McKay v. Aldridge

Filing 11

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 9/12/2018); denying 8 Motion to Dismiss (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
SARAH AMANDA MCKAY,
Petitioner,
v.
DEBBIE ALDRIDGE, Warden,
Respondent.

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Case No. 17-CV-576-GKF-FHM

OPINION AND ORDER
Before the Court is Respondent’s motion to dismiss (Dkt. 8) Petitioner’s 28 U.S.C. § 2254
habeas corpus petition (Dkt. 1). Respondent contends Petitioner failed to exhaust three of her ten
federal habeas claims. For the reasons discussed below, the motion is denied.
I. Background
In this case, Petitioner challenges her convictions for two counts of child neglect in
violation of OKLA. STAT. tit. 21, § 843.5(C). See Dkt. 1 at 1; Dkt. 9-3 at 1; and Tulsa County
District Court Docket Sheet, Case No. CF-2016-6221.1 Petitioner was tried along with her
husband after their son died. See Dkt. 1 at 5, 7. The jury recommended a punishment of life
imprisonment on Count I and 27 years imprisonment on Count II. See Dkt. 9-3 at 1. The state
court sentenced her accordingly. Id. Petitioner appealed, and the Oklahoma Court of Criminal
Appeals (OCCA) affirmed on March 30, 2017. Id. at 1, 22.
Petitioner filed her federal § 2254 petition on October 13, 2017. See Dkt. 1. She raises
ten federal claims, which cite the following defects:

The Court took judicial notice of the state court criminal docket. See United States v. Ahidley, 486
F.3d 1184, 1192 n.5 (10th Cir. 2007) (courts have “discretion to take judicial notice of publicly-filed
records … concerning matters that bear directly upon the disposition of the case at hand”).
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1: Failure to sever the couple’s joint trial;
2: Improper admission of expert testimony by a pediatrician;
3: Improper limitation on cross-examination of the state’s witness;
4: Failure to grant a continuance after the state amplified its allegations of neglect;
5: Failure to instruct the jury on the lesser offense of omission to provide for a child;
6: Improper admission of gruesome and inflammatory photographs;
7: Prosecutorial misconduct;
8: Ineffective assistance of counsel;
9: Improper admission of victim impact statement; and
10: Excessive sentencing.
See Dkt. 1 at 5, 7-15.
Respondent filed the motion to dismiss, along with relevant portions of the state court
record, on December 27, 2017. See Dkts. 8, 9. She contends Petitioner failed to exhaust her state
remedies with respect to Claims 1, 2, and 5. See Dkt. 9 at 10. Respondent asks the Court to
dismiss the federal petition in its entirety and allow Petitioner to return to state court to file an
application for post-conviction relief. Id. at 9-10. Petitioner filed a response on January 18,
2018. See Dkt. 10. The response primarily explains the circumstances surrounding her appeal.
Id.
II. Analysis
A.

Exhaustion

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court’s review
of Petitioner’s habeas claims. See 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 2254(b)(1), an
application for a writ of habeas corpus may not be granted unless the applicant has exhausted
state remedies or demonstrated that no adequate state remedies are available or effective to
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protect the applicant’s rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion requirement is satisfied
if the federal issue has been properly presented to the highest state court, either by direct review
of the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534. “Fair presentation, in
turn, requires that the petitioner raise in state court the ‘substance’ of his federal claims.”
Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015). “This includes not only the
[federal] constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to
relief.” Id. See also Fairchild v. Workman, 579 F.3d 1134, 1149 (10th Cir. 2009) (“A claim is
more than a mere theory on which a court could grant relief; a claim must have a factual basis,
and an adjudication of that claim requires an evaluation of that factual basis.”) (quotations
omitted).
Respondent contends Petitioner failed to comply with § 2254(b) because Claims 1, 2, and
5 are based on new information not presented to the OCCA. See Dkt. # 9 at 5-8. With respect to
Claims 1 and 2, the Court agrees. Claim 1 raises the same legal issue as the appeal - namely, that
the trial court failed to sever Petitioner’s trial from that of her co-conspirator/husband. Compare
Dkt. 1 at 5 with Dkt. 9-1 at 2. However, the theories supporting severance in each proceeding
differ. On appeal, Petitioner argued the joint trial resulted in the unnecessary admission of
incriminating statements by her husband, Robert McKay. See Dkt. 9-1 at 24. She detailed each
incriminating statement and noted she could not cross examine McKay. Id. at 24-26. The OCCA
rejected the argument, finding severance was not required in the absence of mutually antagonistic
defenses. See Dkt. 9-3 at 3-6. Petitioner now argues, however, separate trials were necessary
because she is wheelchair bound and could not provide the same level of childcare as McKay.
See Dkt. 1 at 5-6. These new facts and arguments “significantly alter[]” Claim 1, “placing it in a
much [different] posture than in the state court proceedings.” Fairchild, 579 F.3d at 1150
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(quoting Demarest v. Price, 130 F.3d 922, 933 (10th Cir. 1997)). Petitioner therefore did not
exhaust her state remedies with respect to Claim 1.
Claim 2 faces a similar problem. Petitioner argues, as she did on appeal, that the state
court improperly admitted expert testimony by Dr. Sarah Passmore. Compare Dkt. 1 at 7 with
Dkt. 9-1 at 27. Dr. Passmore examined the child before his death and reviewed post-mortem
photographs. See Dkt. 9-1 at 31. Petitioner’s theory on appeal was that Dr. Passmore should not
have opined on the ultimate issue to be decided by the jury (whether the child was neglected) or
labeled her diagnosis as “medical neglect.” See Dkt. 9-1 at 27-32. The OCCA disagreed and
concluded Dr. Passmore was entitled to offer an opinion on the issue of child neglect. See Dkt. 93 at 8. Petitioner now contends Dr. Passmore is not credible based on alleged conflicts between
her trial testimony and medical notes. See Dkt. 1 at 7. This information, if true, presents an
entirely different reason to scrutinize Dr. Passmore’s testimony.

