Thompson v. Province
Filing
16
OPINION AND ORDER by Judge Terence Kern ; denying certificate of appealability; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WILFORD CARL THOMPSON, JR.,
Petitioner,
vs.
TERRY MARTIN, Warden,1
Respondent.
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Case No. 10-CV-738-TCK-TLW
OPINION AND ORDER
Before the Court is the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1), filed
by Petitioner Wilford Carl Thompson, Jr., a state prisoner appearing pro se. Respondent filed a
response (Dkt. # 5) and a supplement (Dkt. # 12), as well as the state court records (Dkt. ## 7, 8)
necessary for the adjudication of Petitioner’s claims. Petitioner filed a reply (Dkt. # 9) and a
supplemental reply (Dkt. # 14). For the reasons discussed below, the petition for writ of habeas
corpus shall be denied.
BACKGROUND
Petitioner challenges his convictions of First Degree Murder, Possession of a Stolen Vehicle,
and First Degree Burglary entered in Tulsa County District Court, Case No. CF-2005-4330. In
adjudicating Petitioner’s direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)
summarized the facts giving rise to Petitioner’s convictions. Pursuant to 28 U.S.C. § 2254(e)(1),
the historical facts found by a state court are presumed correct unless the applicant rebuts the
1
Petitioner is currently incarcerated at Dick Conner Correctional Center in Hominy,
Oklahoma. The proper respondent in this case is Terry Martin, Warden. See Rule 2, Rules
Governing Section 2254 Cases. For that reason, the Court Clerk shall be directed to substitute Terry
Martin, Warden, in place of Greg Province as party respondent in this matter.
presumption by clear and convincing evidence. Following review of the trial transcripts and other
materials submitted by the parties, the Court finds the summary by the OCCA, as set forth below,
is adequate and accurate. Therefore, the Court adopts this summary as its own. Additional facts,
apparent from the record, may be presented throughout this opinion as they become pertinent to the
Court’s analysis.
On September 13, 2005, 86-year-old Georgia Reeves Sherman was found
dead in her home in Tulsa, Oklahoma. Bythelda Drake, a relative, had been trying
repeatedly to reach Mrs. Sherman since the end of August. On September 13, she
called the police.
When Officer Steven Sanders arrived that evening, he walked around the
Sherman house knocking on doors and peering in windows, unable to rouse anyone
inside. He discovered an open window with its screen removed, but was unable to
climb through it because debris blocked his entry. When he smelled what he believed
to be decomposing human remains, police officers forced entry into the house.
Paramedics found Mrs. Sherman’s body, in an advanced state of decay, in her
bedroom.
At trial the medical examiner estimated she had been dead for approximately
two weeks before her body was found. The autopsy found Mrs. Sherman had
sustained multiple severe linear skull fractures and a broken mandible. The medical
examiner, with the help of a forensic anthropologist, reconstructed Sherman’s skull
from its broken pieces and ruled that blunt force trauma was the cause of her death.
The testimony at Thompson’s murder trial showed that one day near the end
of August, Mrs. Sherman ran from her house to her neighbors, the Scotts, across the
street. She was frightened and told Mrs. Scott a strange man was following her.
When Thompson approached the neighbors’ house, Mrs. Sherman pointed to him
and insisted she didn’t know who he was. Thompson responded that she did know
him; he was a relative of hers. Mrs. Scott and her grandson, Ferris Vickers, told
Thompson to leave because Mrs. Sherman was afraid of him. Thompson walked
away, and Mrs. Sherman went home.
Mrs. Scott remembered seeing Mrs. Sherman’s red Chevy Malibu in the
driveway that day as she watched her walk back across the street. She never saw the
car again. Several witnesses testified that for a period of several weeks beginning
near the end of August they saw Thompson driving a red Chevy Malibu, the same
make, model and color as Mrs. Sherman’s car.
On September 20, 2005, Tulsa police officers found Sherman’s missing car
at an abandoned house near Thompson’s home. While the license plates did not
match, police confirmed that the vehicle belonged to Sherman through the vehicle
identification number. Police executed a search warrant at Thompson’s home and
found Thompson hiding in a car in the garage. During an interview following his
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arrest he admitted that he had been driving Sherman’s car for two weeks and that he
had switched the license plates. Thompson denied stealing the car or killing
Sherman, however. He offered the explanation that he had been given the car by a
friend in order to make a drug delivery.
(Dkt. # 5-3).
The record reflects that Petitioner was charged by Third Amended Felony Information with
Murder - First Degree and/or in the alternative Felony Murder (Count I), Possession of a Stolen
Vehicle (Count II), and Burglary - First Degree (Count III). (Dkt. # 7-10, O.R. at 2). A jury found
Petitioner guilty of both Murder - First Degree and Felony Murder (Count I), and guilty of Counts
II and III. See Dkt. # 7-8, Tr. Vol. V at 980-81. The jury recommended a sentence of life
imprisonment without parole for Count I and life imprisonment for each of Counts II and III. Id.
The trial court sentenced Petitioner in accordance with the jury’s recommendation, advising
Petitioner that First Degree Burglary “is an 85% crime,” and ordering the sentences to be served
consecutively. See Dkt. # 7-9, Tr. Sentencing at 7-8. At trial, Petitioner was represented by
Assistant Public Defender David Phillips.
Petitioner, represented by Assistant Public Defender Curtis M. Allen, appealed to the OCCA.
He raised three (3) propositions of error:
Proposition I:
The trial court failed in its duty to instruct the jury on the lesser
related offenses of second degree murder, and in the alternative,
second degree felony murder and first degree heat of passion
manslaughter, which were supported by the evidence, even absent a
request from Appellant.
Proposition II:
The trial court erred in permitting the State to introduce evidence of
prior convictions in a sentencing proceeding for first degree malice
murder and first degree felony murder.
Proposition III:
It was error to deny defense counsel’s request to provide the jury with
an instruction defining “reasonable doubt.”
