Brantley v. Wilkerson

Filing 27

OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; denying certificate of appealability; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DANIEL W. BRANTLEY,
Petitioner,
v.
JOE M. ALLBAUGH, Director,
Respondent.

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Case No. 14-CV-136-JED-PJC

OPINION AND ORDER
Before the Court are Petitioner’s 28 U.S.C. § 2254 habeas corpus petition (Doc. 1) and
supplemental petition (Doc. 20). Petitioner is a state inmate and appears pro se. Respondent filed
a response (Doc. 11) to the original petition and provided the state court record (Docs. 11, 12, 13)
for resolution of the claims raised in the petition. Petitioner filed a reply (Doc. 14) to the response.
Respondent also filed a supplement response (Doc. 24) to the supplemental petition, along with
supplemental state court records (Docs. 24, 25).

Petitioner filed a reply (Doc. 26) to the

supplemental response. For the reasons discussed below, both the original petition for writ of habeas
corpus and the supplemental petition shall be denied.
BACKGROUND
In 2011, Petitioner Daniel Brantley lived with his wife, Lorene, and three daughters, S.B.,
and twins Re.B. and Ra.B., at 3708 South Dogwood Avenue, Broken Arrow, Oklahoma. In May
of that year, thirteen (13) year old J.K. visited the home of her friends, the Brantley twins. J.K.
claimed that, as she, the twins, and Petitioner were watching television, Petitioner, who was sitting
on a couch behind J.K., wrapped his legs around her by criss-crossing them across her waist.
Petitioner began to massage J.K.’s shoulders, then moved his hands down to her chest and started

rubbing and squeezing her breasts. Petitioner whispered to J.K., “I’m going to take a nap, would
you like to come with me?” J.K. moved Petitioner’s legs from around her waist, got up and went
to the twins’ bedroom where she called her mother and asked to be picked up. J.K.’s mother picked
her up shortly thereafter. Initially, J.K. did not tell anyone what had happened because her father
was a good friend of Petitioner and she thought she would not have been believed.
Near the end of June 2011, another friend of the twins, thirteen (13) year old S.P., was at the
Brantley home for a sleepover. While watching television with the twins and Petitioner, S.P. sat in
front of Petitioner between his legs. According to S.P., Petitioner put his hands up her shirt and
touched her breasts with both of his hands. After she pushed his hands away, Petitioner slid his
hands inside her panties and he touched her “private spot.” As S.P. got up to go the bathroom,
Petitioner told her to take off her bra and panties. S.P. did not comply with Petitioner’s request.
Upon returning to the living room, she sat beside one of the twins. Petitioner then came over to her
and asked her to sit by him on the couch to “do some stuff” with him. S.P. said she was tired. She
and the twins went to the twins’ bedroom. Shortly afterwards, S.P. went to the kitchen to get a drink
of water. While in the kitchen, Petitioner told S.P. he wanted to talk to her in the living room. S.P.
went to the living room with Petitioner. Petitioner said he was sorry for touching her and that she
was attractive to him. He also invited her to “experiment” with him and that if she was too hot in
the twins’ bedroom, she should sleep with him on the couch. S.P. returned to the twins’ bedroom.
On August 5, 2011, Petitioner called J.K. on her cell phone and invited her to come over.
Petitioner told J.K. that “if you want to experiment with someone, I’m always here.” Petitioner
ended the conversation by saying, “OK, I love you, honey, bye.”

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J.K. and S.P. eventually told their mothers what had happened. The two girls then filed
police reports. As a result, Petitioner was charged in Tulsa County District Court, Case No. CF2011-3557, with two (2) counts of Lewd Molestation (Counts 1 and 2), and two (2) counts of Lewd
or Indecent Proposal to a Child (Counts 3 and 4). During his jury trial, Petitioner testified in his own
defense and denied the accusations against him. Petitioner’s jury found him guilty as charged and
recommended sentences of eight (8) years imprisonment and a $4,000 fine on Count 1, ten (10)
years imprisonment and a $5,000 fine on Count 2, five (5) years imprisonment and a $2,500 fine on
Count 3, and six (6) years imprisonment and a $3,000 fine on Count 4. On October 1, 2012, the trial
judge sentenced Petitioner in accordance with the jury’s recommendation, ordering the sentences
to be served consecutively and suspending the sentence on Count 3. See Doc. 12-6 at 3-4. During
trial proceedings, Petitioner was represented by attorneys R. Scott Williams and Robert Taylor.
Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA).
On direct appeal, Petitioner, represented by attorney Mark P. Hoover, raised one (1) proposition of
error, as follows:
Proposition:

Prosecutorial misconduct deprived Appellant of a fair trial.

