Harmon v. Trammell

Filing 54

MEMORANDUM OPINION - Having rejected all of Petitioner's grounds for relief, his Petition for Writ of Habeas Corpus is DENIED, along with his requests for discovery and an evidentiary hearing. (Docs. 27, 29 and 37). Judgment will enter accordingly. (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 11/14/2016. (ks)

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

MARLON DEON HARMON,
Petitioner,
vs.
TERRY ROYAL, Warden,
Oklahoma State Penitentiary,
Respondent.1

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Case No. CIV-13-80-M

MEMORANDUM OPINION
Petitioner, Marlon Deon Harmon, a state court prisoner, has filed a Petition for
Writ of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 27. Petitioner,
who is represented by counsel, is challenging the conviction entered against him in
Oklahoma County District Court Case No. CF-2004-4956. Tried by a jury in 2008,
Petitioner was found guilty of First Degree Felony Murder and was sentenced to death
based on the jury’s finding of three aggravating circumstances: (1) the murder was
especially heinous, atrocious, or cruel; (2) Petitioner committed the murder while serving
a sentence of imprisonment for conviction of a felony; and (3) the existence of a
probability that Petitioner will commit criminal acts of violence that would constitute a
continuing threat to society (O.R. I, 106, 121-22; O.R. VI, 1193; O.R. VII, 1216-17).

1

  Pursuant to Fed. R. Civ. P. 25(d), Terry Royal, who currently serves as warden of the

Oklahoma State Penitentiary, is hereby substituted as the proper party respondent.

Petitioner has presented twelve grounds for relief. Respondent has responded to
the petition and Petitioner has replied. Docs. 35 and 46. Supplemental pleadings have
also been filed. Docs. 50 and 53. In addition to his petition, Petitioner has filed motions
for discovery and an evidentiary hearing. Docs. 29 and 37. After a thorough review of
the entire state court record (which Respondent has provided), the pleadings filed in this
case, and the applicable law, the Court finds that, for the reasons set forth herein,
Petitioner is not entitled to his requested relief.
I. Procedural History.
Petitioner appealed his conviction and sentence to the Oklahoma Court of
Criminal Appeals (hereinafter “OCCA”). The OCCA affirmed in a published opinion.
Harmon v. State, 248 P.3d 918 (Okla. Crim. App. 2011), cert. denied, 132 S. Ct.
338 (2011). Petitioner filed two applications for post-conviction relief. Both were denied.
Harmon v. State, No. PCD-2014-71 (Okla. Crim. App. Feb. 13, 2014) (unpublished);
Harmon v. State, No. PCD-2008-919 (Okla. Crim. App. Jan. 4, 2013) (unpublished).
II. Facts.

Kamal Choudhury and his wife were owners of an Oklahoma City
neighborhood convenience store, Q & S Food (Tr. III, 106-07). Around 7:45 p.m.
on August 17, 2004, the police called Manshana Choudhury to tell her that the
store had been robbed and that her husband was in the hospital. Mr. Choudhury
died early the next morning (Tr. III, 108, 112-13). Mrs. Choudhury testified that
her husband carried a wallet and that it was her impression that the wallet was

2

taken during the robbery. Among the items Mr. Choudhury kept in his wallet were
his credit cards and his Sam’s Club card. Mrs. Choudhury told the jury that after
her husband’s death, she learned that his credit cards had been used (Tr. III, 11317).
Lance Nicholas, who lived in the neighborhood where Q & S Food was
located, was headed to the store to use a pay phone when he first saw a little girl on
a bicycle and then saw Mr. Choudhury come out of the store and fall to the ground.
The little girl, later identified as Toni Ashley, was in shock. Mr. Choudhury,
whose pants were so red that Mr. Nicholas thought he had been painting, asked
Mr. Nicholas for help. Mr. Nicholas called 911. On the 911 call, which was
admitted into evidence and played for the jury, Mr. Choudhury can be heard
moaning in pain. When Mr. Nicholas asked Mr. Choudhury what the suspect
looked like, Mr. Choudhury pointed at him and said, “Like you. Black.”
Mr. Nicholas was wearing a baseball hat backwards at the time (Tr. III, 146-51,
154; State’s Ex. 46).
Ms. Ashley, who was only twelve years old at the time the crime was
committed, was riding her bike when she saw a man run out of the Q & S store.
The man had a gun in one hand and money in the other (Tr. III, 156-63). She
described him as dark-skinned, 5’8” to 5’9” tall, and wearing a white t-shirt, dark
blue jeans, and a black or blue do-rag (Tr. III, 172-76; State’s Ex. 55). When
3

Ms. Ashley went to open the door to the store, Mr. Choudhury walked out and fell
to the ground. Ms. Ashley tried to use a pay phone to call 911 as Mr. Choudhury
asked her to, but when the phone would not work, she ran to her house to tell her
mother (Tr. III, 163-70).
When Ms. Ashley initially failed to identify Petitioner at trial, the prosecutor
asked her about her identification of Petitioner after the robbery. Ms. Ashley told
the jury about seeing Petitioner’s picture on the news. Petitioner’s picture was one
of three which appeared on the screen. The other pictures were of another male,
Christopher Lancaster, and a female, Jasmine Battle.2 From the screen shot,
Ms. Ashley identified Petitioner as the man she saw running from the store. She
testified that she was positive it was him (Tr. III, 176-80; State’s Ex. 18). Then on
redirect, Ms. Ashley admitted that her fear of Petitioner caused her to be untruthful
in her ability to initially identify Petitioner in the courtroom. She subsequently
made an in-court identification of him (Tr. III, 191-93).
Initial responders rendered aid to Mr. Choudhury and secured the crime
scene. Mr. Choudhury was conscious and able to respond to questions. He had a
wound to his abdomen and blood coming from two wounds to his upper leg. He
was moaning, gurgling, and gasping for breath (Tr. III, 126-31, 133-36; Tr. IV, 2632). The medical examiner confirmed that Mr. Choudhury was shot three times,

2

Mr. Lancaster was Ms. Battle’s boyfriend (Tr. IV, 180).
4

once in the stomach and twice in his right thigh (Tr. IV, 8-10; State’s Ex. 32). The
shot to the abdomen damaged his liver, causing internal bleeding and ultimately his
death (Tr. IV, 11-13, 15, 21-22).
Ms. Battle, Petitioner’s co-defendant, testified against him at trial.3 On the
day of the robbery, Ms. Battle was at Mr. Lancaster’s mother’s house when
Petitioner came asking her for help to rob Mr. Choudhury’s store, which was just a
few blocks away. Petitioner was driving his girlfriend’s green Honda
Accord (Tr. IV, 181-86).4 Ms. Battle got into the car with Petitioner and they
headed straight to the store. Ms. Battle knew that Petitioner had a gun. She
described Petitioner as wearing dark shorts, a shirt with cut-off sleeves, and a
beanie cap. When Petitioner got out of the car, Ms. Battle moved into the driver’s
seat and circled the block a few times. She saw Petitioner enter the store and heard
three gunshots (Tr. IV, 185-90). Because Ms. Battle had just made a pass by the
store, Petitioner ran to catch up with her when he exited the store. The car did not
stop, but only slowed as Petitioner entered the passenger side. Ms. Battle saw
blood on Petitioner’s hands. Although Petitioner told Ms. Battle to drive to his

3

When Ms. Battle was first questioned by police, she did not cooperate. After Petitioner was
brought in to see her and told her that the police already knew everything that happened, she
decided to talk (Tr. IV, 212-17; State’s Ex. 30). See Ground Two, infra.

4

Petitioner’s girlfriend, Devonna Bolden, confirmed that Petitioner was driving her green Honda
Accord that day. Ms. Bolden testified that Petitioner dropped her off at her grandmother’s house,
used the car to run an errand, and then picked her up later. Although Ms. Bolden did not give
exact times, she testified that “[i]t was just starting to get dark” when Petitioner dropped her off
and dark when he picked her up (Tr. IV, 69, 71-76).
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home, she got nervous from seeing the blood and refused. She exited the car and
did not see Petitioner again that day (Tr. IV, 190-96).
Four neighbors testified about seeing Petitioner and Ms. Battle at the time of
the robbery. Mary Morrow testified that she saw a black man walking down the
street toward the store. She said that the only reason she noticed him was because
he appeared nervous as he looked from side to side and all around. When she later
heard about the robbery on the news, she called 911. She told the police that the
man was in his 20’s, 5’10” to 6’ tall, thin, and wearing a head scarf or dorag (possibly white), a white t-shirt with a black tank over it, black long/baggie
shorts (possibly denim), and tennis shoes (Tr. III, 199-203). Matt Greenhaw, who
lived across the street from Ms. Morrow, testified that he saw a young black man
run down the street and get into the passenger side of a rolling green Honda
Accord. He said the man was around 5’10” and 180 pounds, wearing a black and
white shirt, black baggie long shorts (possibly denim), white tennis shoes, and a
black do-rag. Mr. Greenhaw testified that he had seen this same man ten minutes
or so earlier. At that time, the man had been walking down the street in the
opposite direction (Tr. III, 211-22).
Sandra Cox and Jarid Frazier lived on the same street as Ms. Morrow and
Mr. Greenhaw. Ms. Cox had gone to her front porch to smoke a cigarette when
she saw a green Honda in front of her house. When she made eye contact with the
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female driver, the car slowly proceeded away. About two houses down, she saw a
young black man running around the corner. He got into the passenger side of the
car. She described the man as wearing a white t-shirt, a black or blue jacket, blue
jean shorts, white tennis shoes, and a black or blue do-rag (Tr. IV, 38-44).
Mr. Frazier, Ms. Cox’s fiancé, who had also gone to the porch to smoke a
cigarette, gave similar testimony. He described the driver of the green Honda as a
young black female and the man who jumped into the car as a young black man
wearing a white t-shirt, black windbreaker with a hoodie, blue jean shorts, and
tennis shoes. Mr. Frazier said the man was about 6’ tall with an athletic build.
Mr. Frazier did not think anything about what he saw until later when he learned
about the robbery. He called Crime Stoppers to tell them what he had seen (Tr. IV,
50-63).
In processing the scene, the police found a large pool of blood on an
elevated platform behind the checkout counter and a blood trail that led from
behind the counter to the main part of the store. On the floor of the employee area,
the police found three $20 bills, business cards, Mr. Choudhury’s Sam’s Club card,
and other wallet items, although Mr. Choudhury’s wallet was never found (Tr. IV,
106-10, 113-18, 124-27; Tr. V, 75; State’s Exs. 8, 11-16, 31, 34-36, and 42).
Petitioner’s palm print was found on a scrap piece of paper among the items

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discarded from Mr. Choudhury’s wallet (Tr. IV, 122-27, 154-60; State’s Exs. 4244).5
Mr. Choudhury’s credit cards were used sixteen times at ten locations
immediately after the robbery and on the day following. The first credit card
charge, which occurred within fifteen minutes of the robbery, was at a gas station
across the street from Petitioner’s apartment (Tr. IV, 70-71; Tr. V, 79-85, 100-01;
State’s Ex. 47). This coincided with Ms. Battle’s testimony that Petitioner was
headed to his house after the robbery and with Ms. Bolden’s testimony that when
Petitioner picked her up from her grandmother’s house that night, Petitioner had
changed clothes and filled up the car with gas (Tr. IV, 75-76, 79-81, 82-83). See
n.4, supra.
Two additional charges were made in El Reno, one at 11:03 p.m. on the 17th
and the other at 1:28 a.m. on the 18th (Tr. V, 87-89; State’s Exs. 48 and 49). This
coincided with Ms. Bolden’s testimony that she and Petitioner had gone to a
birthday party in El Reno after Petitioner picked her up from her grandmother’s
house and that while the party was going on, Petitioner put gas in two partygoers’
cars and paid someone to braid Ms. Bolden’s hair (Tr. IV, 76-77, 81-82; Tr. V, 4-7,

5

Inside the store, police also found a fired bullet (Tr. IV, 113, 116-17, 144; State’s Exs. 11, 40,
and 54). This bullet and the one recovered during Mr. Choudhury’s autopsy (Tr. IV, 13, 15-16,
17-18; State’s Ex. 39) were both .38 caliber projectiles fired from the same gun. Although the
weapon could not be positively identified, it was most probable that the weapon used was a
.38 special or a .357 magnum which are typically revolvers (Tr. IV, 144-48). Because no spent
casings were found at the scene, Mr. Choudhury was most likely shot with a revolver (Tr. IV,
133-36; Tr. V, 72-74, 97-99).
8

87, 101-02).6 The evidence also showed that Mr. Choudhury’s credit card(s) had
been used on the 18th at a Phillips 66 gas station in Chandler, Oklahoma. This
station was about a block from Ms. Bolden’s mother’s house. Petitioner was
identified on the surveillance video, along with Ms. Bolden’s green Honda
Accord (Tr. IV, 85-94, 221-25; Tr. V, 86-87; State’s Ex. 41).
Additional facts will be referenced herein as they relate to the individual
grounds for relief raised by Petitioner.
III. Standard of Review.
A.

Exhaustion as a Preliminary Consideration.

