Barham v. Patton

Filing 26

OPINION AND ORDER by Judge Claire V Eagan - The Clerk of Court shall note the substitution of Jimmy Martin in place of Robert Patton as party respondent. ; denying certificate of appealability; denying 4 Petition for Writ of Habeas Corpus (2241/2254) (RGG, Chambers)

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

DRÉ EDWARD BARHAM,
Petitioner,
v.
JIMMY MARTIN,
Respondent.1

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Case No. 15-CV-0219-CVE-JFJ

OPINION AND ORDER
Before the Court is the amended petition for writ of habeas corpus (Dkt. # 4) filed by
petitioner Dré Edward Barham, a state inmate appearing pro se. Petitioner is serving a twelve-year
prison sentence following his conviction in the District Court of Nowata County, Case No. CF-201064, on one count of forcible oral sodomy. Respondent filed a response to the amended petition (Dkt.
# 13) and provided the state court records (Dkt. ## 13, 14) necessary for the adjudication of
petitioner’s claims. Petitioner did not file a reply. For the reasons discussed below, petitioner’s
amended petition for a writ of habeas corpus shall be denied.
BACKGROUND
Around 11:00 p.m. on July 13, 2010, R.W. received a text message from Robert Wade,
inviting R.W. to his house. Dkt. # 14-8, Trial Tr. vol. 2, at 87-88.2 R.W., who was 14 years old at

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Petitioner is currently incarcerated at the North Fork Correctional Center (NFCC), in Sayre,
Oklahoma. Dkt. # 24. The NFCC’s warden, Jimmy Martin, is therefore substituted in place
of Robert Patton as party respondent. See Rule 2(a), Rules Governing Section 2254 Cases
in the United States District Courts. The Clerk of Court shall note this substitution on the
record.

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For consistency, the Court’s record citations refer to the CM/ECF header page number in the
upper right-hand corner of each document.

the time, knew Wade because Wade was dating R.W.’s cousin. Id. at 86-87. Wade, who was then
20 years old, knew R.W. was only 14 years old. Id. at 112, 114, 141. After R.W. agreed to “hang
out,” petitioner, Wade, and Demetrius Thompson3 drove to R.W.’s house in petitioner’s green Chevy
Blazer. Id. at 88-89, 119-20; Dkt. # 14-9, Trial Tr. vol. 3, at 92. Wade and Thompson got out of
the Blazer, walked to R.W.’s bedroom window, helped her climb out of her window, and returned
to the Blazer with R.W. Dkt. # 14-8, Trial Tr. vol. 2, at 88-89, 121. Petitioner drove the group to
Wade’s house. Id. at 122; Dkt. # 14-9, Trial Tr. vol. 3, at 94. All four went inside and went upstairs
to Wade’s bedroom. Dkt. # 14-8, Trial Tr. vol. 2, at 123; Dkt. # 14-9, Trial Tr. vol. 3, at 94.
Thompson or Wade gave R.W. several shots of vodka. Dkt. # 14-8, Trial Tr. vol. 2, at 92, 123, 125,
155. When the vodka bottle was empty, Wade retrieved a bottle of “homemade alcohol” from
downstairs and encouraged R.W. to drink some. Id. at 92-93; Dkt. # 14-9, Trial Tr. vol. 3, at 95.
Sometime thereafter, petitioner “pulled out an orange bottle with green liquid in it and poured it into
[R.W.’s] QuikTrip cup,” which contained Sprite. Dkt. # 14-8, Trial Tr. vol. 2, at 93. After R.W.
drank that mixture, which the men called “Lean,”4 she began feeling dizzy and told the men she was
tired. Id. at 93.
Thompson, who was then 21 years old, picked R.W. up, sat her on top of him, and started
removing her clothes. Id. at 94, 128-29, 150. After R.W. was undressed, Thompson and Wade took

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In the trial transcripts, Thompson is referred to as both Demetrius Thompson and Demetrius
Thomas. See, e.g., Dkt. # 14-8, Trial Tr. vol. 2, at 114, 150-51. However, the charging
document and the Oklahoma Department of Corrections (ODOC) website both reflect that
the correct name is Demetrius Thompson. See Dkt. # 14-14, O.R., at 50 (Information);
ODOC website, https://okoffender.doc.ok.gov, last visited Sept. 13, 2018.

