Belcher v. Braggs

Filing 55

OPINION AND ORDER by Judge Claire V Eagan - The Clerk of Court shall note on the record the substitution of Christe Quick, Warden, in place of Kelli Davis, Warden, as party respondent; the original petition for writ of habeas corpus (Dkt.  5; 1) is declared moot; the amended and supplemental petition for writ of habeas corpus (Dkt. # 41) is denied; a certificate of appealability is denied; the motion for discovery (Dkt. # 42) and the motion for hearing (Dkt. # 53) are de nied; and a separate judgment shall be entered in this matter. ; denying certificate of appealability; directing court clerk to take action; denying 41 Petition for Writ of Habeas Corpus (2241/2254); denying 42 Motion for Discovery; denying 53 Motion for Hearing; finding as moot 1 Petition for Writ of Habeas Corpus (2241/2254) (Re: 41 Amended PETITION for Writ of Habeas Corpus - 2254 , 1 PETITION for Writ of Habeas Corpus - 2254 ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KIANTRÉ BELCHER,
Petitioner,
v.
CHRISTE QUICK, Warden, 1
Respondent.

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Case No. 18-CV-0018-CVE-JFJ

OPINION AND ORDER
Kiantré Belcher, an Oklahoma prisoner appearing through counsel, petitions for federal
habeas relief, under 28 U.S.C. § 2254, challenging the lawfulness of his custody under the criminal
judgment entered against him in Tulsa County District Court Case No. CF-2014-3840 following
his convictions as to four counts of armed robbery. He contends that he is in custody in violation
of his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process,
because the State of Oklahoma (“the state”) did not present sufficient evidence to prove his guilt
beyond a reasonable doubt; the prosecutor withheld evidence of leniency deals it made with two
testifying codefendants and elicited false testimony from those same codefendants denying that
they had leniency deals; trial counsel provided constitutionally deficient representation by failing
to investigate his case and present available evidence; and appellate counsel provided
constitutionally deficient representation by failing to adequately argue trial counsel’s
ineffectiveness.

1

Pursuant to Federal Rule of Civil Procedure 25(d) and Rule 2(a), Rules Governing Section
2254 Cases in the United States District Courts, the Court substitutes Christe Quick, Warden, in
place of Kelli Davis, Warden, as party respondent. The Clerk of Court shall note on the record
this substitution.

The Court has carefully considered the amended petition (Dkt. # 41), the response in
opposition to the amended petition (Dkt. # 51), and the reply (Dkt. # 52); 2 Belcher’s motion for
discovery (Dkt. # 42) and motion for hearing (Dkt. # 53), the responses to both motions (Dkt. ##
49, 54), and the reply to the motion for discovery (Dkt. # 50); the record of state court proceedings
(Dkt. ## 28, 29, 30); materials that Belcher submitted to support his actual innocence gateway
claim (Dkt. ## 41-2 through 41-6, 44, 45, 46, 47, 48); and applicable law. The Court finds and
concludes that 28 U.S.C. § 2254(d) bars relief as to Belcher’s claim challenging the sufficiency of
the evidence; that Belcher procedurally defaulted his remaining constitutional claims; that an
evidentiary hearing is not necessary to evaluate Belcher’s actual innocence gateway claim; and
that Belcher has not shown that he can overcome the procedural default of his constitutional claims.
The Court therefore denies the amended petition and denies Belcher’s motions for discovery and
a hearing.

2

Belcher amended his petition, with leave of Court, after he obtained habeas counsel. In
the amended petition, Belcher states that he “incorporates the information, arguments, authorities,
and statements contained in [his] original petition.” Dkt. # 41, at 7. Ordinarily, “[w]hen a petition
is amended by leave of the court, the cause proceeds on the amended petition.” Washer v. Bullitt
Cnty., 110 U.S. 558, 562 (1884). But Federal Rule of Civil Procedure 10(c) provides that “a
statement in a pleading may be adopted by reference elsewhere in the same pleading or in any
other pleading or motion.” Nonetheless, “[f]or all or part of a prior pleading to be incorporated in
a later pleading, the later pleading must specifically identify which portions of the prior pleading
are adopted therein.” Gen. Acc. Ins. Co. of Am. v. Fid. & Deposit Co. of Md., 598 F. Supp. 1223,
1229 (E.D. Pa. 1984). In other words, “[t]he later pleading must adopt specific portions or all of
the earlier pleading ‘with a degree of clarity which enables the responding party to ascertain the
nature and extent of the incorporation.’” Id. (quoting Heintz & Co. v. Provident Tradesmens Bank
& Trust Co., 29 F.R.D. 144, 145 (E.D. Pa. 1961)); accord Ortiz v. New Mexico, 550 F. Supp. 3d
1020, 1078 (D. N.M. 2021) (“[A]doption by reference must be sufficiently direct and explicit for
an opposing party to have fair notice of the claims against them.”). To the extent the Court can
discern which portions of the original petition Belcher intends to incorporate into the amended
petition and whether respondent had fair notice that those portions were incorporated, the Court
will consider those portions of the original petition in adjudicating the amended petition. See FED.
R. CIV. P. 8(e) (“Pleadings must be construed so as to do justice.”). However, for all other
purposes, the Court declares moot the original petition (Dkt. # 1).
2

I.

Background 3
A.

Investigation and charges

In the summer of 2014, Tulsa Police Detective Maxwell Ryden investigated a series of
robberies, including the robbery of a Patricia’s Lingerie store on July 14, a Little Caesar’s Pizza
on July 19, a Tulsa Dollar General on July 21, and a Collinsville Dollar General on July 25. Dkt.
# 29-5, Tr. Trial vol. 4, at 110-17 [566-73]. 4 After reviewing police reports and surveillance
videos, Ryden noticed similarities among the robberies. Each robbery involved: a “high cash
volume” business; two masked, gloved robbers with guns—one of whom would stay near the door
and one of whom would direct employees to place money from the register and safe into a plastic
bag from the business; and an unmasked lookout who entered the store just before the robbery. Id.
at 113-14 [569-70]. In the surveillance videos from both Dollar General stores, Ryden saw that
the robber who retrieved the money wore a black mask and a black hoodie with lighter-colored
stitching on the back near the neckline and that the robber who stood closer to the door wore a
white mask and white gloves. Id. at 153-56 [609-12]. In the surveillance video from the Little
Caesar’s, Ryden saw that one robber wore what appeared to be the same black hoodie with lightercolored stitching on the back near the neckline. Id. Based on his investigation, Ryden suspected
that all four robberies were connected. Id. at 113-15 [569-71].

3

Because Belcher challenges the sufficiency of the evidence and presents an actual
innocence gateway claim, the Court provides a thorough discussion of the evidence presented at
trial.
4

The Court’s citations generally refer to the CM/ECF header pagination. Citations to
transcripts of state court proceedings (e.g., “Tr. Trial”) or the original state court record (“O.R.”),
also include, in brackets, the original page numbers if those numbers differ from the CM/ECF
header pagination.
3

With the help of other officers, Ryden identified the lookout from the Collinsville Dollar
General surveillance video as Jarrelle Wesson. Id. at 117-22 [573-78]. On August 5, 2014, Ryden
separately interviewed Wesson and Armad Gix, the latter of whom Wesson identified as the
lookout depicted in a still photo taken from the Tulsa Dollar General surveillance video. Id. at
122-25 [578-81]. Both men initially denied involvement in any robberies. Id. Ultimately,
however, Wesson and Gix implicated themselves, Belcher, and Gregory Carter in all four
robberies. Id. at 126-34 [582-90], 146-53 [602-09]. In November 2014, the state filed an amended
information charging Belcher, Carter, Wesson, and Gix with all four armed robberies. Dkt. # 2910, O.R. vol. 1, part 2, at 15-25 [87-97]. 5
B.

Jury trial

Belcher and Carter were tried jointly in September 2015; Wesson and Gix waived their
rights to a jury trial and testified at the joint trial. Dkt. # 29-9, O.R. vol. 1, part 1, at 22-23 [1819]. The following facts were developed at trial.
1.

Patricia’s Lingerie

Allysha Coble was working at the Patricia’s Lingerie near 11th and Garnett in Tulsa,
around midnight on July 14, 2014, when a man with a handgun and a bandana over his face came
through the front door. Dkt. # 29-4, Tr. Trial vol. 3, at 24-27 [253-56]. The man told four
customers in the store—two black men and two black women—to get down on the floor. Id. The
man forced Coble to walk behind the counter by threatening her and pointing his gun at the back
of her neck, took the money that was in the register, went to the back of the store and retrieved a
5

The amended information also charged all four men with an armed robbery of a Kwik
Stop on July 26, 2014, and charged Carter, alone, with three additional robberies. Dkt. # 29-10,
O.R. vol. 1, part 2, at 15-25 [87-97]. At the State’s request, the trial court dismissed these four
charges at the preliminary hearing. Dkt. # 29-1, Tr. Prelim. Hr’g, at 3; Dkt. # 29-2, Tr. Trial vol.
1, at 4-5.
4

cash box, and left the store with roughly a thousand dollars. Id. at 25-26 [254-55], 31 [260]. After
the man left, Coble reported the robbery to the police. Id. at 27-28 [256-57]. Coble described the
man as a black man wearing a black hoodie, long jean shorts, and white tennis shoes. Id. at 26
[255], 29-30 [258-59]. Coble testified that she did not see much of the man’s face, did not
remember the faces of the four customers, and likely would not recognize the man or the customers
if she saw them again. Id. at 28 [257]. Coble also testified that the business had no surveillance
video of the robbery. Id. at 29 [258]. Tulsa police officer Mark Goben responded to the robbery
call, obtained a limited description of the suspect from Coble, did not locate a suspect, and did not
recover any evidence that would help identify the suspect. Id. at 33-38 [262-67].
Wesson testified that he went to Patricia’s Lingerie on July 14 with Belcher, Carter, Gix,
and two women whom Wesson did not know. Dkt. # 29-4, Tr. Trial vol. 3, at 134 [363], 164 [393].
Wesson and the women rode with Belcher, who was driving an Impala, and Carter rode with Gix,
who was driving Gix’s Chevy Traverse.

Id. at 134-35 [363-64].

Wesson and Belcher

communicated by phone with Gix and Carter and the men planned the robbery before or during
the drive to Patricia’s Lingerie, so Wesson “knew what was supposed to go on.” Id. at 136 [365],
166-67 [396-97]. Belcher parked the Impala near the front door of Patricia’s Lingerie. Id. at 135
[364], 165 [394]. Belcher, Wesson, and the two women went inside and “were just looking
around.” Id. at 135 [364], 203 [432]. One woman communicated by phone with Carter and Gix.
Id. at 167 [396], 203-04 [432-33]. Wesson saw Carter enter the store with a gun; Carter then “put
the gun at the [store employee] and told her to give him the money.” Id. at 136-37 [365-66].
Belcher, Wesson, and the women left the store ten to fifteen minutes after Carter left the store. Id.
at 137 [366], 165 [394]. They picked up Carter, who was walking down the street after the robbery
because “Gix left him.” Id. at 137-38 [366-67], 168 [397]. After the robbery, Wesson, Belcher,

5

and Carter went to the Worthington apartments, where Wesson lived with Sharonda Goree, his
godsister. Id. at 133 [362], 138-39 [367-68], 163 [392], 168-69 [397-98]. The men entered
Goree’s apartment and walked upstairs, and Carter divided up the money. Id. Wesson testified
that Goree was home, but she did not know what the men “were up to.” Id. at 138 [367].
Gix testified that he drove his Chevy Traverse to the hotel next to Patricia’s Lingerie on
July 14, that Carter was his passenger, and that it was Carter’s decision to rob Patricia’s Lingerie.
Dkt. # 29-5, Tr. Trial vol. 4, at 6-7 [462-63], 45-47 [501-03]. Gix testified that Belcher and Wesson
drove to Patricia’s in “a dark-colored . . . four-door car,” and that two women were with Belcher
and Wesson. Id. at 8-9 [464-65]. Gix testified that the plan was for Belcher, Wesson, and the
women to go in first and tell Carter when it was “okay to come in.” Id. at 9-10 [465-66]. Gix and
Carter communicated by phone with Wesson, and Wesson told them when it was okay for Carter
to go inside. Id. at 11-12 [467-68], 49-50 [505-06]. Carter told Gix to park across the street, Carter
got out of Gix’s car, and Gix parked across the street. Id. at 10 [466], 50-52 [506-08], 82-84 [53840]. Gix was the getaway driver, but the plan “got mixed up” and Carter did not return to Gix’s
car. Id. at 10 [466]. Wesson called Gix and told Gix that Belcher picked up Carter, Gix drove to
the hotel parking lot, and Carter got into Gix’s car. Id. at 11-12 [467-68], 52-53 [508-09], 85-87
[541-43]. Gix testified that all four men went to Goree’s apartment, and Carter split up the money.
Id. at 12-13 [468-69], 89 [545].
2.

