Maynard v. Patton

Filing 11

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; adding party Joe M Allbaugh terminating party Robert Patton (ODOC Director) ; denying certificate of appealability; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

JEFFERY DUANE MAYNARD,

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Petitioner,
vs.
JOE M. ALLBAUGH, Director,1
Respondent.

Case No. 14-CV-266-GKF-FHM

OPINION AND ORDER
Before the Court is Petitioner’s 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1).
Petitioner is a state inmate and appears pro se. Respondent filed a response (Dkt. # 6) to the petition
and provided the state court record (Dkt. ## 6, 7, 8, 9) for resolution of the claims raised in the
petition. Petitioner did not file a reply to the response. For the reasons discussed below, the petition
for writ of habeas corpus shall be denied.
BACKGROUND
On October 16, 2010, Tulsa police officers went to the Tulsa Select Hotel in search of
Petitioner Jeffery Duane Maynard. Based on information received from a person detained for
shoplifting, the officers suspected that Petitioner was manufacturing methamphetamine at the hotel.
First, the officers went to Room 162. As the officers approached the room, they smelled the strong
chemical odor associated with methamphetamine. They gained entry to the room and found three

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Petitioner is in custody at Lawton Correctional Facility, a private prison. Pursuant to Rule
2(a), Rules Governing Section 2254 Cases in the United States District Courts, the proper party
respondent in this matter is Joe M. Allbaugh, Director of the Oklahoma Department of Corrections.
Therefore, Joe M. Allbaugh, Director, is substituted in place of Robert C. Patton, Director, as party
respondent. The Clerk of Court shall note the substitution on the record.

occupants: Shannon Johnson, Perry Williams, and Tony Brown. The officers found a one-pot
methamphetamine lab in the bathroom of Room 162. One of the occupants told the officers that
Jeffery Maynard was in Room 463. Based on that information, the officers proceeded to Room 463.
They again smelled the strong chemical odor of methamphetamine as they approached the room.
One officer telephoned the room and told the man who answered that there was an emergency
downstairs and that he needed to leave. The officers then observed two men leave Room 463. As
the door opened, visible vapors came out of the room. One of the men, identified as Jeffery
Maynard, carried a black duffel bag found to contain two one-liter plastic bottles used as one-pot
methamphetamine labs. The other man leaving Room 463 was identified as Ryan Lane.
As a result of those events, Petitioner and co-defendants Shannon Johnson, Perry Williams,
and Tony Brown were charged in Tulsa County District Court, Case No. CF-2010-4103, with
Manufacturing a Controlled Dangerous Substance (Methamphetamine).2 Petitioner was charged
with committing the crime After Former Conviction of Two or More Felonies. During Petitioner’s
jury trial, both Johnson and Williams testified for the prosecution. At the conclusion of a two stage
trial, Petitioner’s jury found him guilty as charged and recommended a sentence of fifty (50) years
imprisonment and a $100,000 fine. On December 21, 2011, the trial judge sentenced Petitioner in
accordance with the jury’s recommendation. During trial proceedings, Petitioner was represented
by attorneys Stanley D. Monroe and Stephen G. Layman.

