tr. Trans. at 80. Trial counsel’s questioning of the victims about the
gun may have been an attempt to divert the jury’s attention from the gun evidence by broaching the
subject first and attempting to use the victims’ testimony to establish that Petitioner did not threaten
them with the gun or other weapons. Petitioner has failed to demonstrate that the OCCA’s
adjudication of this claim was contrary to, or an unreasonable application of federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d). He is not entitled to habeas corpus relief
on this claim.
2. Appended list of direct appeal claims
The Court recognizes that Petitioner attaches to his petition a list of the claims raised on
direct appeal. However, he provides no factual support for the claims and makes no effort to explain
how he is entitled to relief under § 2254(d). Although the Court is obligated to construe Petitioner’s
pro se petition liberally, the Court is not required to craft Petitioner’s arguments for him where his
allegations are merely conclusory and without factual averments. United States v. Fisher, 38 F.3d
1144, 1147 (10th Cir. 1994) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
Petitioner has offered no argument suggesting that the OCCA’s adjudication of these claims was
“contrary to, or involved an unreasonable application of, clearly established Federal law as
fluid” consistent with semen in T.W.’s vaginal vault. Id. at 450. Valerie Fuller, the DNA
analyst, testified that she compared DNA obtained from T.W.’s vaginal swabs to DNA
obtained from buccal swabs taken from Petitioner. Id. at 486-87. Based on that comparison,
Petitioner could not be excluded as the contributor of DNA obtained from the vaginal swabs.
In addition, she testified that Fraction “B,” containing DNA from sperm heads, generated
results indicating that the probability of selecting an individual at random who could
contribute the DNA profile was 1 in 39,000,000 African Americans. Id. at 488, 490.
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determined by the Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d). Petitioner’s
request for habeas corpus relief based on the list of claims raised on direct appeal shall be denied.
C. Procedural bar
The remainder of Petitioner’s habeas claims are allegations of ineffective assistance of trial
counsel. See Dkt. # 1. Grounds 1, 2, and 3, and parts of Ground 4 were first raised on postconviction appeal, see Dkt. # 9, Ex. 5. Some of the claims raised in Ground 4 have never been
presented to the OCCA and are unexhausted. See, e.g., Dkt. # 1, Ground 4, separately numbered
paragraphs 12, 19, 20, 21. In affirming the denial of post-conviction relief, the OCCA declined to
consider the claims as a result of Petitioner’s failure to raise the claims on direct appeal. See Dkt.
# 17, Ex. 9. The OCCA specifically determined that Petitioner had failed to set forth sufficient
reason for his failure to raise the claims on direct appeal. As to Petitioner’s claim based on an
alleged conflict of interest, the OCCA rejected Petitioner’s argument that he could not have raised
the claim on direct appeal because it was based on “newly discovered evidence,” finding that
Petitioner had failed to demonstrate that “his alleged new evidence, either prior to trial or prior to
his direct appeal, was undiscoverable with the use of due diligence.” See Dkt. # 9, Ex. 6 at 4. The
record also reflects that as part of his post-conviction appeal, Petitioner filed a “motion to
supplement record” with information concerning “the ineffectiveness of Petitioner’s appellate
attorney.” Id. However, the OCCA denied Petitioner’s “motion to supplement record” because the
application for post-conviction relief filed in the state district court did not present a claim of
ineffective assistance of appellate counsel. Id.
The doctrine of procedural default prohibits a federal court from considering a specific
habeas claim where the state’s highest court has declined or would decline to reach the merits of that
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claim on independent and adequate state procedural grounds, unless petitioner can “demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 724 (1991); see also Matthews v. Workman, 577 F.3d 1175,
1195 (10th Cir. 2009); Maes, 46 F.3d at 985; Gilbert v. Scott, 941 F.2d 1065, 1067-68 (10th Cir.
1991). “A state court finding of procedural default is independent if it is separate and distinct from
federal law.” Maes, 46 F.3d at 985. A finding of procedural default is an adequate state ground if
it has been applied evenhandedly “‘in the vast majority of cases.’” Id. (quoting Andrews v. Deland,
943 F.2d 1162, 1190 (10th Cir. 1991)).
In this case, the OCCA imposed a procedural bar on Petitioner’s post-conviction claims. See
Dkt. # 17, Ex. 9. Citing state law, the OCCA determined that Petitioner had failed to present
“sufficient reason” for his failure to raise the claims adequately on direct appeal. Id. at 3. The
OCCA’s procedural bar, based on Petitioner’s failure to raise the claims on direct appeal is an
“independent” state ground because state law provided “the exclusive basis for the state court’s
holding.” Maes, 46 F.3d at 985.