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(Dkt. # 5-1). On July 24, 2009, in an unpublished opinion, the OCCA affirmed the judgment and
sentence on Counts II and III, but modified the sentence for Count I from life imprisonment without
the possibility of parole to life imprisonment with the possibility of parole “[b]ecause Thompson’s
jury was erroneously instructed to consider prejudicial information in the form of prior convictions
in reaching a sentence for the count of First Degree Murder.” (Dkt. # 5-3 at 9).
On April 8, 2010, Petitioner filed an application for post-conviction relief in the trial court.
(Dkt. # 5-6). Petitioner raised four (4) propositions of error:
Proposition I:
As a result of petitioner’s appellate counsel[‘s] failure to raise trial
counsel’s failure to examine readily mitigating records and argue the
issue of legal insufficiency of evidence presented by prosecution at
petitioner’s trial, petitioner received ineffective assistance of counsel
at his trial and on his direct appeal and appellate counsel rebutted
petitioner’s request that this crucial evidence be brought forward on
his direct appeal. Ratliff v. U.S., 999 F.2d 1023, 1026 (6th Cir.
1993).
Proposition II:
As a result of appellate counsel’s failure to investigate and argue
readily available mitigating records that indicated the ineffectiveness
of trial counsel who failed to argue the illegal arrest of petitioner
which brought forth an illegally obtained “statement,” which was
called a “confession,” petitioner received ineffective assistance of
trial counsel at his trial and appellate counsel on his direct appeal.
Proposition III:
As a result of appellate counsel and trial counsel’s failure to raise
issue of prosecutorial misconduct at petitioner’s trial and on his direct
appeal, petitioner received ineffective assistance of counsel.
Proposition IV:
The cumulative effective of errors discussed above requires the
reversal of my conviction and/or an evidentiary hearing and granting
of a new trial.
(Dkt. # 5-6). On May 19, 2010, the trial court denied Petitioner’s application for post-conviction
relief. (Dkt. # 5-8). The court found that “Petitioner’s trial counsel acted as a reasonably competent
attorney under the facts and circumstances of this case.” Id. at 4. It also found that “Petitioner’s
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appellate counsel carefully selected legal issues to be raised on appeal” and that “Petitioner’s
allegations of error fail to establish that the results of petitioner’s direct appeal or the jury verdict
of guilt beyond a reasonable doubt would have been changed.” Id. at 5. The OCCA affirmed the
district court. (Dkt. # 5-11 at 2).
On November 19, 2010, Petitioner timely filed his petition for a writ of habeas corpus. He
raises seven (7) grounds of error, the same raised on direct appeal and in his application for postconviction relief. See Dkt. # 1. Grounds I - III are those raised on direct appeal and Ground IV VII are those raised in his application for post-conviction relief. Respondent argues that Ground I
is a matter of state law; Ground II is a matter of state law, but is also moot because the OCCA
reduced Petitioner’s sentence to the minimum under the statute; Grounds IV - VII are procedurally
barred from review or, in the alternative, have no merit; and the OCCA’s decision on Ground III is
not contrary to or an unreasonable application of federal law as determined by the Supreme Court.
(Dkt. # 5). Respondent also argues, in the alternative, that Grounds IV - VII fail on the merits. Id.
at 21.
ANALYSIS
A.
Exhaustion/Evidentiary hearing
As an initial matter, the Court must determine whether Petitioner meets the exhaustion
requirements of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner
presented his claims to the OCCA on direct appeal and post-conviction appeal. However, in
response to Ground II, Respondent argues, “[t]o the extent that the petitioner now claims that the
OCCA should have reversed his conviction for First Degree Murder due to a sentencing error that
occurred in the second stage of trial, the petitioner’s claim is technically unexhausted and
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procedurally barred.” (Dkt. # 5 at 9). However, Respondent concedes that the Court “can forego
the more complicated issue of procedural bar and deny the petitioner’s claim on the merits since it
raises only an issue of state law, and it is moot.” Id. at 10. Petitioner claims he has exhausted his
state court remedies. (Dkt. # 9 at 1).
It is clear that, in light of the procedural posture to this case, it would be futile to require the
Petitioner to return to state court as the OCCA would impose a procedural bar on any claim first
raised in another application for post-conviction relief. Therefore, the Court finds that the
exhaustion requirement of 28 U.S.C. § 2254(b) is satisfied in this case.
In addition, the Court finds that an evidentiary hearing is not warranted as Petitioner has not
met his burden of proving entitlement to an evidentiary hearing. See Williams v. Taylor, 529 U.S.
420 (2000); Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998).
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 court 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.
362, 386 (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.
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685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002). “When a federal claim
has been presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011).
Generally, a federal habeas court has no authority to review a state court’s interpretation or
application of its own state laws. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (emphasizing that
it is not the province of a federal habeas court to reexamine state court determinations on state law
questions). When conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States. Id. at 68 (citing 28 U.S.C.
§ 2241; Rose v. Hodges, 423 U.S. 19, 21 (1975)).
1.
Jury instructions for lesser included offenses (Ground I)
In Ground I, Petitioner complains that the trial court failed to give jury instructions for
second degree murder, second degree felony murder, and first degree heat of passion manslaughter.
(Dkt. # 1 at 3). He argues that the OCCA’s “decision to deny petitioner relief was based on an
erroneous determination of the facts of the case.” Id. at 4. Petitioner also argues, as he did on direct
appeal, that “[i]t is the trial court’s duty to instruct the jury on all lesser related offenses that are
supported by the evidence, even absent a request from a defendant.” (Dkt. # 5-1 at 10 (citing Shrum
v. State, 991 P.2d 1032, 1034 (Okla. Crim. App. 1999))). The OCCA reviewed Petitioner’s claim
under a plain error standard. (Dkt. # 5-3 at 3). The court examined the elements of all three of the
requested lesser included offenses and concluded that the evidence in Petitioner’s case did not
warrant any of the three jury instructions. Id. at 4-7. Respondent argues this is a state law matter
and is not subject to federal habeas corpus review. (Dkt. # 5 at 6).
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“As a general rule, errors in jury instructions in a state criminal trial are not reviewable in
federal habeas corpus proceedings, ‘unless they are so fundamentally unfair as to deprive petitioner
of a fair trial and to due process of law.’” Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir.