The exhaustion doctrine, a matter of comity which has long been a part of habeas
corpus jurisprudence, requires the Court to consider in the first instance whether
Petitioner has presented his grounds for relief to the OCCA. As the Supreme Court stated
in Coleman v. Thompson, 501 U.S. 722, 731 (1991), “in a federal system, the States
should have the first opportunity to address and correct alleged violations of state
prisoner’s federal rights.” The exhaustion doctrine is set forth in 28 U.S.C. § 2254(b).
Section 2254(b)(1)(A) prohibits the Court from granting habeas relief in the absence of
exhaustion (although Section 2254(b)(1)(B) sets forth two limited exceptions to this rule),
but Section 2254(b)(2) expressly authorizes the Court to deny habeas relief
“notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.”

6

Ms. Bolden testified that Petitioner did not have a job or any credit cards of his own (Tr. IV, 73,
84-85).
9

B.

Procedural Bar.

Beyond the issue of exhaustion, the Court must also examine how the OCCA
adjudicated each of Petitioner’s grounds for relief, i.e., whether the OCCA addressed the
merits of Petitioner’s grounds or declined to consider them based on a state procedural
rule. “It is well established that federal courts will not review questions of federal law
presented in a habeas petition when the state court’s decision rests upon a state-law
ground that ‘is independent of the federal question and adequate to support the
judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729).
“The doctrine applies to bar federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement.” Coleman, 501 U.S. at 729-30.
C.

Limited Merits Review.

When the OCCA has addressed the merits of one of Petitioner’s grounds for relief,
the Court reviews that ground in accordance with the standard of relief set forth in
28 U.S.C. § 2254(d). Pursuant to that section of the Antiterrorism and Effective Death
Penalty Act of 1996 (hereinafter “AEDPA”), in order for Petitioner to obtain relief, he
must show that the OCCA’s adjudication of a claim either
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

10

See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that “[t]he petitioner
carries the burden of proof”).

The very focus of this statutory provision is the

reasonableness of the OCCA’s decision. “The question under AEDPA is not whether a
federal court believes the [OCCA’s] determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). In other words, “[i]t is not enough that [this] [C]ourt, in its
independent review of the legal question, is left with a firm conviction that the [OCCA]
was erroneous.” What is required is a showing that the OCCA’s decision is “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks
and citations omitted).
The Supreme Court has repeatedly acknowledged that Section 2254(d) “‘erects a
formidable barrier  to federal habeas relief for prisoners whose claims have been
adjudicated in state court[,]’” and that “[i]f [it] is difficult to meet, that is because it was
meant to be.” White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460 (2015) (quoting
Burt v. Titlow, 571 U.S. ___, 134 S. Ct. 10, 16 (2013)); Harrington v. Richter, 562 U.S.
86, 102 (2011). Section 2254(d) “stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102.
What remains, then, is a very narrow avenue for relief, one that permits relief only
“where there is no possibility fairminded jurists could disagree that the [OCCA’s]
decision conflicts with [the Supreme] Court’s precedents.” Id. (emphasis added).

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Section 2254(d) reflects the view that habeas corpus is a “guard against
extreme malfunctions in the state criminal justice systems,” not a substitute
for ordinary error correction through appeal. As a condition for obtaining
habeas corpus from a federal court, a state prisoner must 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.
Id. at 102-03 (citation omitted).
IV. Analysis.
A.

Ground One:

Ms. Battle’s Plea Agreement.

Petitioner’s first ground for relief concerns the State’s plea agreement with his codefendant, Ms. Battle. Petitioner asserts that the prosecution failed to disclose its entire
agreement with her. He further asserts that when Ms. Battle failed to testify as to her
entire agreement with the State, the prosecution had an obligation to correct her
testimony. Relying on the Supreme Court’s decisions in Brady v. Maryland, 373 U.S.
83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), Petitioner asserts that he should be
given a new trial.
The problem with Petitioner’s Ground One is that he did not present it to the
OCCA until his second post-conviction application, which was filed after he filed his
petition in this case. The OCCA refused to address the merits of his Brady and Napue
claims, finding that Petitioner had waived a merits review by failing to present them on
direct appeal or in his first post-conviction application. Harmon, No. PCD-2014-71, slip
op. at 3. Based on this ruling, Respondent has argued the affirmative defense of
procedural bar. The parties have fully vetted the procedural bar issues in subsequent
pleadings, addressing the issue of adequacy and whether Petitioner has shown cause and
12

prejudice to overcome the application of a procedural bar to these claims. However,
rather than delve into the complex analysis of whether a procedural bar should be applied
to Petitioner’s Ground One, the Court chooses instead to take the simpler path and deny
Petitioner relief on the merits. See Brown v. Sirmons, 515 F.3d 1072, 1092-93 (10th Cir.
2008) (quoting Snow v. Sirmons, 474 F.3d 693, 717 (10th Cir. 2007), and acknowledging
that “the interest of efficiency” is served by this suggested approach); Snow, 474 F.3d at
717 (“We can avoid deciding procedural bar questions where claims can readily be
dismissed on the merits.”); Revilla v. Gibson, 283 F.3d 1203, 1210-11 (10th Cir. 2002)
(acknowledging the Court’s discretion to bypass the procedural bar question and reject
the claim on the merits).
The record reflects that Ms. Battle was charged in two cases as a co-defendant
with Petitioner, this murder case and a separate robbery case. Almost two years prior to
testifying in Petitioner’s murder case, Ms. Battle entered into a plea agreement with the
State regarding the two cases. In exchange for truthfully testifying against Petitioner in
both cases, Ms. Battle’s murder charge was amended to accessory after the fact and she
received a 20-year sentence, with all but the first seven years suspended. In the other
case, she was also given a 20-year sentence, but with all but the first five years
suspended. These sentences were ordered to run concurrently. Pet’r’s Ex. 2. Three
months after Ms. Battle testified in the murder case, she filed a post-conviction
application seeking modification of her sentences. Pet’r’s Ex. 3. In the State’s response
to this application, one of the prosecutors, Scott Rowland, acknowledged that in the
months leading up to Petitioner’s murder trial, “[t]he State, through the District
13

Attorney’s Office, [had] agreed to take steps if lawfully available to cause the sentence to
be modified” and he asked the trial court to modify Ms. Battle’s sentences to ten years,
“with all but the first five suspended and that the five years suspended portion be served
without supervision.” Pet’r’s Ex. 6. The trial court granted Ms. Battle’s application on
October 27, 2008. Pet’r’s Ex. 7.
Based on the prosecutor’s representations in Ms. Battle’s post-conviction case,
Petitioner asserts that at the time Ms. Battle testified in May 2008, her plea deal had been
enhanced. Because the State failed to disclose this more favorable agreement, Petitioner
asserts that a Brady violation occurred. Petitioner argues that the materiality of the
evidence is apparent: “the prosecution prevented [him] from arguing Battle was
regurgitating evidence to curry favor and get the greatest benefit from her bargain.” Pet.
at 9. Petitioner further asserts that a Napue violation occurred when the prosecutor failed
to correct Ms. Battle’s false testimony. Because he “was prevented from exposing
Battle’s interest in testifying falsely,” Petitioner argues that both the guilt and the
sentencing stages were affected. Id. at 12.
In Brady, 373 U.S. at 87, the Supreme Court held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.”

Favorable evidence includes impeachment evidence.

United States v. Bagley, 473 U.S. 667, 676 (1985). “[E]vidence is material ‘if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of

14

the proceeding would have been different.’” Strickler v. Greene, 527 U.S. 263,
280 (1999) (quoting Bagley, 473 U.S. at 682).
Regarding false testimony, “the [Supreme] Court has consistently held that a
conviction obtained by the knowing use of perjured testimony is fundamentally unfair,
and must be set aside if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury.”

United States v. Agurs, 427 U.S. 97,

103 (1976) (footnotes omitted). “The same result obtains when the State, although not
soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S.
at 269.
Given what the jury already knew about Ms. Battle’s agreement with the State, the
Court finds that even if the State had improved Ms. Battle’s deal prior to trial and failed
to disclose it,7 the improved plea agreement was not material under Brady. Petitioner’s
Napue claim is also without merit. Because the record fails to show that Ms. Battle
perjured herself, Petitioner has no claim for relief under Napue.
Beginning in voir dire, Petitioner’s jury was advised that the State intended to
present witnesses like Ms. Battle who had agreed to testify against Petitioner in exchange
for lesser sentences (Tr. I, 198-99, 200-01, 230-31; Tr. II, 233). Then, on direct
examination, Ms. Battle testified about her plea agreement as follows:

7

Even though both of Petitioner’s trial attorneys executed affidavits denying knowledge of any
further deal with Ms. Battle (Pet’r’s Exs. 15 and 16), on cross-examination defense counsel
specifically asked Ms. Battle whether she hoped to have her sentence further reduced. Ms. Battle
answered in the affirmative (Tr. IV, 227-28). Defense counsel does not state what prompted him
to confidently pose this question.
15

Q

Did there come a time when you decided to become a witness for the
State?

A

Yes.

Q

Did the District Attorney’s Office offer you any leniency in return
for testifying truthfully?

A

Yes.

Q

Do you remember who it was - - you had an attorney, I suppose?

A

Yes.

Q

Who was your lawyer?

A

Michael McBride.

Q

And did Michael McBride come to you at some point and tell you
that he had worked out a plea agreement if you would testify
truthfully?

A

Yes.

Q

What is that plea agreement?

A

A five and a seven and 15 on paper.

Q

A five and a seven and 15 on paper?

A

Yes.

....
Q

Do you know whether or not as a part of your plea agreement - - do
you know what you were originally charged with?

A

Yes.

Q

What was that?

A

Accessory to murder.

16

Q

Was that your original charge or is that what you were charged with
in the end?

A

That’s what I was charged with in the end.

Q

Was your original charge something different?

A

Yes.

Q

What was it?

A

First degree murder.

Q

So as part of your plea agreement it sounds like you got a reduced
crime - -

A

Yes.

Q

- - and a number of years in prison?

A

Yes.

Q

And you are currently serving that term?

A

Yes.

(Tr. IV, 218-19, 220-21). And on cross-examination, Ms. Battle further testified:
Q

Ms. Battle, I believe you said you were initially charged in this case
with first degree murder, correct?

A

Yes, sir.

Q

And you agreed to enter into a plea agreement with the State; is that
correct?

A

Yes, sir.

Q

And part of that agreement was that you would testify here today
also, correct?

A

Yes, sir.

17

Q

And so you went from facing a long term of incarceration and
possibly even a death sentence to a seven-year sentence in prison,
correct?

A

Yes, sir.

Q

Isn’t it true that you hope that after you testify in this case that you
will further have your sentence reduced?

A

Can you repeat that, sir?

Q

Isn’t it your hope or belief that after you testify today that your
sentence will be further reduced?

A

Yes, sir, I’m - - yes, sir.

Q

You’ve gone over your testimony with the State, correct?

A

Excuse me?

Q

Have you spoken and gone over your testimony that you would - the things that you would say today, you have talked about with the
State, Mr. Rowland and Mr. Deutsch, correct?

A

Yes, sir.

Q

How many times?

A

A couple of times.

Q

And when you say a couple of times, do you mean two times?

A

Two times.

(Tr. IV, 227-28) (emphasis added).
Finally, in closing arguments, both the prosecutor and defense counsel discussed
Ms. Battle’s plea with the jury. The prosecutor stated as follows:
She’s in prison originally charged with murder. And the Judge explained to
you that her trial is not before you at this time, but she told you that the
State of Oklahoma amended her charges to accessory for helping him. She
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is in prison now for driving the car and helping him. She told you that.
She hopes to get a better sentence, she told you that. And we told you
in voir dire, we asked you, you know, if people cooperate with the
police and the Government sometimes they get sentence reductions.
That’s what she is hoping.
(Tr. VI, 18) (emphasis added). And defense counsel made the following remarks:
And, finally, Ladies and Gentlemen, Jasmine Battle. Again, motive
to lie. Is she interested? She took a deal. She was charged with first
degree murder. She took a deal. She went over and over her testimony
with the State. She was polished. Does she think that deal is going to get
any better? You better believe it.
(Tr. VI, 37-38) (emphasis added).
Based on the foregoing excerpts from the trial, it is clear that the jury was aware of
Ms. Battle’s circumstances and the benefit she received from testifying against Petitioner.
Like Petitioner, she, too, faced a murder charge with a minimum sentence of life
imprisonment. Instead, she received a twenty-year sentence, with seven years in prison
and thirteen years on probation, a deal that required her to give truthful testimony. The
jury knew this and they knew that Ms. Battle hoped to have her sentence further reduced.
Thanks to defense counsel the jury was also made aware of the fact that the prosecutors
had worked with Ms. Battle to polish her testimony.
This is not a situation where any notion of cooperation was denied, nor is it a
situation where Ms. Battle’s testimony was the sole evidence connecting Petitioner to the
murder. Here, the jury knew that Ms. Battle was a State’s witness who received a
significant benefit for her testimony. Evidence that she received some additional benefit
in the form of a sentence reduction–the greatest of which was a reduction of her prison
time from seven years to five years–was not material. As the Tenth Circuit has
19

acknowledged, there is no Brady violation where the “undisclosed impeachment
evidence . . . [is] cumulative of evidence of bias or partiality already presented ‘and thus
[could] have provided only marginal additional support for [the] defense.’” Douglas v.
Workman, 560 F.3d 1156, 1174 (10th Cir. 2009) (quoting United States v. Trujillo,
136 F.3d 1388, 1394 (10th Cir. 1998)). In addition, while Ms. Battle’s testimony was
obviously incriminating to Petitioner, there was other evidence connecting him to the
murder, including unchallenged forensic evidence, i.e., his palm print on a piece of paper
found at the scene among discarded items believed to have been in the victim’s
wallet (Tr. IV, 123-27, 154-60; State’s Exs. 12, 15-16, 31, and 42-44). Under these
circumstances, the Court concludes that even if Petitioner had known that the prosecution
intended to support Ms. Battle’s request for a sentence reduction, Petitioner has not
shown “a reasonable possibility that . . . the result of the proceeding would have been
different.” Strickler, 527 U.S. at 280 (internal quotation marks and citation omitted).
Petitioner has also not shown his entitlement to relief under Napue. “A Napue
violation occurs when (1) a government witness committed perjury, (2) the prosecution
knew the testimony to be false, and (3) the testimony was material.” United States v.
Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015). The testimony which Petitioner claims
was false was Ms. Battle’s statement that her plea agreement was “[a] five and a seven
and 15 on paper” (Tr. IV, 218-19). Reviewed in context, however, the prosecutor’s
questions related to her original plea. Ms. Battle was asked what agreement her attorney
was able to work out. Her answer to that question was truthful. Pet’r’s Ex. 2. Moreover,
looking to her testimony as a whole, Petitioner is hard pressed to argue that Ms. Battle
20

perjured herself when she gave accurate responses to the questions posed and did not shy
away from admitting her hope of receiving a reduction in her sentence beyond her
original plea agreement.
For the foregoing reasons, the Court concludes that no relief is warranted under
Brady or Napue. Ground One is therefore denied.
B.