(Doc. 11-1). On January 10, 2014, in an unpublished summary opinion filed in Case No. F-2012911, the OCCA denied relief and affirmed the Judgment and Sentence of the trial court. See Doc.
11-3. Petitioner did not file a petition for writ of certiorari at the United States Supreme Court.
On March 20, 2014, Petitioner filed his federal petition for writ of habeas corpus (Doc. 1),
alleging, as he did on direct appeal, that prosecutorial misconduct deprived him of a fair trial.
Respondent filed a response (Doc. 11) to the petition and asserts that, under 28 U.S.C. § 2254(d),
Petitioner is not entitled to habeas corpus relief.

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On September 16, 2014, almost six (6) months after filing his habeas petition, Petitioner filed
an application for post-conviction relief (Doc. 24-1) in state district court. On June 1, 2015, the state
district judge denied the requested relief (Doc. 24-2). Petitioner appealed, raising four (4)
propositions, as follows:
Proposition 1: Appellate counsel failed to properly analyze and prepare for the direct
appeal.
Proposition 2: Appellate counsel failed to properly act on petitioner’s requests.
Proposition 3: Appellate counsel failed to cite ineffective trial counsel.
Proposition 4: Appellate counsel failed to ask for an evidentiary hearing.
(Doc. 24-4 at 4-7). Petitioner also sought an evidentiary hearing (Doc. 24-5). On December 15,
2015, in Case No. PC-2015-603, the OCCA affirmed the denial of post-conviction relief (Doc. 246).

On January 6, 2016, Petitioner filed a “Supplement to Habeas Corpus 2254 Application and

Brief in Support” (Doc. 20). Petitioner supplements the original petition with four claims of
ineffective assistance of appellate counsel, as raised in state post-conviction proceedings.
Respondent filed a supplemental response (Doc. 24), arguing that, under 28 U.S.C. § 2254(d),
Petitioner is not entitled to habeas corpus relief on his claims of ineffective assistance of appellate
counsel.
ANALYSIS
A. Exhaustion/Evidentiary Hearing
Before addressing Petitioner’s habeas claims, the Court must determine whether Petitioner
meets the exhaustion requirement of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510
(1982). Petitioner’s claims raised in the original and supplemental petitions were presented to the
OCCA on direct and post-conviction appeal, respectively, and are exhausted.
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The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Cullen v.
Pinholster, 563 U.S. 170, 184-85 (2011); 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 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); Harrington v. Richter, 562 U.S.
86, 102-03 (2011); Williams v. Taylor, 529 U.S. 362, 386 (2000); Neill v. Gibson, 278 F.3d 1044,
1050-51 (10th Cir. 2001). “Clearly established Federal law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions.” White v. Woodall,
134 S. Ct. 1697, 1702 (2014) (citations omitted).
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).
An unreasonable application by the state courts is “not merely wrong; even ‘clear error’ will not
suffice.” White, 134 S. Ct. at 1702 (citing Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). The
petitioner “‘must show that the state court’s ruling . . . was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Id. (quoting Richter, 562 U.S. at 103); see also Metrish v. Lancaster, 133 S. Ct.

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1781, 1787 (2013). Section 2254(d) bars relitigation of claims adjudicated on the merits in state
courts and federal courts review these claims under the deferential standard of § 2254(d). Richter,
562 U.S. at 98; Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
Here, Petitioner presented his habeas claims to the OCCA on direct and post conviction
appeal. Because the OCCA addressed Petitioner’s claims on the merits, the Court will review the
claims under the standards of § 2254(d).
1. Prosecutorial misconduct (original petition)
In the single ground of error raised in the original petition (Doc. 1), Petitioner claims that
he was deprived of a fair trial by prosecutorial misconduct. Specifically, Petitioner claims that the
prosecutor improperly attempted to define reasonable doubt, vouched for the credibility of a witness,
and introduced victim impact evidence to elicit sympathy for the victim. Id. at 4-17.
Prosecutorial misconduct, if it occurs, can “create constitutional error in one of two ways.”
Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir. 2009). “First, prosecutorial misconduct can
prejudice ‘a specific right, such as the privilege against compulsory self-incrimination, as to amount
to a denial of that right.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
When this occurs, a petitioner need not show that his entire trial was rendered fundamentally unfair.
See Dodd v. Trammell, 753 F.3d 971, 990 (10th Cir. 2013). “Second, even if the prosecutor’s
improper remarks do not impact a specific constitutional right, they may still create reversible error
if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Matthews, 577 F.3d at 1186 (quoting Donnelly, 416 U.S. at 643).
In this case, the record reflects that defense counsel did not object to the prosecutor’s
remarks. As a result the OCCA reviewed for plain error. Oklahoma defines plain error as “an error

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which goes to the foundation of the case, or which takes from a defendant a right essential to his
defense,” Simpson v. State, 876 P.2d 690, 698 (Okla. Crim. App. 1994), and “impinges on the
fundamental fairness of trial.” Cleary v. State, 942 P.2d 736, 753 (Okla. Crim. App. 1997).
“Oklahoma’s formulation of the plain-error standard is virtually identical to the constitutional test
for due process.” Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015); Thornburg v. Mullin,
422 F.3d 1113, 1125 (10th Cir. 2005) (finding “no practical distinction between the formulations
of plain error . . . and the federal due-process test, which requires reversal when error so infused
the trial with unfairness as to deny due process of law” (citation and internal quotation marks
omitted)). When the OCCA rejects a claim “under the plain-error standard, the decision effectively
disallow[s] the possibility of a due process violation.” Hancock, 798 F.3d at 1011.
The Court shall address each allegation of prosecutorial misconduct.
a. Improper attempt to define reasonable doubt
First, Petitioner complains of the following exchange between the prosecutor and the
potential jurors during voir dire:
Prosecutor:

The burden is beyond a reasonable doubt and it is, I’ll tell you now, the
highest burden that there is. There’s some people on this panel who have
served in civil trials, car wrecks and med mal cases. And your burden was
probably preponderance of the evidence, more likely than not.
That’s not why we are here today. We’re not at [sic] I have to prove
to you that it’s more likely than not that it happened. I have to prove to you
beyond a reasonable doubt that what we’ve alleged happened.
But that is not beyond all doubt, beyond a shadow of a doubt, a
hundred percent, or any of those other things. beyond a reasonable doubt
will not be defined for you, probably the only thing that won’t be defined for
you to be perfectly honest. I won’t tell you what it means, even Judge Gillert
won’t tell you what it means. It’s not defined. It’s a personal thing. And
there are any number of ways that you can think about it. In the past I’ve
thought of it this way. If right now you went back to the jury deliberating
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room and you went to deliberate, what would your verdict right now be in the
case?
Venireman:

It would have to be innocent.

Prosecutor:

Not guilty because you’ve heard no evidence; right? Right now your cup is
empty. You have absolutely nothing in here. But as witnesses take the stand
and testify and evidence is admitted, water will slowly go into each of you
individually have a cup; right, metaphorically? And water will slowly go in
there, and at some point you might say, I’m at beyond a reasonable doubt.
Your cup may not be filled [to] the same height as [the cup held by
the] person sitting next to you. And it doesn’t have to be all the way full
because it’s when you have heard enough credible evidence to believe that
there is no reasonable doubt. It’s not no doubt. It’s no reasonable doubt.
Another example I’ve used in the past. We live in Oklahoma and it’s
August so it’s really hard to think about it, but remember Snowmaggedon?
Do you remember those times in Oklahoma where you woke up and you
actually didn’t know until you woke up and you looked outside there was
snow blanketing the front yard?
Now, if you look out your window and see white as far as the eye can
see, what do you assume happened?

Panel:

It snowed.

Prosecutor:

Do you sitting with your coffee in your kitchen looking out the window have
any reasonable doubt that it snowed?

Panel:

No.

Prosecutor:

Did you see it snow if it’s not snowing when you wake up? Is it possible, not
probable, but is it possible that somebody in your life went out and rented a
snowblower and spent the whole night blowing snow into your front yard as
far as the eye can see, and they’re just playing an extraordinarily elaborate
prank on you and it didn’t really snow? It would be a good one. It’s
possible, but it’s certainly not reasonable, is it? You don’t that morning have
any reasonable doubt that it snowed where you live the night before.
Is there anyone who feels that they will not be able – does anyone feel
they would require more, more than beyond a reasonable doubt? That they
cannot convict a person or if they convict someone, cannot decide to send
someone to prison unless they are more than beyond a reasonable doubt,
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unless they are a hundred percent sure even though that’s not what the law
says. Any hands? No hands.
(Doc. 1 at 6-8, citing Tr. Vol. I at 80-82). Defense counsel did not object to these questions. See
Dkt. 12-3, Tr. Vol. I at 80-82. On direct appeal, the OCCA cited Mitchell v. State, 270 P.3d 160,
171-73 (Okla. Crim. App. 2011), and Phillips v. State, 989 P.2d 1017, 1028 (Okla. Crim. App. 1999)
and found that “[t]he comments at issue in the present case were attempts to dispel commonly held
attitudes and often heard phrases and these comments did not rise to the level of plain error.” See
Doc. 11-3 at 2.
A prosecutor’s attempt to define reasonable doubt implicates a defendant’s specific
constitutional right. See Dodd, 753 F.3d at 990-91 (analyzing claim that State improperly
characterized its burden of proof to determine if the misconduct “effectively deprived the defendant
of a specific constitutional right”); Morris v. Workman, 382 F. App’x 693, 696 (10th Cir. 2010)
(unpublished)1 (“Where prosecutorial misconduct directly affects a specific constitutional right such
as the presumption of innocence, a petitioner may obtain relief by demonstrating that the
constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right.”
(internal quotation marks and citation omitted)).
The OCCA reviewed Petitioner’s prosecutorial misconduct claim for “plain error” and found
none. As explained above, this Court must defer to the OCCA’s ruling unless it “unreasonably
appli[ed]” the test. Thornburg, 422 F.3d at 1125.
The exchange cited above demonstrates that the prosecutor’s questions and statements were
clearly intended to ascertain whether the potential jurors were able to apply the “reasonable doubt”