2

The docket sheet for Tulsa County District Court, Case No. CF-2010-4103, viewed at
www.oscn.net, demonstrates that both Johnson and Williams entered guilty pleas to a reduced charge
of Unlawful Possession of a Controlled Drug and received deferred sentences. The charge against
Brown was dismissed.
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Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (OCCA). On
direct appeal, Petitioner, represented by attorney Terry J. Hull, raised six (6) propositions of error,
as follows:
Proposition 1: The trial court committed plain error by instructing Appellant’s jury that the
status of Shannon Johnson and Perry Williams as accomplices and, therefore,
the necessity of any independent corroboration of their testimony, was for the
jury to decide, in violation of Appellant’s due process rights under the 14th
Amendment to the United States Constitution, [and] Art. II, § 7, of the
Oklahoma Constitution.
Proposition 2: Appellant was denied the effective assistance of trial counsel when counsel
failed to request proper accomplice status instructions as to Shannon Johnson
and Perry Williams, in violation of his rights under the 6th and 14th
Amendments to the United States Constitution and Art. II, §§7 and 20, of the
Oklahoma Constitution.
Proposition 3: The prosecution unmistakably injected the issue of parole into the sentencing
proceedings, denying Appellant’s due process rights to a fair sentencing trial
under the 14th Amendment to the United States Constitution and Art. II, § 7,
of the Oklahoma Constitution.
Proposition 4: Appellant was denied the effective assistance of trial counsel when counsel
failed to object to the prosecution’s argument injecting parole considerations
into the proceedings, in violation of his rights under the 6th and 14th
Amendments to the United States Constitution and Art. II, §§ 7 and 20, of the
Oklahoma Constitution.
Proposition 5: The trial court committed plain error by erroneously instructing the jury that
a fine of at least $50,000 was mandatory, denying Appellant’s due process
rights to a fair sentencing trial under the 14th Amendment to the United
States Constitution and Art. II, § 7, of the Oklahoma Constitution.
Proposition 6: Cumulative error denied Appellant a fair sentencing determination and
resulted in an excessive sentence.
(Dkt. # 6-1). On April 29, 2013, in an unpublished summary opinion filed in Case No. F-2011-1140,
the OCCA denied relief and affirmed the Judgment and Sentence of the trial court. See Dkt. # 6-3.
Petitioner did not file a petition for writ of certiorari at the United States Supreme Court.
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On September 16, 2013, Petitioner filed an application for post-conviction relief in state
district court alleging ineffective assistance of appellate counsel. See Dkt. # 6-4 at 5. That
application was denied on October 25, 2013. Id. Petitioner did not perfect a post-conviction appeal.
However, on December 26, 2013, Petitioner filed a second application for post-conviction relief
requesting an appeal out of time. Id. By Order filed January 28, 2014 (Dkt. # 6-4), the state district
judge found that Petitioner failed to show that his failure to perfect a timely post-conviction appeal
was through no fault of his own and, for that reason, declined to recommend that Petitioner be
granted a post-conviction appeal out of time. Petitioner appealed. By Order filed March 6, 2014,
in Case No. PC-2014-0162 (Dkt. # 6-6), the OCCA denied Petitioner’s application for a postconviction appeal out of time.
On May 27, 2014, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1).
Petitioner raises the following grounds of error:
Ground 1:

The state court of last resort’s review of Petitioner’s constitutional claims
violated clearly established federal law as determined by the Supreme Court.
28 U.S.C. 2254(d)(1).
The trial court committed plain error by instructing Petitioner’s jury that it
was to determine status of accomplices Shannon Johnson and Perry Williams
as well as necessity of independent corroboration of their testimony was for
jury to determine.

Ground 2:

Ineffective assistance claims review by state court of last resort [was]
contrary to clearly established law as determined by the Supreme Court of the
United States.
Trial counsel failed to request proper status instruction with respect to
accomplice status of Shannon Johnson and Perry Williams.

Ground 3:

The state court of last resort’s review of Petitioner’s ineffective for failure to
object to prosecution injecting issue of parole into the sentencing phase of
trial, violated clearly established federal law as determined by the U.S.
Supreme Court. 28 U.S.C. 2254(d)(1),(2).

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Counsel failed to object to prosecutor’s repetitive injection of prior felonies
to jury prejudiced due process provisions and fair proceeding.
Ground 4:

State court review of Petitioner’s due process claim the trial court erred by
erroneously instructing jury on fine of at least 50,000.00 was mandatory was
contrary to clearly established constitutional law as determined by the
Supreme Court of the United States.
Counsel failed to object to instruction on mandatory fine of not less than
$50,000.00. The jury was improperly instructed as a result.

Id. Respondent filed a response (Dkt. # 6) to the petition and argues that Petitioner is not entitled
to relief either under 28 U.S.C. § 2254(d) or because his claims are procedurally barred.
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). With the exception of the ineffective assistance of counsel claim raised in part of Ground
4, Petitioner’s claims were presented to the OCCA on direct appeal and are exhausted. The
ineffective assistance of counsel claim raised in part of Ground 4 is unexhausted. However, in light
of the procedural posture of this case, the Court finds an absence of available State corrective
process, see 28 U.S.C. § 2254(b)(1)(B), and dismissal is not required based on Petitioner’s failure
to exhaust state remedies. Nonetheless, as discussed in Part C, below, habeas corpus relief on the
unexhausted claim is denied based on an anticipatory procedural bar.
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).

