Burkhalter v. Patton

Filing 13

OPINION AND ORDER by Judge John E Dowdell Janet Dowling, Warden, is substituted for Carl Bear, Acting Warden, as the party respondent in this action. The Clerk shall note the substitution on the record. Petitioner's petition is a "mi xed petition," containing both exhausted and unexhausted claims, and is subject to dismissal in its current form. Within thirty (30) days of the entry of this Order, or by July 9, 2015, Petitioner may file an amended petition containing only exh austed claims and deleting his unexhausted claims. The Clerk is directed to send Petitioner a blank petition for writ of habeas corpus (form AO-241), marked "Amended" and identified as Case No. 14-CV-685-JED-FHM., setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 7/9/2015) (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (SAS, Chambers)

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

JERMAINE MENDEZ BURKHALTER,
Petitioner,
vs.
ROBERT PATTON, ODOC Director,
Respondent.

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Case No. 14-CV-685-JED-FHM

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action commenced by Petitioner, a state inmate
appearing pro se. On January 9, 2015, Respondent filed a motion to dismiss the petition for failure
to exhaust state remedies (Doc. 10). Petitioner filed a response to the motion to dismiss (Doc. 12).
For the reasons discussed below, the Court finds the petition is a “mixed petition,” subject to
dismissal without prejudice for failure to exhaust state remedies. However, Petitioner will be
afforded the opportunity to file an amended petition to omit the unexhausted claims.
BACKGROUND
The record reflects that, at the conclusion of a jury trial held in Tulsa County District Court,
Case No. CF-2009-3618, Petitioner Jermaine Mendez Burkhalter was convicted of three (3) counts
of Sexual Abuse of a Minor Child, After Former Conviction of Two or More Felonies (Counts 1,
2, and 3); four (4) counts of Physical Abuse of a Minor Child, After Former Conviction of Two or
More Felonies (Counts 4 through 7); and one misdemeanor count of Assault and Battery (Count 8).
On February 27, 2012, the trial judge sentenced Petitioner, in accordance with the jury’s
recommendations, to life imprisonment on Counts 1 through 3, twenty (20) years imprisonment on
Counts 4 through 7, and ninety (90) days imprisonment and a fine of $1,000 on Count 8, with the

sentences ordered to be served consecutively. See Doc. 11-1. At trial, attorney Lee Berlin
represented Petitioner.
Petitioner perfected a direct appeal in the Oklahoma Court of Criminal Appeals (OCCA).
Represented by attorney Andreas T. Pitsiri, Petitioner raised five (5) propositions of error, as
follows:
Proposition 1:

The improper admission of other crimes or bad acts prejudiced the
jury, deprived Mr. Burkhalter of his fundamental right to a fair trial
and warrants reversal of his sentences.

Proposition 2:

Prosecutorial misconduct constituted fundamental error and deprived
Mr. Burkhalter of a fair trial.

Proposition 3:

Mr. Burkhalter was prejudiced by ineffective assistance of counsel.

Proposition 4:

Mr. Burkhalter’s punishment is grossly excessive and should shock
the conscience of this court. Further, the trial court abused its
discretion by ordering Appellant to serve all sentences in the instant
case consecutively. Thus, this court should grant relief to Mr.
Burkhalter.

Proposition 5:

The cumulative effect of all these errors deprived Mr. Burkhalter of
a fair trial and warrants relief.

(Doc. 11-2). In an unpublished summary opinion, entered December 12, 2013, in Case No. F-2012210, the OCCA affirmed the trial court’s judgment and sentence. See Doc. 11-4. Petitioner did not
seek post-conviction relief in the state courts prior to filing his federal habeas corpus petition.
On November 12, 2014, Petitioner filed his federal petition for writ of habeas corpus (Doc.
1) and supporting brief (Doc. 2). In his supporting brief, Petitioner identifies his claims as follows:
Ground 1:

Improper admission of other crimes or bad acts prejudiced the jury, deprived
Mr. Burkhalter of his fundamental right to a fair trial and warrants reversal
of his sentences.
A.
Petitioner’s constitutional rights towards equal protection and due
process was [sic] grossly violated by the state trial, OCCA and the

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B.

state prosecutor, Sixth and Fourteenth Amendment[s] United States
Constitution.
Petitioner[’s] constitutional rights were violated by state prosecution
improper conduct, which denied Petitioner a fair trial.