1997) (quoting Long v. Smith, 663 F.2d 18, 23 (6th Cir. 1981) (citing Henderson v. Kibbe, 431 U.S.
145, 154 (1977))); see also Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995) (“A state conviction
may only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the
errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair
trial.”). “An omission or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.” Maes, 46 F.3d at 984 (citations omitted).
Of particular importance to this case, however, “a petitioner in a non-capital case is not
entitled to habeas relief for the failure to give a lesser-included offense instruction, ‘even if in our
view there was sufficient evidence to warrant the giving of an instruction on a lesser included
offense.’” Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (quoting Chavez v. Kerby, 848 F.2d
1101, 1103 (10th Cir. 1988)); see also Hicks v. Jones, 350 F. App’x 199, 202 (10th Cir. 2009)
(unpublished).2 Tenth Circuit precedent establishes a rule of “automatic non-reviewability” for
claims based on a state court’s failure, in a non-capital case, to give a lesser included offense
instruction. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (stating that neither the Tenth
Circuit nor the United States Supreme Court has ever recognized a federal constitutional right to a
lesser included offense instruction in non-capital cases). Accordingly, Petitioner’s claim for habeas
relief shall be denied on Ground I.
2
This and any other unpublished court decision is cited as persuasive authority, pursuant to
Tenth Circuit Rule 32.1.
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2.
Sentencing error (Ground II)
In Ground II, Petitioner claims the trial court erred when it allowed evidence of Petitioner’s
prior convictions in the sentencing proceeding for first degree murder. (Dkt. # 1 at 5). He also
claims that the OCCA’s “decision to only modify Petitioner’s sentence from Life Without Parole
to Life with the Possibility of Parole was contrary to the controlling authority, as the OCCA should
have reversed the conviction and remanded the case for a new trial, or dismissal.” Id. Respondent
argues that this particular claim is unexhausted, but nevertheless is without merit and is a matter of
state law. (Dkt. # 5 at 9-10). The Court concluded, in Part A above, that this claim is exhausted for
purposes of § 2254(b).
Petitioner was charged with Murder in the First Degree and/or in the alternative Felony
Murder while engaged in the commission of First Degree Burglary, Possession of a Stolen Vehicle,
and First Degree Burglary. (Dkt. # 7-11, O.R. at 186-88). The jury found him guilty of Murder in
the First Degree, Felony Murder, Possession of a Stolen Vehicle, and First Degree Burglary. Id. at
179-181. Sentencing options for the murder conviction were life or life without the possibility of
parole. See Okla. Stat. tit. 21, § 701.9. Because he had two or more prior felony convictions,
Petitioner faced up to a life term of imprisonment for each of Counts II and III.3 (Dkt. # 7-11, O.R.
at 229-235). At sentencing, the State elected to have Petitioner sentenced on the First Degree
Murder conviction, see Dkt. # 7-9, Tr. Sentencing at 4, and Petitioner was sentenced to life without
parole for that conviction, and to life for each count of Possession of a Stolen Vehicle and First
Degree Burglary, id. at 7-8. On direct appeal, Petitioner requested a modification of punishment for
3
Petitioner had four previous felony convictions: Possession of Stolen Vehicle, Robbery with
Firearm(s), Kidnapping, and Robbery with Firearm(s). (Dkt. # 7-11, O.R. at 229-235).
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First Degree Malice Murder and First Degree Felony Murder. (Dkt. # 5-1 at 14). He “pray[ed] that
[the OCCA] affirm only so much sentence as Count One as [sic] provides for life imprisonment.”
(Dkt. # 5-1 at 16). The OCCA granted Petitioner’s requested relief. (Dkt. # 5-3 at 9).
Sentencing issues are state law questions. A habeas court affords “wide discretion to the
state trial court’s sentencing decision, and challenges to the decision are not generally
constitutionally cognizable, unless it is shown that the sentence imposed is outside the statutory
limits or unauthorized by law.” Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). Federal
habeas review generally ends “once we determine the sentence is within the limitation set by
statute.” Id. To the extent Petitioner is claiming that the OCCA’s modification was contrary to
controlling authority, this Court “‘will not second guess a state court’s application or interpretation
of state law on a petition for habeas unless such application or interpretation violates federal law.’”
Bolton v. Franklin, 191 F. App’x 780, 781 (10th Cir. 2006) (unpublished) (quoting Bowser v.
Boggs, 20 F.3d 1060, 1065 (10th Cir. 1994)). Under Oklahoma law, the OCCA is authorized to
modify a sentence. See OKLA. STAT. tit. 22, § 1066. Here, the OCCA modified Petitioner’s
sentence to the statutory minimum, life with the possibility of parole, not exceeding the maximum
sentence authorized under Oklahoma law. This Court could not grant any more relief than he has
already obtained from the state courts. Therefore, Petitioner fails to assert a cognizable claim and
habeas relief is denied.
3.
Denied “reasonable doubt” instruction (Ground III)
In Ground III, Petitioner claims that it was error for the trial court to “deny defense counsel’s
request to provide the jury with an instruction defining ‘reasonable doubt.’” (Dkt. # 1 at 6).
Petitioner argues in his habeas petition, as he did on direct appeal, that “[g]iven the modification of
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the circumstantial evidence instruction herein, it was error to refuse an accurate instruction defining
reasonable doubt.” (Dkt. # 5-1 at 18). Petitioner argues that in Easlick v. State, 90 P.3d 556 (Okla.
Crim. App. 2004), the OCCA “held, if a proper reasonable doubt instruction is given, a jury need
not be instructed that circumstantial evidence must be so strong as to exclude every reasonable
hypothesis other than guilt.”4 Id. at 17. On direct appeal, the OCCA rejected Petitioner’s argument,
stating “[t]his claim has been raised and rejected several times” and declined “to re-examine those
decisions.” (Dkt. # 5-3 at 9-10). Respondent argues that the OCCA’s decision “is neither contrary
to nor an unreasonable application of federal law.” (Dkt. # 5 at 10).