Ground Two:

Petitioner’s Statements to Ms. Battle.

In his second ground for relief, Petitioner complains about the admission of his
statements to Ms. Battle at the police station. Petitioner raised this claim8 on direct
appeal and was denied relief. Harmon, 248 P.3d at 932-34. The question before this
Court is whether Petitioner is entitled to relief under Brecht v. Abrahamson, 507 U.S.
619 (1993). For the following reasons, the Court concludes that he is not.
Petitioner’s challenge to the admission of statements he made to Ms. Battle flows
from the suppression of his confession. Prior to speaking with Ms. Battle, Petitioner was
questioned by police in a neighboring interview room. Although Petitioner invoked his
right to remain silent, the police continued questioning until he confessed. Following his
confession, Petitioner was taken to the room where Ms. Battle was being held. The
purpose of this interaction was to encourage Ms. Battle to cooperate. Petitioner told

8

Ground Two is a challenge to the admission of both the videotaped conversation between
Petitioner and Ms. Battle and Ms. Battle’s testimony about the conversation. Although
Respondent has argued that Petitioner’s challenge to Ms. Battle’s testimony is unexhausted, the
Court finds that one cannot be considered without the other. Because Petitioner’s comments on
the videotape are extremely difficult to discern, Ms. Battle’s testimony regarding the
conversation was integral to the videotape’s evidentiary value (Tr. IV, 216-17). For this reason,
the Court addresses Petitioner’s Ground Two in its entirety, and finding that no relief is
warranted under Brecht, exhaustion is irrelevant. See 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”).
21

Ms. Battle that the police knew everything. Harmon, 248 P.3d at 932. Because his
confession was suppressed, Petitioner’s argument is that his conversation with Ms. Battle
should have been excluded as well.
Although the State confessed error on direct appeal,9 the OCCA withheld
judgment on whether these unusual circumstances resulted in a constitutional violation,
electing instead to deny relief due to harmless error. Id. at 932-34. While Petitioner goes
to great lengths to argue the unreasonableness of the OCCA’s decision, he ultimately
acknowledges that his ability to obtain relief hinges on this Court finding that the
admission of his statements to Ms. Battle had a substantial and injurious effect on the
jury’s verdict.
In Fry v. Pliler, 551 U.S. 112, 116, 121-22 (2007), the Supreme Court held that
when a habeas court reviews a constitutional violation for harmlessness, it applies “the
more forgiving standard of review” set forth in Kotteakos v. United States, 328 U.S.
750 (1946), and adopted in Brecht, 507 U.S. at 638. Under Kotteakos, 328 U.S. at 776,
the test is whether the error had a “substantial and injurious effect or influence in
determining the jury’s verdict.”

The Supreme Court elaborated on the standard as

follows:
But if one cannot say, with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. The inquiry cannot be merely whether
there was enough to support the result, apart from the phase affected by the

9

  Respondent makes no argument regarding the underlying constitutional issue here either, but

instead addresses only the issue of harmless error.
22

error. It is rather, even so, whether the error itself had substantial influence.
If so, or if one is left in grave doubt, the conviction cannot stand.
Id. at 765. “By ‘grave doubt’ [the Supreme Court] mean[s] that, in the judge’s mind, the
matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432, 435 (1995) (referring to
the term employed in Kotteakos) (parentheses omitted).
Because of the additional corroborated testimony Ms. Battle gave about the crime
itself, the Court concludes that any error associated with the admission of evidence
regarding Petitioner’s conversation with Ms. Battle at the police station did not have a
substantial and injurious effect on the jury’s verdict. Ms. Battle was the getaway driver.
She told the jury that immediately before the robbery, Petitioner had come to her and
asked for her help. Petitioner was driving his girlfriend’s green Honda (Tr. IV, 183-85).
Ms. Battle agreed to help Petitioner rob the Q & S Food Store, which was only a few
blocks away. Petitioner drove the car until he got out and went into the store. It was then
that Ms. Battle took over, circling the block a couple of times while waiting for Petitioner
to return (Tr. IV, 181-82, 185-86, 188-89). Ms. Battle testified that Petitioner had a gun
and that he was wearing dark colored shorts, a shirt with the sleeves cut out, and a beanie
cap (Tr. IV, 186-87). Ms. Battle testified that she heard three gunshots (Tr. IV, 189).
When Petitioner returned to the car, he got in on the passenger side and instructed
Ms. Battle to drive to his house. Seeing blood on Petitioner’s hands, Ms. Battle got
nervous, refused to continue driving, and got out of the car. Ms. Battle did not see
Petitioner anymore that day (Tr. IV, 191-96).

23

As detailed in the Facts, supra, Ms. Battle’s testimony was corroborated on several
points, and adding to her significantly corroborated testimony was evidence of
Petitioner’s palm print at the scene of the crime. Although the victim’s wallet was never
found, his credit cards were taken while other contents from his wallet were found
scattered in an employee-only area of the store. Petitioner’s palm print was on a piece of
notebook paper found among these discarded wallet items (Tr. III, 113-14; Tr. IV, 10608, 110, 113-14, 115-16, 123-27, 154-60; State’s Exs. 12, 15-16, 31, and 42-44). Given
Ms. Battle’s corroborated testimony and this undisputed forensic evidence, the Court is
convinced that Petitioner is not entitled to relief on his Ground Two.

Any error

associated with the admission of evidence regarding Petitioner’s conversation with
Ms. Battle did not have a substantial and injurious effect on the jury’s verdict.10
C.

Ground Three:

Tyrone Boston’s Testimony.

Petitioner’s Ground Three is a challenge to the State’s use of a 2004 videotaped
interview of Tyrone Boston. On direct examination, Mr. Boston, who had thirteen or
fourteen felony convictions and who was incarcerated at the time of his testimony,
testified that he did not recall contacting the police department about information he had

10

In his reply, Petitioner faults Respondent (and the OCCA) for not addressing the effect of the
challenged evidence on the reliability of his sentence. Reply at 7-8. However, Petitioner did not
make this argument on direct appeal, Br. of Appellant at 33-38, and in his petition, he does
nothing more than throw in a few stray statements that the alleged error affected both stages of
his trial. Pet. at 24, 25. With a footnote reference to a prosecutorial misconduct claim he raised
in his first post-conviction application, Petitioner appears to suggest that a sentencing challenge
has been exhausted. Id. at 13 n.9. However, the Court finds that Petitioner has not exhausted
any such claim nor adequately raised the same in the petition. Nevertheless, the Court finds that
the challenged evidence had no greater force or effect in the second stage than the first, and
therefore, the Court’s harmless error analysis sufficiently disposes of Petitioner’s additional
request for sentencing relief.
24

about the robbery at the Q & S convenience store. Mr. Boston testified that he was a
cocaine addict and there “[a]in’t no telling what [he] did in 2004” (Tr. V, 10, 14-16, 5354). Aware that Mr. Boston might be forgetful on the stand, the prosecution prepared
video clips from his 2004 interview to jog his memory (Tr. IV, 209; Ct’s Ex. 1).
After seeing the first clip in which he said Petitioner told him that “he had to plug
one,” Mr. Boston continued to deny knowledge of the statement. Because he “was facing
a whole bunch of time [himself],” Mr. Boston testified that he had been “willing to give
them whatever they would take” (Tr. V, 17-19). When Mr. Boston could not recall ever
seeing Petitioner with a .357 pistol or a .38 pistol, he was shown a second clip in which
he said that he had seen Petitioner with a .9 mm, a .357, and .38 stub. When asked if this
clip jogged his memory, Mr. Boston testified that “it’s possible that I said that” (Tr. V,
19-20). Although Mr. Boston was shown a third clip, the defense objected and the trial
court admonished the jury to disregard it.11 In that clip, Mr. Boston repeats the “plug
one” statement and additionally states that he knows what “they” do. In clarifying this
last statement, the interviewer asks Mr. Boston if he means that “they” pull
robberies (Tr. V, 22-51). See Ground Four, infra.
Petitioner asserts that the video clips12 were impermissibly used as substantive
evidence, and he argues that their admission violated Oklahoma’s evidence code,

11

In fact, the actual admonishment given by the trial court told the jurors to disregard anything
they may have heard on the video, not just this final challenged clip (Tr. V, 51). See Harmon,
248 P.3d at 935 & n.15. See Ground Four, infra.
12

In addition to the clips, Petitioner references testimony given by Oklahoma City Police
Detective Tom Wilson. He asserts that the prosecutor called Detective Wilson “to hammer . . .
25

deprived him of a fair trial and a reliable sentencing proceeding, and denied him the right
to confront his accusers. Pet. at 28. As in Ground One, supra, the parties dispute whether
all or a part of this ground for relief should be procedurally barred, and as in Ground One,
the Court finds that the easier course is to deny Petitioner relief on the merits. The Court
also finds that rather than analyze each of Petitioner’s arguments as to why the video
clips should not have been admitted, the simpler course is to deny relief under Brecht.
Because Mr. Boston’s testimony and the video clips of his 2004 interview did not have a
substantial and injurious effect on the jury’s verdicts, Petitioner is not entitled to relief on
his Ground Three.
By his own admission, Mr. Boston was not a credible witness. He had double
digit felony convictions, at least one of which involved dishonesty, and he unabashedly
testified that when he spoke to the police in 2004, he would have told “them whatever
they would take” to get a better deal (Tr. V, 18-19, 53-54). Under these circumstances,
Mr. Boston’s testimony carried little, if any, weight.
Moreover, looking to the substance of the evidence, the most damaging of which
was the “plug one” statement, the Court is convinced that it did not have a substantial and
injurious effect on the jury’s guilty verdict. With Ms. Battle’s corroborated testimony and
Petitioner’s palm print at the scene, any error related to Mr. Boston’s testimony was
clearly harmless. See Ground Two, supra. This applies to the sentencing stage as well.

home” Mr. Boston’s “plug one” statement. Pet. at 27. A review of Detective Wilson’s
testimony, however, reveals that no reference was made to Mr. Boston’s interview on direct
examination. It was in fact defense counsel, who, on cross-examination, inquired about the
detective’s contact with Mr. Boston and the “plug one” statement (Tr. V, 91-93).
26

Although Petitioner asserts that without Mr. Boston’s testimony the jury may have had
residual doubt about whether he or Mr. Lancaster shot Mr. Choudhury, Reply at 12-13,
the Court disagrees. All of the evidence pointed to a single male suspect–only one man
was seen leaving the store after Mr. Choudhury was shot and only one man was seen
immediately before and after the robbery with Ms. Battle. When Petitioner’s print at the
scene is considered in conjunction with this evidence, the overwhelming evidence was
that the one man was Petitioner. See Ground Eleven, infra. Ground Three is denied.
D.

Ground Four:

Other Crimes Evidence.