1

This and all other unpublished opinions herein are not precedential but are cited for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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standard. The Court finds that the OCCA reasonably applied federal law when it found no error in
these comments. See, e.g., id. at 1130 (“[T]o state that ‘beyond a reasonable doubt’ does not mean
beyond ‘a shadow of a doubt or all doubt’ was not a constitutional violation.”); Gordon v. Ward, 118
F. App’x 434, 436 (10th Cir. 2004) (unpublished) (finding OCCA’s conclusion that a “prosecutor’s
comments during voir dire that ‘reasonable doubt’ does not mean ‘beyond a shadow of a doubt’ or
‘beyond all doubt’ does not constitute error” was not contrary to or an unreasonable application of
clearly established federal law). The Court concludes that the OCCA’s decision was not contrary
to, or an unreasonable application of federal law as determined by the Supreme Court, nor was it
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceedings. 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim of
prosecutorial misconduct.
b. Improper vouching for witness credibility
Next, Petitioner complains, as he did on direct appeal, that the prosecutor improperly
vouched for the credibility of one of the victims. Specifically, Petitioner cites to the following
portion of the prosecutor’s closing argument:
So there’s a whole lot we know for sure this little girl is not lying about. And
we know that the defendant pulled [S.P.] out of that room later on and wanted to talk
to her privately. Now the only two things we can’t agree on, funny enough, are the
two things that amount to felony crimes: Whether Dan [Brantley] touched that little
girl and whether Dan said, I’m sorry, I’m attracted to you, I want to keep
experimenting, you can come in and sleep on the couch with me if you want.
(Doc. 1 at 12 (citing Tr. Vol. II at 390)). Petitioner argues that, by using the phrase “we know,” the
prosecutor “inject[ed] her own personal beliefs into the trial . . . [and] undermined the deliberative
process.” Id. The OCCA found no error, citing Grissom v. State, 253 P.3d 969, 992 (Okla. Crim.
App. 2011), and stating that “[t]he parties are allowed a wide range of discussion and illustration in
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closing argument and counsel enjoys a right to fully discuss, from her standpoint, the inferences and
deductions arising from the evidence.” See Doc. 11-3 at 2.
The trial judge instructed Petitioner’s jury that:
in closing arguments the attorneys may review the evidence and tell you the
inferences that they believe should be drawn from the evidence. They are also
allowed to discuss with you how they believe these instructions related to the
evidence that has been introduced. Arguments of counsel are not evidence in the
case and if you believe the evidence introduced is different from counsel’s
recollection, your recollection controls.
See Doc. 12-9, Supp. O.R. at 36-37, Instruction No. 33. Furthermore, during closing arguments,
counsel is allowed some latitude. See Hooper, 314 F.3d at 1172 (“The prosecutor also possesses
reasonable latitude in drawing inferences from the record.”); see also Banks v. Workman, 692 F.3d
1133, 1149 (10th Cir. 2012). “[S]ummations in litigation often have a rough and tumble quality.”
U.S. v. Bennett, 75 F.3d 40, 46 (1st Cir. 1996). It is important to note that “it is not enough that the
prosecutors’ remarks were undesirable or even universally condemned.” Banks, 692 F.3d at 1149
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). To be entitled to habeas relief, the
remarks must infect the trial with unfairness. Id.
Argument or evidence is permissible vouching unless “‘the jury could reasonably believe
that the prosecutor is indicating a personal belief in the witness’ credibility, either through explicit
personal assurances of the witness’ veracity or by implicitly indicating that information not
presented to the jury supports the witness’ testimony.’” Thornburg, 422 F.3d at 1132 (quoting U.S.
v. Magallanez, 408 F.3d 672, 680 (10th Cir. 2005) (internal quotation marks omitted)); see also U.S.
v. Bowie, 892 F.2d 1494 (10th Cir. 1990). A prosecutor’s vouching for the credibility of witnesses
can “jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the
jury[,] and the prosecutor’s opinion carries with it the imprimatur of the Government and may
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induce the jury to trust the Government’s judgment rather than its own view of the evidence.” U.S.
v. Young, 470 U.S. 1, 18-19 (1985) (citing Berger v. U.S., 295 U.S. 78, 88-89 (1935)). Yet,
“[i]mproper vouching for witnesses is not considered to impact an express constitutional right.” U.S.
v. Harlow, 444 F.3d 1255, 1266 (10th Cir. 2006); Parker v. Scott, 394 F.3d 1302, 1310 (10th Cir.
2005). A habeas court reviews such claim for a denial of due process and “‘must find that the
absence of [fundamental] fairness fatally infected the trial [and] the acts complained of must be of
such quality as necessarily prevents a fair trial.’” Parker, 394 F.3d at 1310-11 (quoting Lisenba v.
California, 314 U.S. 219, 236 (1941)).
After a review of the record, the Court finds that the prosecutor’s statement was not improper
and did not deprive Petitioner of a fair trial. The comments made by the prosecutor regarding the
incident involving S.P. were fair inferences from the testimony and evidence. The Court finds these
statements to be proper. The Court concludes that the OCCA’s decision was not contrary to, or an
unreasonable application of federal law as determined by the Supreme Court, nor was it based on
an unreasonable determination of the facts in light of the evidence presented in the State court
proceedings. 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim of
prosecutorial misconduct.
c. Improperly eliciting sympathy for the victims
Petitioner also complains that the prosecutor improperly elicited sympathy for the victims
by introducing evidence demonstrating the impact of the victims’ allegations against Petitioner on
their friendships with Petitioner’s daughters. See Doc. 1 at 14-17. That evidence included testimony
that Petitioner’s twin daughters terminated their friendship when the victims reported Petitioner’s
offenses, that J.K. changed schools as a result of the incident, and that Petitioner’s daughter Ra.B.