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Wade testified that “Lean” is a street term for Promethazine, a prescription cough syrup.
Dkt. # 14-8, Trial Tr. vol. 2, at 132-33.
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turns having vaginal intercourse with, and receiving oral sex from, R.W. Id. at 95-96, 129-30. At
some point, petitioner went downstairs to get some food. Id. at 95-96, 127. Wade later went
downstairs and told petitioner R.W. wanted to “mess with” petitioner. Dkt. # 14-9, Trial Tr. vol. 3,
at 95-96. Petitioner, who was 19 years old at the time, asked Wade if R.W. was “giving brain,”
meaning performing oral sex. Dkt. # 14-8, Trial Tr. vol. 2, at 130-31, 157, 206. Petitioner went
back upstairs, pulled down his shorts, and received oral sex from R.W. Id. at 96, 131; Dkt. # 14-9,
Trial Tr. vol. 3, at 96-97. Not long thereafter, R.W. got dressed and asked petitioner to take her
home. Dkt. # 14-9, Trial Tr. vol. 3, at 97. Petitioner, Wade, Thompson, and R.W. got into
petitioner’s Blazer, and petitioner drove to R.W.’s house. Dkt. # 14-8, Trial Tr. vol. 2, at 131-32.
Wade and Thompson got out with R.W. and helped her climb through her bedroom window. Id. at
98. About one week later, R.W. told family members about the incident and, ultimately, reported
the incident to the Nowata Police Department. Id. at 98-99.
In August 2010, the State charged petitioner, in the District Court of Nowata County, Case
No. CF-2010-64, with second degree rape, in violation of OKLA. STAT. tit. 21, § 1114 (count 1),
lewd molestation, in violation of OKLA. STAT. tit. 21, § 1123 (count 2), forcible sodomy, in violation
of OKLA. STAT. tit. 21, § 888 (count 3), and furnishing alcohol to a minor, in violation of OKLA.
STAT. tit. 37, § 538(F) (count 4). Dkt. # 14-14, O.R., at 50. Following a preliminary hearing, the
state district court found probable cause to bind Petitioner over on only two charges: lewd
molestation and forcible sodomy. Dkt. # 14-1, Prelim. Hr’g Tr., at 61-64. Petitioner’s case was
tried to a jury in May 2012, and the jury found petitioner guilty of both charges. Dkt. # 14-9, Trial
Tr. vol. 3, at 1, 147. Consistent with the jury’s recommendations, the trial court imposed a five-year
prison sentence and $5,000 fine for the lewd molestation conviction, imposed a twelve-year prison

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sentence and $5,000 fine for the forcible sodomy conviction, and ordered the sentences to be served
consecutively. Id. at 147; Dkt. # 14-13, Sent. Hr’g Tr., at 14-15.
Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA),
raising eight propositions of error:
Proposition 1: The simultaneous convictions for lewd molestation and forcible
sodomy violated the statutory and constitutional prohibitions against
double jeopardy and double punishment.
Proposition 2: The evidence was insufficient to support the lewd molestation
conviction.
Proposition 3: The admission of other crimes evidence prejudiced the jury,
depriving petitioner of his fundamental right to a fair trial.
Proposition 4: The trial court punished petitioner for going to trial by refusing to
consider imposing concurrent sentences.
Proposition 5: Petitioner’s Fourteenth Amendment due process rights were violated
when the jury was erroneously instructed as to the range of
punishment for fines in both counts.
Proposition 6: Prosecutorial misconduct deprived petitioner of a fair trial and caused
the jury to render excessive sentences.
Proposition 7: Petitioner’s sentences are excessive.
Proposition 8: The cumulative effect of trial errors deprived petitioner of a fair trial.
Dkt. # 13-1, Pet’r App. Br., at 2-3.
By unpublished summary opinion filed April 25, 2014, in Case No. F-2012-633, the OCCA
affirmed petitioner’s forcible sodomy conviction but vacated his $5,000 fine as to that conviction
based on the alleged jury instruction error. Dkt. # 13-3, OCCA Op., at 2, 5. The OCCA reversed
the lewd molestation conviction on double jeopardy grounds and ordered that charge dismissed. Id.
at 2-4. As a result, the OCCA declared moot petitioner’s challenge to the sufficiency of the evidence