Ground 2:

Prosecutorial misconduct constituted fundamental error and deprived Mr.
Burkhalter of a fair trial.
A.
Oklahoma laws require that expert witnesses must qualify as experts
“by knowledge, skill, experience, training or education.”

Ground 3:

Mr. Burkhalter was prejudiced by ineffective assistance of counsel.
A.
That the false statement of [the victim] was knowingly and
intentionally with reckless disregard for the truth, was included by
her and that false statement was necessary to the finding of probable
cause affidavit in issuance of the search warrant in violation of Mr.
Burkhalter’s rights.

Ground 4:

Mr. Burkhalter’s punishment is grossly excessive and should shock the
conscience of this court. Further, the trial court abused its discretion by
ordering Appellant to serve all sentences in the instant case consecutively.
Thus, this court should grant relief to Mr. Burkhalter.

Ground 5:

The cumulative effect of all these errors deprived Mr. Burkhalter of a fair
trial and warrants relief.

(Doc. 2). In response to the petition, Respondent filed the motion to dismiss and supporting brief.
In the supporting brief, Respondent argues that the petition should be dismissed without prejudice
as a mixed petition containing both exhausted and unexhausted claims. See Doc. 11. Petitioner filed
a response to the motion to dismiss, arguing that the claims raised in his supporting brief were
presented to the OCCA on direct appeal and are exhausted. See Doc. 12 at 5. As a second
argument, Petitioner alleges that it would be futile to return to state court to exhaust because the state
courts would impose a procedural bar on his claims. Id. at 7. Petitioner also requests that this action
be stayed so that he may return to state court to exhaust his claims. Id. at 4.

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ANALYSIS
In the habeas corpus context, the United States Supreme Court “has long held that a state
prisoner’s federal petition should be dismissed if the prisoner has not exhausted available state
remedies as to any of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); 28
U.S.C. § 2254(b)(1)(A). The exhaustion requirement is based on the doctrine of comity. Rose v.
Lundy, 455 U.S. 509, 518-19 (1982). Requiring exhaustion “serves to minimize friction between
our federal and state systems of justice by allowing the State an initial opportunity to pass upon and
correct alleged violations of prisoners’ federal rights.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981)
(per curiam).
In order to exhaust a claim, the applicant “must ‘fairly present’ his claim in each appropriate
state court . . . , thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541
U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam)); see
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (explaining that the exhaustion requirement
dictates that a § 2254 petitioner “must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate review
process,” including discretionary review by the State’s highest court). “The exhaustion requirement
is satisfied if the issues have been properly presented to the highest state court, either by direct
review of the conviction or in a postconviction attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th
Cir. 1999) (internal quotation marks omitted).
Here, upon review of the record, including the briefs filed by Petitioner and the State on
direct appeal, the Court finds that, within each of his habeas claims, Petitioner raises additional
claims that have not been presented to the OCCA. Even though the headings for the five habeas

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grounds of error match the headings for the five propositions of error presented to the OCCA on
direct appeal, Petitioner expands his factual allegations and legal arguments within each ground.
In addition, within the “Statement of the Facts” section of his habeas corpus supporting brief,
Petitioner raises unexhausted claims that he was denied his right to “conflict free counsel,” appellate
counsel provided ineffective assistance in failing to raise claims of ineffective assistance of trial
counsel on direct appeal, he is “actually innocent,” the prosecution “suppressed documents,” and
he was denied a defense expert witness. See Doc. 2 at 3.
As his first proposition of error on direct appeal, Petitioner alleged that other crimes
evidence, in the form of testimony by the victim’s aunt, Altisha Boyd, was improperly admitted at
trial. In contrast, in his first habeas ground of error, Petitioner claims that he was denied expert
witness testimony to show that Altisha Boyd “live[d] in a make believe world and suffered from
abnormal behavior.” See Doc. 2 at 3. He also complains that “the jury could permissibly infer from
James’ testimony regarding the prior molestation that petitioner had the propensity to engage in
sexual conduct with adolescent males.” Id. Further, he complains that defense counsel was
unprepared, failed to comply with discovery, failed to present material evidence, failed to show that
the victim’s testimony was distorted and marked by fantasy, failed to interview alibi witnesses,
failed to know the sentencing range for one of the charged crimes, and failed to subject the
prosecution’s case to meaningful adversarial process. Id. at 6. In subparts A and B of Ground 1,
Petitioner alleges that the State failed to present evidence corroborating the victim’s testimony in
violation of his Sixth and Fourteenth Amendment rights, and that he was subjected to double
jeopardy by the prosecutor’s introduction of evidence of the same events and transactions in support