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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.
1781, 1787 (2013). Section 2254(d) bars relitigation of claims adjudicated on the merits in state

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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).
Additionally, Oklahoma defines plain error as “an error 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). Addressing Oklahoma’s definition of plain error,
the Tenth Circuit found that there was “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.” Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir.
2005) (citation and internal quotation marks omitted). Therefore, when the OCCA applies the plain
error standard of review, this Court must defer to its ruling unless it “unreasonably appli[ed]” the
test. Id. (internal quotation marks omitted).
Here, Petitioner presented Grounds 1-3 and part of Ground 4 to the OCCA on direct appeal.
Because the OCCA addressed those claims on the merits, the Court will review those claims under
the standards of § 2254(d).
1. Improper jury instructions
In general, matters concerning jury instructions are considered questions of state law and are
not proper subjects of federal habeas corpus review under 28 U.S.C. § 2254. Patton v. Mullin, 425
F.3d 788, 807 (10th Cir. 2005); see Rose v. Hodges, 423 U.S. 19, 22 (1975) (stating federal habeas
relief is not permitted for state law errors). It is well established that “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 [] due process of law.” Nguyen v.
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Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997) (internal quotation marks and citation omitted); see
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.” (citation omitted)).
To determine whether Petitioner was deprived of a fundamentally fair trial and due process
of law, the Court must consider the challenged jury instructions “in the context of the instructions
as a whole and the trial record” and ask if “the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(internal quotation marks and citations omitted). “An omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law.” Maes, 46 F.3d at 984 (internal quotation
marks and citation omitted). “In reviewing an ambiguous instruction . . . we inquire ‘whether there
is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates
the Constitution.” Estelle, 502 U.S. at 72 (citation omitted). The Court also considers that:
[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades
of meaning in the same way that lawyers might. Differences among them in
interpretation of instructions may be thrashed out in the deliberative process, with
commonsense understanding of the instructions in the light of all that has taken place
at the trial likely to prevail over technical hairsplitting.
Boyde v. California, 494 U.S. 370, 380-81 (1990).
a. Improper accomplice instructions (Ground 1)
In Ground 1, Petitioner claims that the trial judge erred in instructing the jury that it was to
determine whether or not Shannon Johnson and Perry Williams were accomplices as well as whether
or not their testimony was sufficiently corroborated. See Dkt. # 1 at 5. The jury received
instructions directing as follows:
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As to the witness, Perry Scott Williams, you are instructed that you are to
determine whether or not he is an accomplice to the crime of which the defendant
here stands charged. If you determine that he is an accomplice, you cannot convict
the defendant upon the testimony Perry Scott Williams unless you find that his
testimony is corroborated as provided in these instructions.
(Dkt. # 7-9, O. R. Vol. 2 at 277, Instruction No. 32). An identical instruction was issued for witness
Shannon Johnson. See id. at 278, Instruction No. 33. With regard to corroboration, the jury was
instructed that:
In determining the question as to whether or not the testimony of an
accomplice has been corroborated, you must first set aside his or her testimony
entirely and then examine all of the remaining testimony, evidence, facts, and
circumstances, and ascertain from such examination whether there is any evidence
tending to show the commission of the offense charged and tending to connect the
defendant with the offense. If there is, then the testimony of the accomplice is
corroborated.
Id. at 280, Instruction No. 35.
On direct appeal, the OCCA reviewed this claim for plain error and ruled as follows:
In Proposition One, we find that Appellant waived appellate review of his
claim for all but plain error by failing to request the accomplice as a matter of law
instruction (Inst. No. 9-30, OUJI-CR(2d) (Supp. 2012)). Jones v. State, 2006 OK CR
5, ¶ 39, 128 P.3d 521, 538. Appellant has shown the existence of an actual error
plain on the record. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. As
the co-defendants were charged in the case the jury should have been instructed that
they were accomplices as a matter of law. Brazen v. State, 1994 OK CR 32, ¶ 39,
876 P.2d 240, 256; Nunley v. State, 1979 OK CR 107, ¶ 10, 601 P.2d 459, 462-63.
However, as the accomplices’ testimony was sufficiently corroborated, we find that
Appellant has not shown that the error affected the outcome of the proceeding.
Howell v. State, 1994 OK CR 62, ¶ 28, 882 P.2d 1086, 1092; Bryan, 1994 OK CR
32, ¶ 39, 876 P.2d at 256; Sellers v. State, 1991 OK CR 41, ¶ 31, 809 P.2d 676, 686.
Thus, plain error did not occur. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923. This
proposition is denied.
(Dkt. # 6-3 at 2-3).