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to support the lewd molestation conviction (Proposition 2) and his claim that the trial court abused
its discretion in failing to consider concurrent sentences (Proposition 4). Id. at 4 n.5. On plain-error
review, the OCCA rejected petitioner’s claim that the trial court erroneously admitted other crimes
evidence. Id. at 4-5. The OCCA also rejected petitioner’s related claim that the prosecutor
committed misconduct by presenting other crimes evidence. Id. at 5-6. Finally, the OCCA rejected
petitioner’s claims that his twelve-year sentence was excessive and that cumulative errors rendered
his trial unfair. Id. at 6.
On May 27, 2014, Petitioner filed an application for post-conviction relief in state district
court, identifying one proposition of error: “My witness didn’t get to speak and the Judge was
against me from [the] start for not telling on my friends.” Dkt. # 13-5, Pet’r PC App. Br., at 3. On
January 30, 2015, petitioner filed a second application for post-conviction relief in state district
court, alleging (1) “there was no touching or force during the oral sex. As a result there was no
evidence independent of the forcible sodomy,” (2) his trial was unfair because the State introduced
evidence of other crimes, (3) the jury was biased due to prosecutorial misconduct during trial and
closing arguments, (4) numerous trial errors contributed to his sentence, (5) he was confused about
the victim’s age because he met her at a “college party,” (6) he did not get to use two witnesses who
would have testified that the victim told them petitioner was innocent, and (7) he was not judged by
his peers. Dkt. # 13-7, Pet’r 2d PC App. Br., at 3-5. Petitioner also stated he had “letters &
statements and [a] witness” to prove his claims. Id. at 5.
By unpublished order filed February 20, 2015, the state district court denied both
applications for post-conviction relief. Dkt. # 13-8, Order denying PC relief, at 1. The court
reasoned,

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Petitioner raises issue[s] that were previously argued in his direct appeal and
rejected by the [OCCA]. He complains that he was denied a fair trial because there
was no touching or force during the oral sex but the crime of Forcible Oral Sodomy
[is] completed when a person over the age of 18 receives oral sex from a child under
16. The evidence showed there was physical touching by the Petitioner touching the
victim’s mouth with his penis. Petitioner complains that the State of Oklahoma
should not have been allowed to [introduce] other crimes evidence but the [OCCA]
found that the challenged evidence was directly connected to the factual
circumstances of the crime and provided necessary contextual and background
information to the jury. Lastly, Petitioner again claims that prosecutorial misconduct
resulted in an unfair trial but those issues were rejected on appeal as well. Petitioner
states in both [a]pplications that he is a good kid, never been into trouble, college
student and a good citizen, however, Petitioner had sexual contact with a minor and
was found guilty by a jury after it had listened to all the facts in the case.
Petitioner is also seeking to adjudicate issues that could or should have been
raised on a direct appeal. He now claims that he was denied the opportunity to call
witnesses [who] would have stated he was innocent but he never raised this issue
upon direct appeal. The provisions of 22 O.S. Section 1080 are not a substitute for
a direct appeal. Section 1086 of the Post Conviction Procedure Act prohibits the
assertion of claims that could have been raised on direct appeal.
Id. at 1-2. For these reasons, the state district court denied petitioner’s applications for postconviction relief. Id. at 2.
Petitioner initiated a post-conviction appeal but failed to timely file his petition-in-error with
the OCCA as required by Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal Appeals, Title
22, Ch. 18, App. (2015). Dkt. # 13-10, OCCA Order, at 1-2. As a result, by order filed April 20,
2015, the OCCA declined to exercise jurisdiction and dismissed petitioner’s post-conviction appeal.
Id. at 2.
Petitioner commenced this action by filing a petition for writ of habeas corpus (Dkt. # 1) on
April 27, 2015. As directed by the Court, see Dkt. # 3, petitioner filed an amended petition (Dkt.

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# 4) on May 18, 2015. In the amended petition, petitioner alleges he is entitled to habeas relief on
ten grounds:5
Ground 1:

Ground 2:

Petitioner’s case was mishandled because his attorney made him pass
out his own subpoenas.

Ground 3:

It was unfair that Sheriff Bradshaw testified at trial because
Bradshaw is the grandmother of R.W.’s half-sister.