Related to his Ground Three, Petitioner raises another issue regarding the video
clips played during Mr. Boston’s testimony. As noted in Ground Three, in the third clip
shown to Mr. Boston, Mr. Boston states that he knows what “they” do. In clarifying this
last statement, the interviewer asks Mr. Boston if he means that “they” pull robberies.
Although the trial court ultimately admonished the jury to disregard this evidence (Tr. V,
22-51; Court’s Ex. 1), Petitioner argues that the admonishment did not cure the error and
that the OCCA acted unreasonably in finding otherwise.13 Since the OCCA addressed
this claim on the merits, Harmon, 248 P.3d at 934-35, Petitioner may only obtain relief if
he can show that all fairminded jurists would agree that the OCCA got it wrong. Frost v.
Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014) (“If . . . some fairminded jurists could
possibly agree with the [OCCA’s] decision, then it was not unreasonable and the writ

13

In his proposition heading, Petitioner alleges that this error also affected the reliability of his
sentencing proceeding. Pet. at 32. However, because Petitioner makes no further mention of the
same, the Court finds that this aspect of his Ground Four has not been sufficiently raised and it is
therefore denied on this basis.
27

should be denied.”); Lockett v. Trammel [sic], 711 F.3d 1218, 1231 (10th Cir. 2013)
(“We may reverse only if all fairminded jurists would agree that the state court got it
wrong.”) (internal quotations and citation omitted). Because he has not done so, relief
must be denied.14
It is well-established that “[f]ederal habeas review is not available to correct state
law evidentiary errors . . . .” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.
1999). See also Thornburg v. Mullin, 422 F.3d 1113, 1128-29 (10th Cir. 2005) (quoting
Smallwood); Spears v. Mullin, 343 F.3d 1215, 1225-26 (10th Cir. 2003) (same). Thus,
when a habeas petitioner complains about the admission of evidence, inquiry is limited to
the constitutional issue of whether a due process violation has occurred. The question is
whether the admitted evidence rendered the petitioner’s trial fundamentally unfair. Id.
See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (finding that the exclusion of
critical evidence denied a defendant “a trial in accord with traditional and fundamental
standards of due process”). Undefined by specific legal elements, this standard obliges
the Court to “tread gingerly” and “exercise considerable self-restraint.”

Duckett v.

Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted) (quoting
United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir. 1990)). No alleged evidentiary
error shall be viewed in isolation, but instead considered in light of the entire proceeding.
Harris v. Poppell, 411 F.3d 1189, 1197 (10th Cir. 2005) (discussing the application of a

14

 Referencing his Ground Five, infra, Petitioner argues for de novo review based on his assertion

that the OCCA decided this issue without the benefit of a complete record. Pet. at 34. As
discussed in Ground Five, the record was not incomplete. Therefore, this is not a valid reason
for departing from AEDPA review.
28

fundamental fairness review and quoting Duckett and Le v. Mullin, 311 F.3d 1002,
1013 (10th Cir. 2002)).
In denying Petitioner relief, the OCCA found as follows:
The prosecutor unintentionally failed to stop the tape before Boston’s
statement that someone, possibly [Petitioner], robbed stores. Defense
counsel objected and moved for a mistrial because the district court had
sustained a motion in limine to exclude evidence of other robberies in the
first stage of trial. The district court held a hearing outside the presence of
the jury to consider the error. The judge listened to the tape three or four
times and still reported difficulty in determining whether Boston referred to
a robbery or robberies, although the syntax indicated that Boston used the
plural “robberies” rather than the singular “robbery.” In an attempt to
determine the proper remedy for the error, the district court asked each
juror individually what he or she last heard on the tape. Five jurors
indicated that they could not understand what was being said or could not
remember what they had last heard. Of the rest, only Juror S.R. indicated
that it was about Harmon and possibly others robbing stores. After listening
to argument, the district court overruled the motion for mistrial and elected
to admonish the jury. The court admonished the jury:
that anything that you thought you heard or may have heard on the
video is not part of the record and is not to be included in any of
your discussions or deliberations.
Harmon, 248 P.3d at 934-35 (footnote omitted). It then concluded that the trial court’s
admonishment to the jury effectively cured the error. Id. at 935 (“We do not hesitate to
conclude that the district court’s admonishment cured any error. . . . This inadvertent
evidence did not determine the result of [Petitioner’s] trial.”).
Petitioner makes two arguments in his effort to show that the OCCA’s decision is
unreasonable. First, Petitioner takes issue with the OCCA’s determination that the
evidence was introduced unintentionally. Because the prosecutor was responsible for
cueing up the clips, Petitioner argues that the prosecutor must have intended to play the

29

portion of the clip referencing other robberies or it would not have been played.
Petitioner leaves no room for any explanation based on inadvertence or accident. Pet. at
34; Reply at 13. However, the trial record offers no support for Petitioner’s position. The
prosecutor apologized for his “absolutely inadvertent” mistake, and although defense
counsel argued for a mistrial based on this mistake, neither defense counsel nor the trial
court gave any indication of a belief that it was anything but inadvertent (Tr. V, 24-28).
Second, Petitioner claims the OCCA applied the wrong standard of review. He
argues that the OCCA inappropriately looked to the remaining evidence to determine if
Petitioner’s guilt was otherwise established and he asserts that the standard that should
have been applied was Brecht’s substantial and injurious effect test. Pet. at 34. Brecht
was clearly inapplicable to the OCCA’s direct review of this claim.

See Lockett,

711 F.3d at 1232 (acknowledging that Brecht applies to cases on collateral review).
Moreover, the OCCA did not conduct a harmless error analysis, but assessed whether the
admonishment given by the trial court was sufficient to cure the error. In so doing, it
acknowledged “that an admonishment cures the error from improper testimony or an
improper comment at trial, unless the improper testimony or comment was such that it
appears to have determined the result of the defendant’s trial.” Harmon, 248 P.3d at 935
(internal quotation marks omitted) (citations omitted).

This is not an unreasonable

determination. See United States v. Morgan, 748 F.3d 1024, 1042 (10th Cir. 2014) (“The
district court advised the jury to disregard the statement, and juries are presumed to
follow curative instructions.”); Dotson v. Zenon, 549 F.Supp.2d 1291, 1298 (D. Colo.
2008) (“[J]uries are presumed to follow instructions, absent proof to the contrary.”);
30

Sanchez v. Brokop, 398 F.Supp.2d 1177, 1185 (D.N.M. 2005) (“It is presumed that juries
follow the instructions they receive from the Court.”).
Because Petitioner has not shown that the OCCA unreasonably denied him relief
in violation of Section 2254(d), his request for relief from this Court must also be denied.
E.

Ground Five:

Court’s Exhibit 1.

Related to his Grounds Three and Four, Petitioner complains about Court’s
Exhibit 1, the DVD of the video clips played during Mr. Boston’s testimony. Petitioner
asserts that his constitutional rights have been violated because this exhibit was not
initially included in the appeal record and because it contains more of Mr. Boston’s
interview than was actually played at trial. Although Respondent has argued for the
application of a procedural bar to this claim, the claim is easily disposed of on the merits.
The record reflects that the DVD used during Mr. Boston’s testimony was
admitted as Court’s Exhibit 1 (Tr. V, 50). The record also reflects that Court’s Exhibit 1
was made a part of the appellate record. Order Granting Supplementation of the Record
and Directing Oklahoma County Court Clerk to Transmit Records, Case Nos. PCD2008-919 and D-2008-657 (Okla. Crim. App. Feb. 18, 2010).

Although the DVD

contains more of Mr. Boston’s interview than was actually played for the jury at trial,
when viewed in conjunction with the trial transcript, Petitioner’s complaints regarding the
prosecution’s use of it at trial are easily understood and evaluated. It therefore follows
that for the reasons set forth in Grounds Three and Four, supra, Petitioner is not entitled
to relief on his DVD-related claims and with respect to this ground, he has not shown
how the DVD in and of itself entitles him to the grant of habeas relief. See Wilson v.
31

Corcoran, 562 U.S. 1, 5 (2010) (“The habeas statute [28 U.S.C. § 2254(a)]
unambiguously provides that a federal court may issue the writ to a state prisoner ‘only
on the ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.’”). Ground Five is denied.
F.

Ground Six:

Ms. Ashley’s In-Court Identification.

In Ground Six, Petitioner challenges Ms. Ashley’s in-court identification of him.
Alleging that on September 24, 2004, the police utilized a suggestive procedure when
they showed Ms. Ashley his picture as it appeared on a newscast following his arrest,
Petitioner argues that Ms. Ashley’s in-court identification of him was unreliable and
should not have been permitted. Although Petitioner challenged Ms. Ashley’s in-court
identification on direct appeal, Respondent asserts that Petitioner did not challenge the
identification on the same basis as he does here. Respondent is correct. On direct appeal,
Petitioner argued that the suggestive procedure was the actual newscast Ms. Ashley saw
while at home on September 9, 2004. Br. of Appellant at 44-46. Because Petitioner’s
Ground Six has not been fairly presented to the OCCA for adjudication, it is unexhausted
and subject to an anticipatory procedural bar.
In Simmons v. United States, 390 U.S. 377, 384 (1968), the Supreme Court held
“that convictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Therefore, to make a Simmons
claim, a defendant must point to a suggestive identification procedure. On direct appeal,
32

Petitioner claimed that the suggestive procedure was the September 9th newscast
showing his picture, along with pictures of Mr. Lancaster and Ms. Battle (State’s Ex. 55).
This was the claim that the OCCA addressed. Harmon, 248 P.3d at 935-36. Here,
however, Petitioner does not argue for Simmons relief based on the September 9th event,
but instead claims that the suggestive identification procedure was the police showing her
the newscast pictures some two weeks later.
In order to exhaust a claim, Petitioner must show that it was fairly presented to the
OCCA. As the Tenth Circuit acknowledged in Williams v. Trammell, 782 F.3d 1184,
1210 (10th Cir. 2015),
A party exhausts a claim in state court when it has been “fairly presented.”
Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
“Fair presentation,” in turn, requires that the petitioner raise in state court
the “substance” of his federal claims. Id. at 278, 92 S.Ct. 509. This includes
not only the constitutional guarantee at issue, but also the underlying facts
that entitle a petitioner to relief. Gray [v. Netherland], 518 U.S. [152,] 163,
116 S.Ct. 2074 [(1996)]; see Fairchild v. Workman, 579 F.3d 1134,
1149 (10th Cir.2009) (“A claim is more than a mere theory on which a
court could grant relief; a claim must have a factual basis, and an
adjudication of that claim requires an evaluation of that factual
basis.”) (citation omitted).
Although Petitioner challenged Ms. Ashley’s identification on direct appeal, he did not
present the OCCA with the factual basis he now uses to support his claim. Accordingly,
Petitioner’s Ground Six is unexhausted.
In order to exhaust this claim, Petitioner would have to file a third post-conviction
application, but because it is clear that the OCCA would apply a procedural bar to it, see
Okla. Stat. tit. 22, § 1089(D)(8), an anticipatory procedural bar applies. See Cole v.
Trammell, 755 F.3d 1142, 1169 (10th Cir. 2014) (citing Anderson v. Sirmons, 476 F.3d
33

1131, 1139-40 n.7 (10th Cir. 2007), and acknowledging the applicability of an
anticipatory procedural bar). Although Petitioner could overcome the application of a
procedural bar to this claim by satisfying one of two exceptions, Frost, 749 F.3d at 1231,
he has made no attempt to do so.

In the event this Court found the claim to be

unexhausted, which it has, Petitioner requested a stay to permit exhaustion. However,
because the OCCA would procedurally bar the claim, exhaustion is futile and a stay is
unwarranted. Petitioner’s Ground Six is procedurally barred.
G.

Ground Seven:

Failure to Excuse a Juror for Cause.

In his seventh ground for relief, Petitioner asserts that the trial court violated his
right to an impartial jury when it denied his request to excuse Juror Calhoun for cause.
Petitioner raised this claim on direct appeal and was denied relief. Harmon, 248 P.3d at
931-32; Order Granting Reh’g but Denying Recall of the Mandate, Case No. D-2008657 (Okla. Crim. App. Mar,. 2, 2011).

Because Petitioner has not shown that the

OCCA’s denial is contrary to or an unreasonable application of Supreme Court law, relief
must be denied.
“Capital defendants have the right to be sentenced by an impartial jury.”
Uttecht v. Brown, 551 U.S. 1, 22 (2007). “[D]ue process alone has long demanded that,
if a jury is to be provided the defendant, regardless of whether the Sixth Amendment
requires it, the jury must stand impartial and indifferent to the extent commanded by the
Sixth Amendment.” Morgan v. Illinois, 504 U.S. 719, 727 (1992). An impartial juror in
the capital setting is one who, despite his or her views on capital punishment, can follow
the trial court’s instructions. Thus, “the proper standard for determining when a
34

prospective juror may be excluded for cause because of his or her views on capital
punishment . . . is whether the juror’s views would ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.’”
Wainwright v. Witt, 469 U.S. 412, 424 (1985) (citation omitted).
“[B]ecause determinations of juror bias cannot be reduced to question-and-answer
sessions[,]” the printed record cannot fully capture the qualification assessment. Id. at
424-26, 434-35. Reviewing courts must therefore defer to the trial court’s determination
of whether a particular juror is qualified to serve. “Deference to the trial court is
appropriate because it is in a position to assess the demeanor of the venire, and of the
individuals who compose it, a factor of critical importance in assessing the attitude and
qualifications of potential jurors.” Uttecht, 551 U.S. at 9. Adding to this deference is the
AEDPA deference a federal habeas court must afford a state court decision under
28 U.S.C. § 2254(d), and in addition, because the state trial court’s determination is a
factual one, it is presumed correct under 28 U.S.C. § 2254(e)(1). Witt, 469 U.S. at 429;
Johnson v. Gibson, 254 F.3d 1155, 1160 (10th Cir. 2001). Under these conditions, a
habeas petitioner challenging juror cause determinations faces a high hurdle. See
Eizember v. Trammell, 803 F.3d 1129, 1135-36 (10th Cir. 2015) (acknowledging that
these claims are given “double deference”).
Petitioner contends that Juror Calhoun should have been excused for cause based
on the following exchange with defense counsel:
[DEFENSE COUNSEL]: Do you think it’s important to look at
someone’s background - -

35

PROSPECTIVE JUROR CALHOUN:

Yes.