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Thus, the OCCA determined that, under state law, the accomplice instructions were
erroneous because the jury should have been instructed that the testifying co-defendants were
accomplices as a matter of law. However the OCCA then found that the error did not affect the
outcome of the proceeding and was harmless. When a state court finds that an error is harmless,
federal habeas courts must determine if the error “had substantial and injurious effect or influence
in determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)); Littlejohn v. Trammell, 704 F.3d 817, 833-34 (10th Cir.
2013). This standard is mandated by the “[i]nterests of comity and federalism, as well as the State’s
interest in the finality of convictions that have survived direct review within the state court system.”
Littlejohn, 704 F.3d at 834. To grant relief, the reviewing court must have grave doubts as to the
error’s effect on the verdict, and if the court is in “virtual equipoise as to the harmlessness of the
error,” the court should “treat the error . . . as if it affected the verdict.” Selsor v. Workman, 644
F.3d 984, 1027 (10th Cir. 2011) (quoting Fry, 551 U.S. at 121 n.3).
Having reviewed the trial record, the Court finds that the evidence presented at trial was
strong and was sufficient to corroborate the accomplices’ testimony. As a result, the faulty jury
instructions did not have a substantial and injurious effect or influence on the jury’s verdict.
Petitioner fails to demonstrate that the OCCA’s adjudication of this claim was contrary to, or an
unreasonable application of, clearly established federal law as determined by the Supreme Court.
Habeas relief is denied at to Ground 1.
b. Improper punishment instruction (part of Ground 4)
In part of Ground 4, Petitioner claims that the trial judge erred in instructing the jury that a
fine of at least $50,000 was mandatory. See Dkt. # 1 at 10. The record confirms that, during the
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sentencing phase of trial, Petitioner’s jury was instructed that the punishment for a conviction for
Manufacturing a Controlled Dangerous Substance with and without prior convictions included “a
fine of not less than Fifty Thousand Dollars ($50,000.00).” See Dkt. # 7-9, O.R. Vol. 2 at 298-99,
Instruction No. 51. On direct appeal, the OCCA reviewed this claim for plain error and ruled as
follows:
In Proposition Five, we find that Appellant waived appellate review of his
claim for all but plain error by failing to object to the trial court’s instruction upon
the statutory range of punishment at trial. Jones, 2006 OK CR 5, ¶ 39, 128 P.3d at
538. The plain language of 63 O.S.Supp.2005, § 2-401(G)(2), provides for payment
of “a fine of not less than Fifty Thousand Dollars ($50,000,00), which shall be in
addition to other punishment provided by law and shall not be imposed in lieu of
other punishment.” Contra Coates v. State, 2006 OK CR 24, ¶ 6, 137 P.3d 682, 684.
Thus, the trial court is required to instruct the jury upon the term of imprisonment set
forth in 21 O.S.Supp.2002, § 51.1 and the fine provided by § 2-401(G)(2) to give
intelligent effect to this language. See State v. Young, 1999 OK CR 14, ¶ 27, 989
P.2d 949, 955 (setting forth the rules of statutory interpretation). As such, we find
that Appellant has not shown the existence of an actual error plain on the record.
Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923. Plain error did not occur. This
proposition is denied.
(Dkt. # 6-3 at 4-5).
The OCCA found that, under state law, the challenged jury instruction was proper. As set
forth above, this Court does not review alleged errors of state law. Upon review of the entire trial
transcript, the Court concludes that the issuance of the instruction setting forth the fine did not result
in a fundamentally unfair trial. Petitioner fails to demonstrate that the OCCA’s adjudication of this
claim was contrary to, or an unreasonable application of, clearly established federal law as
determined by the Supreme Court. Petitioner is not entitled to habeas relief on this part of Ground
4.