As to the adequacy of the procedural bar imposed by the OCCA, the Tenth Circuit Court of
Appeals has recognized that countervailing concerns may justify an exception to the general rule of
procedural default. Brecheen v. Reynolds, 41 F.3d 1343, 1363 (10th Cir. 1994) (citing Kimmelman
v. Morrison, 477 U.S. 365 (1986)). The unique concerns are “dictated by the interplay of two
factors: the need for additional fact-finding, along with the need to permit the petitioner to consult
with separate counsel on appeal in order to obtain an objective assessment as to trial counsel’s
performance.” Id. at 1364 (citing Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir. 1988)). In
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English v. Cody, 146 F.3d 1257 (10th Cir. 1998), the Tenth Circuit held that “the Oklahoma bar will
apply in those limited cases meeting the following two conditions: trial and appellate counsel differ;
and the ineffectiveness claim can be resolved upon the trial record alone. All other ineffectiveness
claims are procedurally barred only if Oklahoma’s special appellate remand rule for ineffectiveness
claims is adequately and evenhandedly applied.” Id. at 1264 (citation omitted).
After reviewing the record in this case in light of the factors identified in English, the Court
finds that the procedural bar imposed by the OCCA on Petitioner’s ineffective assistance of trial
counsel claims is adequate to preclude federal habeas review. Petitioner was represented at trial by
attorney Steven Vincent. On direct appeal, Petitioner was represented by attorney Andreas Pitsiri.
For purposes of the first requirement identified in English, the Court finds that Petitioner had the
opportunity to confer with separate counsel during trial proceedings and on direct appeal.
The second English factor requires that the claim could have been resolved either “upon the
trial record alone” or after adequately developing a factual record through some other procedural
mechanism. Id. at 1263-64. Even if Petitioner’s defaulted claims could not all be resolved on the
record alone, he has failed to allege with specificity how the Oklahoma remand procedure provided
by Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, was inadequate to allow him to
supplement the record on his ineffective assistance of counsel claims. See Hooks v. Ward, 184 F.3d
1206, 1217 (10th Cir. 1999) (once the state pleads the affirmative defense of an independent and
adequate state procedural bar, the burden shifts to the petitioner to make specific allegations as to
the inadequacy of the state procedure). Petitioner filed a reply to Respondent’s response and did not
challenge the adequacy of the remand procedure provided by Rule 3.11. As a result, he has failed
to carry his burden of demonstrating that Oklahoma’s procedural bar is inadequate and his claims
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of ineffective assistance of trial counsel as raised in his post-conviction proceedings are procedurally
barred.
As to Petitioner’s unexhausted claims of ineffective assistance of counsel, an “anticipatory
procedural bar” may be applied to deny an unexhausted claim that would be procedurally barred
under state law if the petitioner returned to state court to exhaust it. Anderson v. Sirmons, 476 F.3d
1131, 1139-40 n.7 (10th Cir. 2007). As stated above, several of Petitioner’s claims of ineffective
assistance of trial counsel have not been presented to the OCCA, either on direct or post-conviction
appeal. As a result, if Petitioner were required to pursue a second application for post-conviction
relief, the OCCA would undoubtedly apply a procedural bar, based on petitioner’s failure to raise
these grounds on direct appeal or in his first application for post-conviction relief. That bar would
be an “independent” state ground because state law provides “the exclusive basis for the state court’s
holding.” Maes, 46 F.3d at 985. Next, as to the adequacy of the anticipatory procedural bar
applicable to petitioner’s claims of ineffective assistance of trial counsel, the Tenth Circuit Court
of Appeals has recognized that a procedural bar imposed on a claim brought in a second application
for post-conviction relief that could have been but was not raised in a previous application is
adequate to bar habeas review of ineffective assistance of counsel claims. Smallwood v. Gibson,
191 F.3d 1257, 1268 (10th Cir. 1999) (citing Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir.
1998)). Thus, Petitioner’s multiple defaults of his unexhausted claims of ineffective assistance of
trial counsel would result in imposition of a procedural bar adequate to preclude federal review.
This Court may not consider Petitioner’s procedurally barred claims unless he is able to show
“cause and prejudice” for the defaults, or demonstrate that a fundamental miscarriage of justice
would result if his claim is not considered. See Coleman, 501 U.S. at 750; Demarest v. Price, 130
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F.3d 922, 941-42 (10th Cir. 1997). The cause standard requires a petitioner to “show that some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of such external factors
include the discovery of new evidence, a change in the law, and interference by state officials. Id.
As for prejudice, a petitioner must show “‘actual prejudice’ resulting from the errors of which he
complains.” United States v. Frady, 456 U.S. 152, 168 (1982). A “fundamental miscarriage of
justice” instead requires a petitioner to demonstrate that he is “actually innocent” of the crime of
which he was convicted. McCleskey v. Zant, 499 U.S. 467, 494 (1991).