This issue has been addressed by the United States Supreme Court in Victor v. Nebraska,
511 U.S. 1, 5 (1994), as follows:
The beyond a reasonable doubt standard is a requirement of due process, but the
Constitution neither prohibits trial courts from defining reasonable doubt nor requires
them to do so as a matter of course. Cf. Hopt v. Utah, 120 U.S. 430, 440-441, 7 S.
Ct. 614, 618-20, 30 L. Ed. 708 (1887). Indeed, so long as the court instructs the jury
on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, see
Jackson v. Virginia, 443 U.S. 307, 320 n.14, 99 S. Ct. 2781, 2789, n.14, 61 L. Ed.
2d 560 (1979), the Constitution does not require that any particular form of words
be used in advising the jury of the government’s burden of proof.
Victor, 511 U.S. at 5. Here, the trial court instructed the jury, several times, on the need to
determine Petitioner’s guilt beyond a reasonable doubt. In Jury Instruction No. 4, the court
4
In Easlick, the OCCA abolished its use of the “reasonable hypothesis” test, in favor of the
test found in Spuehler v. State, 709 P.2d 202, 203-04 (Okla. Crim. App. 1985). The OCCA stated
that the “reasonable hypothesis” test was based on antiquated ideas concerning the value of
circumstantial evidence. Easlick, 90 P.3d at 559. The OCCA, pursuant to Holland v. United States,
348 U.S. 121, 139-140 (1954), stated that “if a proper reasonable doubt instruction is given, a jury
need not be instructed that circumstantial evidence must be so strong as to exclude every reasonable
hypothesis other than guilt.” Easlick, 90 P.3d at 558. The OCCA held that it will “review
sufficiency of the evidence issues under the Spuehler standard, regardless of whether the evidence
is wholly circumstantial or whether it is based in whole or in part on direct evidence.” Id. at 559.
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instructed, “[t]he defendant is presumed innocent of the crime charged, and the presumption
continues unless, after consideration of all the evidence, you are convinced of his guilt beyond a
reasonable doubt. The State has the burden of presenting the evidence that establishes guilt beyond
a reasonable doubt.” (Dkt. # 7-11, O.R. at 192). Additionally, in the jury instructions for each of
the crimes charged, the court instructed, “[n]o person may be convicted of [the crime charged]
unless the State has proved beyond a reasonable doubt each element of the crime.” Id. at 217, 220,
222, 224. Furthermore, during closing argument, Petitioner’s counsel told the jury, that
[i]t is the responsibility of a police department and the district attorney to provide
you with competent evidence and to provide you with proof beyond a reasonable
doubt. And in order to evaluate how you provide proof beyond a reasonable doubt,
they have to provide you with facts.
(Dkt. # 7-8, Tr. Vol. V at 928). The jury was properly advised of the government’s burden of proof.
Nothing in the record suggests that there is a reasonable likelihood that the jury was misled
or misunderstood their instructions, or allowed a conviction based on proof insufficient to meet the
constitutional requirement of “reasonable doubt.” Therefore, Petitioner’s trial was not rendered
fundamentally unfair as a result of the trial court’s failure to instruct the jury as requested by
Petitioner nor is the OCCA’s decision contrary to, or an unreasonable application of, federal law as
interpreted by the Supreme Court. Petitioner is not entitled to habeas corpus relief on Ground III.
4.
Ineffective trial and appellate counsel (Grounds IV, V, and VI)
In Grounds IV, V, and VI, Petitioner raises claims that this appellate counsel was ineffective.
These claims are intertwined with Petitioner’s claims of ineffective assistance of trial counsel.
Respondent argues that “petitioner’s ineffective assistance of trial counsel claims were properly
barred by the [OCCA], and that bar should be respected by this Court.” (Dkt. # 5 at 17). However,
after a review of the record, the Court finds that while the OCCA applied a procedural bar to the
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claims of ineffective trial counsel, the court then proceeded to address those claims on the merits.
See Dkt. # 5-11 at 3. Generally, a federal habeas court will not review a claim rejected by the state
court on a state law ground that is independent of the federal question. Coleman v. Thompson, 501
U.S. 722, 729 (1991). Here, however, the OCCA reached the merits of Petitioner’s claims of
ineffective trial counsel, despite concluding that Petitioner’s claims “should have been presented on
direct appeal, but [were] not, and [are] waived.” (Dkt. # 5-3 at 3). Therefore, the Court will review
Petitioner’s claims of ineffective trial and appellate counsel under the § 2254(d) standard.
a.
Ineffective trial counsel
Petitioner raises several claims of ineffective trial counsel in his habeas petition. First, in
Ground IV, Petitioner claims his trial counsel failed to examine mitigating evidence and argue
insufficient evidence. (Dkt. # 1 at 7). In Ground V, Petitioner claims his trial counsel “failed to
argue the illegal arrest . . . brought forth an illegally obtained . . . ‘confession.’” Id. at 8. In Ground
VI, Petitioner claims his trial counsel was ineffective for failing to raise prosecutorial misconduct.
Id. at 9. Petitioner presented these claims to the OCCA on post-conviction appeal. As stated above,
though the OCCA stated that these claims were waived, it proceeded to conclude that, “even if we
found Petitioner’s ineffective assistance of trial counsel claim was subject to review, we find nothing
in this record indicating that either trial or appellate counsel was ineffective.” (Dkt. # 5-11 at 3).
To be entitled to habeas corpus relief on his claim of ineffective assistance of trial counsel,
Petitioner must demonstrate that his counsel’s performance was deficient and the deficient
performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Osborn v.
Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993). Further, Petitioner must demonstrate that the
OCCA’s adjudication of this claim is contrary to Strickland. See 28 U.S.C. § 2254(d). “For
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purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect
application of federal law.’” Richter, 131 S. Ct. at 785 (quoting Williams v. Taylor, 529 U.S. 364,
410 (2000) (O’Connor, J. concurring)). “Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have supported, the state court’s decision; and
then it must ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of this Court.” Id. at 786. Section
2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no
farther.” Id.
Strickland sets out a two-pronged standard for review of ineffective assistance of counsel
claims. A defendant can establish the first prong by showing that counsel performed below 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.