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2. Ineffective assistance of counsel (Grounds 2 and 3)
In Grounds 2 and 3, Petitioner claims that he received ineffective assistance of trial counsel.
See Dkt. # 1 at 6, 8. As discussed in more detail below, the OCCA cited Strickland v. Washington,
466 U.S. 668, 687 (1984), and denied relief on these claims.
Petitioner is not entitled to habeas relief on his claim of ineffective assistance of trial counsel
unless he demonstrates that the OCCA’s adjudication was contrary to, or an unreasonable application
of, Strickland. Under Strickland, a defendant must show that his counsel’s performance was
deficient and that the deficient performance was prejudicial. Id. 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,
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562 U.S. at 112. If Petitioner is unable to show either “deficient performance” or “sufficient
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)).
a. Failure to object to erroneous jury instructions (Ground 2)
As his second ground of error, Petitioner claims that trial counsel provided ineffective
assistance in failing to request proper accomplice jury instructions as to Shannon Johnson and Perry
Williams. See Dkt. # 1 at 6. The OCCA cited Strickland and ruled as follows:
As to Proposition Two, we find that Appellant has not shown that trial
counsel rendered ineffective assistance. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In Proposition One we found
that the trial court’s failure to instruct the jury that the co-defendants were
accomplices as a matter of law did not affect the outcome of the proceeding and thus
did not constitute plain error. Therefore, we find that Appellant has not shown
prejudice under Strickland. Glossip v. State, 2007 OK CR 12, ¶ 112, 157 P.3d 143,
161; Bland v. State, 2000 OK CR 11, ¶¶ 112-13, 4 P.3d 702, 730-31. This
proposition is denied.
(Dkt. # 6-3 at 3).
In light of the Court’s ruling in Part B(1)(a) above, that the trial court’s issuance of the
erroneous accomplice instructions was harmless error, Petitioner cannot show that counsel’s failure
to request the proper instructions was prejudicial. For that reason, Petitioner fails to demonstrate that
the OCCA’s adjudication of this claim of ineffective assistance of counsel was contrary to, or an
unreasonable application of, clearly established law as determined by the Supreme Court. Petitioner
is not entitled to habeas corpus relief on Ground 2.
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b. Failure to object to mention of parole during sentencing phase (Ground 3)
In Ground 3, Petitioner alleges that trial counsel provided ineffective assistance in failing to
object to the prosecutor’s allegedly improper injection of parole into the sentencing phase of trial.
See Dkt. # 1 at 8. On direct appeal, the OCCA rejected the underlying prosecutorial misconduct
claim, finding as follows:
We review the prosecutor’s comments under the standard set forth in Simpson v.
State, 1994 OK CR 40, 876 P.2d 690. Malone v. State, 2013 OK CR 1, ¶ 41, 293
P.3d 198, 211-12. In light of the totality of the closing argument, we find that the
prosecutor did not make an unmistakable reference to the pardon and parole system
of Oklahoma to the prejudice of Appellant. Darks v. state, 1998 OK CR 15, ¶ 59,
954 P.2d 152, 167; Hunter v. State, 2009 OK CR 17, ¶ 9, 208 P.3d 931, 933 (finding
error where prosecutor explicitly mentions defendant’s prior receipt of suspended
sentences); Massingale v. State, 1986 OK CR 6, ¶ 8, 713 P.2d 15, 16 (finding no
error where prosecutor merely mentions sentence given in prior conviction). As
such, we find that Appellant has not shown the existence of an actual error plain on
the record. Malone, 2013 OK CR 1, ¶ 42, 293 P.3d at 212. This proposition is
denied.
(Dkt. # 6-3 at 3-4). Based on that ruling, the OCCA also denied relief on Petitioner’s claim of
ineffective assistance of counsel for failing to object to the allegedly improper comments by the
prosecutor, as follows:
As to Proposition Four, we find that Appellant has not shown that trial
counsel rendered ineffective assistance. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064 (1984). In Proposition Three we found that the prosecutor’s comments did not
constitute plain error. Therefore, we find that Appellant has not shown prejudice
under Strickland. Glossip, 2007 OK CR 12, ¶ 112, 157 P.3d at 161; Bland, 2000 OK
CR 11, ¶¶ 112-13, 4 P.3d at 730-31. This proposition is denied.
(Dkt. # 6-3 at 4).
During second stage closing argument, the prosecutor stated that Petitioner’s sentences for
his four (4) prior felony convictions dating from the mid-1980s totaled 35 years. See Dkt. # 7-6, Tr.
Vol. 5 at 127. The prosecutor also stated that Petitioner had already had “four chances.” Id. at 131.
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Those statements are not unmistakable references to parole. Upon careful review of the prosecutor’s
second stage closing arguments, the Court cannot find that the arguments were improper. Because
the statements were not improper, Petitioner cannot show that counsel’s failure to object to the
statements constituted deficient performance. Nor has Petitioner demonstrated that he suffered
prejudice as a result of counsel’s failure to object. For those reasons, Petitioner fails to demonstrate
that the OCCA’s adjudication of this claim of ineffective assistance of counsel was contrary to, or
an unreasonable application of, clearly established law as determined by the Supreme Court.
Petitioner is not entitled to habeas corpus relief on Ground 3.
C. Procedural bar (part of Ground 4)
As part of Ground 4, Petitioner alleges that trial counsel provided ineffective assistance in
failing to object to the jury instruction requiring imposition of a fine of not less than $50,000.
Although Petitioner claimed on direct appeal that the jury instruction was improper, he has never
presented a claim of ineffective assistance of counsel for failing to object to the instruction to the
OCCA. Because the OCCA would impose a procedural bar on this claim if Petitioner were to return
to state court to file a third application for post-conviction relief, the claim is subject to an
anticipatory procedural bar.
The doctrine of procedural bar 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, 46 F.3d at 985; Gilbert v. Scott, 941 F.2d 1065, 1067-68 (10th
15