Ground 4:

Petitioner did not know R.W. was underage because he previously
saw her at a “college party” and, on the night of the incident she said
she was 17.

Ground 5:

Petitioner did not intend to have sexual contact with R.W. and did not
use “force.”

Ground 6:

R.W.’s trial testimony was not credible.

Ground 7:

The prosecutor unfairly introduced other crimes evidence at trial by
presenting evidence that petitioner’s codefendants furnished alcohol
to R.W.

Ground 8:

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Petitioner did not receive a fair trial because he was not allowed to
present two witnesses, Desiree and Vanessa, who would have
testified that R.W. told them petitioner was “innocent.”

The judge did not give petitioner a fair sentence and punished him for
going to trial by imposing consecutive, rather than concurrent,
sentences and by declining to consider suspending all or a portion of
his sentence.

Because petitioner appears pro se, the Court must liberally construe his pleadings. Gallagher
v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Nonetheless, “the court cannot take on
the responsibility of serving as [petitioner’s] attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005). Petitioner identifies four grounds for relief in the spaces provided on the courtapproved form. Dkt. # 4, at 5, 7-8, 10. In four additional handwritten pages, Petitioner
repeats these same four grounds and adds six more, all in a single narrative paragraph with
numbers 1-10 interposed, presumably, to signal 10 separate grounds for relief. Id. at 16-18.
The Court liberally construes the amended petition and attempts to identify what it
understands as the gist of each numbered set of facts.
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Ground 9:

The all “white” jury was likely biased against him because petitioner
is black and R.W. is white.

Ground 10:

A “good friend” of R.W. wrote letters to petitioner confirming his
belief that R.W. lied about petitioner and “does wrong things.”

Dkt. # 4 at 5, 7-8, 10, 16-18.
In response to the amended petition, respondent contends petitioner is not entitled to habeas
relief on any of these claims. Dkt. # 13 at 3, 25. Petitioner did not file a reply.
DISCUSSION
I.

Legal framework
The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court’s review

of petitioner’s amended habeas petition. See 28 U.S.C. § 2254. Under the AEDPA, a federal court
may grant habeas relief to a state prisoner “only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.” Id. § 2254(a). In addition, before a federal
court may grant habeas relief, the petitioner must show that he exhausted available state-court
remedies, id. § 2254(b)(1)(A), by “fairly present[ing] the substance of his federal habeas claim[s]
to state courts,” Hawkins v. Mullins, 291 F.3d 658, 668 (10th Cir. 2002). If the state court
adjudicated the petitioner’s claims on the merits, a federal court can grant relief only if the petitioner
demonstrates that the state court’s adjudication of those claims
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d). In applying § 2254(d)’s “highly deferential standard,” the federal court must
give the state court’s decision the “benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
If the state court denied the petitioner’s claims on procedural grounds those claims are
procedurally defaulted for purposes of federal habeas review. Ordinarily, “a federal court may not
review federal claims that were procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural rule.” Davila v. Davis, 137 S.
Ct. 2058, 2064 (2017). A state procedural rule “is independent if it is separate and distinct from
federal law,” and “is adequate if it is ‘strictly or regularly followed’ and applied ‘evenhandedly to
all similar claims.’” Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998) (quoting Hathorn
v. Lovorn, 457 U.S. 255, 263 (1982)).
When a petitioner fails to present his or her federal claims in state court, that claim is
unexhausted. “Generally, a federal court should dismiss unexhausted claims without prejudice so
that the petitioner can pursue available state-court remedies.” Grant v. Royal, 886 F.3d 874, 891-92
(10th Cir. 2018) (quoting Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006)). “However,
dismissal . . . is not appropriate if the state court would now find the [unexhausted] claims
procedurally barred on independent and adequate state procedural grounds.” Id. at 892 (quoting
Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999)). Thus, if the federal court finds that
a state court would apply a procedural bar to the petitioner’s unexhausted claims, the federal court
may apply an anticipatory procedural bar and deem those claims procedurally defaulted for purposes
of federal habeas review. Id.; see also Anderson v. Sirmons, 476 F.3d 1131, 1140 n. 7 (10th Cir.
2007) (defining “anticipatory procedural bar”).