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
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Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th
Cir. 1999). “The likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 131 S. Ct. 770, 792 (2011). This Court’s review of the OCCA’s decision on
ineffective assistance of counsel claims is “doubly deferential.” Cullen v. Pinholster, 131 S.Ct.
1388, 1403 (2011) (noting that a habeas court must take a “highly deferential” look at counsel’s
performance under Strickland and through the “deferential” lens of § 2254(d)).
In Ground IV, and in his application for post-conviction relief, Petitioner claims that his trial
counsel failed to examine mitigating evidence in the form of DNA evidence, and failed to “bring[]
this evidence forward at petitioner’s trial.” (Dkt. # 5-6 at 3). Petitioner claims that the “evidence
of the State includes the DNA evidence not connected to the crime scene at all and excluding the
DNA evidence of ‘skin’ found under the victim’s fingernails that excluded petitioner altogether.”
Id. at 5.
After a review of the record, the Court finds Petitioner’s claim lacks merit. The mitigating
DNA evidence Petitioner claims his trial counsel failed to introduce at trial was introduced by the
State during direct examination of State’s forensic expert, Valerie Fuller, Ph.D. See Dkt. # 7-7, Tr.
Vol. IV at 649-660. Dr. Fuller conducted DNA analysis on evidence items ## 13, 14, 21, 21C1,
21C3, 43, and 43AR9, as identified on the Tulsa Police Department Forensic Laboratory Report.
(Dkt. # 5-6 at 17-18). During direct examination, the prosecutor asked Dr. Fuller, “with regard to
13 and 14, you can say that Ms. Thompson [sic] didn’t have his DNA under her fingernails.” Id. at
660. Dr. Fuller responded, “[y]es. I can definitely say that his DNA was not on there.” Id.
15
Petitioner’s trial counsel also thoroughly cross-examined Dr. Fuller. Id. at 663-675.
Petitioner’s trial counsel asked Dr. Fuller, “there is no DNA from all these things that you can
definitely say that Mr. Thompson is a contributor to?” Dr. Fuller responded,
On item 13 and 14, the fingernails, Thompson is definitely excluded. On
item 21-C-1, the finger of the glove, it looks like the major contributor is the victim.
There is a small amount of male minor contributor but it’s just too low to say
anything about.
On item 21-C-3, I’m not sure if Thompson is on there or not. All I can say
is I can’t tell you he’s not on there. There’s a lot of people on there. On item 4, [sic]
I figure looks like he’s on there, but it’s his own boots. So I went ahead and I
subtracted him and got leftover DNA from a completely unknown individual. That’s
what I know from my testing.
Id. at 675-76. Petitioner’s counsel asked again, “And so other than item 43, you can’t tell . . . that
Mr. Thompson was a major contributor to any one of those particular items or if the – of DNA that
you tested, is that correct?” Id. at 676. Dr. Fuller responded, “[t]hat’s correct.” Id. The record
simply does not support Petitioner’s claim that the available DNA evidence was not introduced at
trial or that Petitioner’s counsel failed to examine this mitigating evidence. The evidence was
introduced at trial and Petitioner’s counsel cross-examined the State’s expert on the results of the
DNA analyses.
Additionally, Petitioner’s claim that his trial counsel failed to argue that the State did not
present sufficient evidence to convict Petitioner is not supported by the record. At the conclusion
of the State’s case, Petitioner’s counsel demurred to the evidence. (Dkt. # 7-8, Tr. Vol. V at 884).
In Oklahoma, when a court is “ruling on the demurrer to the evidence, the trial court must determine
whether there is competent evidence which reasonably tends to sustain the allegations of the charge,
and if there is, the demurrer should not be sustained.” Hommer v. State, 657 P.2d 172, 176 (Okla.
Crim. App. 1983) (citing Roberts v. State, 571 P.2d 129 (Okla. Crim. App. 1977)). Therefore,
16
Petitioner’s trial counsel did challenge the sufficiency of the evidence presented by the State, and
Petitioner’s claim of ineffective trial counsel fails.
Next, in Ground V, Petitioner claims, as he did in his application for post-conviction relief,
that his trial counsel failed to investigate “readily available mitigating records indicating illegal
arrest and statement used against petitioner at his trial.” (Dkt. # 5-6 at 8). Petitioner claims he was
unlawfully arrested by Tulsa Police with a search warrant, rather than an arrest warrant, and
subjected to “hours of questioning before any charge was brought against [him].” Id. Petitioner
claims that “all evidence seized by Tulsa Police and statements made to Detective Nance were fruits
from the unlawful police activity and should not have been introduced at petitioner’s trial.” Id. at
8-9. Thus, Petitioner claims his trial counsel was “deficient for failing to perform due diligence in
exposing this fundamental miscarriage of justice by police officials.” Id. at 9. Respondent argues
that there was probable cause for the search of the residence where Petitioner lived and for his arrest.
(Dkt. # 5 at 35-37). Petitioner responds by stating, “Tulsa Police Department acted in bad faith
when they arrested Petitioner prior to serving a warrant that allowed only a search, without having
any probable cause to actually arrest Petitioner.” (Dkt. # 9 at 2).
After a review of the record, the Court finds that Petitioner’s claims lack merit. Petitioner
has not shown that trial counsel performed deficiently in failing to challenge the legality of his
arrest. “A court will find probable cause to arrest when facts and circumstances from a reasonably
trustworthy source are within the officer’s knowledge and sufficiently warrant a person of
reasonable caution to believe a crime has been or is being committed by the person to be arrested.”
United States v. Pearson, 203 F.3d 1243, 1268 (10th Cir. 2000) (citing United States v. Morgan, 936
F.2d 1561, 1568 (10th Cir.1991)). During the search of Petitioner’s residence and bedroom, police
17
recovered several items identified in the search warrant and found Petitioner hiding in the backseat
of a vehicle, in a detached garage at the rear of the property. Additionally, during the Jackson v.
Denno5 hearing, defense counsel questioned Tulsa Police Detective Jeffrey Felton why he “did not
make application for an arrest warrant,” before arresting Petitioner. (Dkt. # 7-3, Tr. Vol. I at 17).