[DEFENSE COUNSEL]: - - prior to determining whether or not to
execute them?
PROSPECTIVE JUROR CALHOUN:

No.

[DEFENSE COUNSEL]: And why don’t you feel that way?
PROSPECTIVE JUROR CALHOUN: Because everyone has
something in their background that is going on. It doesn’t mean that they
are a murderer or something else, you know.
(Tr. II, 91). Petitioner argues that this exchange shows that Juror Calhoun would not
consider (or give meaningful consideration to) his background as mitigating evidence.
Because he has a right to present mitigating evidence and have the jury consider the
same, Petitioner argues that Juror Calhoun should have been excused for cause upon his
request (Tr. II, 108-09). Defense counsel did not use a peremptory challenge to excuse
Juror Calhoun, nor did he request an additional peremptory challenge for that
purpose (Tr. II, 119-20).
The OCCA initially denied Petitioner’s claim because he failed to preserve
it. Harmon, 248 P.3d at 931-32. On rehearing, however, the OCCA further addressed
the claim as follows:
The district court has broad discretion when considering a request to excuse
a juror for cause. Rojem v. State, 2009 OK CR 15, ¶ 3, 207 P.3d 385, 388.
“A juror should be able to consider all penalties, and his or her views
should not prevent or substantially impair the performance of his or her
duties as a juror in accordance with her instruction and oath.” Id.
[Juror Calhoun] indicated that she did not think it was important to know
about a person’s background before making a decision about the death
penalty because “everyone had something in their background that is going
on.” Never did [Juror Calhoun] state that she would not consider such
evidence if instructed to do so. [Juror Calhoun] consistently said she would
36

listen to the evidence and follow the law given to her by the court. The
district court did not abuse its discretion in refusing to excuse
[Juror Calhoun] for cause.
Order Granting Reh’g but Denying Recall of the Mandate at 1-2. This is a reasonable
determination.
First, because no follow-up questions were asked,15 it is not at all clear that
Juror Calhoun’s comment was a declaration that she would not consider Petitioner’s
background in her consideration of the mitigation case. Although defense counsel
ultimately requested that she be removed for cause, even he acknowledged the possibility
that she may have misunderstood his question. The trial court noted that possibility as
well (Tr. II, 108). In light of this ambiguity, it was not unreasonable for the OCCA to
conclude that this single comment did not make Juror Calhoun an unqualified juror.
Second, Juror Calhoun’s comment cannot be viewed in isolation. A juror’s ability to
serve impartially cannot be determined by a single question and answer. See Darden v.
Wainwright, 477 U.S. 168, 176 (1986) (“[O]ur inquiry does not end with a mechanical
recitation of a single question and answer.”). In analyzing Petitioner’s claim, the OCCA
reviewed the entire voir dire of Juror Calhoun, concluding that she was one who would
hear the presented evidence and follow the instructions given. The record supports this
determination (Tr. II, 65-67, 72-75, 76).

15

When asking other prospective jurors this same question, defense counsel used follow-up
questions as necessary to fully evaluate the juror’s qualification to serve (Tr. II, 86-87, 95, 99,
101, 104, 106, 106-107).
37

For the foregoing reasons, Petitioner has failed to show that the OCCA
unreasonably denied him relief on his claim concerning Juror Calhoun. Ground Seven is
therefore denied.
H.

Ground Eight:

Voir Dire Limitations.

In Ground Eight, Petitioner asserts, as he did on direct appeal,16 that his
constitutional rights were violated by the trial court’s curtailing of his questions to
prospective jurors. The OCCA addressed the merits of this claim and denied
relief. Harmon, 248 P.3d at 927-28. Because Petitioner has not shown that the OCCA’s
decision is unreasonable, relief is not warranted.
As discussed in Ground Seven, supra, Petitioner is entitled to an impartial jury.
Part and parcel of this right is “an adequate voir dire to identify unqualified jurors.”
Morgan, 504 U.S. at 729; Wilson v. Sirmons, 536 F.3d 1064, 1098 (10th Cir. 2008).
However, adequate does not mean unlimited or unrestricted. It is well-established that
the trial court has “great latitude” and “considerable discretion” over the voir dire
process. Sallahdin v. Gibson, 275 F.3d 1211, 1223 (10th Cir. 2002); Moore v. Gibson,
195 F.3d 1152, 1170 (10th Cir. 1999). Where, as here, Petitioner complains about
restrictions placed on his inquiry, the question is one of fundamental fairness, i.e.,
whether the trial court’s actions denied Petitioner a fundamentally fair trial. Mayes v.

16

Although Respondent has argued that Petitioner’s current claim is something more than what
he raised on direct appeal (and is therefore subject to procedural default), Petitioner assures the
Court in his reply that he is raising the same claim. Reply at 17. The Court accepts Petitioner’s
assurance. The Court will not, however, consider Petitioner’s Exhibit 30 upon which he relies in
part to support his request for relief. Because this evidence was not before the OCCA when it
decided Petitioner’s claim, Pinholster prohibits its consideration. Pinholster, 563 U.S. at 181.
38

Gibson, 210 F.3d 1284, 1292 (10th Cir. 2000); Moore, 195 F.3d at 1170; Neely v.
Newton, 149 F.3d 1074, 1084 (10th Cir. 1998).
Consistent with the foregoing authority, the OCCA acknowledged the trial court’s
discretion in conducting voir dire, discretion which permits the “restrict[ion of] questions
that are repetitive, irrelevant or regard legal issues upon which the trial court will instruct
the jury.” Harmon, 248 P.3d at 927. “‘There is no abuse of discretion as long as the voir
dire examination affords the defendant a jury free of outside influence, bias or personal
interest.’” Id. (citation omitted). The OCCA then held as follows:
The trial court excluded inquiry designed to elicit answers based on facts
that were not before the jury or about matters on which the court would
instruct. The record shows that defense counsel was permitted to question
the potential jurors at length about their attitudes toward the death penalty,
including questions such as: is life imprisonment without the possibility of
parole a serious punishment; do you support the death penalty; do you
consider yourself a strong or weak supporter of the death penalty; should
the death penalty be reserved for only the worst cases; would you be open
to hearing mitigating evidence; do you favor one punishment over another;
is the decision whether to impose the death penalty a serious one; are there
too many steps required to impose a death sentence; do you think this is a
decision that will stay with you for years; and will you just pay lip service
to considering all three punishments. The district court’s limitations did not
prevent defense counsel from fully exploring the potential jurors’ views on
the death penalty. The voir dire allowed was broad enough to enable
defense counsel to challenge prospective jurors for cause and to
intelligently exercise peremptory challenges.
Id. at 927-28 (footnote omitted).
A thorough review of voir dire leads the Court to conclude that the OCCA’s
determination is both reasonable and amply supported.

The record shows that the

questions posed by the trial court, the prosecutor, and defense counsel were sufficient to
determine the prospective jurors’ qualification for service, and Petitioner’s reliance on
39

Juror Polk as support for the contrary is unavailing. As previously noted, see n.16, supra,
the Court cannot consider Petitioner’s Exhibit 30, Juror Polk’s 2013 affidavit, because it
was not before the OCCA when it decided this claim, and although Petitioner argues that
even without the affidavit, “[t]he record of Polk’s bias to always vote for the death
penalty was before the OCCA[,]” Reply at 17, the record does support this assertion.
While Juror Polk acknowledged that she was a strong supporter of the death penalty, she
also stated that the death penalty was reserved for the worst of the worst and that she
would listen to all of the evidence before determining an appropriate punishment (Tr. I,
184-86; Tr. II, 92-93). Ground Eight is denied.
I.

Ground Nine:

Victim’s Family.

In Ground Nine, Petitioner raises three claims based on his assertion that the
victim’s wife and son were not in favor of a death sentence. Petitioner argues that if the
jury had heard that they favored a sentence less than death, he would have received a
lesser sentence, and he faults the prosecution for not disclosing this information, the trial
court for not recognizing the prosecution’s duty to disclose it, and defense counsel for not
discovering it on their own. Petitioner raised these claims in his first post-conviction
application. The OCCA found the claims to be procedurally barred and the related
appellate counsel ineffectiveness claim to be without merit. Harmon, No. PCD-2008919, slip op. at 3, 13-19. Here again, this claim is most easily disposed of on the merits.
Petitioner’s Ground Nine hinges on his assertion that the victim’s family was in
favor of a sentence less than death. However, Petitioner’s only support for this assertion
is an affidavit executed by an investigator. In the affidavit, the investigator states that he
40

met with the family twice in 2010 and that during their conversations, “both witnesses
expressed an opinion that they were not in favor of the death penalty for [Petitioner].”
Original Appl. for Post-Conviction Relief at Attach. 25.

This is hearsay, which is

inherently unreliable and inadmissible in this proceeding.
While the Court has the authority to consider affidavits pursuant to Rule 7(b) of
the Rules Governing Section 2254 Cases in the United States District Courts, and where,
as here, Pinholster does not preclude the Court’s consideration of the investigator’s
affidavit, hearsay is still hearsay. Presenting hearsay in an affidavit does not change its
character, and pursuant to Fed. R. Evid. 802, hearsay is inadmissible. See Lopez v.
Miller, 915 F.Supp.2d 373, 423 (E.D.N.Y. 2013) (“The Federal Rules of Evidence apply
in federal habeas proceedings.”); Leyja v. Oklahoma, Case No. CIV-09-265-W, 2010 WL
1881462, at *12 n.60 (W.D. Okla. Apr. 7, 2010) (acknowledging the application of the
federal rules of evidence and concluding that “hearsay in an affidavit cannot serve as a
basis for habeas relief”). See also Neill v. Gibson, 278 F.3d 1044, 1056 (10th Cir. 2001)
(finding no abuse of discretion in refusing to consider hearsay affidavits by
investigators).
Petitioner attempts to get around his hearsay problem by (1) arguing that
Respondent has not effectively challenged or rebutted the evidence and (2) asserting that
the OCCA acknowledged the factual validity of this evidence. Reply at 18. Neither
contention is persuasive. Respondent challenged the investigator’s affidavit when it was
first presented in Petitioner’s state post-conviction application, he continues to do so here,
and Petitioner has not shown that Respondent’s failure to do more results in a default
41

finding of veracity. Harmon, No. PCD-2008-919, slip op. at 14; Resp. at 58 n.21. As for
the OCCA’s treatment of the evidence, Petitioner has not cited any particular language in
the OCCA’s opinion to support his contention that the OCCA made a factual conclusion
with respect to the contents of the affidavit.

And in fact, the Court notes that in

discussing the affidavit, the OCCA was very careful to caveat its source. Harmon,
No. PCD-2008-919, slip op. at 13-14 (“The investigator attested . . .”; According to the
investigator . . .”; “The investigator believed . . .”; “The investigator further stated . . .”).
Without the affidavit, Petitioner’s Ground Nine lacks any evidentiary support and is
hereby denied on that basis.
J.

Ground Ten:

Prosecutorial Misconduct.

In his tenth ground for relief, Petitioner alleges that both stages of his trial were
affected by the prosecution’s improper actions. Petitioner presented claims of
prosecutorial misconduct to the OCCA in his direct appeal and in his first application for
post-conviction relief. For the following reasons, none of these claims warrant habeas
relief.
“Prosecutors are prohibited from violating fundamental principles of fairness,
which are basic requirements of Due Process.” Hanson v. Sherrod, 797 F.3d 810,
843 (10th Cir. 2015). Therefore, when a petitioner alleges prosecutorial misconduct, the
question is whether the prosecutor’s actions or remarks “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). Evaluating the alleged misconduct in light of
the entire proceeding, the reviewing court must determine “whether the jury was able to
42

fairly judge the evidence in light of the prosecutors’ conduct.”

Bland v. Sirmons,

459 F.3d 999, 1024 (10th Cir. 2006).
Claims Raised on Direct Appeal
In the second closing argument of the first stage, the prosecutor discussed
Ms. Ashley’s testimony and her failure to initially identify Petitioner in court. The
prosecutor asserted that Ms. Ashley’s testimony was affected by her fear of Petitioner,
and he reminded the jury that Ms. Ashley was only twelve at the time of the
murder (Tr. VI, 48-50).

In the course of this discussion, the prosecutor made the

following comment, which was not objected to at trial but alleged to be error on direct
appeal:
Ladies and Gentlemen, to you and me the boogie man is a mythical
creature, but to Toni Ashley the boogie man is the guy she saw running out
of that store with a gun. And her friends had been no help to her telling her
the guy was going to come get her if she testified.
(Tr. VI, 49). Petitioner asserts that the prosecutor’s reference to him as “the boogie man”
was prejudicial name-calling which the OCCA has largely condemned.

Pet. at 66.