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Whether a petitioner’s claim is procedurally defaulted in state court or is deemed
procedurally defaulted in federal court, a federal court generally will not review that claim unless
the petitioner can show “cause for the default and actual prejudice as a result of the alleged violation
of federal law” or that a “fundamental miscarriage of justice” will result if the court does not review
the claim.6 Coleman v. Thompson, 501 U.S. 722, 750 (1991). The cause standard requires a
petitioner to “show that some objective factor external to the defense impeded . . . efforts to comply
with the State’s procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Factors that may
support the requisite cause include: previously unavailable evidence, a change in the law, and
interference by state officials. Id. If a petitioner fails to demonstrate cause, the federal court need
not consider whether the petitioner can demonstrate prejudice. Klein v. Neal, 45 F.3d 1395, 1400
(10th Cir. 1995). The alternative to establishing “cause and prejudice” is proof that a “fundamental
miscarriage of justice” will occur if the federal court does not consider the petitioner’s constitutional
claim. Coleman, 501 U.S. at 750. The miscarriage-of-justice exception requires a petitioner to
demonstrate that he is “actually innocent.” McCleskey v. Zant, 499 U.S. 467, 494 (1991); see
Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (noting that the miscarriage-of-justice
exception is “implicated only in ‘extraordinary case[s] where a constitutional violation has probably
resulted in the conviction of one who is actually innocent’” (quoting Phillips v. Ferguson, 182 F.3d
769, 774 (10th Cir. 1999))). To support a tenable claim of actual innocence, “a petitioner must show

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If a claim is unexhausted, the federal habeas court may also overlook the procedural default
and deny habeas relief on the merits. See 28 U.S.C. § 2254(b)(2); Cannon v. Mullin, 383
F.3d 1152, 1159 (10th Cir. 2004) (“When questions of procedural bar are problematic,
however, and the substantive claim can be disposed of readily, a federal court may exercise
its discretion to bypass the procedural issues and reject a habeas claim on the merits.”).
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that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Schulp v. Delo, 513 U.S. 298, 327 (1995).
II.

Analysis
As stated, petitioner claims he is entitled to federal habeas relief on ten grounds. Dkt. # 4.

Respondent contends petitioner is not entitled to habeas relief . First, respondent contends petitioner
procedurally defaulted the claims he alleges in Grounds 1 through 6, 9 and 10. Dkt. # 13, at 9-19.
Next, respondent contends petitioner alleges only an error of state law in Ground 7. Id. at 19-21.
Alternatively, respondent contends that § 2254(d) bars habeas relief on Ground 7 because petitioner
cannot show that the OCCA’s adjudication of this claim was unreasonable. Id. at 21-23. Finally,
respondent contends that the portion of Ground 8 challenging the trial court’s failure to consider a
suspended sentence is procedurally defaulted and that the portion of Ground 8 challenging the trial
court’s decision to order consecutive, rather than concurrent, sentences is moot. Id. at 23-25.
As discussed below, the Court finds that petitioner exhausted only two of his claims: his
claim that the admission of other crimes evidence deprived him of a fair trial (Ground 7) and his
claim that the trial court abused its discretion in failing to consider concurrent sentences (part of
Ground 8). Petitioner fairly presented both of these claims to the OCCA on direct appeal. See Dkt.
# 13-1, Pet’r App. Br., at 2-3 (Propositions 3 and 4). However, the Court agrees with respondent
that petitioner is not entitled to habeas relief on either claim. The Court further agrees with
respondent that petitioner’s remaining claims (Grounds 1 through 6, 9, 10 and part of Ground 8) are
procedurally defaulted and that petitioner has not made the requisite showings to obtain federal
habeas review of those claims.

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A.

Other crimes evidence (Ground 7)

In Ground 7, petitioner alleges it was “unfair” for the prosecutor to introduce other crimes
evidence at trial. Dkt. # 4, at 8, 18. He specifically challenges the admission of evidence that he
was present when Wade and Thompson provided alcohol to R.W. and that he poured cough syrup
into her cup of soda. Id. at 8. He argues it was unfair to admit this evidence because he was not
bound over for trial on the charge of furnishing alcohol to a minor, the evidence was prejudicial, and
the prosecutor did not comply with state law notice requirements before presenting the evidence.
Id. at 8, 18.
On direct appeal, petitioner challenged the admission of this evidence on two grounds. First,
he argued that the trial court erroneously admitted the evidence under OKLA. STAT. tit. 12,
§ 2404(B),7 and deprived him of a fair trial. Dkt. # 13-1, Pet’r App. Br., at 24-27. As part of this
alleged evidentiary error, petitioner also argued that the State failed to comply with certain state law
procedures before introducing the evidence.8 Id. at 28-29. Second, petitioner argued he was
deprived of his constitutional right to a fair trial based, in part, on the prosecutor’s misconduct in
introducing the other crimes evidence. Id. at 41-43.
The OCCA reviewed petitioner’s challenge to the admission of other crimes evidence for
plain error and rejected it. Dkt. # 13-3, OCCA Op., at 4-5. Applying state law, the OCCA reasoned