Detective Felton testified that “[a]t that point of the investigation, we felt like we had probable cause
that if we found Mr. Thompson that we would arrest him at that point.” Id.
The record demonstrates that Petitioner’s trial counsel reviewed Petitioner’s statements to
police after his arrest. At a pre-trial hearing, Petitioner’s trial counsel told the trial court, “[w]e have
not [filed a motion to suppress], Your Honor. The statements that are made are not incriminatory
in nature and are actually – the statements by the defendant are actually helpful to the case.” (Dkt.
# 7-3, Tr. Hr’g Nov. 2, 2007 at 10). At trial, during cross-examination of Detective Felton,
Petitioner’s counsel inquired whether the police conducted any follow-up investigations regarding
the claims Petitioner made during his police interview.6 (Dkt. # 7-8, Tr. Vol. V at 855-873).
Petitioner’s counsel asked Detective Felton whether he searched for, located, and/or interviewed any
of the individuals that could corroborate Petitioner’s story. Id. at 856-57. Based on the record,
Petitioner’s trial counsel made a strategic decision to use Petitioner’s statements to support
Petitioner’s claims that he was guilty only of possession of a stolen vehicle and innocent of murder
5
Jackson v. Denno, 378 U.S. 368, 376 (1964) (“A defendant objecting to the admission of
a confession is entitled to a fair hearing in which both the underlying factual issues and the
voluntariness of his confession are actually and reliably determined.”).
6
In the police interview, Petitioner initially denied knowing Ms. Sherman, the victim, and
told police that the reason he had the stolen car was because he was a “drug mule.” During the
course of the “drug muling” story told to police, Petitioner identified three individuals – Derek
Alexander, Chris Calvin, Donna Gist – as having knowledge of Petitioner’s use of the victim’s car.
18
and burglary. There is nothing in the record, nor does Petitioner argue, that this decision was
unreasonable. Instead, Petitioner makes the unsupported allegations that his counsel failed to
investigate the statement and his arrest. Because that allegation is controverted by the record
discussed above, Petitioner’s claim of ineffective assistance of trial counsel in Ground V fails.
Finally, in Ground VI, Petitioner identifies several additional claims of ineffective assistance
of trial counsel. First, Petitioner appears to assert a Brady claim7 against his trial counsel. (Dkt. #
5-6 at 10). Petitioner states that his “rights were violated by his trial attorney who acted as aminae
curriae [sic] by not bringing conclusive evidence of DNA that proved petitioner’s factual innocence
although petitioner’s attorney had this critical evidence in his possession for many months.” Id. at
11. Next, he claims that his trial counsel should have raised claims of prosecutorial misconduct
when Petitioner was denied a “pretrial examination of physical evidence and technical reports.” Id.
at 12. Finally, Petitioner claims trial counsel should have requested a Daubert hearing8 to examine
the scientific and technical reports to be used at trial. As a result of these failures, Petitioner argues
that the State was allowed to use “only partial DNA evidence . . . against petitioner and not relevant
parts that proves his factual innocence.” Id.
7
Brady v. Maryland, 373 U.S. 83 (1963) (holding that “the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).
8
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (laying out principles
that determine whether the opinions offered by an expert witness are reliable and assessing the
admissibility of expert testimony). The Supreme Court, in Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137 (1999), listed the four factors as “[w]hether a ‘theory or technique . . . can be (and has
been) tested’; [w]hether it ‘has been subjected to peer review and publication’; [w]hether . . . there
is a high ‘known or potential rate of error’ and whether there are ‘standards controlling the
technique’s operation’; and [w]hether the theory or technique enjoys ‘general acceptance’ within
a ‘relevant scientific community.’” Id. at 149-50.
19
Petitioner elaborates on these claims in his Reply to Respondent’s Response. He states that
his trial counsel did “not explain[] DNA, forensic testing evidence used by State [against] Petitioner
and only two (2) days notification that this evidence existed . . . .” (Dkt. #9 at 3). Petitioner
continued, stating that “[s]urprise in the trial of cases often breeds prejudice and does nothing to
implement justice.” Id. (citing Layman v. State, 355 P.2d 44 (Okla. Crim. App. 1960)). Petitioner
further argues, in his supplemental reply, that this “purposely isolated him and left him uninformed
of critical evidence.” (Dkt. # 14 at 2). Petitioner claims that had his counsel “kept Petitioner
actively involved in his case, he would have been able to make informed choices, whether to
acquiesce or contest certain pieces of evidence used against him before the appropriate decisionmaking body.” Id.
The Court finds no merit in these claims. First, the record shows that the State turned over
numerous items to the defense in discovery and the trial court held several hearings to ensure
complete discovery. See, e.g., Dkt. # 7-10, O.R. at 1-17; Dkt. # 7-1, Tr. Hr’g Mar. 13, 2006 at 6.
Thus, Petitioner was not denied a pretrial examination of physical evidence and technical reports.
Second, the Court concluded above that the DNA evidence that Petitioner claims was kept out of
the trial was, in fact, introduced into evidence by the State. This is a meritless claim. Third,
Petitioner bears the burden of establishing that it was unreasonable for his trial counsel to fail to
request a Daubert hearing. Petitioner has not satisfied his burden because he fails to explain what
arguments his counsel could have made to prohibit the State’s expert witnesses from testifying or
that there is a reasonably likelihood that his trial counsel would have succeeded on that argument.
Finally, as to Petitioner’s apparent Brady claim against his own trial counsel, this claim also fails.
In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court explained that “[t]here are three
20
components of a true Brady violation: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice must have ensued.” Id. at 281–82. The
information identified by Petitioner satisfies none of the three components. Petitioner complains
only that his counsel failed to disclose evidence to him until two days before trial, not that the State
failed to disclose evidence. Petitioner’s claim has no merit.