Little Caesar’s Pizza

Sevelia Rosales was working at the Little Caesar’s Pizza near Pine and Harvard in Tulsa,
around 9:00 p.m. on July 19, 2014, when two men wearing facial coverings and gloves “came
running inside the store with guns,” and one of the men demanded money. Dkt. # 29-4, Tr. Trial
vol. 3, at 39-41 [268-70]. One man took money from the cash registers and the safe. Id. at 41-42

6

[270-71]. Rosales described that man as “wearing all black, [a] black long-sleeved shirt and black
pants, real tall, [and] thin,” and maybe “around six feet,” and she testified that when he “stuck [his]
hand in the safe” his shirt sleeve moved up and she could see that he was black. Id. at 42-46 [27175]. Rosales primarily focused on the man pointing a gun at her and described that man as “the
tallest one” in “all black” who “came to the cash registers” and grabbed money from the safe. Id.
at 47-48 [276-77]. 6 Rosales heard one of the men say, “it’s taking too long,” and both men “started
running outside.” Id. at 42-43 [271-72]. After the men left, Rosales called the police to report the
robbery, and she gave responding officers the surveillance video from the store. Id. at 43 [272].
Rosales identified State’s Exhibit 1 as the surveillance video from the Little Caesar’s
robbery, and the video was published for the jury. Id. at 43-44 [272-73]. That video shows that
two armed men entered the store. Dkt. # 30 (State’s Ex. 1). One man wore a gray, long-sleeved
shirt, dark pants, a red bandana covering most of his face, and a gray and red baseball cap. Id.
The other man wore black pants, a black hoodie with lighter-colored stitching on the back near the
neckline, and a black face covering. Id. Both men had handguns. Id. The man with the red
bandana pointed his gun at several customers and motioned for them to stand in the corner of the
store. Id. The man dressed in black went directly behind the counter to the registers and safe and,
at some point, also walked to and from the back of the store. Id. For a few minutes, both men

6

Belcher’s counsel began her cross-examination of Rosales by suggesting that Rosales
“said that the two gentlemen were tall and thin.” Dkt. # 29-4, Tr. Trial vol. 3, at 45 [274]. But on
direct and cross-examination, Rosales testified that the man “wearing all black” was tall and thin,
id. at 42 [271], that she thought “one was about around six feet,” id. at 45 [274], and that she
mainly paid attention to “the tallest one” whom she described as the man dressed in all black, id.
at 47 [276]. In any event, Rosales description of the men who entered Little Caesar’s neither hurts
nor helps Belcher. As further discussed below, Wesson and Gix both testified that Belcher did not
enter this store at all during the robbery and, instead, dropped off the two men who robbed the
store and drove away before the robbery.
7

were behind the counter grabbing money, and the man with the red bandana appeared to stuff
money into his pockets. Id.
Tulsa police officer Wesley Anderson responded to the robbery call and obtained witness
statements describing the robbers as two black men, one with a hoodie tied to cover his face and
one with a handkerchief covering his face. Dkt. # 29-4, Tr. Trial vol. 3, at 50-53 [279-82].
Witnesses told Anderson that the men left the store traveling east. Id. Anderson testified that he
did not request any fingerprint testing because the surveillance video showed that one man wore
gloves. Id.
Wesson testified that Belcher drove his gray Trailblazer to the Little Caesar’s, dropped off
Carter and “another person,” and left before the robbery. Id. at 139-41 [368-70], 169 [398].
Wesson later testified, under protest, that the person with Carter and Belcher was Wesson’s
godbrother, Cody Cummisky. 7 Id. at 208-12 [437-41], 215-16 [444-45], 222-25 [451-54]. Wesson
testified that he went to the Little Caesar’s with Gix, in Gix’s car, and Gix parked down the street
from the Little Caesar’s. Id. at 140-41 [369-70]. Wesson testified that the plan was for Carter and
Cummisky to rob the store and to leave in Gix’s car with Gix and Wesson. 8 Id. Wesson testified
that, after the robbery, Carter and Cummisky got into Gix’s car, Carter was dressed in all black

7

As Belcher notes, the trial transcripts have various spellings of Cummisky’s name. Dkt.
# 42, at 5 n.1. The Court adopts Cummisky as the correct spelling based on Belcher’s reference
to Tulsa County District Court Case No. CF-2011-3033, a case in which the state charged Wesson
and Cummisky with robbery. Id.
8

Wesson also testified that there was no plan and that he went to Little Caesar’s only
“because [he] was worried about [his] family.” Dkt. # 29-4, Tr. Trial vol. 3, at 209-10 [438-39],
213 [442]. It is clear from the trial transcripts that Wesson attempted throughout his testimony to
minimize his involvement in the robberies, and he suggested more than once that he participated
in the robberies out of fear. In contrast, Gix testified that all four defendants were “willing
participants” in the robberies. Dkt. # 29-5, Tr. Trial vol. 4, at 91 [547]. Regardless of what
motivated Wesson to participate in the robberies, he ultimately pleaded guilty as charged.
8

and had a black mask, and Gix drove the men to the Worthington apartments. Id. at 140-41 [36970], 145 [374]. Wesson testified, confusingly, that Carter divided up some money while the men
were in Gix’s car; that Carter may have divided up more money after they went into Goree’s
apartment; that “everybody” got a share of the money; that Wesson did not get any money; that
Belcher may not have received any money; and that Belcher showed up at Goree’s apartment
sometime after Carter divided the money. Id. at 140-42 [369-71], 172-75 [401-04].
Gix testified that Carter, Belcher, and “a third party” drove to Little Caesar’s in Belcher’s
Trailblazer, with Belcher driving. Dkt. # 29-5, Tr. Trial vol. 4, at 14-15 [470-71], 93 [549]. Gix
testified that he did not recall whether the “third party” was Cummisky. Id. at 15 [471], 55-56
[511-12], 95 [551]. Gix and Wesson drove separately, with Gix driving his Chevy Traverse and
following Belcher’s Trailblazer. Id. at 15-16 [471-72], 93-94 [549-50]. Gix parked on the side
street, as Carter had directed him to do, and Gix did not see who went into or came out of the Little
Caesar’s. Id. at 16-17 [471-72], 57-60 [513-16]. Gix knew that the plan was to rob Little Caesar’s,
and he drove off after Carter ran to the car. Id. at 16-17 [471-72], 62 [518]. Gix initially testified
that he did not remember whether anyone else got into his car with Carter, but he later admitted
that he, Wesson, and two others were in his car after the robbery. Id. at 16-17 [471-72], 99 [555].
Gix testified that Carter was wearing dark clothes, specifically, a “dark hoodie,” and had a gun.
Id. at 17-18 [473-74]. Gix drove to the Worthington apartments, and the money was divided
among Gix, Carter, Belcher, Wesson, and “the fifth person.” Id. at 18-19 [474-75], 62 [518], 9799 [553-55].
3.

Tulsa Dollar General

Jenna Capron was working at the Dollar General near Admiral and Memorial in Tulsa,
around 9:00 p.m. on July 21, 2014, when “some people came in and put some guns in [her] face

9

and robbed [her].” Dkt. # 29-4, Tr. Trial vol. 3, at 55-56 [284-85]. Capron was standing behind
the register when “two guys came in.” Id. at 56 [285]. One man came behind the register and the
other man “stayed in front where the bags are.” Id. Both men put guns in her face and told her to
put money in a plastic bag from the store. Id. Capron put “maybe a little over $200” from the
register into the bag. Id. at 57 [286]. The men walked to the safe, Capron’s co-worker opened the
top of the safe, and the men “only got the change” from the safe but “didn’t get any of the big
money.” Id. After they got the money from the safe, the men “ran out.” Id. Capron testified that
there were customers in the store, that the robbery was captured on surveillance video, and that
someone called the police after the men left the store. Id. On cross-examination, Capron testified
that one man who entered the store was wearing a white bandana over his face and white gloves.
Id. at 59-60 [288-89]. Capron remembered hearing one man say, “don’t move,” and she did not
move until “the other one came behind the counter and told [her] to put money in the bag.” Id. at
60 [289]. Capron described the man behind the counter as wearing a black mask and black gloves.
Id. She did not remember anything unusual or odd about either man, other than the fact that they
were robbing the store. Id. at 60-61 [289-90]. 9
Capron identified State’s Exhibit 2 as the surveillance video from the Tulsa Dollar General
robbery, and the video was published to the jury. Id. at 58-59 [287-88]. Capron identified herself
as the person in the surveillance video who was “behind the counter wearing the capris.” Id. The
video shows that several customers were in the store before the robbery. Dkt. # 30, (State’s Ex.
9

At trial, Goree identified Belcher as wearing an eye patch and testified that he “always”
wore sunglasses; Gix testified that Belcher had a problem with one eye and “typically” wore
sunglasses, even at night; and Ryden testified that Belcher had a “messed-up eye.” Dkt. # 29-4,
Tr. Trial vol. 3, at 83 [312], 99-100 [328-29]; Dkt. # 29-5, Tr. Trial vol. 4, at 100-01 [556-57],
166-67 [622-23]. Belcher’s attorney emphasized in closing argument that no eyewitnesses
described any robber as having any distinctive features or wearing sunglasses. Dkt. # 29-6, Tr.
Trial vol. 5, at 21-22 [694-95].
10

2). 10 A few minutes before the robbery, a black male wearing a white tank top and long camo
shorts walked into the store. Id. The man appeared to be talking on his phone and looking around
the store. Id. At some point, two men with handguns entered the store. Id. Both men were dressed
in black, one man wore a white mask with small openings around the eyes and white gloves, and
one man wore a black mask and black gloves. Id. The man in the white mask and gloves pointed
his gun at several customers and stayed near the door for the duration of the robbery. Id. At one
point, he opened the door and allowed two young children to leave the store. Id. The man in the
black mask and gloves, who was wearing a black hoodie with lighter-colored stitching on the back
near the neckline, walked to the cash registers and safe and directed two store employees to put
money in a plastic bag from the store. Id.
Angela Coronado was sweeping the chip aisle of the Tulsa Dollar General when she “heard
a commotion” and saw “two masked guys telling everybody to . . . get on the ground.” Dkt. # 294, Tr. Trial vol. 3, at 63 [292]. She saw a customer standing in front of her, saw that he was on the
phone, and “lipped to him, please call 9-1-1.” Id. Coronado described the customer as a “stocky
black bald guy wearing camo shorts and a white T-shirt” and testified that this same customer “had
previously been in [the store] two or three nights” before the robbery. Id. at 63-64 [292-93], 66
[295]. One of the robbers looked at Coronado, so she walked to the front of the store with her
hands up, got money out of the safe, and gave him the money. Id. at 64 [293]. Coronado testified
that she could tell “[b]y their voice, their tone and their build,” that the robbers were “tall, lanky,
10

The disc for State’s Exhibit 2 includes videos from twelve different cameras. Dkt. # 30
(State’s Ex. 2). The videos identified as “Cam 1” or “ch01” and “Cam 2” or “ch02” provide the
best view of the front door, the cash registers, the safe, and the robbers. The man in camo shorts,
identified at trial as Gix, is seen entering and looking around the store in these two videos and in
other videos. Several of the videos provide no view of the robbery. It is not clear from the trial
transcript exactly which videos or portions of videos the jury viewed, but the Court has viewed all
videos.
11

[and] African American.” Id. at 64-65 [293-94], 67 [296]. She testified on cross-examination that
she could not see the “skin tone” of the robbers and that she did not look into the eyes of either
robber, both of whom had their faces “covered with masks.” Id. at 67-69 [296-98]. According to
Coronado, the men “just took all the bills,” took no change, and likely got five or six hundred
dollars. Id. at 65 [294]. Coronado testified that she gave the surveillance video to the police. Id.
Tulsa police officer Jamie Wofford responded to the Tulsa Dollar General robbery. Id. at
74-76 [303-05]. Wofford ascertained from witnesses that the suspects were young black men, that
they wore masks and gloves, and that the robbery was captured on surveillance video. Id. at 7680 [305-09]. Wofford testified that responding officers did not request DNA or fingerprint testing
because the robbers wore gloves. Id.
Wesson testified that he, Belcher, Carter, and Gix drove to the Tulsa Dollar General in two
separate vehicles and that the men may have planned the robbery at Goree’s apartment. Dkt. # 294, Trial vol. 3, at 142-44 [371-73], 216-17 [445-46]. Gix drove by himself in his Traverse, and
Wesson and Carter rode with Belcher in Belcher’s Trailblazer. Id. Gix went inside the store as
the lookout and “scoped it out,” while communicating with Wesson, Belcher, and Carter by phone.
Id. at 142-44 [371-73], 176 [405]. At some point, Carter and Belcher—both of whom were dressed
in all black—went into the store, and Wesson moved to the front seat of Belcher’s Trailblazer. Id.
at 142-44 [371-73], 217 [446]. Wesson testified that Belcher wore a white mask, and Carter wore
a black mask. Id. at 142-44 [371-73], 175 [404]. Wesson also testified that Belcher and Carter
“would get dressed while [all the men] were in the car,” and that Belcher and Carter kept their
outfits, masks, and gloves in “a duffel bag.” Id. at 145-46 [374-75], 176 [405], 217 [446]. When
Belcher and Carter returned to the vehicle, Wesson drove away from the store, all four men met

12

up at Gix’s house, near 11th and Memorial, and Carter divided up the money. Id. at 146-47 [37576], 177-79 [406-08]. 11
Gix testified that he drove his Chevy Traverse to the Tulsa Dollar General on July 21 to
act as a lookout. Dkt. # 29-5, Tr. Trial vol. 4, at 20 [476]. Belcher, Wesson, and Carter drove to
the store together, with Wesson driving Belcher’s Trailblazer. Id. at 21-22 [477-78], 102-03 [55859]. Gix identified Belcher’s Trailblazer as the gray or silver vehicle depicted in the photo
admitted as State’s Exhibit 9. Id.; see Dkt. # 29-7, at 10 (State’s Ex. 9). Gix testified that he went
into the store, talking on his phone with Wesson, and planned to say “do you want any Doritos” if
it was okay to enter the store. Dkt. # 29-5, Tr. Trial vol. 4, at 21-24 [477-80]. Gix identified
himself as the man on the phone who was depicted in State’s Exhibit 8, a still photo from the Tulsa
Dollar General surveillance video. Id. at 23 [479]; Dkt. # 29-7, at 9 (State’s Ex. 8). At some point,
Gix gave Wesson the signal to come in. Dkt. # 29-5, Tr. Trial vol. 4, at 24 [480], 63-64 [519-20].
Gix was inside the store when he “saw Carter go to the counter and Belcher watch the door.” Id.
Both men were dressed “[i]n dark attire,” “Belcher had a white bandana or rag[,] and Carter had
on a black mask.” Id. Gix knew which man wore which mask because he helped plan the robbery
and knew “who was going to watch the door and who was going to get the money.” Id. at 24-25
[480-81], 64 [520]. Gix saw Carter go behind the register to get the money and heard Belcher say,
“don’t move, don’t nobody move.” Id. at 25-26 [481-82]. The store manager walked past Gix,
11

Although Wesson initially described the second vehicle used in the Tulsa Dollar General
robbery as Belcher’s Trailblazer, Wesson testified on cross-examination that Belcher and Carter
came out of the store and got into “[t]he Jeep,” and that Wesson drove the Jeep to Gix’s house.
Dkt. # 29-4, Tr. Trial vol. 3, at 218-19 [447-48]. On the recording of a store employee’s 911 call,
a recording that apparently was not admitted at trial, witnesses described the getaway vehicle as a
maroon or burgundy SUV. Dkt. # 30, (State’s Ex. 10); see also Dkt. # 29-10, O.R. vol. 1, part 2,
at 1 [73] (probable cause affidavit, dated August 6, 2014, identifying suspect vehicle as “maroon
SUV”). State’s Exhibit 9, identified at trial as a photo of Belcher’s Trailblazer, depicts a silver or
gray SUV. Dkt. # 29-7, at 10 (State’s Ex. 9).
13

saw that he was on his phone, and asked him to call 911. Id. at 56 [482]. Gix testified that he
called 911 “to make it look like [he] wasn’t part of the robbery.” Id. He identified State’s Exhibit
10 as a recording of the 911 call he made during the robbery, and the jury listened to the recording.
Id. at 26-28 [482-84]; Dkt. #30 (State’s Ex. 10). 12 After Carter and Belcher left the store, Gix
stayed behind for a few minutes, but he did not stay long enough to give a statement to the police.
Dkt. # 29-5, Tr. Trial vol. 4, at 29 [485]. Gix drove his Traverse back to his apartment, where he
saw Belcher, Wesson, and Carter sitting in Belcher’s vehicle. Id. at 29-30 [485-86], 65-67 [52123]. Carter divided the money among the four men. Id.
4.