The Court therefore finds

Petitioner has not exhausted her state remedies with respect to Claim 2.
Claim 5 presents a closer question. In both proceedings, Petitioner argued the state court
should have instructed the jury on the lesser offense of omission to provide for a child, OKLA.
STAT. tit. 21, § 852, in addition to child neglect, OKLA. STAT. tit. 21, § 843.5. Compare Dkt. 1 at
10 with Dkt. 9-1 at 39. On appeal, Petitioner noted the offenses are the same except for the
required mens rea. See Dkt. 9-1 at 40. Her OCCA brief states: “It should have been up to the
jury to decide whether [Petitioner’s] mental state was one of purposeful refusal to act or merely
being unmindful and oblivious as to what was going on around her.” Id. The § 2254 petition
also focuses on culpability, and in particular, the absence of malice. See Dkt. 1 at 10. However,
Petitioner now adds that she is disabled and lacked both the funds and intellectual ability to
properly care for her child. Id.

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As the Tenth Circuit has pointed out, “not every new piece of evidence makes a claim a
new one.” Fairchild, 579 F.3d at 1148. A federal petition may proffer “bits of [new] evidence”
that add color to the claim presented in state court without running afoul of § 2254(b). Id.
(quoting Hawkins v. Mullin, 291 F.3d 658 (10th Cir. 2002)). See also Gardner v. Galetka, 568
F.3d 862, 881, 882 (10th Cir. 2009) (allowing new evidence where the materials “would likely
only have added color” to the claim presented in state court, and the difference between the new
evidence and that presented in state court was “purely a matter of degree”). In the context of
Claim 5, the new facts about Petitioner’s medical and intellectual limitations do not significantly
alter her original mens rea argument. They simply add color to the claim presented in state court.
The Court therefore finds Claim 5 was exhausted.
B.

Available Remedies: Claims 1 and 2

The Court could require Petitioner to return to state court to raise her unexhausted claims
through a state habeas proceeding, as Respondent suggests. See Dkt. 9 at 9. However, the
OCCA routinely applies a procedural bar to such claims unless the petitioner provides “sufficient
reason” for the failure to raise the claim in an earlier proceeding. See OKLA. STAT. tit. 22, §
1086; Moore v. State, 889 P.2d 1253, 1255-56 (Okla. Crim. App. 1995). Accordingly, the Court
finds it would be futile to require Petitioner to return to state court to exhaust Claims 1 and 2. See
Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (the futility exception is a narrow one, and is
supportable “only if there is no opportunity to obtain redress in state court or if the corrective
process is so clearly deficient as to render futile any effort to obtain relief”); see also Coleman v.
Thompson, 501 U.S. 722 (1991); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993). In the
absence of available state corrective process, see 28 U.S.C. § 2254(b)(1)(B), Claims 1 and 2 are
not barred by the exhaustion requirement. Respondent’s motion to dismiss will be denied.

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As a result of Petitioner’s procedural default, however, an anticipatory procedural bar will
be applied to Claims 1 and 2 unless petitioner shows “cause and prejudice” or a “fundamental
miscarriage of justice” to excuse the default. Coleman, 501 U.S. at 750; Maes v. Thomas, 46
F.3d 979, 985 (10th Cir. 1995). 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
rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples include the discovery of new
evidence, a change in the law, and interference by state officials. Id. A petitioner is also required
to show “actual prejudice resulting from the errors of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982) (quotations omitted). The alternative is proof of a “fundamental
miscarriage of justice,” which occurs when the petitioner is actually innocent of the crime in
question. McCleskey v. Zant, 499 U.S. 467, 494 (1991).
The Court will allow Petitioner to file a brief by September 12, 2018, demonstrating either
“cause and prejudice” or a “fundamental miscarriage of justice” to excuse his procedural default
as to Claims 1 and 2. The parties may then file response and reply briefs as set forth below. The
Court will also require Respondent to file an answer to the exhausted claims (Claims 3 through
10) by September 12, 2018.
ACCORDINGLY, IT IS HEREBY ORDERED:
1.

The motion to dismiss (Dkt. 8) is denied.

2.

No later than September 12, 2018, Petitioner may file a brief demonstrating either

“cause and prejudice” or a “fundamental miscarriage of justice” to overcome the anticipatory
procedural bar applicable to Claims 1 and 2. If Petitioner concedes the procedural default or
otherwise fails to timely comply, the Court will deny Claims 1 and 2 as procedurally barred.
3.

Respondent may file a response within thirty (30) days after the filing of

Petitioner’s brief addressing the defaulted claims (Claims 1 and 2).
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4.

Petitioner may file an optional reply with respect to the defaulted claims (Claims 1

and 2) within thirty (30) days after the filing of Respondent’s response.
5.

No later than September 12, 2018, Respondent shall file a substantive answer to

Claims 3 through 10 of the petition.
ENTERED this 13th day of August, 2018.

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