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. (internal quotation marks and
citation omitted).
Here, Petitioner has not presented his Ground 4 claim of ineffective assistance of counsel to
the OCCA and the Court finds that the claim is procedurally barred. Relying on Okla. Stat. tit. 22,
§ 1086, the OCCA routinely imposes a procedural bar on claims that could have been but were not
raised in a prior application. That ruling is an “independent” state ground because it provides “the
exclusive basis for the state court’s holding.” Maes, 46 F.3d at 985. Additionally, a procedural bar
based on Okla. Stat. tit. 22, § 1086, is an “adequate” state ground sufficient to bar the claims. See
Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) (stating that Okla. Stat. tit. 22, § 1086, “is an
independent and adequate state ground for denying habeas relief”). For those reasons, the
unexhausted claim in Ground 4 is procedurally barred.
This Court may not consider the defaulted claim unless Petitioner is able to show “cause and
prejudice” for the procedural default or demonstrate that a fundamental miscarriage of justice would
result if his claim is not considered. See Coleman, 501 U.S. at 750; Demarest v. Price, 130 F.3d 922,
941-42 (10th Cir. 1997). The cause standard requires a petitioner to “show that some objective
factor external to the defense impeded . . . 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.” U.S. v.
Frady, 456 U.S. 152, 168 (1982). A “fundamental miscarriage of justice” instead requires a
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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).
Petitioner did not file a reply to Respondent’s response and makes no showing of “cause and
prejudice” or a “fundamental miscarriage of justice.” Accordingly, the Court concludes that it is
procedurally barred from considering the merits of Petitioner’s defaulted claim of ineffective
assistance of counsel as raised in Ground 4. Coleman, 510 U.S. at 724. Habeas corpus relief on that
ground 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. His petition for writ of habeas corpus shall be denied.
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). In addition, when the Court’s ruling is based on
procedural grounds, Petitioner must demonstrate that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
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reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
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 AEDPA standards to the decision by the OCCA was debatable amongst jurists of
reason. See Dockins v. Hines, 374 F.3d 935, 937-38 (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 petition on procedural grounds was debatable. A
certificate of appealability shall be denied.

ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The Clerk of Court shall note the substitution of Joe M. Allbaugh, Director, in place of
Robert C. Patton, Director, as party respondent.

2.

The petition for a writ of habeas corpus (Dkt. # 1) is denied.

3.

A certificate of appealability is denied.

4.

A separate Judgment shall be entered in this case.

DATED this 17th day of April, 2017.

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