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blocked S.P. on her Facebook and Skype pages. The OCCA denied relief, citing Okla. Stat. tit. 12,
§§ 2401, 2403, and finding that “[t]he evidence at issue was relevant to show the victims’ lack of
motivation to lie and its probative value was not outweighed by the danger of unfair prejudice . . .
. The introduction of this evidence did not amount to plain error.” See Doc. 11-3 at 2-3.
As stated above, habeas corpus relief is available for prosecutorial misconduct only when
the prosecutor’s statements render Petitioner’s trial fundamentally unfair. Donnelly, 416 U.S. at
642-48. It is not enough that the statements are undesirable or universally condemned. Darden, 477
U.S. at 181. “It is improper for a prosecutor to encourag[e] the jury to allow sympathy to influence
its decision.” Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (internal quotation marks
and citation omitted). However, the prosecutor can draw reasonable inferences from the record.
Hooper, 314 F.3d at 1172.
After reviewing the record and placing the prosecutor’s comments in context, the Court
concludes that the statements by the prosecutor were reasonable inferences based on the evidence
and testimony presented at trial. See id. Thus, when considered in light of the trial as a whole, the
Court cannot conclude that the statements “tipped the scales in favor of the prosecution.” Fero v.
Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994). The Court concludes that the OCCA’s decision was
not contrary to, or an unreasonable application of federal law as determined by the Supreme Court,
nor was it based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceedings. 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this
claim of prosecutorial misconduct.

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2. Ineffective assistance of appellate counsel (supplemental petition)
In his supplemental petition, Petitioner identifies four (4) claims of ineffective assistance of
appellate counsel. See Doc. 20 at 2-6. Petitioner presented these claims to the OCCA on postconviction appeal. The OCCA ruled as follows:
Claims of ineffective assistance of appellate counsel may be raised for the
first time on post-conviction as it is usually a petitioner’s first opportunity to allege
and argue the issue. As set forth in Logan v. State, 2103 OK CR 2, ¶ 5, 293 P.3d
969, post-conviction claims of ineffective assistance of appellate counsel are
reviewed under the standard for ineffective assistance of counsel set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
See Smith v. Robbins, 528 U.S. 259, 289, 120 S. Ct. 746, 765, 145 L. Ed. 2d 756
(2000) (“[Petitioner] must satisfy both prongs of the Strickland test in order to
prevail on his claim of ineffective assistance of appellate counsel.”). Under
Strickland, a petitioner must show both (1) deficient performance, by demonstrating
that his counsel’s conduct was objectively unreasonable, and (2) resulting prejudice,
by demonstrating a reasonable probability that, but for counsel’s unprofessional
error, the result of the proceeding would have been different. Strickland, 466 U.S.
at 687-89, 104 S. Ct. at 2064-66. And we recognize that “[a] court considering a
claim of ineffective assistance of counsel must apply a ‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of reasonable professional
assistance.” Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 787, 178 L. Ed. 2d
624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).
While citing numerous statutes and criminal cases, Brantley cites no specific
factual instances wherein appellate and trial counsel failed to effectively represent
his interests. Simply reciting various possible “errors” without relating the alleged
errors to what actually happened in a particular case is insufficient to meet the
burden required to show that counsel was ineffective. Brantley has failed to establish
that appellate counsel’s performance was deficient or objectively unreasonable, and
the record does not support the claim that counsel’s performance has resulted in
prejudice. Brantley must show a reasonable probability that appellate counsel would
have prevailed on direct appeal had he argued trial counsel was deficient and that
these errors resulted in prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Repeated conclusions that appellate counsel was ineffective are not sufficient proof.
This Court has held that “merely conclusory, unprovable, or unspecific claims of
ineffective assistance of appellate counsel do not raise an issue of material fact.”
Logan, 2013 OK CR 2, at ¶ 23, 293 P.3d at 978-979.
(Doc. 24-6 at 4-5).