Collinsville Dollar General

Alysa Gassaway was working at the Dollar General near Highway 169 in Collinsville,
around 9:00 or 10:00 p.m. on July 25, 2014, when the store was robbed. Dkt. # 29-4, Tr. Trial vol.
3, at 106-07 [335-36]. Gassaway and her co-worker were preparing to close the store when “a
gentleman came in and asked [them] where the rest room was.” Id. at 108 [337]. Gassaway had
her back to the door and was getting the money drawers ready for close when she “heard someone
tell [them] to get down.” Id.

Gassaway turned around and saw “people . . . dressed in like a

hoodie or a zip-up jacket with pants,” and saw that “[t]hey had gloves, guns, and their face was
covered.” Id. at 109 [338]. Gassaway “could tell they were male just by their voice and their
bigger stature” and could see that they had “black” or “darker skin” because “the only thing that
was not covered was like probably like part of the forehead and their eyes.” Id. Gassaway and
her co-worker “got down,” and one man directed them to give them money from the money drawer.

12

The disc of State’s Exhibit 10 includes recordings of two 911 calls: Gix’s call and a call
made by a store employee. Dkt. # 30 (State’s Ex. 10). It appears from the trial transcript that only
the recording of Gix’s call was admitted and published to the jury. Dkt. # 29-5, Tr. Trial vol. 4, at
28-29 [483-84].
14

Id. at 110 [339]. Gassaway opened the safe while her co-worker gave the man the money from
the drawer. Id. One man started getting money from the safe himself and put the money in a
plastic bag from the store. Id. at 110 [339], 117 [346]. Gassaway estimated that the men obtained
“between two and three thousand” dollars.” Id. at 111 [340]. The men asked if there was another
safe, one man said, “we need to hurry,” and the men “ran out the door.” Id. Gassaway saw a car
pulling away from the door, but she did not know if the robbers were in that car. Id. Gassaway
reported the robbery to the police and provided them a copy of the store’s surveillance video. Id.
at 111-13 [340-42]. Gassaway identified State’s Exhibit 3 as the surveillance video, and portions
of the video were published to the jury. Id. at 113-15 [342-44]. 13 Gassaway testified that police
officers recovered “[m]aybe a hundred dollars or so just in loose change” that had been dropped
on the street east of the store. Id. at 115 [344], 117 [346]. On cross-examination, Gassaway
testified she saw nothing unusual on the forehead or eye area of either man. Id. at 116 [345].
Collinsville police officer Joshua Ray responded to the robbery call and spoke with
witnesses. Id. at 118-20 [347-49]. Ray recovered $141 in change that was found on the street east
of the store and he obtained a copy of the surveillance video. Id. at 120-21 [349-50], 123 [352].
Ray testified that witnesses described the suspects as “two black males approximately six feet tall”
and that this information was consistent with what he saw on the video. Id. at 121 [350].
Wesson testified that he, Carter, Belcher, and Gix were “just driving around,” in Gix’s
Traverse, and ended up at the Collinsville Dollar General. Dkt. # 29-4, Tr. Trial vol. 3, at 147-49
[377-78], 180 [409]. Wesson “went in and looked around to see if anybody was in there.” Id. at
148 [377]. As he was “[c]asing the joint,” he saw two store employees Id. at 148 [377]. Wesson
13

Respondent submitted State’s Exhibit 3 as part of the state court record, but the Court
could not view the series of videos on the disc because the copy submitted displayed an error
message indicating that the file index was broken or missing. Dkt. # 30 (State’s Exhibit 3).
15

communicated by phone with Carter and Belcher. Id. Wesson identified himself as the man
depicted in three still photos, admitted as State’s Exhibit 4, who was wearing a blue ball cap and
a white T-shirt, and the photos were published to the jury. Id. at 149-50 [378-79], 179 [408]; Dkt.
# 29-7, at 5 (State’s Ex. 4). Wesson bought some Cheez-Its and returned to Gix’s car, which was
parked on the side of the store. Dkt. # 29-4, Tr. Trial vol. 3, at 150 [379], 179 [408]. After Wesson
returned to the car, Belcher and Carter went into the store. Id. at 151 [380]. Both men were dressed
in black, Belcher wore a white mask, and Carter wore a black mask. Id. While Belcher and Carter
were in the store, Gix moved his car because “a car pulled up on” them. Id. at 151 [380], 181
[410]. When Gix drove by the front of the store, Wesson saw Belcher near the door. Id. at 15152 [380-81], 181-82 [410-11]. At some point, Belcher and Carter “ran to the car” and dropped
some money on the ground. Id. Gix drove all four men back to Goree’s apartment and the men
divided up the money. Id. at 152-53 [381-82]. Wesson testified that Goree was not home, but
Wesson had a key to her apartment. Id.
Gix testified that he, Carter, Belcher, and Wesson, with Gix driving his Chevy Traverse,
drove around looking for “something to rob,” and ended up in Collinsville. Dkt. # 29-5, Tr. Trial
vol. 4, at 30-32 [486-88], 68-70 [524-26], 105 [561]. Gix drove by a Dollar General, and the men
decided to rob the store. Id. Wesson went into the store first, alone, then came back out to tell the
men it was okay to go inside. Id. at 32 [488], 70-71 [526-27]. Gix testified that Wesson
communicated by phone with the other men “the whole time he was in the store,” and Gix heard
through the phone that Wesson “asked the ladies where the rest room was.” Id. at 79-80 [535-36].
Gix was parked on the side of the store. Id. at 32-33 [488-89]. After Wesson returned to the car,
Belcher and Carter got out. Id. At some point, another car pulled up, so Gix drove around the
block, or “in a circle,” and again parked beside the store. Id. at 32-34 [488-90], 71-73 [527-29],

16

106-07 [562-63]. As he drove by the front of the store, Gix saw Belcher near the door; he knew it
was Belcher because Belcher “was the one that was told to watch the door.” Id. at 33 [489]. After
Gix parked beside the store the second time, Carter and Belcher returned to Gix’s car and Gix
drove off. Id. at 34 [490]. Gix drove back to the Worthington apartments, and Carter divided the
money four ways. Id. at 34 [490], 73 [529], 103 [563]. Gix testified that Belcher and Carter both
had handguns. Id. at 35-36 [491-92]. Gix also testified that owned a .40 caliber handgun that he
kept in his vehicle, but he did not use his gun for any of the robberies. Id. at 37-39 [493-95].
5.

Other testimony

Sharonda Goree testified that she knew all four defendants. She met Carter at a club and
had a brief sexual relationship with him in June 2014. Dkt. # 29-4, Tr. Trial vol. 3, at 80-81 [30910], 101-02 [330-31]. Goree described Belcher as her “play brother” and testified that she “met
him at a nightclub dancing” and had known him for about six months before the robberies. Id. at
82-83 [311-12], 95 [324]. Goree described Wesson as her “play brother” and testified that she had
known Wesson for at least ten years because her mother “adopted him.” Id. at 84 [313], 95 [324].
She met Gix when he was sitting alone at her strip club; he also dated one of her friends, Heather.
Id. at 84-85 [313-14], 95 [324], 101-02 [329-30]. Goree testified that Wesson lived with her at the
Worthington apartments for a few months in the spring and summer of 2014, that all four
defendants had been to her apartment during that time frame, and that she had previously told a
law enforcement officer that all four men “would come and hang out at [her] apartment or in the
parking lot.” Id. at 85-91 [314-20], 103 [322]. Goree denied any knowledge of the men
participating in robberies or dividing up money at her apartment. Id. at 92 [321]. She also denied
that she ever gave Wesson a key to her apartment. Id. at 99 [328]. Goree testified that she had
seen Belcher using crutches, but she did not “know exactly when.” Id. at 93 [322]. She denied

17

that she ever saw him in a boot, cast, or wheelchair. Id. Goree also testified that Belcher “had a
car wreck so his foot was messed up,” that he “always had a crutch,” and that he “had a limp.” Id.
Goree also testified that Belcher was a good dancer. Id. at 93-96 [322-25]. On cross-examination,
Goree clarified that she met Belcher at a dance club before he had his car accident, and that he
developed a limp after the accident. Id. at 97 [326]. She also recalled visiting Belcher at the
hospital when he had the accident and testified that her father told her that Belcher was at the
hospital because her father formerly dated Belcher’s mother. Id. at 98 [327]. Goree described
Belcher’s accident as a “horrible, horrible car wreck.” Id.
Gix testified that Goree neither knew about nor participated in any robberies. Dkt. # 29-5,
Tr. Trial vol. 4, at 13-14 [469-70]. Gix testified that he intended to plead guilty but that he did not
have any deal worked out with the prosecutor, that he would have liked to work out a deal, that he
had asked the prosecutor for “a number” and received no response, and that he knew nothing about
any sentence he might receive in exchange for his guilty plea. Id. at 39 [495]. Gix testified that
he hoped that his testimony would help him “get something” better. Id. at 40-41 [496-97]. Gix
maintained on cross-examination that he had no deal worked out with the prosecutor in exchange
for his testimony and that he was testifying with the hope “for something better.” Id. at 44-45
[500-01], 75-76 [531-32]. Gix testified that he did not know anything about Belcher being in a
car accident, but he knew “something was wrong with one of [Belcher’s] legs” and Belcher went
to the hospital and had “crutches and stuff” likely “sometime in July.” Id. at 101-02 [557-58].
Wesson testified that he had no deal worked out with the prosecutor, that the prosecutor
had not promised him anything in exchange for his testimony, and that he was testifying to help
himself out. Dkt # 27-4, Tr. Trial vol. 3, at 131-32 [360-61], 159 [388]. Wesson further testified,
on direct examination, that Detective Ryden initially let him go without arresting him and that he

18

was arrested and charged after he failed to stay in touch with Ryden. Id. at 157-58 [386-87]. He
testified on cross-examination that he had a prior conviction for second degree burglary and had
served prison time, but he maintained that he had no deal worked out with the prosecution. Id. at
159-60 [388-89]. Wesson also testified on cross-examination that he wanted the jury to believe
he was telling the truth because that would help him with his own charges, and he maintained that
he had not “made a deal with anyone.” Id. at 193-95 [422-24].
Detective Ryden testified about his investigation of the four robberies and how he
determined that the robberies were related. See, supra section I.A. He also testified about his
initial decision to treat Wesson as a cooperating witness and how Wesson became a defendant
after he stopped cooperating. Dkt. # 29-5, Tr. Trial vol. 4, at 129-31 [585-87]. Ryden testified
that he and other officers executed a search warrant at the home where Belcher lived with his
mother on August 7, 2014, two days after his first interview with Wesson and two weeks after the
fourth robbery. Id. at 135-37 [591-93]. The officers found no evidence in the home connecting
Belcher to any of the robberies. Id. They did, however, photograph a gray Chevy Trailblazer in
the front yard that matched Wesson’s and Gix’s description of the vehicle that was used in some
of the robberies. Id. Ryden testified that Belcher’s mother, who owned the Trailblazer, permitted
officers to search the Trailblazer and that officers found no evidence linking Belcher to the
robberies. Id. at 173-74 [629-30]. Ryden arrested and interviewed Belcher that same day. Id. at
137-45 [593-601]. 14 During the interview, Ryden observed that Belcher was wearing a cast and

14

The state admitted Belcher’s videotaped interview, as State’s Exhibit 100, only for
purposes of his Jackson v. Denno hearing. Dkt. # 29-2, Tr. Trial vol. 1, at 16; Dkt. 30 (State’s Ex.
100). The trial court ruled that Belcher’s statements were voluntary and admissible, and portions
of the trial transcript indicate that the prosecutor prepared a redacted version for defense counsel,
but it appears that the state introduced Belcher’s statements at trial only through Detective Ryden’s
testimony. Dkt. # 29-5, Tr. Trial vol. 4, at 126 [355], 140-59 [596-615].
19

using crutches. Id. at 140 [596]. Belcher told Ryden that he had been discharged from the hospital
a few hours before his arrest after having surgery and having the cast put on his leg and that he
had taken a Percocet for pain. Id. at 140 [596], 145-46 [601-02]. He also told Ryden this was his
second cast, that he had a cast put on about one week before his arrest, and that before that he had
been wearing an orthopedic boot “off and on.” Id. at 140-41 [596-97], 157 [613], 162-63 [61718]. Belcher maintained, throughout the interview, that he did not participate in any robberies. Id.
at 141-45 [597-601]. But he admitted that he knew Wesson, Gix, and Goree; that he was in his
Chevy Trailblazer with Wesson one or two days after the Collinsville Dollar General robbery; 15
and that he had spent time at the Worthington apartments and with Goree. 16 Id.
6.