Petitioner additionally asserts that because the OCCA did not specifically address this
claim within its analysis, the Court should review the claim de novo and grant him relief
under the Brecht standard of review. Id. at 72-73.
In denying Petitioner relief on this claim, the OCCA acknowledged that one of
Petitioner’s complaints was that “the prosecutor engaged in name calling . . . in first-stage
closing argument.” Harmon, 248 P.3d at 943. Because there was no objection to the

43

challenged comment, the OCCA stated that its review was limited to plain error. Id. The
OCCA then held as follows:
Relief will be granted on a prosecutorial misconduct claim only
where the misconduct effectively deprives the defendant of a fair trial or a
fair and reliable sentencing proceeding. We evaluate alleged prosecutorial
misconduct within the context of the entire trial, considering not only the
propriety of the prosecutor’s actions, but also the strength of the evidence
against the defendant and the corresponding arguments of defense counsel.
With two exceptions, we see nothing in any of the comments,
individually or cumulatively, that exceeds the wide latitude parties have to
discuss the evidence and reasonable inferences from the evidence.
Id. (quotation marks omitted) (citations omitted).
Contrary to Petitioner’s argument, it is clear to the Court that the OCCA addressed
Petitioner’s name-calling claim and found no error. Thus, AEDPA deference is due, and
Petitioner can only obtain relief if he shows that the OCCA’s determination is
unreasonable. He cannot. Ms. Ashley’s fear of Petitioner was part of the presented
evidence (Tr. III, 159-60 162-63, 167, 177, 191-93), and it was therefore not
unreasonable for the OCCA to conclude that the prosecutor’s comment in this context did
not deprive Petitioner of a fair trial.
On direct appeal, Petitioner also claimed that the prosecutor argued facts not in
evidence when he discussed with the jury how Petitioner may have carried out the murder
of Mr. Choudhury (Tr. VI, 51-52; Tr. VIII, 87-88). Petitioner contends that the
prosecutor’s theory that he first shot Mr. Choudhury in the stomach from in front of the
counter and then came around to the back of the counter to shoot him twice in the leg was

44

“an execution-style” scenario unsupported by the evidence. Pet. at 66-68. Here again,
Petitioner faults the OCCA for not specifically addressing this claim. Id. at 72-73.
Like the name-calling claim, AEDPA deference applies because the OCCA
specifically referenced and denied Petitioner’s argument that the prosecutor argued facts
not in evidence. Harmon, 248 P.3d at 943. And contrary to Petitioner’s argument, the
Court finds that the argument was permissible. Within the argument itself, the prosecutor
noted the evidence upon which his theory was based, and in addition, upon an objection
by defense counsel, the trial court even reminded the jurors that the prosecutor’s
comments were persuasive only (Tr. VI, 51-52). Under these circumstances, Petitioner
has failed to show that the OCCA’s decision is unreasonable.
The final claim from Petitioner’s direct appeal concerns the prosecutors’
comments during second stage closing argument regarding the jury’s consideration of
mitigation evidence. Petitioner contends that the prosecutors’ comments were highly
improper and denigrated his second stage case. Petitioner asserts that because he has a
specific constitutional right to present mitigation evidence and because the prosecution
interfered with this right, it was unreasonable for the OCCA to deny him relief on this
claim.
In addressing this claim, the OCCA found that for the most part, the comments
were not error. In arriving at this decision, the OCCA found as follows:
The prosecutor . . . did not urge the jury to categorically disregard the
proffered mitigation evidence, but instead argued that the evidence offered
in mitigation did not support an inference of reduced culpability. (“You
know, you look at the mitigating evidence that they proffer. It’s proper.
You consider it.”). The prosecutor went on to say that any mitigating
45

evidence did not outweigh the aggravating circumstances established by the
State. In the end, the prosecutor invited jurors to consider all [Petitioner’s]
mitigating evidence, weigh it against the aggravating circumstances, and
find that the death penalty was appropriate. The prosecutor’s argument,
while often pointed or skeptical, did not preclude the jury from considering
all the mitigating evidence. [Petitioner’s] jury was properly instructed on
the definition of mitigating evidence, the evidence [Petitioner] presented,
and the duties of a juror. For that reason, we find no error.
Harmon, 248 P.3d at 943-44 (citations omitted). The OCCA did, however, find that two
of the prosecutor’s comments “came very close to crossing the line of permissible
argument.” Id. at 944. The OCCA was “troubled by the prosecutor’s argument that
[Petitioner’s] mitigation witnesses were put on as “human shields” and by his exhortation
to the jury not to let anyone give them a “guilt trip” about doing their job.” Id. It
nevertheless denied relief, finding “that [none] of these comments, individually or
cumulatively, contributed to [Petitioner’s] death sentence. Id.
Although Petitioner presents arguments as to why the OCCA’s determination of
this claim was unreasonable, he also argues, as he did with his other direct appeal claims,
that deference should not apply because the OCCA’s opinion does not mention each
mitigation-related comment he challenged. This argument fails here as well. In the
opinion, the OCCA specifically noted that Petitioner’s final argument was that the
prosecutors “made statements during second-stage closing argument designed to
diminish, denigrate, or completely invalidate the mitigating evidence that was presented.”
Harmon, 248 P.3d at 943. It then went on to address the claim at length. Id. at 943-44.
There is no question that AEDPA deference applies.

46

Two of Petitioner’s challenges to the unreasonableness of the OCCA’s opinion are
based on OCCA precedent. First, Petitioner argues that because the OCCA had
previously warned prosecutors to avoid making such comments, it had already
determined that the comments amounted to error, and therefore he should have been
granted relief.

Pet. at 71-72.

In both Cuesta-Rodriguez v. State, 241 P.3d 214,

244 (Okla. Crim. App. 2010), and Hooker v. State, 887 P.2d 1351, 1367 (Okla. Crim.
App. 1994), the OCCA found the “guilt trip” argument troubling; however, in neither
case did the OCCA grant relief. As in Petitioner’s case, the OCCA addressed the
comment in light of the entire trial and found the jury’s assessment of a death sentence to
be unaffected. This approach is in line with Supreme Court authority, which requires an
assessment of the entire proceeding to order to determine if the prosecutor’s actions
rendered Petitioner’s trial fundamentally unfair. Donnelly, 416 U.S. at 643.
Next, Petitioner asserts that the OCCA’s decision is unreasonable because the
OCCA failed to equate the comments in his case to the comments found to be improper
in Harris v. State, 164 P.3d 1103 (Okla. Crim. App. 2007). Harris, however, is just
another example of how a prosecutor’s actions must be gauged with respect to the entire
trial. In Harris, as in Cuesta-Rodriguez and Hooker, the OCCA considered all of the
comments made by the prosecutor about mitigation evidence, along with the instructions
given the jury. Although some comments were improper, the OCCA denied relief,
finding that “[t]he prosecutor’s improper argument on [mitigating evidence] was cured by
further argument and instruction.” Harris, 164 P.3d at 1114.

47

Petitioner additionally asserts that the OCCA’s decision is an unreasonable
application of Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell, the Supreme
Court found that “it is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant’s sentence rests elsewhere.” Caldwell,
472 U.S. at 328-29. In Caldwell, the prosecutor told the jury that its decision was not
final because it would be reviewed by the Supreme Court, and the trial court openly
affirmed the prosecutor’s remarks before the jury. Id. at 325-26, 339. The Supreme
Court granted relief because “the prosecutor’s argument sought to give the jury a view of
its role in the capital sentencing procedure that was fundamentally incompatible with the
Eighth Amendment . . . .” Id. at 340.
Contrary to Petitioner’s assertion, the circumstances in his case are not as stark as
those in Caldwell. Although the prosecutors did make some edgy remarks, they also
made proper comments and permissible argument about the jury’s consideration of
Petitioner’s mitigating circumstances. In addition, the jury’s consideration of mitigation
of evidence was guided by the given instructions. Instruction No. 9 defined mitigating
circumstances as “1) circumstances that may extenuate or reduce the degree of moral
culpability or blame, or 2) circumstances which in fairness, sympathy or mercy may lead
you as jurors individually or collectively to decide against imposing the death
penalty” (O.R. VII, 1205). Three times, the prosecution parroted this definition to the
jury (Tr. VIII, 94, 96, 121-22). Instruction No. 11 listed fourteen circumstances which
Petitioner put forth as mitigating evidence; however, the jury was told that it was not
48

confined to this list but could also consider any other circumstances it found to be
mitigating (O.R. VII, 1208-10). The jury was also instructed that mitigating
circumstances did not have be proven beyond a reasonable doubt and that before it could
return a sentence of death, it had to find at least one aggravating circumstance beyond a
reasonable doubt and that the “aggravating circumstance or circumstances outweigh the
finding of one or more mitigating circumstances” (O.R. VII, 1205, 1211). In conjunction
with these instructions, the prosecutors told the jury that consideration of Petitioner’s
mitigation evidence was a part of the deliberation process, while arguing that it was the
State’s position that Petitioner’s mitigating circumstances did not outweigh the
aggravating ones (Tr. VIII, 85, 93-94, 96-97, 99, 100-01, 114, 121-22). Under these
circumstances, the Court cannot deem the OCCA’s determination unreasonable.
Especially in light of AEDPA deference, no relief is warranted.
Claims Raised in Post-Conviction
Petitioner raises three claims of prosecutorial misconduct from his first postconviction application.17 Two of these claims directly relate to Petitioner’s Grounds Two
and Three. Pet. at 64. Whereas Petitioner raises evidentiary challenges to the admission
of evidence in his Grounds Two (his statement to Ms. Battle at the police station) and
Three (Mr. Boston’s testimony and 2004 interview), here Petitioner reformulates the
claim as a due process challenge to the actions of the prosecutors. Petitioner has been
denied relief on his Grounds Two and Three under Brecht, and the Court finds that such

17

Once again, the parties dispute whether these claims are procedurally barred. Rather than
analyze that issue, the Court elects to deny these claims on the merits.
49

analysis sufficiently covers the related claims Petitioner raises here. If the admission of
the underlying evidence was harmless, then any alleged improper plan the prosecution
implemented with respect to this evidence cannot be said to have denied him a
fundamentally fair trial. Donnelly, 416 U.S. at 643.
Petitioner’s final claim is that the prosecutor failed to properly caution one of the
State’s witnesses, and that due to that failure, inadmissible evidence was introduced in
the second stage. A records supervisor from the Arkansas Department of Corrections
testified that while Petitioner was in their custody, it was determined that he either
participated in or committed a sexual assault against another inmate and that a shank had
been used to perpetrate the assault. She testified that Petitioner was administratively
punished for his involvement and that the victim of the assault was James Eford18 (Tr. VI,
88-90).

Mr. Eford also testified. When asked to describe the assault to the jury,

Mr. Eford said that his cellmate was raped. Defense counsel objected due to lack of
notice, the jury was admonished to disregard the statement, and thereafter the prosecutor
led the witness and elicited testimony that Petitioner, who had a knife or shank, had
attempted to sexually assault him (Tr. VII, 32-37). On cross-examination, Mr. Eford
started again to discuss what happened to his cellmate, but was interrupted by defense
counsel and cautioned by the trial court to carefully listen and answer only the questions
asked (Tr. VII, 37-38).

18

The records supervisor testified that the victim’s last name was Euford, but when Mr. Eford
testified, his name was spelled differently.
50

Petitioner argues that the prosecutor’s conduct allowed Mr. Eford to testify about a
prison rape and that “a prison rape is too prejudicial to be cured by an admonition.” Pet.
at 66. However, there is no indication that the prosecutor did anything wrong with
respect to Mr. Eford.

The jury was admonished to disregard the evidence which

Petitioner objected to based on a lack of notice, and thereafter the prosecutor carefully led
the witness to avoid any further mention of the evidence. When the witness attempted to
broach the subject again on cross-examination, he was curtailed. Petitioner has not
shown that he was denied a fair trial by Mr. Eford’s reference to unnoticed evidence.
Donnelly, 416 U.S. at 643. In addition to the other evidence supporting the jury’s finding
of the continuing threat aggravating circumstance, see Ground Eleven, infra, the jury
already knew that Petitioner, while incarcerated in an Arkansas prison and armed with a
shank, had attempted to sexually assault Mr. Eford. Relief on this claim is denied.
For the foregoing reasons, the Court finds that no relief is warranted on
Petitioner’s Ground Ten. Relief is therefore denied.
K.

Ground Eleven:

Ineffective Assistance of Trial and Appellate
Counsel.

In his eleventh ground for relief, Petitioner asserts that his trial counsel was
ineffective for not presenting evidence of Mr. Lancaster’s role in the commission of the
crime, for not having Petitioner evaluated by a mental health professional and presenting
evidence of his cognitive deficiencies and mental illness, for not presenting evidence that
he was sexually abused as a child, and for not presenting “first-hand narratives of specific
instances of [his] extremely chaotic childhood.” Pet. at 88. Petitioner also faults his

51

appellate counsel for not raising these instances of trial counsel ineffectiveness on direct
appeal. Petitioner raised these claims in his first post-conviction application. The OCCA
concluded that Petitioner’s trial counsel claims were waived and that his appellate
counsel was not ineffective for failing to raise these claims on direct appeal. Harmon,
No. PCD-2008-919, slip op. at 3-12, 17.
In denying Petitioner relief, the OCCA acknowledged from the start the procedural
posture of the claims. Even though Petitioner’s trial counsel claims were waived under
the OCCA’s rules, because Petitioner also argued that his appellate counsel failed him by
not presenting these claims on direct appeal, it was necessary to address the merits of the
trial counsel claims as well. The OCCA acknowledged that its review of Petitioner’s
claims was governed by Strickland v. Washington, 466 U.S. 668 (1984). Harmon,
No. PCD-2008-919, slip op. at 3-5.19
Strickland requires a defendant to show not only that his counsel performed
deficiently, but that he was prejudiced by it. Strickland, 466 U.S. at 687. A defendant
must show that his counsel “made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. The assessment of counsel’s
conduct is “highly deferential,” and a defendant must overcome the strong presumption
that counsel’s actions constituted “‘sound trial strategy.’” Id. at 689 (citation omitted).