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Section 2404(B) provides that evidence of other crimes, wrongs, or acts may be admissible
to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident. OKLA. STAT. tit. 12, § 2404(B).

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In Burks v. State,594 P.2d 771, 774 (Okla. Crim. App. 1971), the OCCA set forth notice
requirements that must be met before the State presents other crimes evidence at trial.
Burks’ notice requirements to do not apply, however, “if the other offense is “actually a part
of the res gestae of the crime charged . . . .’” Hiler v. State, 796 P.2d 346, 348-49 (Okla.
Crim. App. 1990) (quoting Reyes v. State, 751 P.2d 1081, 1083 (Okla. Crim. App. 1988)).
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that the evidence was not admitted under § 2404(B) and was instead admissible as relevant evidence
because it was “inextricably intertwined with the charged offense” and more probative than
prejudicial. Id. at 4. The OCCA further easoned that because the evidence was not § 2404(B)
evidence, petitioner was not entitled to Burks notice. Id. at 4 n.6. In light of its decision that the
challenged evidence was properly admitted, the OCCA rejected petitioner’s related claim that the
prosecutor’s allegedly improper introduction of that evidence deprived him of a fair trial. Id. at 5-6.
From the amended habeas petition it is not clear whether petitioner’s Ground 7 claim
challenges the OCCA’s decision as to both claims he advanced on direct appeal. Dkt. # 4, at 8, 18.
Respondent focuses on the admission of evidence and contends petitioner’s Ground 7 claim alleges
only an error of state law that is not cognizable on habeas review. Dkt. # 13, at 20-21. In the
alternative, respondent contends that because the OCCA considered petitioner’s challenge to the
admission of the evidence under its plain-error test, petitioner’s request for habeas relief is barred
under § 2254(d) because the OCCA did not unreasonably apply that test. Id. at 21-23.
To the extent petitioner’s Ground 7 claim merely challenges the OCCA’s ruling on his
evidentiary claim, the Court agrees that Ground 7 does not present a cognizable habeas claim. See
Thornburg v. Mullin, 422 F.3d 1113, 1128-29 (10th Cir. 2005) (“Federal habeas review is not
available to correct state law evidentiary errors; rather it is limited to violations of constitutional
rights.” (quoting Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999)); Moore v. Marr, 254
F.3d 1235, 1246 (10th Cir. 2001) (“[F]ederal habeas corpus relief does not lie to review state law
questions about the admissibility of evidence.”).
Alternatively, if the Court generously construes Ground 7 as asserting a due process violation
based on either the erroneous admission of evidence or prosecutorial misconduct the Court finds for

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two reasons that petitioner is not entitled to federal habeas relief. First, as respondent points out,
the United States Court of Appeals for the Tenth Circuit has equated Oklahoma’s plain-error test
with the federal due process test. Dkt. # 13, at 21 (citing Thornburg, 422 F.3d at 1125). Thus, as
respondent argues, to the extent petitioner alleges the admission of the challenged evidence resulted
in a due process violation, this Court must defer to the OCCA’s ruling unless it unreasonably applied
the plain-error test. Id.; see Thornburg, 422 F.3d at 1125 (reviewing whether alleged evidentiary
error violated due process and stating,“[b]ecause the OCCA applied the same test we apply to
determine whether there has been a due process violation, we must defer to its ruling unless it
unreasonably appl[ied] [the plain-error] test”). Here, petitioner does not even allege, must less
demonstrate, that the OCCA unreasonably applied the plain-error test in rejecting his evidentiary
claim. Dkt. # 4, generally. Thus, § 2254(d) bars habeas relief.
Second, even if petitioner could make the necessary showings under § 2254(d), this Court
would reject his Ground 7 claim on de novo review. Whether he relies on the alleged evidentiary
error or the alleged prosecutorial misconduct to support his due process claim, he cannot obtain
relief unless he shows that the alleged error “so infected the trial with unfairness as to deny due
process of law.” Thornburg, 422 F.3d at 1129 (quoting Estelle v. McGuire, 502 U.S. 62, 75 (1991)
(discussing due process implications of evidentiary error); see also Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974) (explaining that habeas relief is appropriate where prosecutorial misconduct
“so infected the trial with unfairness as to make the resulting conviction a denial of due process”).
Determining whether petitioner can make this showing “requires an examination of the entire
proceeding[], including the strength of the evidence against the defendant.” Hanson v. Sherrod, 797
F.3d 810, 843 (10th Cir. 2015). Here, the evidence against petitioner, particularly his own