Verdicts and sentencing

At the conclusion of the trial, the jury found Belcher guilty as to four counts of robbery
with a firearm, in violation of OKLA. STAT. tit. 21, § 801. Dkt. # 29-6, Tr. Trial vol. 5, at 63-64
[736-37]. The jury recommended a five-year prison term as to each conviction. Id.; Dkt. # 29-10,

15

The significance of Belcher’s admission that he was in his Trailblazer with Wesson and
Carter one or two days after the fourth robbery was not further explored at trial because that
admission related to a robbery charge that was dismissed before trial. See supra, n.5. A probable
cause affidavit, signed by Ryden and dated August 13, 2014, alleged that Wesson, Carter, and
Belcher robbed a Kwik Stop on July 26, 2014; that the suspect vehicle, captured on surveillance
video, was a light-colored Chevy Blazer; and that Wesson stated that the three men drove to the
Kwik Stop in Belcher’s Chevy Blazer. Dkt. # 29-10, O.R. vol. 1, part 2, at 6 [78].
16

Ryden testified that Belcher also admitted during the interview that he knew Carter and
that Carter was with Belcher and Wesson, in the Trailblazer, one or two days after the fourth
robbery. Dkt. # 29-5, Tr. Trial vol. 4, at 141-43 [597-99]. Carter’s attorney objected, citing Bruton
v. United States, 391 U.S. 123 (1968), and the trial court sustained the objection but, at the request
of Carter’s attorney, did not admonish the jury to disregard the testimony. Id.
20

O.R. vol. 1, part 2, at 86-89 [158-61]. The trial court sentenced him accordingly and ordered that
he serve all terms consecutively. Dkt. # 29-8, Tr. Sentencing Hr’g, at 2. 17
C.

Postconviction proceedings

Belcher filed a direct appeal in the Oklahoma Court of Criminal Appeals (“OCCA”), and
the OCCA affirmed his convictions and sentences in an unpublished summary opinion filed
October 3, 2016, in Case No. F-2015-867. 18 Dkt. # 28-3. Belcher did not seek further direct
review by filing a petition for writ of certiorari in the United States Supreme Court. Dkt. # 1, at 2.
Belcher commenced this federal habeas proceeding by filing his original petition for writ
of habeas corpus on December 28, 2017. Dkt. # 1. 19 Belcher identified five grounds for federal
habeas relief, but four claims were unexhausted. Dkt. # 16, at 3-5 (discussing Belcher’s claims
and 28 U.S.C. § 2254(b)(1)(A)’s requirement that state prisoners exhaust available state remedies
as to any claims asserted in a habeas petition). Respondent moved to dismiss the original petition.
17

The jury also found Carter guilty as to four armed robberies, and Carter likewise received
five-year prison terms for each conviction, to be served consecutively. Dkt. # 29-10, O.R. vol. 1,
part 2, at 90-93 [162-65]; Dkt. # 29-8, Tr. Sentencing Hr’g, at 2. Within days of the jury verdict,
Wesson and Gix each pleaded guilty as to four counts of armed robbery, and, in accordance with
their plea agreements, each received a ten-year prison term for each count, with all counts to run
concurrently and all prison time suspended. Dkt. # 29-11, O.R. vol. 2, at 64-80 [231-47], 88-106
[255-73].
18

Carter appealed his conviction separately in Case No. F-2015-868. Because each
defendant raised only a single issue in their separate appeals challenging the sufficiency of the
evidence presented at their joint trial, the OCCA consolidated the separate appeals. Dkt. # 28-3,
at 1 n.1; Dkt. # 51, at 2 n.1.
19

The Clerk of Court received Belcher’s original petition on January 4, 2018. Dkt. # 1.
However, Belcher signed and placed his petition in the prison mail system on December 28, 2017,
and the envelope that contained the petition is identified as “legal mail” and postmarked December
29, 2017. Id. at 25, 27-28. Applying the prison mailbox rule, the Court deemed the petition filed
on December 28, 2017. See Houston v. Lack, 487 U.S. 266, 270-72 (1998) (holding that pro se
prisoner’s pleading is deemed filed when given to prison official for mailing, “regardless of when
the court itself receives the documents”); Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005)
(describing showings pro se prisoner must make to benefit from prison mailbox rule).
21

Id. The Court denied the dismissal motion and granted Belcher’s request to stay this habeas
proceeding while he exhausted his available state remedies through a first application for
postconviction relief that Belcher filed in the Tulsa County District Court (“TCDC”) on January
4, 2018. Id. at 7-10. 20
The TCDC denied Belcher’s application for postconviction relief on November 13, 2018.
Dkt. # 28-6. Belcher timely filed a notice of intent to appeal on December 13, 2018, and the OCCA
granted a certificate of appeal, in PC-2019-31, on January 15, 2019. Dkt. # 28-7; Dkt. # 28-11, at
2. In an order filed April 12, 2019, the OCCA declined jurisdiction and dismissed Belcher’s
postconviction appeal, reasoning that Belcher failed to comply with Rule 5.2(c)(2), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), because he filed his petition
in error three days beyond the sixty-day filing period. Dkt. # 28-8, at 1. The OCCA further stated,
“[i]f Petitioner feels he has been denied a post-conviction appeal through no fault of his own, he
may seek the appropriate relief with the District Court,” and cited the OCCA’s procedural rule
permitting a petitioner to seek an out of time postconviction appeal. Id.; see Rule 2.1(E)(3), Rules
of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019).
On July 10, 2019, Belcher filed a written request for a postconviction appeal out of time.
Dkt. # 28-9. The TCDC construed the request as a second application for postconviction relief
seeking a recommendation for a postconviction appeal out of time. Dkt. # 28-11, at 1-2. The

20

Belcher placed his first application for postconviction relief in the prison’s legal mail
system on December 28, 2017—the same day he placed the original petition in the prison’s legal
mail system. Dkt. # 13 at 1-2. But Oklahoma does not recognize a prison mailbox rule for filings
by pro se prisoners. Burger v. Scott, 317 F.3d 1133, 1140-41 (10th Cir. 2003). As a result,
Belcher’s application for postconviction relief was filed on the date the state district court clerk
stamped his application as received, January 4, 2018. See id. at 1140 (explaining that state postconviction filing is “properly filed” under Oklahoma law as of date “the proper documents were
either delivered to or received by the courts, rather than to or by prison officials”).
22

TCDC considered Belcher’s allegations and determined that Belcher failed to show that he was
denied a postconviction appeal through no fault of his own. Id. at 2-6. The TCDC declined to
recommend a postconviction appeal and dismissed the second application for postconviction relief
on April 3, 2020. Id.
Belcher later notified the TCDC, in writing, that he had not received a certified copy of the
April 3, 2020, order. Dkt. # 28-12, at 1-2. On June 15, 2020, the TCDC found that Belcher’s
“right to appeal” the April 3, 2020, order “was frustrated by no fault of his own,” and issued an
order recommending that Belcher be granted an out of time postconviction appeal to obtain review
of the TCDC’s April 3, 2020, order dismissing his second application for postconviction relief. Id.
Based on the TCDC’s recommendation, and Belcher’s petition for an out of time appeal filed July
13, 2020, the OCCA issued an order, in Case No. PC-2020-467, on January 27, 2021, granting
Belcher’s request to file a postconviction appeal out of time. Dkt. ## 28-13, 28-14.

Belcher

timely perfected that postconviction appeal, in Case No. PC-2021-133. Dkt. ## 28-15, 28-16, 2817. In an order filed September 3, 2021, the OCCA affirmed the TCDC’s April 3, 2020, order
dismissing Belcher’s second application for postconviction relief. Dkt. # 28-17. The OCCA noted
that Belcher’s briefing addressed the claims he raised in his first application for postconviction
relief; that the OCCA’s order granted only an out of time postconviction appeal from the April 3,
2020, order dismissing his second application for postconviction relief; and that the TCDC’s
findings and conclusions supported the dismissal of his second application for postconviction
relief. Id. at 3-5.
On Belcher’s motion and notification that his state postconviction proceedings had reached
an end, the Court lifted the stay and reopened this habeas proceeding in October 2021. Dkt. # 27.
As directed by the Court, respondent responded to the original petition on November 17, 2021,

23

and provided the record of state court proceedings. Dkt. ## 28, 29, 30. Belcher obtained habeas
counsel in November 2023, and, with leave of Court, filed the amended petition on June 7, 2024.
Dkt. # 37, 41.
II.

Discussion
Belcher identifies five constitutional claims: 21 (1) he was denied his Fourteenth

Amendment right to due process because the evidence was not sufficient to prove his guilt beyond
a reasonable doubt (claim two), Dkt. # 41, at 32-35; (2) he was denied his Fourteenth Amendment
right to due process, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), because the
prosecutor withheld evidence that the state made leniency deals with two testifying co-defendants,
Wesson and Gix (claim three), Dkt. # 41, at 35-42; (3) he was denied his Fourteenth Amendment
right to due process, as interpreted in Napue v. Illinois, 360 U.S. 264 (1959), because the
prosecutor sponsored Wesson’s and Gix’s false testimony denying that they had leniency deals
with the state (claim four), Dkt. # 41, at 42-44; (4) he was denied his Sixth Amendment right to
counsel, as interpreted in Strickland v. Washington, 466 U.S. 668 (1984), because trial counsel did
not investigate and present available evidence to establish that Belcher did not commit the
robberies (claim five), Dkt. # 41, at 44-56; and (5) he was denied his Sixth Amendment right to
counsel, as interpreted in Evitts v. Lucy, 469 U.S. 387 (1985), because appellate counsel did not
argue that trial counsel was ineffective for not investigating and presenting evidence to establish
that Belcher did not commit the robberies (claim six), Dkt. # 41, at 56-58. Acknowledging that he
procedurally defaulted all but one of these claims, Belcher asserts that he can overcome the
procedural default because he has presented a credible actual innocence gateway claim (claim

The five constitutional claims are counts two through six. Count one is his actual
innocence gateway claim to overcome procedural default of claims three through six. See II. C.
2, infra.
21

24

one). 22 Id. at 21; Dkt. # 51, at 30. Belcher requests leave to conduct discovery as to three of his
constitutional claims. Dkt. # 42. He also requests an evidentiary hearing to develop the factual
basis of his constitutional claims and to permit this Court to fully evaluate his actual innocence
gateway claim. Dkt. # 53.
Respondent urges the Court to deny the motions for discovery and an evidentiary hearing
and to deny the amended petition. Dkt. ## 49, 51, 54. In opposing the amended petition,
respondent contends: (1) that 28 U.S.C. § 2254(d) bars relief as to claim two because the OCCA’s
decision rejecting that claim is not contrary to, or based on an unreasonable application of, clearly
established federal law, Dkt. # 51, at 10-30; and (2) that claims three through six are procedurally
defaulted and Belcher has not presented a credible actual innocence gateway claim to overcome
the procedural default of those claims, id. at 30-58. Respondent alternatively contends that even
if Belcher could overcome the procedural default, claims three through six should be denied on
the merits. Id. at 70.
A.

Legal principles

A federal court may grant habeas relief to a petitioner in custody pursuant to a state court
judgment “only on the ground that [the petitioner] is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a); see also Wilson v. Corcoran, 562 U.S.
1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment
susceptible to collateral attack in the federal courts.”). But “a state prisoner must exhaust available
state remedies before presenting his claim to a federal habeas court.” Davis v Davila, 582 U.S.
22

“When used to overcome procedural issues, ‘a claim of “actual innocence” is not itself
a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have
his otherwise barred constitutional claim considered on the merits.’” Fontenot v. Crow, 4 F.4th
982, 1029-30 (10th Cir. 2021) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)), cert. denied
Crow v. Fontenot, 142 S. Ct. 2777 (2022).
25

521, 527 (2017); see 28 U.S.C. § 2254(b). The exhaustion requirement is based on principles of
comity and gives “state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel,
526 U.S. 838, 844-45 (1999); see Grant v. Royal, 886 F.3d 874, 890-92 (10th Cir. 2018). A
petitioner satisfies the exhaustion requirement by demonstrating that he “fairly presented” his
federal claim to the state’s highest court, either on direct appeal or in a post-conviction proceeding,
in a procedural manner permitting the court to consider the claim on the merits. Castille v. Peoples,
489 U.S. 346, 351 (1989).
A federal court ordinarily should dismiss an unexhausted federal claim so that the petitioner
can pursue available state remedies. Grant, 886 F.3d at 891-92. However, if further state court
review of the claim would be barred by an adequate and independent state procedural rule, the
federal court may treat the claim as exhausted but procedurally defaulted. Id. at 892 (discussing
when federal courts may impose an anticipatory procedural bar and treat a claim as procedurally
defaulted). Under the procedural default doctrine, a court may not review “federal claims that
were procedurally defaulted in state court.” Davila, 582 U.S. at 527. This includes federal claims
that the state court denied based on an adequate and independent state procedural rule, and federal
claims that a federal court deems procedurally defaulted through application of an anticipatory
procedural bar. Id.; Coleman v. Thompson, 501 U.S. 722, 732 (1991 (“A habeas petitioner who
has defaulted his federal claims in state court meets the technical requirements for exhaustion;
there are no state remedies any longer ‘available’ to him.”), holding modified on other grounds by
Martinez v. Ryan, 566 U.S. 1 (2012). A petitioner “may overcome the prohibition on reviewing
procedurally defaulted claims” only by demonstrating either cause for the procedural default and
resulting prejudice or that the federal court’s failure to review the claim will result in a fundamental

26

miscarriage of justice. Davila, 582 U.S. at 527; Coleman, 501 U.S. at 750. The miscarriage-ofjustice exception, “however, is a markedly narrow one, implicated only in ‘extraordinary case[s]
where a constitutional violation has probably resulted in the conviction of one who is actually
innocent.’” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quoting Phillips v. Ferguson,
182 F.3d 769, 774 (10th Cir. 1999)).
When a petitioner fairly presents a federal claim in state court, and the state court denies
that claim on the merits, a federal court may grant habeas relief on that claim only if the petitioner
makes a threshold showing that the state court’s decision either (1) “was contrary to . . . clearly
established Federal law,” 28 U.S.C. § 2254(d)(1), (2) “involved an unreasonable application of
clearly established Federal law,” id., or (3) “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2).
Even if the petitioner makes the threshold showings necessary either to overcome §
2254(d)’s bar to relief as to claims the state court adjudicated on the merits or to overcome the
prohibition against habeas review of procedural defaulted claims, the petitioner is not entitled to
federal habeas relief. Rather, the federal court will review the petitioner’s federal claims de novo
and, if it finds error, will apply a harmless-error analysis to determine whether habeas relief is
warranted. See Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (explaining that if the federal court finds
a constitutional error on de novo review, the court “must assess [its] prejudicial impact . . . under
the ‘substantial and injurious effect’ standard set forth in Brecht [v. Abrahamson, 507 U.S. 619
(1993)], whether or not the state appellate court recognized the error and reviewed it for
harmlessness”); Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 898 (10th Cir. 2019) (“Claims that
the state court didn’t adjudicate on the merits, we review de novo.”); Milton v. Miller, 744 F.3d
660, 670-71 (10th Cir. 2014) (explaining that satisfaction of § 2254(d)’s standards “effectively

27

removes AEDPA’s prohibition on the issuance of a writ” and “requires [a federal habeas court] to
review de novo” petitioner’s claims). Under the Brecht standard, a federal court will grant habeas
relief only if the court “is in grave doubt as to the harmlessness of an error that affects substantial
rights.” O’Neal v. McAninch, 513 U.S. 432, 445 (1995).
B.