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of multiple counts. Id. at 7-9. None of the claims raised in the text of the first habeas ground of
error has been presented to the OCCA.
As his second proposition of error on direct appeal, Petitioner alleged that the prosecutor
engaged in misconduct when he improperly vouched for the State’s witnesses during voir dire,
improperly elicited sympathy for the victim during closing argument, and improperly accused
defense counsel of wrongdoing during voir dire and closing argument. See Doc. 11-2 at 20-28. In
contrast, as his second habeas ground of error, Petitioner alleges that prosecutorial misconduct
occurred when Ms. Rose Turner, a social worker, was not qualified as an expert witness. (Doc. 2
at 10). He also complains that appellate counsel cited “the wrong standards for reviewing his
[claim].” Id. Petitioner also references, without explanation, a Brady1 violation. Id. at 11-12. None
of the claims raised in the text of the second habeas ground of error has been presented to the
OCCA.
As his third proposition of error on direct appeal, Petitioner claimed that trial counsel
provided ineffective assistance when he failed to object to the prosecutor’s improper vouching for
the State’s witnesses and his improper elicitation of sympathy for the victim. (Doc. 11-2 at 30).
Petitioner also alleged that trial counsel provided ineffective assistance when he failed to move for
a mistrial following the testimony of Altisha Boyd. Id. at 32. The claim of ineffective assistance
of trial counsel raised in the habeas supporting brief is entirely different. Here, Petitioner alleges

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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”).
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that trial counsel provided ineffective assistance when he failed “to request a Franks2 hearing on the
charges in the warrant information and the affidavit used for probable cause.” (Doc. 2 at 13).
Petitioner also complains of ineffective assistance of appellate counsel and that “trial counsel
refused to call a material witness for the defense.” Id. at 14-15. None of the claims raised in the text
of the third habeas ground of error has been presented to the OCCA.
As his fourth proposition of error on direct appeal, Petitioner alleged that his sentences are
“grossly excessive” and “should shock the conscience” of the appellate court. (Doc. 11-2 at 36).
In contrast, in his supporting habeas brief, Petitioner claims that what is shocking to the conscience
is that the trial court allowed multiple separate counts for “a single alleged conduct.” (Doc. 2 at 16).
Petitioner also alleges that his punishment under Okla. Stat. tit. 21, § 51.1, violated the legislative
intent of the statute as well as equal protection of the laws. Id. None of the claims raised in the text
of the fourth habeas ground of error has been presented to the OCCA.
As his fifth proposition of error on direct appeal, Petitioner alleged that the cumulative effect
of the errors identified in the direct appeal brief deprived him of a fair trial. (Doc. 11-2 at 45). In
his habeas brief, Petitioner also complains of cumulative error, but offers a completely different list
of trial errors giving rise to cumulative error. (Doc. 2 at 17-19). The claim raised in the text of the
fifth habeas ground of error has not been presented to the OCCA.
In summary, none of the claims contained in the text of Petitioner’s supporting habeas brief
has been presented to the OCCA. Therefore, all of those claims are unexhausted. The claims
identified in the headings raised in the habeas supporting brief have been presented to the OCCA

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Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding that a criminal defendant may
challenge a facially sufficient affidavit for a search warrant on the ground that the police knowingly,
intentionally or recklessly included false information).
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and, to the extent Petitioner intended to include his direct appeal claims in this matter, those claims
are exhausted. In the absence of an exception to the exhaustion doctrine, the instant petition is a
“mixed petition,” containing both exhausted and unexhausted claims, and is subject to dismissal for
failure to exhaust state remedies. Rose, 455 U.S. 509 (holding that a federal district court must
dismiss a habeas corpus petition containing exhausted and unexhausted grounds for relief). The
Court notes that, under the facts of this case and contrary to Petitioner’s argument asserted in
response to the motion to dismiss (Doc. 12), requiring exhaustion may not be futile because
Petitioner has an available remedy for his unexhausted claims, an application for post-conviction
relief filed in Tulsa County District Court, Case No. CF-2009-3618. Therefore, the futility
exception does not apply.
The enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996
“dramatically altered the landscape for federal habeas corpus petitions” by preserving the “total
exhaustion” requirement of Lundy, but at the same time imposing a 1-year statute of limitations on
the filing of federal petitions. Rhines v. Weber, 544 U.S. 269, 274 (2005). “As a result of the
interplay between AEDPA’s 1-year statute of limitations and Lundy’s dismissal requirement,
petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their
opportunity for any federal review of their unexhausted claims.” Id. at 275. Petitioner filed his
petition for writ of habeas corpus prior to expiration of the 1-year limitations period. However,
because the pendency of this federal action does not serve to toll the limitations period, see Duncan
v. Walker, 533 U.S. 167, 181-182 (2001) (holding that the statute of limitations is not tolled during
the pendency of a federal petition), if the Court were to dismiss this petition, Petitioner may be