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Petitioner is not entitled to habeas relief on his claim of ineffective assistance of appellate
counsel unless he demonstrates that the OCCA’s adjudication was contrary to, or an unreasonable
application of, Strickland v. Washington, 466 U.S. 668 (1984). When assessing claims of ineffective
assistance of appellate counsel, this Court applies the Strickland two-pronged standard used for
general claims of ineffective assistance of trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000).
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 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
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.” Richter,
562 U.S. at 112. If Petitioner is unable to show either “deficient performance” or “sufficient

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prejudice,” his claim of ineffective assistance fails. Strickland, 466 U.S. at 700. Thus, it is not
always necessary to address both Strickland prongs. This Court’s review of the OCCA’s decision
on ineffective assistance of counsel claims is “doubly deferential.” Pinholster, 563 U.S. at 190
(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)).
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). In Cargle v. Mullin, 317 F.3d 1196
(10th Cir. 2003), the Tenth Circuit 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.
Id. at 1202 (citation and footnote omitted); see also Parker v. Champion, 148 F.3d 1219, 1221 (10th
Cir. 1998). In addition,
[T]o satisfy Strickland’s deficient performance element, a habeas petitioner ‘must .
. . show that his appellate counsel was objectively unreasonable in failing to find
arguable issues to appeal – that is, that counsel unreasonably failed to discover
nonfrivolous issues and to file a merits brief raising them.’ To satisfy Strickland’s
prejudice element, a petitioner must establish ‘a reasonable probability that, but for
his counsel’s unreasonable failure to raise an issue, he would have prevailed on his
appeal.’
Kidwell v. Martin, 480 F. App’x 929, 933 (10th Cir. 2012) (unpublished) (quoting Robbins, 528 U.S.
at 285). The Tenth Circuit has consistently held that “[w]hile counsel should not omit ‘plainly
meritorious’ claims, counsel need not raise meritless issues.” Smith v. Workman, 550 F.3d 1258,

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1268 (10th Cir. 2008) (quoting Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004)). To prevail,
a petitioner must “show an ‘objectively unreasonable’ decision by the appellate counsel as well as
a ‘reasonable probability that the omitted claim would have resulted in relief.’” Id. (quoting Neill,
278 F.3d at 1057 & n.5).
For the reasons discussed below, the Court finds Petitioner has not demonstrated that the
OCCA’s adjudication of his claims of ineffective assistance of appellate counsel was contrary to,
or an unreasonable application of, clearly established federal law as determined by the Supreme
Court.
a. Failure to properly analyze and prepare direct appeal
Petitioner claims that appellate counsel “prepared and transmitted the petitioner’s appeal to
the Oklahoma Court of Criminal Appeals without validating the records he had received nor
analyzing what documents were in his possession correctly.” See Doc. 20 at 2. Petitioner complains
that some jury instructions were omitted from the record on appeal, and that appellate counsel failed
to properly analyze the prosecutorial misconduct claim and to argue ineffective assistance of counsel
for failing to object to the instances of prosecutorial misconduct. Id.
As a preliminary matter, Petitioner’s claim that appellate counsel provided ineffective
assistance in omitting a claim of ineffective assistance of trial counsel is discussed in subpart c,
below. As to Petitioner’s claim concerning the omission of jury instructions from the record on
appeal, Petitioner fails to satisfy either prong of the Strickland standard. The record provided by
Respondent demonstrates that the State filed a “motion for supplementation of the appeal record,”
requesting that the OCCA “order supplementation of the record with the jury instructions in this
case, which were timely designated but not included in the transmitted appeal record.” See Doc. 24-

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7 at 1. The OCCA granted the request, see Doc. 24-8, and the appeal record was supplemented, see
Doc. 24-9. Because counsel requested inclusion of the jury instructions in the record on appeal,
there was no deficient performance. Furthermore, Petitioner fails to identify any claim based on the
jury instructions. Therefore, to the extent Petitioner argues that counsel failed to review the
instructions and, as a result, omitted a claim, Petitioner’s habeas claim fails since he identifies no
omitted claim. Even if appellate counsel performed deficiently in failing to raise a claim on direct
appeal, Petitioner has not demonstrated that the result of his appeal would have been different.
Petitioner fails to satisfy the doubly deferential standard of review imposed by § 2254(d) and
Strickland and his request for habeas corpus relief on this claim of ineffective assistance of appellate
counsel is denied.
b. Refusal to act on Petitioner’s requests
As his second claim of ineffective assistance of appellate counsel, Petitioner complains that
his appellate counsel “refused” to file a bar complaint against the prosecutor and failed to raise
“additional grounds” requested by Petitioner on direct appeal. See Doc. 20 at 2. First, appellate
counsel did not perform deficiently in failing to file a bar complaint against the prosecutor on behalf
of Petitioner. Appellate counsel’s role is to raise issues of trial and constitutional error before the
state appellate court. That role does not encompass filing a complaint against the prosecutor with
the Oklahoma Bar Association on behalf of Petitioner. Furthermore, as discussed above, appellate
counsel raised claims of prosecutorial misconduct and the OCCA denied relief on the claims. As
there was no misconduct, there was no basis for a bar complaint. Second, as to the allegation that
appellate counsel failed to raise “additional grounds,” Petitioner does not identify the omitted
“additional grounds.” Nor does he provide any factual support for his claims. It is well established