Claim two: insufficient evidence

In claim two, Belcher contends that the evidence presented at trial was not sufficient to
prove his guilt beyond a reasonable doubt. Dkt. # 41, at 32-35. The Fourteenth Amendment’s
Due Process Clause guarantees “that no person shall be made to suffer the onus of a criminal
conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia,
443 U.S. 307, 316 (1979). Under Jackson, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. at 319. In the context of
habeas review, a federal court looks to state law to identify the essential elements of the offense,
“but the minimum amount of evidence that the Due Process clause requires to prove the offense is
purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam).
Belcher presented this claim on direct appeal, asserting that the evidence was not sufficient
to prove his guilt beyond a reasonable doubt “because the convictions were based solely on the
uncorroborated testimony of accomplices.” Dkt. # 28-3, at 1. Belcher’s claim primarily rested on
Oklahoma’s “accomplice corroboration rule, but he also cited Jackson to argue that no rational
juror could have found him guilty beyond a reasonable doubt. Dkt. # 28-1, at 18-26. The OCCA
rejected Belcher’s claim. Given the brevity of the OCCA’s decision, the Court repeats it verbatim
here:

28

Evidence is sufficient to support a conviction if, viewing the evidence and all
reasonable inferences from it in the light most favorable to the State, any rational
trier of fact could find the defendant guilty beyond a reasonable doubt. Coddington
v. State, 2006 OK CR 34, ¶ 70, 142 P.3d 437, 456; Spuehler v. State, 1985 OK CR
132, ¶ 7, 709 P.2d 202, 203-04. The Court, in Postelle v. State, explained the rules
governing the corroboration of accomplice testimony:
Under Oklahoma law, a conviction cannot rest upon the testimony
of an accomplice unless the accomplice’s testimony is corroborated
by other evidence that tends to connect the defendant with the
commission of the offense. 22 O.S. 2001, § 742. Accomplice
testimony must be corroborated with evidence that, standing alone,
tends to link the defendant to the commission of the crime charged.
Pink v. State, 2004 OK CR 37, ¶ 15, 104 P.3d 584, 590. An
accomplice’s testimony need not be corroborated in all material
respects, but requires “at least one material fact of independent
evidence which tends to connect the defendant with the commission
of the crime.” Cummings v. State, 1998 OK CR 45, ¶ 20, 968 P.2d
821, 830. Corroborative evidence is not sufficient if it requires any
of the accomplice’s testimony to form the link between the
defendant and the crime, or if it tends to connect the defendant only
with the perpetrators and not the crime itself. Glossip v. State, 2007
OK CR 12, ¶ 42, 157 P.3d 143, 152. The purpose of the accomplice
corroboration rule is to ensure that an accused is not falsely
implicated by someone equally culpable in order to seek clemency,
or for motives of revenge or any other reason. Collier v. State, 1974
OK CR 49, ¶ 7, 520 P.2d 681, 683.
Postelle, 2011 OK CR 30, ¶ 13, 267 P.3d 114, 126. Furthermore, we have held that
circumstantial evidence is sufficient to corroborate an accomplice’s testimony and
that this Court will take the strongest view of the corroborating testimony that the
evidence will permit. See Cullison v. State, 1988 OK CR 279, ¶ 9, 765 P.2d 1229,
1231; Pierce v. State, 1982 OK CR 149, ¶ 6, 651 P.2d 707, 709. The jury in this
case was properly instructed on the law governing accomplice testimony and the
need for such testimony to be corroborated. We agree with the jury that there was
sufficient corroboration, though circumstantial, to support Belcher’s and Carter’s
convictions in this case. See Cullison, 1988 OK CR 279, ¶ 9, 765 P.2d at 1231
(slight evidence is sufficient for corroboration). Their convictions may stand.
Dkt. # 28-3, at 2-3.
The parties agree, and the Court finds, that this claim is exhausted and subject to deferential
review under § 2254(d) because the OCCA rejected it on the merits. Dkt. # 41, at 32; Dkt. # 51,
at 2, 6-10. They disagree, however, as to whether § 2254(d) bars relief. Belcher argues that the
29

“OCCA’s decision constitutes an unreasonable application of [Jackson] because the accomplice’s
testimony, which couldn’t be supported by any other evidence including eyewitness testimony and
anything connecting [him] to the robberies, did no[] more than create a suspicion of guilt.” Dkt.
# 41, at 34. He further argues the state did not meet its burden of proof because: (1) Wesson and
Gix had “obvious motives to testify” and portions of their testimony “did not make sense”; (2) no
eyewitnesses testified at trial that any robbery suspect had Belcher’s “unique identifying
characteristics,” namely, his “uniquely appearing left eye, and injured right leg and foot”; and (3)
“the absence of a gun, a bag full of clothes matching what the robbers were wearing, bags from
the stores used to carry the money, or any other physical evidence contradicts Wesson and Gix’s
testimony.” Id. at 34-35. Thus, Belcher asserts, “[t]he weight of the evidence that doesn’t suggest
[he] participated in the robberies is much greater than the evidence that does.” Id. at 35.
Respondent contends that the OCCA applied Jackson in an objectively reasonable manner
because “any rational trier of fact could find [Belcher] guilty beyond a reasonable doubt.” Dkt. #
51, at 27. Respondent argues that the testimony from Wesson and Gix directly implicated Belcher
in the robberies and, standing alone, is sufficient to support his convictions and that this testimony
also was corroborated in several respects by circumstantial evidence, including Belcher’s
interview statements, Goree’s testimony, and surveillance videos from three of the robberies. Id.
at 14-30.
“Jackson claims face a high bar in federal habeas proceedings because they are subject to
two layers of judicial deference.” Johnson, 566 U.S. at 651.
First, on direct appeal, “it is the responsibility of the jury—not the court—to decide
what conclusions should be drawn from evidence admitted at trial. A reviewing
court may set aside the jury’s verdict on the ground of insufficient evidence only if
no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565
U.S. 1, 132 S. Ct. 2, 4, 181 L. Ed. 2d 311 (2011) (per curiam). And second, on
habeas review, “a federal court may not overturn a state court decision rejecting a
30

sufficiency of the evidence challenge simply because the federal court disagrees
with the state court. The federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U.S.
766, 130 S. Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010)).
Johnson, 566 U.S. at 651. The objective reasonableness standard is demanding. It requires a
petitioner to “show that the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011). In other words, if it is possible for fairminded jurists to disagree about the determination
as to whether an alleged constitutional error occurred in state court proceedings, § 2254(d) bars
relief. Congress made it “difficult” to satisfy § 2254(d) because “state courts are the principal
forum for asserting constitutional challenges to state convictions,” Richter, 562 U.S. at 102-03,
and “[g]ranting habeas relief to a state prisoner ‘intrudes on state sovereignty to a degree matched
by few exercises of federal judicial authority,’” Brown v Davenport, 596 U.S. 118, 132 (2022)
(quoting Richter, 562 U.S. at 132).
To obtain Belcher’s convictions, the state had to prove, beyond a reasonable doubt, that he
participated in: (i) the wrongful taking of property from another; (ii) by force or fear; (iii) through
the use of a dangerous weapon. See OKLA. STAT. tit. 21, § 801; Primeaux v. State, 88 P.3d 893,
906 (Okla. Crim. App. 2004); Dkt. # 29-11, O.R. vol. 2, at 31 [198], 33-34 [200-01]. Belcher
argues that the state failed to satisfy its burden of proof as to any of these elements, and that the
OCCA’s rejection of his Jackson claim thus was objectively unreasonable, because the testimony
of Wesson and Gix was incredible and uncorroborated, no other eyewitnesses identified Belcher
as a robbery suspect, and the state presented no physical evidence (guns, clothing, or plastic bags
used in robberies) linking Belcher to the robberies. Dkt. # 41, at 32-35. For two reasons, the Court
rejects this argument.
31

First, to the extent Belcher contends that the testimony from Wesson and Gix had to be
corroborated by other evidence, the Court agrees with respondent that this raises only an issue of
state law and provides no basis for federal habeas relief. Dkt. # 51, at 13; see Foster v. Ward, 182
F.3d 1177, 1193 (10th Cir. 1999) (“Even though [the petitioner] cites us to Oklahoma law requiring
the corroboration of accomplice testimony, our habeas review is governed by federal constitutional
principles, not state law.”). As the OCCA explained, “[u]nder Oklahoma law, a conviction cannot
rest upon the testimony of an accomplice unless the accomplice’s testimony is corroborated by
other evidence that tends to connect the defendant with the commission of the offense.” Dkt. #
28-3, at 2 (quoting Postelle, 267 P.3d at 126, and citing OKLA. STAT. tit. 22 § 742). Unlike
Oklahoma law, however, “[f]ederal law does not require independent corroboration of accomplice
testimony.” Watson v. Howard, No. 04-6074, 2005 WL 375940, at *6 (10th Cir. Feb. 17, 2005)
(unpublished); 23 see Caminetti v. United States, 242 U.S. 470, 495 (1917) (rejecting an alleged
jury instruction error, suggesting “that it was the better practice for courts to caution juries against
too much reliance upon the testimony of accomplices, and to require corroborating testimony
before giving credence to such evidence” but explaining that “there is no absolute rule of law
preventing convictions on the testimony of accomplices if juries believe them”); United States v.
Magallanez, 408 F.3d 672, 682 (10th Cir. 2005) (“A conviction may stand merely on the
uncorroborated testimony of an accomplice.”); Scrivner v. Tansy, 68 F.3d 1234, 1239 (10th Cir.
1995) (stating that “[t]he Constitution does not prohibit convictions based primarily on accomplice
testimony” and citing cases from other circuits for the proposition that state laws requiring

23

The Court cites this unpublished decision, and other unpublished decisions herein, as
persuasive authority. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
32

independent corroboration of accomplice testimony “do not implicate constitutional concerns that
can be addressed on habeas review”). Rather,
[d]ue process concerns are met by “vigorous cross-examination [of the accomplice]
and instructions informing juries of their responsibilities to make credibility
determinations, bearing in mind the potential for bias, interest or prejudice.”
Watson v. Howard, 123 Fed. App’x 910, 917 (10th Cir. 2005) (citing Foster, 182
F.3d at 1193). With such safeguards, jurors are free to accept accomplice testimony
“so long as the testimony is not incredible on its face and is otherwise capable of
establishing guilt beyond a reasonable doubt.” Foster, 182 F.3d at 1193.
Carter v. Crow, No. 16-CV-0675-CVE-PJC, 2019 WL 7373033, at *3 (N.D. Okla. Dec. 31, 2019)
(unpublished).
Second, to the extent Belcher contends that the OCCA unreasonably applied Jackson, the
record does not support that contention. As previously discussed, Johnson clearly delineates the
roles of the jury, the appellate court, and the federal habeas court. The jury determines the weight
and credibility of the evidence; the appellate court views the evidence in the light most favorable
to the state and upholds a jury’s guilty verdict unless “no rational trier of fact could have agreed
with the jury”; and the federal habeas court defers to the state appellate court’s decision so long as
the state appellate court applied the Jackson standard to the facts of the case in an objectively
reasonable manner. Johnson, 566 U.S. at 651. The record demonstrates that three of the four
robberies were captured on surveillance videos. Dkt. # 30 (State’s Exs. 1, 2, 3). The jury watched
those videos; heard testimony from Wesson and Gix describing the robberies with details that were
consistent with each other’s testimony, the events depicted in the videos, and the events described
by employees from each store; heard testimony from Wesson and Gix that the men met up at the
Worthington apartments to split the proceeds after three of the robberies, sometimes divvying up
the money in Goree’s apartment; heard testimony from Goree that she knew all four defendants
and that all four defendants would “hang out” at her apartment or in the parking lot during the
same time frame as the robberies; and heard Belcher’s statements (admitted through Detective
33

Ryden’s testimony) admitting that he knew Carter, Wesson, and Gix, that he drove a gray
Trailblazer—the same vehicle described by Wesson and Gix as one the men used in some of the
robberies, and admitting that he was in the Trailblazer with Wesson and Carter one or two days
after the fourth robbery. See supra, section I.B. The jury also heard evidence that law enforcement
officers found no evidence at Belcher’s house or in his Trailblazer that would link him to the
robberies; that Belcher denied involvement in any robberies during his interview with Ryden; and
that Belcher developed a limp after being hospitalized for a car accident that occurred sometime
before the robberies, occasionally used an orthopedic boot, and was on crutches and wearing a cast
when he was arrested in August 2014. See supra, section I.B.5. The jury weighed this evidence
and, through its verdicts, found beyond a reasonable doubt that Belcher participated in each of the
four robberies.
More to Belcher’s primary point, the jury had ample evidence before it to assess the
credibility of Wesson and Gix. Wesson and Gix were clearly identified at trial as accomplices;
both men testified that they initially lied to Detective Ryden by denying their involvement in the
robberies; both men testified that they participated in all four robberies and identified themselves
in still photos taken from surveillance videos of the Dollar General robberies; and, according to
the prosecutor’s closing argument, both men testified in jail clothing and shackles. See supra,
sections I.A., I.B.; Dkt. # 29-6, Tr. Trial vol. 5, at 683. Wesson also testified that he had a prior
felony conviction for second degree burglary and that he had served time in prison. Dkt. # 29-4,
Tr. Trial vol. 3, at 160 [389]. The prosecutor and the attorneys representing Belcher and Carter
questioned Wesson and Gix at length regarding their involvement in the crimes, their motives for
testifying, and any deals or benefits they hoped to receive from the state in exchange for their
testimony. See generally, Dkt. # 29-4, Tr. Trial vol. 3, at 131-225 [360-454] (Wesson testimony);

34

Dkt. # 29-5, Tr. Trial vol. 4, at 4-108 [460-564] (Gix testimony). The attorneys representing
Belcher and Carter also vigorously cross-examined Detective Ryden about his investigation, about
other possible robbery suspects, about his interviews with Wesson and Gix and inconsistencies
between their interview statements and their trial testimony, and about the lack of any physical
evidence connecting Belcher and Carter to any robberies. Dkt. # 29-5, Tr. Trial vol. 4, at 159-91
[615-47]. The state court gave detailed jury instructions on impeachment evidence, credibility
determinations, and the accomplice corroboration rule. Dkt. # 29-11, O.R. vol. 2, at 23-26 [19093], 35-42 [202-09].