19

Given this posture, rather than address the procedural bar issue, the Court elects to dispose of
all of Petitioner’s ineffectiveness claims on the merits. AEDPA deference applies, Smith v.
Duckworth, 824 F.3d 1233, 1242 n.6 (10th Cir. 2016), and the Court’s review is limited by
Pinholster, 563 U.S. at 181.
52

“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable . . . .” Id. at 690.
As Strickland cautions, “[i]t is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.” Id. at 689. Therefore, “[a] fair
assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. Within
“the wide range of reasonable professional assistance,” “[t]here are countless ways to
provide effective assistance in any given case[, and] [e]ven the best criminal defense
attorneys would not defend a particular client in the same way.” Id.
As for prejudice, Strickland requires a defendant to show that his counsel’s errors
and omissions resulted in actual prejudice to him. Id. at 687. In order to make a
threshold showing of actual prejudice, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.
Claims regarding the effectiveness of appellate counsel are governed by Strickland
as well. Milton v. Miller, 744 F.3d 660, 669 (10th Cir. 2014) (citing Smith v. Robbins,
528 U.S. 259, 285 (2000)). In accordance with Strickland, a petitioner alleging appellate
counsel ineffectiveness must show (1) that his appellate counsel’s actions on appeal were
53

objectively unreasonable and (2) that, but for counsel’s unreasonable actions, he would
have prevailed on appeal. Robbins, 528 U.S. at 285-86; Miller v. Mullin, 354 F.3d 1288,
1297 (10th Cir. 2004) (quoting Ellis v. Hargett, 302 F.3d 1182, 1186-87 (10th Cir.
2002)).
When an appellate counsel claim concerns omitted issues, Strickland’s first prong
requires a showing that counsel unreasonably omitted “nonfrivolous issues.” Robbins,
528 U.S. at 285. When counsel has filed a brief on the merits, it is difficult to show his
incompetence for failing to raise a particular claim. Id. at 288. Appellate counsel does
not have an obligation to raise every possible claim irrespective of its merit. In fact, “the
hallmark of effective appellate advocacy” is the “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail . . . .” Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting

Jones v. Barnes, 463 U.S. 745, 751-

52 (1983)). “This has assumed a greater importance in an era when oral argument is
strictly limited in most courts–often to as little as 15 minutes–and when page limits on
briefs are widely imposed.” Jones, 463 U.S. at 752-53.
Lancaster as an Alternative Suspect
Petitioner’s first challenge to his trial counsel’s representation involves
Mr. Lancaster. Petitioner faults his trial counsel for not investigating and presenting
certain evidence regarding Mr. Lancaster which he believes would have made “a viable
‘reasonable doubt’ guilt stage defense.” Pet. at 75-76. Petitioner contends that “[s]uch
evidence, at a minimum, raises reasonable doubt about whether Lancaster was the
shooter, provides evidence of his violent propensities and his out-of-control use of
54

firearms, and paints him as a dominant figure for whom witnesses are willing to lie and
even recant.” Id. at 79. Petitioner additionally asserts that this same evidence could have
benefitted him in the second stage. Petitioner argues that if trial counsel could have
shown that Mr. Lancaster was the one who actually shot Mr. Choudhury, then the jury
may not have found the especially heinous, atrocious, or cruel aggravator. Petitioner also
asserts that this evidence would have had other mitigating effects, including showing that
he was susceptible to Mr. Lancaster’s bad influence.20 Id. at 76.
In evaluating the merits of this allegation of trial counsel ineffectiveness, the
OCCA held as follows:
[Petitioner] claims that trial counsel was constitutionally ineffective
in the first stage of trial for failing to investigate and present evidence in
support of the defense theory that Christopher Lancaster was responsible
for the murder of the convenience store owner in this case. Lancaster was
originally charged in this case along with [Petitioner] and Jasmine Battle.
The case against Lancaster was dismissed after the court suppressed
[Petitioner’s] confession. [Petitioner] argues that trial counsel should have
put on evidence of Lancaster’s criminal record and evidence concerning the
recovery of a 9mm semiautomatic handgun that Lancaster hid at the home
of the mother of his children prior to his arrest. According to [Petitioner],
evidence of Lancaster’s criminal history “could have been used to bolster
the defense theory” that Lancaster was involved in the robbery and murder
in this case, presumably, because participating in an armed robbery and
shooting would not have been out of character for Lancaster based on other
crimes he committed. Evidence that Lancaster had hidden a 9 mm handgun
at the home of his children’s mother was important says [Petitioner]
because it is possible this gun was the murder weapon since a 9 mm
handgun could have been used to fire the fatal shots in this case.

20

Petitioner argues that the OCCA failed to address the second stage implications of his
Lancaster claim. Pet. at 91. However, the OCCA’s analysis of this claim indicates otherwise:
“Evidence that Lancaster may have somehow been involved does not exonerate [Petitioner] or
cast doubt about the validity of his conviction and sentence in light of the evidence against him.”
Harmon, No. PCD-2008-919, slip op. at 8 (emphasis added).
55

[Petitioner] cannot make the necessary showing to prevail on an
ineffective assistance of counsel claim because the information he has
provided in this application fails to convince us that there is a reasonable
probability that the outcome of his trial would have been different had the
evidence been presented. The gun hidden by Lancaster was recovered and,
according to the police report attached by [Petitioner], was submitted for a
ballistics examination. See Attachment 10. [Petitioner] wants us to
speculate here that this gun has some connection to the instant case, but
provides no evidence that the gun was used in this case nor does he argue
that this possible murder weapon was used solely by Lancaster in an effort
to show that he was not the shooter.
[Petitioner’s] presence at the crime scene and involvement in the
murder were amply established by: 1) his palm print in blood on a piece of
paper behind the store counter; 2) the identification by an eyewitness of
[Petitioner] as the man seen running from the store with a gun immediately
before the bleeding victim emerged and collapsed; 3) the testimony of an
accomplice that she drove [Petitioner] to commit the robbery, heard
gunshots, and saw blood on [Petitioner’s] hands when he returned to the
car; 4) evidence that [Petitioner] used the victim’s stolen credit cards within
fifteen minutes of the robbery as well as several other times over the next
day; and 5) evidence [Petitioner] had told an associate that he had to “plug”
a man. Evidence that Lancaster may have somehow been involved does not
exonerate [Petitioner] or cast doubt about the validity of his conviction and
sentence in light of the evidence against him. [Petitioner] has not shown
ineffective assistance of trial counsel on this record.
Harmon, No. PCD-2008-919, slip op. at 6-8 (footnotes omitted).
Although Petitioner asserts that the OCCA’s decision is both legally and factually
unreasonable, the Court disagrees. There is no evidence that the OCCA “ignored critical
facts and unreasonably relied on other ‘facts’ for improper purposes.” Pet. at 91. The
evidence Petitioner asserts trial counsel should have presented about Mr. Lancaster is
nothing more than guilt by association evidence and it is so far afield from even a
circumstantial showing that Mr. Lancaster might have been involved that it lacks any
evidentiary value at all. Moreover, the clear and undisputed evidence at trial was that

56

only one male was involved in the crime.21 Ms. Battle testified that she had only one
accomplice and that one accomplice was Petitioner (Tr. IV, 183-86, 189-93). Ms. Ashley
saw one man run out of the store with a gun in his hand and that one man was
Petitioner (Tr. III, 158-59, 176-80, 191-93; State’s Ex. 18). Neighbors saw only one man
before and only one man after get into Petitioner’s girlfriend’s green Honda with
Ms. Battle and drive away (Tr. III, 199-203, 211-22; Tr. IV, 38-44, 50-63).

And

validating all of this evidence was the unchallenged evidence of Petitioner’s palm print at
the scene (Tr. IV, 122-27, 154-60; State’s Exs. 42-44). Thus, it was completely
reasonable for the OCCA to conclude that “[e]vidence that Lancaster may have somehow
been involved does not exonerate [Petitioner] or cast doubt about the validity of his
conviction and sentence in light of the evidence against him.” Harmon, No. PCD-2008919, slip op. at 8.
Second Stage Claims
Petitioner’s remaining claims concern the second stage defense presented by trial
counsel. As is often the case, Petitioner asserts that his trial counsel should have done
more. Before addressing these claims, it is necessary to summarize the second stage
evidence presented by both the State and the defense.
The State’s Second Stage Evidence
The State alleged three aggravating circumstances: (1) the murder was especially
heinous, atrocious, or cruel; (2) Petitioner committed the murder while serving a sentence

21

Although Petitioner faults the OCCA for considering his “plug one” statement to Mr. Boston as
substantive evidence of his guilt, see Ground Three, supra, it is of no consequence. Even without
consideration of this evidence, the evidence of Petitioner’s guilt was overwhelming.
57

of imprisonment on conviction of a felony; and (3) the existence of a probability that
Petitioner will commit criminal acts of violence that would constitute a continuing threat
to society (O.R. I, 121-22). In support of these aggravators, the State incorporated the
evidence from the first stage and presented twenty witnesses.
Shelly Maroney, a records supervisor from the Arkansas Department of
Corrections, testified about Petitioner’s Arkansas convictions.

Petitioner had ten

Arkansas convictions in total, eight from 199722 and two from 2000. Six were for
residential burglary and four were for theft of property. For his 1997 convictions,
Petitioner received a seven-year concurrent sentence, and for his 2000 crimes, Petitioner
received a ten-year concurrent sentence. However, the seven-year sentence and the tenyear sentence were ordered to be served consecutively. Petitioner was in prison for these
crimes until his release on parole on January 3, 2003. Petitioner reported to his parole
officer until July 14, 2003. When he failed to report after that, a warrant was issued for
his arrest (Tr. VI, 80-88).
Ms. Maroney also testified that while Petitioner was in the custody of the
Arkansas Department of Corrections, he received a misconduct for his involvement in a
sexual assault committed against Mr. Eford (Tr. VI, 88-90). Mr. Eford also testified
regarding this assault which took place in March 1998. He confirmed that Petitioner,
armed with a knife or a shank, had attempted to sexually assault him (Tr. VII, 33, 36-37).
The State presented evidence that Petitioner had been involved in four Oklahoma
City armed robberies in 2004. On January 5, 2004, Petitioner (with one accomplice)

22

Petitioner was under the age of eighteen when these crimes were committed (Tr. VI, 90-91).
58

robbed Frank Evangelisti at gunpoint at his place of business, Snows Liquor (Tr. VI, 12529). On April 21, 2004, Petitioner (with three accomplices) robbed Scott Nevez at his
place of business, Sam’s Wholesale Liquor. Mr. Nevez gave an especially harrowing
account of how Petitioner put a revolver to his forehead as he demanded money (Tr. VI,
141-47; Tr. VII, 23-25). On July 21, 2004, Petitioner (with two accomplices) robbed
Judy Coke at gunpoint at a neighborhood convenience store where she had just purchased
some cokes on her way home from work (Tr. VI, 97-110, 120-22). On August 26, 2004,
just nine days after Mr. Choudhury’s murder, Petitioner (with one accomplice) robbed
Charlene Worley and Connie Pedigrew, employees of the Family Dollar Store, at
gunpoint. Petitioner’s prints were found on a package of toilet paper he brought to the
checkout counter before demanding money (Tr. VI, 150-59; Tr. VII, 9-10, 12-16, 19-21).
The State also presented evidence that while awaiting trial Petitioner stabbed a
fellow inmate, Roger Harris. Mr. Harris testified that he and Petitioner got into a fight in
December 2007, and that Petitioner used a shank to stab him in the chest. Petitioner was
apparently mad at Mr. Harris because he flooded his cell and Petitioner, who worked as
an orderly, had to clean it up (Tr. VII, 41-56, 57-61, 63-68; State’s Exs. 60, 61, and 63).
The State’s final witnesses were Mr. Choudhury’s wife and son. Both gave brief
statements (Tr. VII, 72-75).
Petitioner’s Second Stage Evidence
Four of the nine witnesses who testified on behalf of Petitioner were family
members. Petitioner’s cousin, Jason Murphy, testified that he and Petitioner grew up
together and that Petitioner had a tough home life. Mr. Murphy told the jury that
59

Petitioner’s mother used drugs and was not really there for him.