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precluded from returning to federal court after exhausting his claims by the § 2244(d) limitations
period.3
The Court has discretion to stay this matter while Petitioner returns to state court to exhaust
his unexhausted claims as raised in the supporting brief. Rhines, 544 U.S. at 276. However, the
Court finds that course of action is unwarranted in this case. “Stay and abeyance is only appropriate
when the district court determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court.” Id. at 277. Petitioner offers no explanation for his failure to exhaust all
of his claims before filing his petition. See Doc. 8. Furthermore, nothing in the record suggests that
Petitioner can demonstrate “good cause” for his failure to exhaust each of his claims in state court
prior to filing his petition. For that reason, the Court declines to stay this action.
Although a “stay and abeyance” is not warranted in this case, the Court will afford Petitioner
the opportunity to file an amended petition to delete the unexhausted claims and to proceed with
only exhausted claims. See Rhines, 544 U.S. at 278. Therefore, if Petitioner wishes to proceed at
this time with only his exhausted claims, i.e., those claims that were presented to the OCCA on
direct appeal, he may, within thirty (30) days of the entry of this Order, file an amended petition

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Petitioner’s conviction became final for purposes of the one-year limitations period
prescribed by 28 U.S.C. § 2244(d)(1)(A), on March 12, 2014, or 90 days after the OCCA affirmed
Petitioner’s judgment and sentence on direct appeal on December 12, 2013, when the period for
seeking certiorari review in the United States Supreme Court had lapsed. See Locke v. Saffle, 237
F.3d 1269, 1273 (10th Cir. 2001). Therefore, in the absence of statutory or equitable tolling,
Petitioner’s one year limitations period began to run on March 13, 2014, and his deadline for filing
a timely petition for writ of habeas corpus was March 13, 2015. See United States v. Hurst, 322
F.3d 1256 (10th Cir. 2003) (applying Fed. R. Civ. P. 6(a) to calculate AEDPA deadline); Harris v.
Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011). The petition in this case was filed November 12,
2014, or before the deadline. However, the deadline has now passed. As a result, if this Court were
to dismiss this petition, any effort by Petitioner to return to federal court after exhausting state
remedies may be time-barred since the one-year limitations period appears to have expired during
the pendency of this action.
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raising only his exhausted claims and deleting his unexhausted claims. If Petitioner fails to file an
amended petition within thirty (30) days of the entry of this order, the Court will enter an order
granting Respondent’s motion to dismiss and dismissing this action in its entirety without prejudice
for failure to exhaust state remedies.

ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Janet Dowling, Warden, is substituted for Carl Bear, Acting Warden, as the party respondent
in this action. The Clerk shall note the substitution on the record.

2.

Petitioner’s petition is a “mixed petition,” containing both exhausted and unexhausted
claims, and is subject to dismissal in its current form.

3.

Within thirty (30) days of the entry of this Order, or by July 9, 2015, Petitioner may file an
amended petition containing only exhausted claims and deleting his unexhausted claims.

4.

Should Petitioner file an amended petition as directed herein, Respondent’s motion to
dismiss will be denied as moot and this action will proceed on claims raised in the amended
petition.

5.

Should Petitioner fail to file an amended petition by the above-referenced deadline, the Court
will enter an Order granting Respondent’s motion to dismiss and dismissing the petition for
a writ of habeas corpus without prejudice for failure to exhaust available state remedies.

6.

The Clerk is directed to send Petitioner a blank petition for writ of habeas corpus (form AO241), marked “Amended” and identified as Case No. 14-CV-685-JED-FHM.

ORDERED THIS 9th day of June, 2015.

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