Two of those instructions expressly identified Wesson and Gix as

accomplices to the crimes, and one instruction advised jurors that “[i]f the testimony of an
accomplice is [sufficiently] corroborated, [the jurors] shall give [the accomplice’s] testimony such
weight and credit as [the jurors] find it is entitled to receive.” Id. at 38-40 [205-07]. Ultimately,
as evidenced by its verdicts, the jury found the testimony by Wesson and Gix sufficiently
corroborated, gave it the weight and credit the jury deemed it was entitled to receive, and found
the evidence, as a whole, sufficient to demonstrate Belcher’s guilt beyond a reasonable doubt.
Having carefully reviewed the trial transcripts and trial exhibits, the Court concludes that
it was objectively reasonable for the OCCA to determine, “after viewing the evidence in the light
most favorable to the prosecution, [that] any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Section 2254(d)
thus bars relief, and the Court denies the petition as to claim two.
C.

Claims three, four, five and six: Brady, Napue, and right to counsel

In his remaining constitutional claims, Belcher alleges that the prosecutor committed a
Brady violation by withholding evidence of leniency deals the state made with Wesson and Gix
(claim three), Dkt. # 41, at 35-42; that the prosecutor committed a Napue violation by sponsoring

35

Wesson’s and Gix’s false testimony denying that they had leniency deals with the state (claim
four), Dkt. # 41, at 42-44; that trial counsel provided constitutionally deficient representation by
failing to investigate and present available evidence to establish that Belcher did not commit the
robberies (claim five), Dkt. # 41, at 44-56; and that appellate counsel provided constitutionally
deficient representation by failing to argue that trial counsel was ineffective for not investigating
and presenting evidence to establish that Belcher did not commit the robberies (claim six), Dkt. #
41, at 56-58.
1.

Procedural default

Respondent contends, and Belcher concedes, that Belcher procedurally defaulted these
constitutional claims when he failed to perfect a timely postconviction appeal from the state district
court’s November 2018 order denying his first application for postconviction relief. Dkt. # 41, at
21, 36, 43-44, 57; Dkt. # 51, at 30-37. The Court agrees. As previously discussed, the Court
stayed this habeas proceeding for a significant time to permit Belcher to present these
constitutional claims to the OCCA through state postconviction proceedings. Belcher raised his
constitutional claims in the TCDC through his first application for postconviction relief. Dkt. #
28-4; Dkt. # 28-6, at 2-3. The TCDC denied his sufficiency of the evidence claim as procedurally
barred because the OCCA adjudicated that claim on direct appeal, and denied the four remaining
claims on the merits, under the framework for assessing ineffective assistance of appellate counsel
claims. Dkt. # 28-6. Belcher attempted to perfect a postconviction appeal but did not timely file
his petition in error. Dkt. # 28-8, at 1. The OCCA therefore declined jurisdiction and dismissed
the appeal, applying an adequate and independent state procedural rule that requires timely filing
of the petition in error. Id. (citing Rule 5.2(C)(2), Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2019)); see Brown v. Allbaugh, 678 F. App’x 638, 641-42 (10th

36

Cir. 2017) (“We have held that the OCCA’s Rule 5.2(C)—which sets out procedural requirements
for filing for post-conviction relief—is an adequate and independent state ground that precludes
federal habeas review.”); Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998) (concluding
that Rule 5.2(C) is adequate and independent state procedural rule). Belcher then tried but failed
to obtain leave to file an out of time postconviction appeal from the TCDC’s order denying his
first application for postconviction relief. See supra, section I.C. Because Belcher procedurally
defaulted claims three, four, five, and six, this Court cannot review these claims unless Belcher
shows that he can overcome the procedural default.
2.

Actual innocence gateway claim

In claim one, Belcher invokes the miscarriage of justice exception and contends that he can
overcome the procedural default of claims three, four, five, and six “because newly discovered
evidence establishes that [he] is factually innocent.” Dkt. # 41, at 21-31. Belcher supports his
actual innocence gateway claim with two categories of evidence. First, he presents medical records
spanning the time from his automobile accident in September 2013 to his arrest in August 2014.
Dkt. ## 44, 45, 46, 47, 48. Second, he presents five affidavits from family members and friends.
Dkt. ## 41-2, 41-3, 41-4, 41-5, 41-6.
As previously noted, “when used to overcome procedural issues, ‘a claim of “actual
innocence” is not itself a constitutional claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’”
Fontenot, 4 F.4th at 1029-30 (quoting Herrera, 506 U.S. at 404). To support a tenable gateway
claim, “a petitioner must show 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).
To make this showing, a petitioner generally must “support his allegations of constitutional error

37

with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Id. at 324. And the
gateway should open only if the petitioner “persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” Id. at 329.
a.

Respondent’s preliminary arguments

Before evaluating Belcher’s actual innocence gateway claim, the Court addresses
respondent’s preliminary arguments against performing that evaluation.

First, respondent

contends that Belcher’s actual innocence gateway claim is unexhausted and that this Court should
not consider any evidence that he presents to support his gateway claim. Dkt. # 51, at 41-46.
Citing § 2254(b), respondent argues that “[p]etitioner cannot obtain habeas relief on a claim that
has not been exhausted in state court” and “the fact that [p]etitioner raises a claim of actual
innocence does not command a different result.” Id. at 41, 44. To support this position, respondent
cites three, out-of-circuit, unpublished decisions. Id. at 44-46. Respondent’s argument, however,
misunderstands the nature of an actual innocence gateway claim. “A distinction exists between
claims of actual innocence used as a gateway and as a freestanding basis for habeas relief. As a
gateway, a claim of actual innocence ‘enable[s] habeas petitioners to overcome a procedural bar’
in order to assert distinct claims for constitutional violations.” Farrar v. Raemisch, 924 F.3d 1126,
1130 (10th Cir. 2019) (alteration in original) (quoting McQuiggin v. Perkins, 569 U.S. 383, 386
(2013)). But “[b]ecause gateway claims are ‘procedural, rather than substantive,’ they do not
‘provide a basis for relief.’” Id. (quoting Schlup, 513 U.S. at 314-15). Thus, an actual innocence
gateway claim is akin to a claim that is asserted to establish cause for a procedural default and

38

show resulting prejudice. As the Tenth Circuit recently explained in Fontenot, in rejecting a
similar exhaustion argument, respondent’s
contention conflates federal gateways with substantive claims. “‘Cause’ . . . is not
synonymous with ‘a ground for relief.’” Martinez v. Ryan, 566 U.S. 1, 17, 132 S.
Ct. 1309, 182 L. Ed. 2d 272 (2012) (quoting 28 U.S.C. § 2254(i)). That is, “[a]
finding of cause and prejudice does not entitle the prisoner to habeas relief,” but
“merely allows a federal court to consider the merits of a claim that otherwise
would have been procedurally defaulted.” Id. Federal courts apply the doctrine of
procedural default out of respect for state procedural rules. See, e.g., McCleskey
v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). And
“[w]hether to apply procedural default doctrine out of respect for state rules is a
federal question that state court decisions do not control.” Wood v. Milyard, 721
F.3d 1190, 1194 (10th Cir. 2013). As a result, “[t]he question whether there is
cause for a procedural default does not pose any occasion for applying the
exhaustion doctrine when the federal habeas court can adjudicate the question of
cause—a question of federal law—without deciding an independent and
unexhausted constitutional claim on the merits.” Murray v. Carrier, 477 U.S. 478,
489 (1986). Put another way, a petitioner’s “cause” argument does not itself need
to be exhausted before being presented to a federal habeas court, provided such
argument does not depend on an unexhausted constitutional claim for substantive
relief. But if a petitioner’s excuse for a procedural default is also a constitutional
claim in its own right, Murray v. Carrier held that it “generally” must “be presented
to the state courts as an independent claim before it may be used to establish cause.”
Id.
Fontenot, 4 F.4th at 1022. Applying this reasoning here, Belcher’s actual innocence gateway claim
is not a constitutional claim in its own right, cannot serve as an independent basis for federal habeas
relief, and thus is not subject to § 2254(b)’s exhaustion requirement.
Second, respondent contends that the evidence Belcher presents to support his actual
innocence gateway claim is not “new” and that this Court should not consider that evidence. Dkt.
# 51, at 50 n.17. As respondent candidly acknowledges, however, this position is foreclosed by
Fontenot. Id. There, the Tenth Circuit discussed the split among circuit courts regarding the
meaning of “new” evidence for purposes of the Schlup analysis and held “that any reliable
evidence not presented to the jury . . . can be factored into [the] assessment of [a petitioner’s] actual
innocence gateway claim.” Fontenot, 4 F.4th at 1031-33. Unless and until the Supreme Court
39

resolves this circuit split differently than the Tenth Circuit has, Fontenot’s view of when evidence
is “new” governs this Court’s analysis.
Third, respondent appears to equate the actual innocence gateway claim with the
sufficiency of the evidence claim that Belcher presents in claim two. Respondent asserts:
For the first time in his amended habeas petition, [Belcher] has attempted
to provide this Court with evidence which he believes meets the daunting threshold
of Schlup and Perkins. Respectfully, [r]espondent’s discussion of the sufficiency
of the evidence above in [r]espondent’s first proposition amply demonstrates that
[Belcher] is not actually innocent of these crimes within the meaning of Schlup and
Perkins. Nevertheless, [r]espondent will address the evidence which [Belcher] has
attached to his amended petition to show that it lacks merit.
Dkt. # 51, at 40. This argument, like respondent’s first, misunderstands the nature of a gateway
claim. In adopting the standard for an actual innocence gateway claim, the Schlup Court explained
the distinction between actual innocence gateway claims and sufficiency of the evidence claims:
Though the Carrier standard requires a substantial showing, it is by no means
equivalent to the standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979), standard [sic] that governs review of claims of insufficient
evidence. The Jackson standard, which focuses on whether any rational juror could
have convicted, looks to whether there is sufficient evidence which, if credited,
could support the conviction. The Jackson standard thus differs in at least two
important ways from the Carrier standard. First, under Jackson, the assessment of
the credibility of witnesses is generally beyond the scope of review. In contrast,
under the gateway standard we describe today, the newly presented evidence may
indeed call into question the credibility of the witnesses presented at trial. In such
a case, the habeas court may have to make some credibility assessments. Second,
and more fundamentally, the focus of the inquiry is different under Jackson than
under Carrier. Under Jackson, the use of the word “could” focuses the inquiry on
the power of the trier of fact to reach its conclusion. Under Carrier, the use of the
word “would” focuses the inquiry on the likely behavior of the trier of fact.
Indeed, our adoption of the phrase “more likely than not” reflects this distinction.
Under Jackson, the question whether the trier of fact has power to make a finding
of guilt requires a binary response: Either the trier of fact has power as a matter of
law or it does not. Under Carrier, in contrast, the habeas court must consider what
reasonable triers of fact are likely to do. Under this probabilistic inquiry, it makes
sense to have a probabilistic standard such as “more likely than not.” Thus, though
under Jackson the mere existence of sufficient evidence to convict would be
determinative of petitioner’s claim, that is not true under Carrier.
40

Schlup, 513 U.S. at 329-30 (footnotes omitted). See also, House v. Bell, 547 U.S. 518, 538 (2006)
(“When confronted with a challenge based on trial evidence, courts presume the jury resolved
evidentiary disputes reasonably so long as sufficient evidence supports the verdict. Because a
Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal
court to assess how reasonable jurors would react to the overall, newly supplemented record.”).
Having rejected respondent’s preliminary arguments, the Court turns to its evaluation of
Belcher’s actual innocence gateway claim.
b.

Merits

Evaluating the merits of an actual innocence gateway claim requires a federal court
consider the evidence presented at trial alongside the petitioner’s new evidence and make a
“holistic judgment about all the evidence and its likely effect on reasonable jurors applying the
reasonable-doubt standard.” House, 247 U.S. at 539 (cleaned up). In so doing, the court “may
consider how the timing of the submission and the likely credibility of the affiants bear on the
probable reliability of that evidence” and may consider evidence “without regard to whether it
would necessarily be admitted under rules of admissibility that would govern at trial.” Id. at 53738 (cleaned up). In addition, “the newly presented evidence may indeed call into question the
credibility of the witnesses presented at trial” and may require the court “to make some credibility
assessments.” Schlup, 513 U.S. at 330.
The Court has thoroughly considered the evidence presented at trial, see supra, sections
I.A., I.B., II.B., alongside Belcher’s proffered “new” evidence. Having done so, the Court finds
that no evidentiary hearing is necessary to evaluate the gateway claim. See Schlup, 513 U.S. at
331-32 (noting that, in applying the Schlup standard, a court “must assess the probative force of
the newly presented evidence in connection with the evidence of guilt adduced at trial” and has

41

the “ability to take testimony from the few key witnesses if it deems that course advisable”); id. at
341 (Rehnquist, C.J., dissenting) (noting that “habeas courts will be able to resolve the great
majority of ‘actual innocence’ claims routinely without any evidentiary hearing”). To the extent
Belcher’s motion for hearing requests an evidentiary hearing to further develop evidence
supporting his gateway claim, the Court denies the motion, in part, as to that request. Dkt. # 53.
At trial, some witnesses testified that Belcher had been in a car accident, that his injuries
left him with a noticeable limp, that he occasionally used an orthopedic boot, and that he had a
cast on right leg sometime around July 30 or July 31, 2014, and a second cast that had been placed
on his leg following outpatient surgery on the morning of his arrest on August 7, 2014. See supra,
section I.B. Through closing argument, Belcher’s attorney argued, in part, that Belcher “had a bad
car wreck” and “has a limp”; that no eyewitnesses described any robbery suspect as having a limp
or wearing an orthopedic boot; and that the person robbing the Dollar General stores, whom
Wesson and Gix identified as Belcher, could be seen in the surveillance videos “moving all over
the place” rather than “gingerly walking around” to avoid putting “a lot of weight on [his] leg.”
Dkt. # 29-6, Tr. Trial vol. 5, at 22-23 [695-96]. Both categories of Belcher’s proffered “new”
evidence relate to his defense theory that he was physically incapable of committing the robberies
in July 2014 due to complications arising from the right leg injury he suffered in September 2013,
and that if he had committed the robberies, any eyewitness would have detected, reported to the
police, and testified at trial that one robber had a distinctive limp.
i.