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testimony, is powerful. Petitioner stands convicted of forcible oral sodomy. To obtain that
conviction, the State had to prove, beyond a reasonable doubt, that petitioner’s penis penetrated
R.W.’s mouth when he was over 18 years of age and she was under 16 years of age. See OKLA.
STAT. tit. 21, §§ 886, 887, 888; Okla. Unif. Jury Instr. Crim. (2d) No. 4-128. At trial, petitioner
testified he was 19 years old when R.W. performed fellatio on him. Dkt. # 14-9, Trial Tr. vol. 3, at
95-96, 98-100. R.W. testified she was 14 years old at that time. Dkt. # 14-8, Trial Tr. vol. 2, at 86.
Considering this fraction of the evidence, and the record as a whole, the Court rejects petitioner’s
claim that admission of the challenged evidence “so infected the trial with unfairness” as to violate
petitioner’s right to due process. For these reasons, the Court denies the amended petition as to
Ground 7.
B.

“Unfair” sentence (Ground 8)

In Ground 8, petitioner alleges his sentence is “unfair” because the trial court (1) declined
to consider concurrent sentences and (2) refused to suspend all or a portion of his sentence. Dkt. #
4, at 18.
Respondent acknowledges that petitioner presented the first portion of this claim to the
OCCA on direct appeal. Dkt. # 13, at 23-25. Nonetheless, respondent contends this portion of
petitioner’s claim is moot because the OCCA reversed petitioner’s lewd molestation conviction and
vacated his sentence, leaving petitioner with only one sentence to serve. Id. Respondent contends
the second portion of this claim is unexhausted and subject to anticipatory procedural bar; thus,
respondent argues, it is procedurally defaulted. Id. at 16-19.
The Court agrees with respondent’s contentions as to both portions of petitioner’s Ground
8 claim. And, as further discussed below, petitioner cannot make the showings necessary to

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overcome the procedural default of this or any other claim. The Court also find that petitioner’s
Ground 8 claim does not state a cognizable habeas claim because petitioner challenges the trial
court’s discretionary sentencing decisions and does not even suggest that his twelve-year sentence
exceeds the statutory range of punishment for his crime. See Dennis v. Poppel, 222 F.3d 1245, 1258
(10th Cir. 2000) (noting challenges to state court’s sentencing decisions “are not generally
constitutionally cognizable unless it is shown that the sentence imposed is outside the statutory
limits or unauthorized by law”). The Court therefore denies the amended petition as to Ground 8.
C.

Procedural default (Grounds 1 through 6, 9 and 10)

In his eight remaining claims, petitioner alleges that he did not receive a fair trial because
he was not allowed to present two witnesses, both of whom he claims would have testified that R.W.
told them petitioner was innocent (Ground 1); that his case “was not handle[d] in a right way”
because he had to hand out his own subpoenas (Ground 2); that it was “unfair” that Sheriff Micky
Bradshaw collected evidence for his prosecution and testified at trial because Bradshaw is the
grandmother of R.W.’s half-sister (Ground 3); that he did not know R.W. was underage because he
met her at a “college party” before the incident and, on the night of the incident, she said she was
17 (Ground 4); that he never intended to have sexual contact with R.W. and he did not force her to
have oral sex (Ground 5); that R.W.’s trial testimony was not credible because she was “caught in
some lies at [the] preliminary hearing” (Ground 6); that his jury selection “should have been [a]
mixture of races, not just one race ‘white,’” because he is black and R.W. is white (Ground 9); and
that R.W.’s “good friend” wrote petitioner letters confirming that R.W. “lied about [him],” and
“does wrong things.” Dkt. # 4, at 16-18.