18

that bare allegations, without supporting facts from the record, do not warrant habeas corpus relief.
Moore v. Gibson, 195 F.3d 1152, 1180 n.7 (10th Cir. 1999); see also Cummings v. Sirmons, 506
F.3d 1211, 1233-34 (10th Cir. 2007) (noting that “[w]ithout a more precise identification of what
[deficiencies Petitioner] is referring to,” no prejudice can be found); Humphreys v. Gibson, 261 F.3d
1016, 1022 n.2 (10th Cir. 2001) (noting that conclusory allegations were insufficient to warrant
habeas relief); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“Conclusory allegations
without supporting factual averments are insufficient to state a claim on which relief can be based.”).
Therefore, Petitioner’s bare allegation is insufficient to support a claim of ineffective assistance of
appellate counsel. Petitioner fails to satisfy the doubly deferential standard of review imposed by
§ 2254(d) and Strickland and his request for habeas corpus relief on this claim of ineffective
assistance of appellate counsel is denied.
c. Failure to raise claims of ineffective assistance of trial counsel
Next, Petitioner alleges that appellate counsel provided ineffective assistance in failing to
raise claims of ineffective assistance of trial counsel. See Doc. 20 at 3-5. Petitioner claims trial
counsel provided ineffective assistance in failing (1) to object to prosecutorial misconduct, (2) to
object to improper joinder of offenses, (3) to prepare an adequate defense, (4) to relay all plea
offers, (5) to raise “misconduct by the District Attorney’s office,” and (6) to raise judicial
misconduct issues. See id. Petitioner is not entitled to habeas corpus relief on these claims.
As to trial counsel’s failure to object to prosecutorial misconduct, the Court has determined
above that the three (3) claims of prosecutorial misconduct raised on direct appeal lack merit.
Therefore, Petitioner cannot satisfy the prejudice prong of Strickland as to trial counsel’s
performance because he cannot demonstrate that the result of his trial would have been different had

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trial counsel lodged objections. Petitioner’s underlying claim of ineffective assistance of trial
counsel lacks merit. As a result, appellate counsel did not provide ineffective assistance in failing
to raise a meritless issue. Hawkins, 185 F.3d at 1152.
Petitioner also claims that trial counsel provided ineffective assistance in failing to object
to the joinder of Counts 3 and 4. Specifically, Petitioner claims that “[c]harges were added and due
process was violated by the misjoining addition of two additional charges and foregoing the
requirement of a preliminary hearing after arraignment on these new charges.”2 See Doc. 20 at 3.
However, the record belies Petitioner’s claim that trial counsel failed to object. At the conclusion
of the preliminary hearing, the State moved to amend the information to add two (2) counts of
Indecent Proposal to a Child Under 16 (Counts 3 and 4). See Doc. 12-1, Tr. Prelim. Hr’g at 63.
Contrary to Petitioner’s allegations, counsel lodged an objection to the request and argued that “[i]f
the State wants to amend, they need to come back and amend and we get to have a preliminary
hearing on the four-count Information.” Id. at 65. Special Judge David Youll took the matter under
advisement. Id. at 66-67. After allowing the parties to brief and argue the issues, Judge Youll
allowed the State to amend the Information. See Doc. 24-12, Tr. Prelim. Hr’g Decision at 11.
Thereafter, trial counsel filed a motion to quash the Amended Information and, in the alternative,
sought remand for a further preliminary hearing, see Doc. 12-2, Tr. Mot. Hr’g at 2, and argued
forcefully in support of his requests, id. at 4. However, Judge Gillert denied the motion, ruling that

2

In his reply to the supplemental response, Petitioner also argues that “Counts 1 and 2 were
improperly joined and should have had separate trials.” See Doc. 26 at 3. That claim is not raised
in the supplemental petition and is not properly before the Court. See Jordan v. Wiley, 411 F. App’x
201, 212 n.9 (10th Cir. 2011) (unpublished) (“[A]n issue raised for the first time in a traverse ... [is]
not properly before the district court – a point emphasized by the fact that the district court in this
case did not address [the issue].”).
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“the magistrate did not err” in allowing the information to be amended. Id. at 5. Based on that
record, the Court finds Petitioner’s claim of ineffective assistance of counsel for failing to object to
the joinder of additional counts lacks factual support and the claim is meritless. Appellate counsel
did not provide ineffective assistance in failing to raise a meritless issue. Hawkins, 185 F.3d at
1152.
Petitioner also alleges that trial counsel failed to “prepare an adequate defense.” In support
of that allegation, Petitioner states that “[t]here is indisputable fact that trial counsel first attempted
a defense by civil litigation, which he proceeded to botch.” See Doc. 20 at 3. Petitioner further
alleges that, because his attorney “works for a law firm practicing civil law and that his individual
practice is normally conducted before the Federal Court,” his attorney “misrepresent[ed] his
expertise in Oklahoma criminal judicial procedure.” Id. at 4. Despite those allegations, Petitioner
completely fails to link any deficiency to his defense. He does not explain what his attorney should
have done to effect a different outcome at trial. As discussed above, conclusory allegations are
insufficient to warrant habeas relief. Humphreys, 261 F.3d at 1022 n.2. Petitioner fails to satisfy
the doubly deferential standard of review imposed by § 2254(d) and Strickland and his request for
habeas corpus relief on this claim of ineffective assistance of appellate counsel is denied.
Next, Petitioner claims that trial counsel failed to relay a plea offer of eighteen (18) months
and appellate counsel should have raised this claim on direct appeal. Petitioner states that “[i]t is
documented that trial counsel alluded to being able to get an eighteen (18) month plea deal from the
prosecution.” See Doc. 20 at 4 (emphasis added). However, nothing in the record suggests that
there was a firm plea offer of 18 months communicated from the State to defense counsel. In the
absence of any evidentiary support for the existence of a plea offer that was not communicated to