Medical records

First, Belcher submits medical records spanning the time between his car accident, in
September 2013, and his arrest, in August 2014. The records most distant in time from the July
2014 robberies show that Belcher suffered serious injuries in a car accident that occurred on

42

September 8, 2013; that he had surgery on his right leg to repair a tibia-fibula fracture and torn
tendons; that he “was placed into a well-padded 3-way plaster splint”; and that he was discharged
from the hospital on September 17, 2013. Dkt. # 44, at 16-19, 20. Records from a follow-up visit
on September 24, 2013, indicate that Belcher was in a wheelchair. Dkt. # 46, at 12-13. Progress
notes from October 2, 2013, indicate that Belcher was “healing appropriately,” that his splint was
removed, that he was prescribed an orthopedic boot, and that he was “instructed to be
nonweightbearing.” Dkt. # 44, at 12-13; Dkt. # 46, at 41-42.
On February 25, 2014, roughly five months before the July 2014 robberies, Belcher had
another surgery on his right leg to remove and replace the hardware from his first surgery and to
repair his patellar tendon. Dkt. # 44, at 25-27. He was discharged from the hospital two days later.
Id. The postoperative notes indicate that Belcher could “continue to advance to weightbearing as
tolerated.” Id. During an office visit on April 9, 2014, Belcher was observed to have a slight limp
and a “well-healed” surgical incision, but he reported some pain. Id. at 45-46. The notes from
this visit indicate that Belcher could “continue to mobilize” and engage in “weightbearing as
tolerated.” Id.
Records from closer in time to the July 2014 robberies show that Belcher had an office
visit on June 18, 2014, that he reported that he was “ambulatory,” that he “ha[d] significant pain”
and “limit[ed] mobility,” and that he “is still requiring pain medications.” Dkt. # 44, at 47-49.
The physical exam notes from this visit indicate that Belcher had a slight limp, that his incisions
were well healed, and that he had “significant scarring of the skin and subcutaneous tissue” that
was limiting his mobility. See id. at 49. On July 10, 2014, four days before the Patricia’s Lingerie
robbery, Belcher had outpatient surgery to remove scar tissue from his previous tendon repair.
Dkt. # 44, at 28-30; Dkt. # 47, at 27, 33, 42. The notes from this procedure indicate that sterile

43

dressing was applied, but do not mention placing Belcher’s leg in a plaster splint or cast. Dkt. #
46, at 100-01. The notes further indicate that Belcher would “be allowed to be mobility-astolerated” and that he was “encouraged to continue with range of motion to prevent further scar
adhesion.” Id. On July 17, 2014, three days after the Patricia’s Lingerie robbery, Belcher went to
an emergency room because his surgical incision had opened. Dkt. # 45, at 4-44; see id. at 34
(describing patient’s verbatim complaint as “popped some stitches out and now it is oozing”). The
attending medical provider changed Belcher’s dressing and prescribed precautionary antibiotics.
Id. at 29, 40. Notes from the emergency room visit indicate that Belcher walked to the door of the
emergency room without difficulty. Id. On July 23, 2014, two days after the Tulsa Dollar General
robbery, Belcher had an office visit to follow up on the reopening of his surgical incision that
prompted his visit to the emergency room six days earlier. Dkt. # 44, at 50-52. The notes from
this visit indicate that Belcher had a slight limp, that his sutures from the July 10 procedure were
“in place,” and that there was an opening of the incision “approximately 3 cm in length where the
skin edges have retracted,” and that Belcher “was mobilizing on his lower extremity.” Id. The
notes further indicate that Belcher’s medical provider would schedule a surgery to close the
incision. Id. On July 25, 2014, the same day as the Collinsville Dollar General robbery, Belcher
had outpatient surgery to close the surgical incision. Dkt. # 44, at 31-33; Dkt. # 47, at 12. The
notes from this procedure indicate that the previous sutures were removed, “[t]he tendon repairs
appeared healthy and well-healed,” that new sutures were put in place to close the surgical incision,
and that sterile dressing was applied. Dkt. # 44, at 32; Dkt. # 46, at 99. The notes further indicate
that Belcher could “continue with weightbearing as tolerated.” Id. The notes do not mention that
Belcher’s leg was placed a plaster splint or cast. Id. Belcher’s discharge instructions, dated July
25, 2014, bear the following notations regarding restrictions on his activity: “Ok to put weight on

44

right leg,” and “WBAT to right lower extremity.” 24 Dkt. # 47, at 12. The discharge instructions
do not mention a plaster splint or cast but indicate that Belcher could change or pad his dressing
as needed. Id. It was also noted that Belcher should not drive an automobile for forty-eight hours.
Id. On August 7, 2014, the date of his arrest, Belcher had outpatient surgery on August 7, 2014,
the date of his arrest, after he “presented to [the] clinic again with” the reopening of his surgical
incision. Dkt. # 46, at 96-97, 112-21; Dkt. # 47, at 2-8. The notes from this procedure indicate
that Belcher’s previous sutures were removed, the incision was closed, and “[s]terile dressing was
applied.” Dkt. # 46, at 97. Belcher’s discharge instructions, dated August 7, 2014, indicate that
he should not get his splint wet and that he could engage in “crutch walking as desired.” Dkt. #
46, at 119.
ii.

Affidavits

Second, Belcher submits five affidavits that he obtained from: his mother, Lashonna
Belcher (“Ms. Belcher”); the mother of his child, Tyvette Gunnels; and his friends, Ashley
Jennings, Charles Roberson, and Howard Jones. Dkt. ## 41-2, 41-3, 41-4, 41-5, 41-6. Each
affidavit was signed in 2023. Id.
Ms. Belcher avers that Belcher had a serious car accident in September 2013 and “had
several surgeries on his leg throughout late 2013 and into the spring of 2014”; that, “during his
recovery” he “was confined to various types of medical equipment to get around and could not
wake [sic] without a limp or assistance”; that, “during that time frame he used a walker, crutches,
casts, leg braces and boots;” and, that “at one time, possibly in Jun[e] or Jul[y] 2014, [Belcher]
had a procedure on his leg that left him so immobile that he had to have a porta potty in his room

24

Having reviewed Belcher’s medical records, the Court reads “WBAT” to indicate weight
bearing as tolerated.
45

because he could not walk on his own to get to the toilet.” Dkt. # 41-2, at 3. She further avers that
Belcher had just returned from surgery, was on crutches, and “was experiencing the effects of
medication” when he was arrested and taken to jail; that she later learned that Belcher “tried to
explain to the police that it was not possible for him to have participated in armed robbery because
of the injury to and condition of his leg”; and that Belcher also tried to explain that “he didn’t need
money because he had a monetary settlement from a lawsuit regarding the accident” and “had also
won a jackpot, so money was not a real concern of his at the time of the robberies.” Id. at 2. Ms.
Belcher avers that Belcher’s trial counsel, Beverly Atteberry, “represented [Belcher] on several
occasions,” including a civil suit that resulted in a settlement from which Belcher may have
received around $12,000. Id. at 3. Ms. Belcher further avers that money was not an issue for
Belcher because he “was working with Charles Roberson and Howard Jones and had a music
contract out of a studio in Texas.” Id. Ms. Belcher avers that Belcher could not drive, so Roberson
or Jones “would drive to Tulsa and pick up [Belcher], then take him to Texas where he would work
as a DJ,” and bring him back to Tulsa “when the work was done.” Id. Ms. Belcher also avers that
she dated Goree’s father at one time; that Belcher met Carter and Wesson through Goree and may
have known Gix from school; that she does not think Belcher considered any of the three men as
friends; that Goree called Ms. Belcher during the investigation and told Ms. Belcher that “her play
brother,” whom Ms. Belcher understood to be Wesson, “was going to blame someone else for the
robberies if he had to” and “was lying about the robberies”; and that Ms. Belcher suspected Wesson
would blame Belcher because Wesson did so “every time he got in trouble.” Id. at 2-3. Lastly,
Ms. Belcher avers that she had a Chevy Trailblazer in 2014, “but it was broken down a lot” and
she “eventually towed it to salvage when she gave up on it”; that she cannot recall Belcher “ever
driving” after his car accident; that he had other people drive him around, including Gunnels,

46

Roberson, and Jones; and that, during the investigation, “the police showed [her] photographs of
a Chevy Trailblazer leaving a Dollar General Store but said they couldn’t say that was the exact
vehicle used in a robbery” and that the Trailblazer in that photograph was not hers.” Id. at 3-4.
Gunnels avers that she shares a child with Belcher and that she was in a long-term
relationship with him from before his 2013 car accident until his 2014 arrest. Dkt. # 41-3, at 2.
She avers that she was his primary driver during that time, because “he was unable to drive due to
the injuries he sustained” in the accident; that Ms. Belcher would sometimes drive Belcher around;
and that she “never knew of him driving from the time of his injuries” to the time of his arrest. Id.
at 2. Gunnels further avers that Belcher “had difficulty walking without assistance or a device”;
that he was in a wheelchair when he won a jackpot at the Osage Casino; that he “was unable to
walk without a limp and at “[m]any times, he wore a boot, or a cast”; and that he used crutches
after “some of his medical procedures.” Id. Gunnels believes that Belcher “had several surgeries
in the summer of 2014; that he had one on the same day he was alleged to have robbed a store; and
“[h]e would not have been able to get around without assistance that day.” Id. at 2-3. Gunnell
avers that Belcher had surgery on the day of his arrest and was on crutches when he went to jail.
Id. at 3. Based on her “daily observations” of Belcher, Gunnels states that “it would have been
impossible for him to actively participate in an armed robbery at any time during the spring and
summer of 2014.” Id. Gunnels recalls going to Torchy’s bar with Belcher several times, but she
“always drove him”; that she drove Ms. Belcher’s car to Belcher’s “half-sister’s house . . . but
[Gunnels] did not know what his half-sister used the car for”; and that she and Belcher “would
spend a lot of time looking for baby clothing at Walmart” and he was “excited about being a
father.” Id. Gunnels avers that Belcher traveled to Texas with friends in the music business, but
those friends would “always” drive him to and from Texas. Id. Lastly, Gunnels avers that Belcher

47

“never” had a black hoodie with white stitching “because he did not like wearing hoodies”; and
that she “never” saw him with a gun or heard him plan or talk about robbing anyone. Id.
Jennings avers that she knew Belcher “quite well” between September 2013, when he had
a car accident, and August 2014, when he was arrested. Dkt. # 41-4, at 2. 25 Jennings describes
Belcher as “a nice guy who had a lot of sad things happen[] to him, specifically his severe injuries
in a car wreck and getting arrested for a crime he was not capable of doing.” Id. Jennings avers
that she “never saw [Belcher] drive a car after his accident”; that “he was not able to get around
without assistance, either from his girlfriend, Tyvette Gunnels, or from his mother”; that “he was
also using various devices to help him walk, such as crutches, a wheelchair, or a boot of some
type”; and that she “never saw him walk without a limp.” Id. Jennings further avers that Belcher
“made frequent trips to Texas to work setting up concerts and work[] on music”; that Howard
Jones was the “primary driver” who transported Belcher to and from Texas; and that Charles
Roberson “was familiar with [Belcher’s] activities during that time and helped him get around.”
Id. Lastly, Jennings avers that “anyone who really knew [Belcher] would find it hard to believe
that he would have been involved in an armed robbery”; and that “[d]uring the times [she] was
with [him], [she] never saw him wear a black hoodie, nor did [she] ever see him with a gun.” Id.
at 3.
Roberson avers that he was Belcher’s “associate” for more than nine years and knew him
in 2014, “when he worked in conjunction with KAMMB Music Group in Texas”; and that Belcher
“worked as a DJ and at one time had a paying contract for music events in and around the Dallas[,]

25

In 2023, Jennings identified herself as a resident of Arkansas. Dkt. # 41-4, at 2. It is not
clear from her affidavit whether she also lived in Arkansas during the time period referenced in
the affidavit.
48

Texas area.” Dkt. # 41-5, at 2. 26 Roberson avers that Belcher was in a car accident in 2013 and
“was unable to drive himself”; that Roberson would drive Belcher “around to and from Tulsa
during the spring and summer of 2014; that Belcher’s mother and Gunnels would also drive
Belcher around, usually in Ms. Belcher’s vehicle; and that “[d]uring that time,” Belcher “had
several surgeries to repair the damage” from his car-accident injuries, had “ongoing difficulty
getting around, was wearing a leg brace or boot or was in a cast,” would have been unable to run
or walk without assistance” and “always limped.” Id. Roberson further avers that Belcher “was
basically a good person,” “attended school,” “helped his family,” and “tried to be a good father.”
Id. Roberson believes that Belcher “could not have committed the crimes of which he was
convicted.” Id.
Jones avers that he has known Belcher “for many years and knew him well in 2014 when
he was arrested . . . for a crime he could not have committed.” Dkt. # 41-6, at 2. Jones avers that,
at the time of the robberies, Belcher “was recovering from several surgeries because of a serious
automobile accident in late 2013 in which he almost died.” Id. Jones avers that Belcher “could
not drive at all” during “late 2013 and 2014” and “always needed someone to drive for him”; and
that Jones was one of Belcher’s “primary drivers” who drove him around Tulsa and transported
him to and from Texas where Belcher “was collaborating” with Jones and Roberson “in the music
industry.” Id. Jones further avers that Belcher “was always wearing a cast or boot of some kind
to support his injured leg”; that Belcher “[s]ometimes” wore a cast and had to use crutches; that
he never saw Belcher without a limp after his accident; and that Belcher “frequently needed
assistance getting in and out of the car.” Id. Jones avers that Belcher was “a good man and father,”
26

In 2023, Roberson identified himself as a resident of Texas. Dkt. # 41-5, at 2. It is not
clear from his affidavit whether he also lived in Texas during the time period referenced in the
affidavit.
49

a “dependable” and “diligent worker,” and that, as far as Jones knows, “was not involved in
criminal matters.” Id. Jones avers that Belcher encouraged him to “go back to school” and the
two men enrolled in Virginia College Tulsa; and that Belcher also enrolled in CLEET and
completed security officer training. Id. Jones avers that it “was not possible” for Belcher to
participate in armed robberies with Wesson and Gix because Jones and Belcher “did not move like
that”; Belcher “did not associate with the other accused in criminal matters” and “was only
indirectly connected to them by other common associates”; and “Gix and Wesson were not the
people that [Belcher] normally ran with.” Id.
iii.