In summary, the record does not support many of Petitioner’s claims of ineffective trial
counsel. Further, Petitioner fails to show how the actions of his trial counsel were unreasonable or
that he was prejudiced by counsel’s actions. Petitioner also fails to show that the OCCA’s
determination that there was “no evidence indicating that Petitioner was not properly represented
at trial,” was contrary to or an unreasonable application of federal law as determined by the Supreme
Court. 28 U.S.C. § 2254(d). As a result, the Court finds that habeas relief must be denied on all
claims of ineffective assistance of trial counsel.
b.
Ineffective appellate counsel
Alongside his claims of ineffective trial counsel, Petitioner raises claims of ineffective
assistance of appellate counsel. In Ground IV, Petitioner claims his appellate counsel “fail[ed] to
raise trial counsel’s failure to examine readily available mitigating records and argue the issue of
legal insufficiency of evidence.” (Dkt. # 1 at 7). Petitioner also claims that his “appellate counsel
rebutted [his] request that this crucial evidence be brought forward on his direct appeal.” Id. (citing
Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993)). In Ground V, Petitioner claims
appellate counsel “fail[ed] to investigate and argue readily available mitigating records indicating
the ineffectiveness of trial counsel who failed to argue the illegal arrest . . . brought forth an illegally
21
obtained . . . ‘confession.’” (Dkt. # 1 at 8). Finally, in Ground VI, Petitioner claims appellate
counsel “fail[ed] to raise issue of prosecutorial misconduct.” Id. at 9.
When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance
by failing to raise an issue on direct appeal, the court first examines the merits of the omitted issue.
Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999). The Tenth Circuit has explained that,
[i]f the omitted issue is so plainly meritorious that it would have been unreasonable
to winnow it out even from an otherwise strong appeal, its omission may directly
establish deficient performance; if the omitted issue has merit but is not so
compelling, the case for deficient performance is more complicated, requiring an
assessment of the issue relative to the rest of the appeal, and deferential consideration
must be given to any professional judgment involved in its omission; of course, if the
issue is meritless, its omission will not constitute deficient performance.
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (footnote omitted) (citation omitted); see
also Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir. 1998). Just as with claims of ineffective
trial counsel, Petitioner is not entitled to relief on his claims of ineffective assistance of appellate
counsel unless he demonstrates that the OCCA unreasonably applied Strickland.
In Grounds IV, V, and VI, Petitioner raises claims that his appellate counsel was ineffective
for failing to raise ineffectiveness of trial counsel. The Court reviewed the claims of ineffective trial
counsel above and concluded there was no merit. Therefore, to the extent Petitioner claims his
appellate counsel was ineffective for failing to raise claims of ineffective trial counsel, those claims
fail. The Court now turns to the remaining claims of ineffective appellate counsel.
In Ground IV, Petitioner also claims his appellate counsel was ineffective when he “rebutted
petitioner’s request that this crucial evidence be brought forward on his direct appeal.” (Dkt. # 1
at 7 (citing Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993)). In his application for
post-conviction relief, he claimed that his counsel “fail[ed] to argue petitioner’s actual innocence
22
in petitioner’s direct appeal though he wrote that, ‘[t]he State may concede that other portions of the
State’s evidence supports a claim of innocence, (at least with regard to murder and burglary.)’”
(Dkt. # 5-6 at 3). He also claimed appellate counsel “fail[ed] to allow petitioner to examine brief-inchief before submitting it, and also by rebutting his request to file a supplemental brief.” Id. at 6.
After a review of the record, the Court concludes that Petitioner’s claim fails. First, even if
Petitioner’s appellate counsel should have allowed Petitioner to review the direct appeal brief before
filing it, Petitioner fails to show how he was prejudiced by appellate counsel’s actions. Additionally,
Petitioner has not explained how he was prejudiced when appellate counsel allegedly “rebutt[ed]
his request to file a supplemental brief” on direct appeal. Second, Petitioner has failed to show that
his appellate counsel was unreasonable for failing to raise claims of actual innocence. Petitioner
offers nothing more than a conclusory statement and conclusory allegations are insufficient to meet
the prejudice prong of Strickland. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(holding that even pro se plaintiffs must allege sufficient facts on which a recognized legal claim
can be based, and that conclusory allegations will not suffice); see also United States v. Fisher, 38
F.3d 1144, 1147 (10th Cir. 1994) (“we are not required to fashion Defendant’s arguments for him
where his allegations are merely conclusory in nature and without supporting factual averments”
(citations omitted)). Finally, Petitioner’s reliance on Ratliff is misplaced. Ratliff does not stand for
the proposition that an appellate attorney is ineffective for failing to raise an issue on appeal that
Petitioner wanted to pursue. Ratliff stands for the proposition that “cause” is established if a
defendant asks appellate counsel to raise an issue that would have resulted in reversal or actual
prejudice to a defendant, and appellate counsel fails to raise that issue. Ratliff, 999 F.2d at 1026.
23
Petitioner has failed to show that the issues omitted by appellate counsel would have resulted in a
reversal or in actual prejudice to Petitioner.
In Ground V, Petitioner argues that appellate counsel was ineffective for failing to
investigate “mitigating records indicating illegal arrest and statement used against petitioner at his
trial.” (Dkt. # 5-6 at 8). This Court concluded above that nothing in the record suggests that trial
counsel was ineffective for failing to raise this same claim. Therefore, the Court cannot find that
appellate counsel provided ineffective assistance in failing to raise a meritless claim. Habeas relief
is not warranted.
In Ground VI, Petitioner argues that appellate counsel was ineffective for failing to raise the
issue of prosecutorial misconduct on direct appeal. (Dkt. # 1 at 9). Petitioner appears to claim that
the prosecutor acted improperly with respect to introduction of the DNA evidence. Petitioner states
that the “[p]rosecutors failed [to produce enough evidence] as the DNA found under victim’s
fingernails excluded petitioner as police reports indicated a struggle had taken place upon her
demise.” (Dkt. # 5-6 at 11 (citing In re Winship, 397 U.S. 358 (1993)). Had appellate counsel
raised this claim of prosecutorial misconduct on direct appeal, the OCCA would have reviewed the
claim for plain error. See Malone v. State, 293 P.3d 198, 211 (Okla. Crim. App. 2013). Oklahoma’s
plain error doctrine requires an appellant to satisfy a three-part test: (1) the existence of actual error,
(2) the error is plain or obvious, and (3) the error affected the outcome of the proceeding. Id.