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Even assuming, without deciding, that these undeveloped assertions are sufficient to state
cognizable habeas claims, the Court agrees with respondent that these claims are procedurally
defaulted. Petitioner first raised Grounds 1 and 4, and parts of Ground 5 and 10, in his applications
for post-conviction relief. Dkt. # 13-5 at 3; Dkt. # 13-7 at 4-5. He first raised Grounds 2, 3 and 9
in his post-conviction appeal brief. Dkt. # 13-9 at 5-7. But the OCCA declined to consider any of
the claims he raised in his post-conviction applications, as well as those he belated raised for the first
time in his post-conviction appellate brief, on an independent and adequate procedural ground, i.e.,
petitioner’s failure to timely file his petition-in-error. Dkt. # 13-10 at 1-2; see Rule 5.2(C)(2), Rules
of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015) (establishing deadlines
for filing petition-in-error); see also Brewington v. Miller, 443 F. App’x 364, 367 (10th Cir. 2011)
(unpublished)9 (“As we have long recognized, OCCA Rule 5.2(C)(2) is both independent and an
adequate state ground for default.”); see also Rule 5.2(C)(5), Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch. 18, App. (2018) (providing failure to timely file petition-in-error
“is jurisdictional and shall constitute a waiver of right to appeal and a procedural bar for [the OCCA]
to consider the appeal”). As a result, petitioner procedurally defaulted Grounds 1, 2, 3, 4, 5, 9 and
10 in state court. Petitioner did not present his Ground 6 claim on direct appeal or in his postconviction applications. That claim is therefore unexhausted and subject to an anticipatory
procedural bar because, should petitioner attempt to return to state court to exhaust it now, the state
court likely would find that claim procedurally barred. See Anderson, 476 F.3d at 1139 n.7; OKLA.
STAT. tit. 22, § 1086 (generally barring post-conviction relief for claims not raised in first post-

9

The Court cites this unpublished decision for its persuasive value. See FED. R. APP. P.
32.1(a); 10th Cir. R. 32.1(A).
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conviction application). Thus, the claims alleged in Grounds 1 through 6, 9 and 10 are procedurally
defaulted.
Further, as respondent contends, petitioner does not even attempt to demonstrate cause to
overcome the procedural default of those claims. Dkt. # 13, at 14. And, while petitioner asserts that
he is “innocent,” his own trial testimony precludes the plausibility of that assertion. As previously
discussed, petitioner testified he was 19 years old when R.W. performed fellatio on him. Dkt. # 149, Trial Tr. vol. 3, at 95-96, 98-100. And R.W. testified she was only 14 years old at the time. Dkt.
# 14-8, Trial Tr. vol. 2, at 86. Under these facts, the miscarriage-of-justice exception does not apply.
See Magar, 490 F.3d at 820. Because petitioner procedurally defaulted the claims he alleges in
Grounds 1 through 6, 9 and 10 and because he fails to make the showings necessary to permit review
of those claims, the Court denies the amended petition as to all eight claims.
CONCLUSION
After careful review of the record, the Court concludes that petitioner has not demonstrated
that he is in custody in violation of the Constitution or federal law. 28 U.S.C. § 2254(a). The Court
therefore denies his petition for a writ of habeas corpus.
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.” A district court may issue a certificate of appealability “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When the district court rejects a petitioner’s constitutional claims on the merits, the
applicant must make this showing by demonstrating “that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). When the district court rejects a petitioner’s claims on procedural grounds, the
applicant must show both “[1] that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id. Because the Court
finds no reasonable jurists would debate he correctness of its assessment of petitioner’s Ground 7
claim or of its procedural rulings as to petitioner’s remaining claims, the Court denies a certificate
of appealability.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The Clerk of Court shall note the substitution of Jimmy Martin in place of Robert Patton as
party respondent.

2.

The amended petition for a writ of habeas corpus (Dkt. # 4) is denied.

3.

A certificate of appealability is denied.

4.

A separate judgment shall be entered in this case.
DATED this 14th day of September, 2018.

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