21

Petitioner, this claim of ineffective assistance of trial counsel fails. As a result, appellate counsel
did not provide ineffective assistance in failing to raise a meritless issue. Hawkins, 185 F.3d at
1152.
Petitioner’s next underlying claim of ineffective assistance of trial counsel concerns the fact
that Tulsa County District Attorney Tim Harris had been specially appointed to serve as a special
prosecutor for the federal government. See Doc. 20 at 4. As a result of that appointment, Petitioner
claims Harris forfeited his office of District Attorney. Id. However, as noted by Respondent, the
OCCA has addressed and rejected this precise claim. See Doc. 12-11, Johnson v. State, No. F-2013173 (Okla. Crim. App. July 17, 2014) (unpublished) (rejecting claim that District Attorney’s dual
commission prohibited prosecution of case). Thus, had appellate counsel raised this claim on direct
appeal, relief would have been denied based on the reasoning expressed in Johnson. This claim of
ineffective assistance of trial counsel lacks merit. As a result, appellate counsel did not provide
ineffective assistance in failing to raise a meritless issue. Hawkins, 185 F.3d at 1152.
Lastly, Petitioner alleges that appellate counsel should have claimed ineffective assistance
of trial counsel based on counsel’s failure to raise a claim of judicial misconduct. According to
Petitioner, Judge Gillert knew of District Attorney Harris’s dual commission “as of at least July
2012,” and “openly admitt[ed] his incompetence and ignorance in an interview” reported in the
Tulsa World newspaper on January 3, 2015, see Doc. 20 at 43-44. However, because the claim
based on Harris’s dual commission is meritless, whether or not Judge Gillert knew of the
commission is of no significance. As to Petitioner’s claim concerning Judge Gillert’s competence,
the newspaper article cited by Petitioner appeared after the conclusion of his direct appeal.
Therefore, although Petitioner misconstrues the “self-effacing” comments made by Judge Gillert

22

during his interview, appellate counsel cannot be faulted for failing to raise a claim based on the
article because it post-dated his representation of Petitioner. This claim of ineffective assistance of
appellate counsel is without merit.
In summary, Petitioner fails to satisfy the doubly deferential standard of review imposed by
§ 2254(d) and Strickland and his request for habeas corpus relief on this claim of ineffective
assistance of appellate counsel is denied.
d. Failure to request an evidentiary hearing
As his final claim of ineffective assistance of appellate counsel, Petitioner complains that
appellate counsel failed to request an evidentiary hearing. Based on the disposition of Petitioner’s
claims of ineffective assistance of trial counsel discussed above, and upon review of the trial record,
the Court finds that appellate counsel had no factual or legal basis to seek an evidentiary hearing
under Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, the only authority for requesting
an evidentiary hearing on claims of ineffective assistance of trial counsel. Therefore, appellate
counsel did not perform deficiently in failing to request an evidentiary hearing. Petitioner fails to
satisfy the doubly deferential standard of review imposed by § 2254(d) and Strickland and his
request for habeas corpus relief on this claim of ineffective assistance of appellate counsel is denied.
CONCLUSION
After carefully reviewing 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 or treaties of the United
States. Hence, his petition for writ of habeas corpus shall be denied.

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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.” 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 “indicate[s]
which specific issue or issues satisfy [that] showing.” 28 U.S.C. § 2253. A petitioner can satisfy
the 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) (citation omitted).
After considering the record in this case, the Court concludes a certificate of appealability
should not issue. Nothing suggests that this Court’s application of AEDPA standards to the OCCA’s
decisions is debatable amongst jurists of reason. See Dockins v. Hines, 374 F.3d 935, 937-38 (10th
Cir. 2004). The Court denies a certificate of appealability.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The original petition for a writ of habeas corpus (Doc. 1) and the supplemental petition (Doc.
20) are denied.

2.

A certificate of appealability is denied.

3.

A separate Judgment shall be entered in this case.
ORDERED THIS 7th day of March, 2017.

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