(quoting Hogan v. State, 139 P.3d 907, 923 (Okla. Crim. App. 2006) (internal citations omitted).
Petitioner has failed to convince the Court that the OCCA would have found plain error. As a result,
Petitioner cannot show that the outcome of his appeal would have been different had appellate
counsel raised this claim of prosecutorial misconduct.
24
In summary, the record does not support many of Petitioner’s claims of ineffective appellate
counsel nor does Petitioner demonstrate that the OCCA’s adjudication of the ineffective assistance
of appellate counsel claims was contrary to, or an unreasonable application of, Strickland.
Therefore, habeas relief is denied on Petitioner’s claims of ineffective assistance of appellate
counsel.
C. Procedural Bar
Respondent asserts that Ground VII, cumulative error, was “raised for the first time on postconviction review.” (Dkt. # 5 at 14). The OCCA stated that “all issues previously ruled upon by
this Court are res judicata, and all issues not raised in the direct appeal, which could have been
raised, are waived.” (Dkt. # 5-11 at 1). Respondent argues that the OCCA correctly concluded that
this claim was waived. (Dkt. # 5 at 14). Thus, Respondent urges this Court to respect the procedural
bar applied by the OCCA. Id. at 17.
The doctrine of procedural default prohibits a federal court from considering a specific
habeas claim where the state’s highest court declined to reach the merits of that claim on
independent and adequate state procedural grounds, unless a petitioner “demonstrate[s] cause for
the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s]
that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 724 (1991); see also Maes v. Thomas, 46 F.3d 979, 985 (10th Cir. 1995);
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. (citation omitted).
25
Applying the principles of procedural default to the facts of this case, the Court concludes
that Petitioner’s Ground VII claim is procedurally barred from this Court’s review. Based on Okla.
Stat. tit. 22, § 1086, the OCCA routinely bars claims that could have been but were not raised on
direct appeal. Thus, the bar imposed by the OCCA was “adequate” to preclude habeas review. In
addition, the state court’s procedural bar as applied to this claim was an “independent” ground
because Petitioner’s failure to comply with state procedural rules was “the exclusive basis for the
state court’s holding.” Maes, 46 F.3d at 985.
When a state court imposes an independent and adequate procedural bar, this Court may not
consider the claim unless the petitioner is able to show cause and prejudice for the default, or
demonstrate that a fundamental miscarriage of justice would result if his claim is not considered.
See Coleman, 501 U.S. at 750. The cause standard requires a petitioner to “show that some
objective factor external to the defense impeded . . . efforts to comply with the state procedural
rules.” 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). The “fundamental miscarriage of
justice” exception to a procedural bar applies “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S.
at 495-96 (1986); Herrera v. Collins, 506 U.S. 390, 403-04 (1993); Sawyer v. Whitley, 505 U.S. 333,
339-41 (1992); Schlup v. Delo, 513 U.S. 298 (1995). 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).
26
In Ground VII, Petitioner argues that the “cumulative effect of errors discussed above
requires the reversal of my conviction and/or an evidentiary hearing and granting a new trial.” (Dkt.
# 1 at 11). Petitioner states that ineffective appellate counsel is the “cause” for his failure to raise
this claim on direct appeal. Id. In its review of the Petitioner’s claims, the Court did not find any
constitutional errors in Petitioner’s trial. See Matthews v. Workman, 577 F.3d 1175, 1195 n.10
(10th Cir. 2009) (internal quotation omitted); Grant v. Trammell, 727 F.3d 1006, 1025 (10th Cir.
2013) (quoting Rivera, 900 F.2d at 1470). Therefore, this Court cannot find Petitioner’s appellate
counsel ineffective for failing to raise a meritless claim. Cargle, 317 F.3d at 1202. Thus, unless
Petitioner demonstrates that he falls within the fundamental miscarriage of justice exception, habeas
relief will be denied based on procedural bar.
The fundamental miscarriage of justice 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). 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). Under Schlup, a showing of innocence sufficient to allow consideration of
procedurally barred claims must be “so strong that a court cannot have confidence in the outcome
of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error
. . . .” Schlup, 513 U.S. at 316. Petitioner has the burden of persuading this Court “that, in light of
the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. at 329. “The exception is intended for those rare situations ‘where the State
has convicted the wrong person of the crime . . . . [Or where] it is evident that the law has made a
mistake.’” Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (citation omitted). Petitioner claims
27
that, “should he be granted a[n] evidentiary hearing, he will be able to present facts that that [sic]
will tend to prove his actual, factual innocence . . . .” (Dkt. # 1 at 15). However, Petitioner provides
no new evidence supporting his claim of innocence. Therefore, petitioner has failed to demonstrate
that he falls within the fundamental miscarriage of justice exception to the doctrine of procedural
bar.
Accordingly, because Petitioner has not demonstrated “cause and prejudice” or that a
“fundamental miscarriage of justice” will result if his defaulted claim is not considered, the Court
concludes that it is procedurally barred from considering the merits of Petitioner’s claim of
cumulative error. Coleman, 510 U.S. at 724. He is not entitled to habeas corpus relief on Ground
VII.
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, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
In addition, when the court’s ruling is based on procedural grounds, the petitioner must demonstrate
that “jurists of reason would find it debatable whether the petition states a valid claim of the denial
28
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.
After considering the record 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 OCCA was debatable amongst jurists of reason. See
Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004). As to the claim denied on a procedural basis,
Petitioner has failed to satisfy the second prong of the required showing, i.e., that the Court’s ruling
resulting in the denial of the claim on procedural grounds was debatable or incorrect. The 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, 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, the petition
for writ of habeas corpus shall be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that,
1.
The clerk shall substitute Terry Martin, Warden, as party respondent.
2.
The petition for writ of habeas corpus (Dkt. # 1) is denied.
3.
A certificate of appealability is denied.
4.
A separate judgment shall be entered in this matter.
DATED this 31st day of March, 2014.
29
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