Analysis and conclusion

Respondent contends that Belcher “has failed to demonstrate his actual innocence” and
thus cannot obtain review of his procedurally defaulted claims. Dkt. # 51, at 47. For several
reasons, the Court agrees.
First, Belcher’s medical records provide little, if any, support for his actual innocence
gateway claim and, to some extent, cut against his assertion that he was physically incapable of
walking without assistance in July 2014. Summarizing the information from those records and
placing them in the context of other evidence that was presented at trial, Belcher was seriously
injured in a car accident, had surgery to repair his fractured right leg and torn tendons, and was
hospitalized for about nine days in September 2013; he had surgery to replace failing hardware in
his leg and to repair a tendon, and was hospitalized for two days in February 2014; he was
ambulatory and his surgical incision was well healed in April 2014; he had a slight limp and scar
tissue limiting his mobility in June 2014; he had outpatient surgery to remove scar tissue from the
prior tendon repair on July 10, 2014, four days before the Patricia’s Lingerie robbery where he
walked into the store with Wesson and two women and posed as a customer while Carter robbed

50

the store at gunpoint; he visited an emergency room on July 17, 2014, three days after the Patricia’s
Lingerie robbery, because his surgical incision had opened up and was oozing but walked out of
the emergency room without difficulty; he drove his Trailblazer to the Little Caesar’s on July 19,
2014, to drop off Carter and Cummisky who then robbed the Little Caesar’s and left the store in
Gix’s car with Wesson and Gix; he and Carter walked into and robbed at gunpoint the Tulsa Dollar
General on July 21, 2014, he primarily stood or shuffled around by the door for the duration of the
three to four minute robbery, and he and Carter left the store in a vehicle that was driven by
Wesson; he had an office visit for further consultation on July 23, 2014, two days after the Tulsa
Dollar General robbery, to follow up on the opening of his surgical incision that prompted the July
17 emergency room visit; he had outpatient surgery to close the surgical incision on July 25, 2014,
and was discharged with instructions indicating he could place weight on his leg but should not
drive for forty-eight hours; he rode to Collinsville as a passenger in Gix’s car on the night of July
25, 2014, he and Carter walked into and robbed at gunpoint the Collinsville Dollar General, he
primarily stood near the door for the duration of the robbery, and he, Carter, Wesson, and Gix left
the Collinsville store in Gix’s car; 27 Belcher told Ryden he had a cast put on his leg about one

27

In his reply brief, Belcher appears to suggest that a reasonable jury faced with medical
records objectively proving that he had surgery under general anesthesia on July 25, 2014, more
than likely would have concluded that he would not have been capable of participating in the
Collinsville Dollar General robbery. Dkt. # 52, at 7-8. But his medical records show that Belcher’s
surgical incision opened and began oozing on July 17, that he walked out of the emergency room
without difficulty, that he had an office consultation on July 23 to follow up on his emergency
room visit, that he had minor outpatient surgery to close the relatively small opening of his surgical
incision on July 25, that he was discharged after that procedure with instructions that it was “ok”
to place weight on his leg with no indications that he was placed in a splint or a cast or in need of
any assistive device. See supra, section II.B.2.b.i. The medical records do not identify what time
Belcher was discharged after his minor outpatient surgery, but they do show that he was no longer
under general anesthesia as of 1:05 p.m., Dkt. # 47, at 18, and other evidence presented at trial
shows that the robbery occurred nearly eight hours later.
51

week before his arrest, possibly on July 30 or July 31, 2014; 28 and he had outpatient surgery on
August 7, 2014, to close his surgical incision which had again reopened sometime between
outpatient surgery and the fourth robbery on July 25, 2014, and his arrest on August 7, 2014, and
he was discharged with instructions to avoid getting his splint wet. A properly instructed jury
hearing the evidence drawn from these medical records alongside the evidence presented at trial
more than likely would have found that Belcher had sufficient mobility in July 2014 to participate
in the four robberies in the manner described by Wesson and Gix (lookout/drop-off driver/door
man/door man), that eyewitnesses may have focused on the guns that Carter and Belcher were
pointing at them rather than noticing whether Belcher moved with what his medical records
repeatedly described as a slight limp, and that Belcher’s participation in the robberies strongly
correlated with an escalation of complications to his leg injury because his surgical incision “from
[his] July 10, 2014, surgery just kept re-opening during the very same time period that these
robberies were occurring.” Dkt. # 51, at 49.
Second, the affidavits Belcher submitted do not advance his actual innocence gateway
claim, in part, because some information in the affidavits is not “new” evidence. Examples of
information that is not “new” include Ms. Belcher’s and Gunnels’s statements about Belcher’s
surgery on August 7, 2014, the date he was arrested, and that he wore a cast, used crutches, and
took medication on that date; all statements indicating that Belcher had a serious car accident,
walked with a limp after his accident, and sometimes used assistive devices, including crutches
and an orthopedic boot; Ms. Belcher’s statements about Belcher’s relationships with Goree and

28

There are no medical records dated July 30 or July 31, 2014, much less any medical
records indicating that Belcher was placed in a cast on either day. As just discussed, the medical
records from his July 25, 2014, suggest that a surgical dressing was applied after surgery, but there
is no mention of a cast. See supra, n.26.
52

his codefendants and her former relationship with Goree’s father; and Ms. Belcher’s statement that
she had a Chevy Trailblazer in 2014. These statements do not provide new evidence because the
jury heard this evidence at trial. See supra, section I.B.; see Fontenot, 4 F.4th at 1031-33
(explaining that “new” evidence is evidence that was not presented at trial).
Second, as respondent contends, a reasonably instructed jury likely would view the
statements in the affidavits as biased because the affiants are family and friends, most of whom
aver that it was “impossible” for Belcher to commit the robberies or that they simply cannot
“believe” that he participated in the robberies. See Dkt. # 51, at 39, 51, 57; see e.g., United States
v. Abel, 469 U.S. 45, 52 (1984) (“Bias is a term used in the ‘common law of evidence’ to describe
the relationship between a party and a witness which might lead the witness to slant, unconsciously
or otherwise, his testimony in favor of or against a party.”); id. (“Proof of bias is almost always
relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled
to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.”).
Relatedly, given that the affidavits are from Belcher’s mother and friends, that fact that he did not
obtain the affidavits until roughly nine years after the robberies lessens the credibility of the
statements. See Fontenot, 4 F.4th at 1033-34 (noting that “untimeliness ‘does bear on the
credibility of evidence proffered to show actual innocence’” (quoting Perkins, 569 U.S. at 401);
see also Herrera, 506 U.S. at 423-24 (O’Connor, J., concurring) (noting that “10 years after being
convicted on [] seemingly dispositive evidence, petitioner has collected four affidavits that he
claims prove his innocence”; stating that “[e]xperience has shown . . . that such affidavits are to
be treated with a fair degree of skepticism”; and describing the affidavits as “suspect, produced as
they were at the 11th hour with no reasonable explanation for the nearly decade-long delay”).

53

Third, even ignoring the evidence that is not “new’ and disregarding potential bias and the
timing of the affidavits, many of the statements in the affidavits either contradicts Belcher’s own
statements that were introduced at trial through Detective Ryden or lack sufficient specificity to
provide a reasonably instructed jury to have reasonable doubt about his guilt in light of the
supplemented record. For example, Ms. Belcher states that she had a Chevy Trailblazer in 2014
(which the jury heard at trial), “but it was broken down a lot” and she “eventually towed it to
salvage when [she] gave up on it.” Dkt. # 41-2, at 4. There is no indication in the 2023 affidavit
as to exactly when Ms. Belcher gave up on the Trailblazer, but even accepting these statements as
true, the jury would have weighed this evidence against Ryden’s testimony (1) that Belcher
admitted during his post-arrest interview that he was in the Trailblazer with Wesson (and Carter),
one or two days after the fourth robbery on July 25, 2014; (2) that the Trailblazer was parked in
front of Belcher’s house when Belcher was arrested on August 7, 2014; and (3) that Ms. Belcher
consented to a search of the Trailblazer on August 7, 2014. Further, to the extent Ms. Belcher’s
statements about the Trailblazer’s non-drivability could be understood as referring to the relevant
time frame—namely, July 2014, those statements also appear inconsistent with Roberson’s and
Gunnels’s statements that Belcher was unable to drive himself around after his 2013 car accident
and that others, including Ms. Belcher, Roberson, and Gunnels, would drive Belcher around during
the spring and summer of 2014, “usually in his mother’s vehicle.” Dkt. # 41-5, at 2. Other
examples of nonspecific statements include the following: Roberson’s statements that, in 2014,
Belcher “worked as a DJ and at one time had a paying contract for music events in and around the
Dallas[,] Texas area,” that Roberson would drive Belcher back and forth between Tulsa and Texas
“during the spring and summer of 2014,” Dkt. # 41-5, at 2; Jennings’s statements that she knew
Belcher well between September 2013 and August 2014, “never saw him drive a car,” saw him

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“using various devices to help him walk, such as crutches, a wheelchair, or a boot of some type,”
knew Belcher “made frequent trips to Texas to work setting up concerts and work[] on music,”
and “[d]uring the times [Jennings] was with [Belcher], [she] never saw him wear a black hoodie .
. . [or] with a gun,” Dkt. # 41-4, at 2-3; Gunnels’s statements that she “never knew of [Belcher]
driving” between September 2013 and his arrest, that “[m]any times, he wore a boot, or a cast,”
that “[a]fter some of his medical procedures, he was on crutches,” that “[s]ometimes [Belcher] and
[Gunnels] would spend a lot of time looking for baby clothing at Walmart,” that Belcher “made
trips to Texas with friends in the music business, but they always picked him up and drove him
back from Texas,” that Belcher “did not like wearing hoodies,” and that she “never saw [Belcher]
with a gun” and never “heard him plan or talk about robbing anyone,” Dkt. # 41-3, at 2-3; and Ms.
Belcher’s and Gunnels’s statements that Belcher received a settlement after his September 2013
car accident, and that he won a casino jackpot while he was in a wheelchair. Broad statements that
events or conditions “never” or “always” occurred are rarely helpful for a jury tasked with making
findings about events that are alleged to have occurred within a specific time frame. Further, a
jury considering Ms. Belcher’s and Gunnels’s statements about Belcher’s casino winnings in
conjunction with his medical records likely would have found that Belcher’s jackpot occurred
closer in time to his September 2013 accident because his medical records indicate that he was
using a wheelchair at the end of September 2013, that he was prescribed an orthopedic boot and
told to avoid weightbearing activities in October 2013, and that he walked without difficulty to the
door of the emergency room on July 17, 2014, after his visit to change the surgical dressing from
his July 10, 2014, outpatient surgery. Dkt. # 46, at 12-13, 41-42; Dkt. # 44, at 12-13; Dkt. # 45, at
29, 34, 40. In addition, Belcher’s statements to Ryden indicate that he was wearing a boot “off

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and on” before he received back-to-back casts at the end of July 2014 (after the last robbery) and
the beginning of August 2014.
Making a holistic judgment about all the evidence, the Court finds that Belcher has not
established “that, in light of new evidence, ‘it is more likely than not that no reasonable juror would
have found [him] guilty beyond a reasonable doubt.’” House, 547 U.S. at 536-37 (quoting Schlup,
513 U.S. at 327). The Court thus finds that Belcher has not overcome the procedural default of
the constitutional claims he identifies as claims three, four, five, and six and, as a result, this Court
cannot review the merits of those claims.
III.

Conclusion
The Court concludes that 28 U.S.C. § 2254(d) bars relief as to Belcher’s claim two,

challenging the sufficiency of the evidence; that Belcher procedurally defaulted his remaining
constitutional claims, as identified in claims three, four, five, and six; and that Belcher has not
shown, through the actual innocence gateway claim he asserts in claim one, that he can overcome
the procedural default of his constitutional claims. The Court therefore denies the amended
petition and denies Belcher’s motions for discovery and a hearing. The Court further concludes
that reasonable jurists would not debate the Court’s assessment of the constitutional claim asserted
in claim two, or the Court’s determination that the procedural default doctrine bars review of the
constitutional claims asserted in claims three, four, five, and six. The Court therefore declines to
issue a certificate of appealability. See 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 484
(2000).
IT IS THEREFORE ORDERED that:
1. the Clerk of Court shall note on the record the substitution of Christe Quick, Warden,
in place of Kelli Davis, Warden, as party respondent;

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2. the original petition for writ of habeas corpus (Dkt. # 1) is declared moot;
3. the amended and supplemental petition for writ of habeas corpus (Dkt. # 41) is denied;
4. a certificate of appealability is denied;
5. the motion for discovery (Dkt. # 42) and the motion for hearing (Dkt. # 53) are denied;
and
6. a separate judgment shall be entered in this matter.
DATED this 29th day of January, 2025.

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