In his reply (Dkt. # 14), Petitioner does not attempt to demonstrate “cause” for his failure to
raise his defaulted claims on direct appeal. Instead, he argues that because this Court “is not bound
by any AEDPA deference,” it may issue the writ of habeas corpus on his defaulted claims of
ineffective assistance of trial counsel as raised in grounds 1, 3, and 4. See Dkt. # 14 at 3. Petitioner
is correct that under the AEDPA, a state court’s adjudication of a constitutional claim is entitled to
deference. However, the OCCA did not adjudicate the merits of the claims of ineffective assistance
of trial counsel as raised on post-conviction appeal. Instead, the OCCA imposed a procedural bar
based on Petitioner’s failure to raise the claims on direct appeal. As a result, this Court is precluded
from considering the claims unless Petitioner is able to overcome the procedural bar.
In his motion for evidentiary hearing (Dkt. # 6), Petitioner anticipates Respondent’s assertion
of a procedural bar defense and attempts to demonstrate “cause” by arguing that because his “motion
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to dismiss attorney of record” was never filed in his criminal case,2 Tulsa County District Court,
Case No. CF-2005-771, his appellate counsel had no way of knowing that Petitioner was dissatisfied
with his trial counsel. Petitioner’s argument overlooks the fact that Petitioner himself could have
informed appellate counsel of any allegation of ineffective assistance of trial counsel that is not
contained in the trial record. The Court finds the argument contained in the motion for evidentiary
hearing is insufficient to serve as “cause” to overcome the procedural bar.
Petitioner may also overcome the procedural bar applicable to his defaulted claims under the
fundamental miscarriage of justice exception. That exception is applicable only when a petitioner
asserts a claim of actual innocence. Herrera v. Collins, 506 U.S. 390, 403-04 (1993); Sawyer v.
Whitley, 505 U.S. 333, 339-41 (1992); see also Schlup v. Delo, 513 U.S. 298 (1995). To meet this
test, a criminal defendant must make a colorable showing of factual innocence. Beavers v. Saffle,
216 F.3d 918, 923 (10th Cir. 2000) (citing Herrera, 506 U.S. at 404). In this habeas corpus action,
Petitioner does not claim to be actually innocent.3 Therefore, he does not fall within the
“fundamental miscarriage of justice” exception to the doctrine of procedural bar.
2
The Court has reviewed the docket sheet for Tulsa County District Court, Case No. CF2005-771. See www.oscn.net. Contrary to Petitioner’s allegations, the docket sheet shows
that a “pro se motion to dismiss” was filed of record on October 27, 2005, and withdrawn
at a motion hearing held February 2, 2006. In addition, the record reflects that Petitioner’s
“motion for defendant to be granted permission to act as his own co-counsel” was filed on
December 20, 2005, or prior to the motion hearing held February 2, 2006. Id.
3
In his application for post-conviction relief, Petitioner asserted that he was the victim of a
scheme devised by his daughter, K.K., who “enlisted the alleged victims, T.W. and L.W.,
to rob and humiliate him.” See Dkt. # 9, Ex. 4 at 8. He claimed that while he was asleep in
his bedroom, the alleged victims were engaging in “multiple acts of sexual intercourse with
other persons, including caucasians.” Id. He further claimed that “at some point, T.W.
realized that the petitioner was essentially ‘passed out,’ [and] she, being unsatiated, chose
to commit the felony offense of rape upon the petitioner who was not conscious of what she
was doing.” Id. at 9. Petitioner does not repeat those claims in his habeas petition.
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Accordingly, because Petitioner has not demonstrated “cause and prejudice” or that a
“fundamental miscarriage of justice” will result if his claims are not considered, the Court concludes
that the defaulted claims of ineffective assistance of counsel are procedurally barred. Coleman, 510
U.S. at 724. Petitioner is not entitled to habeas corpus relief on those claims.
D. Certificate of appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right,” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In
addition, when the Court’s ruling is based on procedural grounds, a petitioner must demonstrate that
“jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484.
In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Tenth Circuit would find that this Court’s application of deference to the decision
by the Oklahoma Court of Criminal Appeals was debatable amongst jurists of reason. See Dockins
v. Hines, 374 F.3d 935 (10th Cir. 2004). In addition, nothing suggests that the Court’s ruling
resulting in the denial of certain claims on procedural grounds was debatable or incorrect. The
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record is devoid of any authority suggesting that the Tenth Circuit Court of Appeals would resolve
the issues in this case differently. A certificate of appealability shall be denied.
CONCLUSION
After careful review of the record in this case, the Court concludes that Petitioner has not
established that he is in custody in violation of the Constitution or laws of the United States.
Therefore, his petition for writ of habeas corpus shall be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
The petition for writ of habeas corpus (Dkt. # 1) is denied.
2.
A separate judgment shall be entered in this matter.
3.
The Clerk of Court shall send a copy of this Opinion and Order to the Tenth Circuit Court
of Appeals as it relates to Tenth Circuit Case No. 11-5067.
4.
A certificate of appealability is denied.
DATED this 25th day of May, 2011.
17
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