Because of her,

Petitioner saw things “a small kid shouldn’t see[,]” including domestic abuse. Petitioner
spent many nights away from home in an attempt to avoid his unstable home
environment. Mr. Murphy testified that Petitioner attended school about half of the time.
When Petitioner was released from prison, Mr. Murphy tried to help him. Petitioner
moved in with him, and Mr. Murphy continually encouraged Petitioner to get a job and
quit hanging around with the wrong crowd. Mr. Murphy testified that he contacted the
police when he learned of Petitioner’s involvement in Mr. Choudhury’s death.
Mr. Murphy kept in contact with Petitioner while he was in jail. Petitioner regretted not
taking Mr. Murphy’s advice. Mr. Murphy asked the jury to spare Petitioner’s
life (Tr. VII, 77-85, 90-91). On cross-examination, Mr. Murphy admitted that although
he and Petitioner had similar backgrounds, he, unlike Petitioner, went to school, got a
job, and was successful (Tr. VII, 88).
John Bromsey, Petitioner’s uncle, testified that he looked after Petitioner.
Mr. Bromsey testified that Petitioner often got kicked out of the house for defending his
mother from his stepfather’s abuse. When Petitioner stayed with him, which was often,
Mr. Bromsey made sure Petitioner did his school work. Mr. Bromsey acknowledged his
sister’s drug habit, which was present even before Petitioner was born. Mr. Bromsey
testified that because Petitioner’s siblings were dealing with the same issues Petitioner
did as growing up, he now took care of them. Mr. Bromsey, who had his own issues with
drugs, was at one time incarcerated at the same facility as Petitioner. While in prison,
Mr. Bromsey told Petitioner that when he was released, he should stay at his house and
60

look after his siblings. Mr. Bromsey told him to “turn the lights on and stay out of
trouble.” Petitioner did not follow his advice. Mr. Bromsey asked the jury to spare
Petitioner’s life. He said that he would write and visit Petitioner (Tr. VII, 93-101).
Petitioner’s aunt, Janice Williams, testified that she and her family raised
Petitioner from a baby. From about age one to four or five, Petitioner was often in their
care. Ms. Williams told the jury that her father, Petitioner’s grandfather, had wanted to
adopt Petitioner, but Petitioner’s mother would not let him. When Petitioner was a
teenager, a question arose as to whether her brother was actually Petitioner’s father, but
that did not change the way they felt about him. Ms. Williams testified that Petitioner
had a great relationship with her father and that when Petitioner was with them, he was
never in any trouble. Ms. Williams testified that she maintained contact with Petitioner
and she asked the jury to spare his life (Tr. VII, 116-24).

On cross-examination,

Ms. Williams told the jury that when Petitioner first got into trouble at the age of
fourteen, she tried to help him get back on track. She admitted that his struggles had
been heartbreaking to her family (Tr. VII, 127-28, 132).
Petitioner’s little sister, JaQuinda Sims, who was only thirteen at the time of trial,
also testified. She testified that she did not live with her parents, but with relatives, as did
her brothers. She identified family pictures, which were introduced into evidence. She
told the jury that she had written letters to Petitioner for a long time. Five of those letters
were admitted into evidence. She and Petitioner had a special relationship. She said she
would write him forever (Tr. VII, 175-80; Def.’s Exs. 8-12).

61

Petitioner fathered a child when he was only fourteen years old. His daughter,
Trynecka, was twelve years old at the time of trial (Tr. VI, 90; Tr. VII, 155). His
daughter’s mother, Danielle Sheffey, and grandmother, Loretta Sheffey, both testified.
Loretta Sheffey testified that when she met Petitioner “he was pretty much on his
own.” Petitioner stayed at her house two to three times a week (Tr. VII, 135).
Ms. Sheffey grew to love Petitioner as one of her own. Petitioner wanted her to adopt
him, but she was not in a position to do so. Ms. Sheffey testified that she still loved
Petitioner and she asked the jury to spare his life (Tr. VII, 136-38, 141). Danielle Sheffey
gave more details about her relationship with Petitioner and Petitioner’s relationship with
their daughter. She testified that their daughter is deaf, and even though Petitioner’s
contact with her has been sporadic, she knows who her father is and she loves him. She
asked the jury to spare Petitioner’s life for their daughter’s sake (Tr. VII, 155, 158, 160).
Devonna Bolden, Petitioner’s girlfriend at the time of the crime, testified about her
relationship with Petitioner. Ms. Bolden, who has lupus, told the jury that Petitioner took
good care of her when they were dating. She also testified that when she got pregnant
with his child and had a miscarriage, Petitioner was helpful in every way. Ms. Bolden
had spent time with Petitioner and his daughter. She said Petitioner and his daughter
were very close and that Petitioner had learned sign language in order communicate with
her. Although their relationship ended when Petitioner went to jail, she testified that she
still had feelings for him (Tr. VIII, 53-59).
Nathaniel Thurman, an ordained minister, testified that he had been visiting with
Petitioner in the county jail two to three times a month for the last three to four years. He
62

testified that he and Petitioner had had some fairly in-depth conversations and that
Petitioner had a strong faith. He described Petitioner as intelligent and articulate and said
Petitioner was good at writing poems23 and drawing. Pastor Thurman told the jury that
he would visit him in prison if the jury spared Petitioner’s life (Tr. VIII, 66-69).
Licensed clinical social worker Selonda Moseley compiled a social history of
Petitioner’s life and discussed her findings with the jury (Tr. VII, 182-83).24 She testified
that she interviewed Petitioner’s family members and reviewed all of his records. She
told the jury that the purpose of a social history is “not to . . . explain away a person’s
behavior,” but “to understand why someone thought or behaved certain ways or why they
interacted with their environment the way they did” (Tr. VII, 183-86). Ms. Moseley
testified extensively about Petitioner’s upbringing, using a governmental study which
evaluates risk and protective factors in five categories–individual, family, school, peers,
and community (Tr. VII, 187-90). Ms. Moseley concluded that Petitioner had multiple
risk factors and less protective factors across all categories. In the individual category, he
had eight out of ten risk factors and none of the seven protective factors (Tr. VII,192-95);
in the family category, he had all of the risk factors and one of four protective
factors (Tr. VII, 195-97, 199-206, 208-09); in the school category, he had all of the risk
factors and no protective factors (Tr. VII, 207-10); in the peer category, he had two of
three risk factors and one of three protective factors (Tr. VII, 210-11); and in the

23

One of Petitioner’s poems was admitted into evidence (Tr. VII, 179; Def.’s Ex. 13).

24

A copy of her report, which was referred to multiple times by the prosecutor on crossexamination, was included as Attachment 14 in Petitioner’s Original Application for PostConviction Relief.
63

community category, he had six of nine risk factors and all of the protective
factors (Tr. VII, 211-14).
Ms. Moseley gave additional testimony about Petitioner’s mother, who was only
fifteen when she gave birth to him (Tr. VII, 216). Petitioner was a crack baby, whose
mother would express her breast milk rather than feed him (Tr. VII, 216-17; Tr. VIII, 1112). Ms. Moseley testified that “because of his mother’s depression, her substance abuse
and her [violent] relationship with her husband, all of those factors interfered with her
being a positive role model for [Petitioner] and being able to attend to his needs” (Tr. VII,
214). His mother’s issues often caused a reversal in their roles, i.e., Petitioner would
come home and find his mother so high that he would have to take care of her (Tr. VII,
215). Ms. Moseley also testified about the issue of Petitioner’s paternity and the affect
that had on him (Tr. VIII, 6-10).
Finally, Ms. Moseley testified about Petitioner’s future. She testified that although
she was aware of those instances when Petitioner got into trouble while incarcerated, she
also recognized his ability to excel while confined and felt that he could be productive in
prison (Tr. VIII, 12-14).
Based on the presented evidence, the jury was given the following list of
circumstances Petitioner believed to mitigate his sentence:
1.

[Petitioner] was born to a drug addicted mother, who dumped her
breast milk rather than feed it to [him].

2.

It is unknown who is truly [Petitioner’s] father; and [Petitioner] has
grown up with this question being asked his entire life.

64

3.

Melvin Harmon has denied [Petitioner’s] parentage and refused to
put his name on the birth certificate.

4.

Arberry Bromsey raped [Petitioner’s] mother, Julia Brown Sims,
when she was a child. He then carried on an extra-marital
relationship with her in her teens. It was during this period of time
that [Petitioner] was conceived.

5.

[Petitioner] did not have a safe, stable home in which to live. As a
child he lived from place to place; sometimes in the woods or on a
porch.

6.

[Petitioner’s] grandfather, Melvin Harmon, Sr., loved and wanted
[Petitioner]. His family treated [Petitioner] well. When Melvin
Harmon, Sr. died it was a great loss to [Petitioner].

7.

[Petitioner] lived for a period of time with Danielle Sheffey and her
mother, Loretta Sheffey. He and Loretta Sheffey formed a bond and
[Petitioner] asked her to adopt him.

8.

[Petitioner] and Danielle Sheffey were fourteen years old when their
daughter, Trynecka, was born. Trynecka is deaf.

9.

[Petitioner] has learned the basics of sign language so that he can
communicate with Trynecka. She and [Petitioner] love one another.

10.

[Petitioner] has a sister, JaQuinda Sims, as well as two younger
brothers; Raylan and Marcus. All three of these siblings are having
problems. They will need the guidance of their older brother.

11.

JaQuinda Sims was raped when she was 9 years old. [Petitioner]
was not there for her, despite his Uncle John’s advice that he stay
and take care of her. [Petitioner] and JaQuinda have a relationship
through letters. They love one another.

12.

Devonna Bolden is a former girlfriend of [Petitioner’s]. During the
time they were together he treated her kindly. She has lupus. When
Devonna Bolden became pregnant with [Petitioner’s] child they
were very happy. [Petitioner] took her to medical appointments.
When Devonna Bolden miscarried, both she and [Petitioner] were
greatly saddened.

65

13.

[Petitioner] has had the counsel and advice of a minister, Nathaniel
Thurman, for several years. He believes [Petitioner’s] faith is
genuine.

14.

[Petitioner] has family members who love him and do not wish him
to be sentenced to death.

(O.R. VII, 1208-10).
Additional Available Evidence
Petitioner asserts that had his trial counsel had him evaluated by a mental health
professional, they would have discovered neurological impairments, mental illness, and
child abuse. Petitioner also claims that trial counsel should have presented more family
witnesses to give more first-hand, graphic detail about his upbringing. Petitioner argues
that “[t]rial counsel made an unreasonable decision to pull the investigation up short
when significant additional trauma suffered by [him] was easily attainable and when a
thorough investigation would have turned up crucial mitigating evidence of [his] mental
impairments and cognitive deficits.” Pet. at 80-81. Petitioner states that his “[t]rial
counsel never consulted or retained a qualified mental health professional.” Id. at 81.25
Petitioner also argues that Ms. Moseley’s testimony was not enough because “[s]he
offered nothing to explain [his] behavior.” He additionally contends that because
Ms. Moseley referenced his antisocial behaviors, she actually aided the State’s
aggravation case. Id. at 82.

25

Petitioner offers no support for this contention, and Respondent aptly notes that although
Petitioner presented an affidavit on post-conviction from one of his trial attorneys, the affidavit
contains no information about the mitigation investigation. Resp. at 102. Counsel makes no
statement that she did not consult or retain a qualified mental health professional. Original Appl.
for Post-Conviction Relief at Attach. 26. Additional trial counsel affidavits are silent on this
issue as well. Pet’r’s Exs. 15 and 16.
66

The record reflects that at the urging of his post-conviction counsel, Petitioner had
a neuropsychological evaluation. As for Petitioner’s cognitive abilities, Dr. Antoinette R.
McGarrahan found that Petitioner “has average intellectual abilities and generally
commensurate neurocognitive functioning across numerous domains assessed.” She also
found that Petitioner’s brain function shows “a pattern of strength and weaknesses.”
Original Appl. for Post-Conviction Relief at Attach. 13, Ex. 2, pp. 14-15. Petitioner’s
weaknesses include “simple and complex verbal memory, complex visual memory, and
problem solving and planning skills.”

Id. at 15.

Dr. McGarrahan’s diagnostic

impressions were that Petitioner “suffers from depression, anxiety, symptoms of
posttraumatic stress disorder, borderline personality traits, substance abuse, and antisocial
personality disorder.” Id.
The OCCA considered Dr. McGarrahan’s report and concluded that Petitioner’s
trial counsel were not ineffective in their presentation of the second stage case. Given the
evidence that was presented, the OCCA concluded that “the information Dr. McGarrahan
or a similar expert could have added would [not] have made a difference in the outcome
of [the] case.” Harmon, No. PCD-2008-919, slip op. at 10. Regarding the sexual abuse
evidence, the OCCA found this claim to be unsupported and it denied relief on that
basis. Id. at 11-12. The OCCA also found that trial counsel was not ineffective for
failing to present additional family witnesses because their actions were “within the wide
range of reasonable professional assistance and . . . [Petitioner had] failed to overcome
the presumption that the challenged action ‘might be considered sound trial

67

strategy.’’ Id. at 11. Petitioner makes several assertions as to why these determinations
by the OCCA are both factually and legally unreasonable. Pet. at 91-92.
First, Petitioner argues that the OCCA misconstrued his claim. With reference to
a few sentences in the OCCA’s detailed analysis, Petitioner asserts that the OCCA
construed his claim as faulting trial counsel for not fully evaluating the mental health
issues of his mother and family, when his actual claim was his own mental health. Pet. at
91-92. A review of the OCCA’s complete analysis of this issue shows that the OCCA
both understood and addressed the claim Petitioner raised and that its references to the
mental impairments of Petitioner’s mother and family were clearly in response to
arguments contained in his application that “Dr. McGarrahan could have also used [his]
family’s mental health history combined with studies that demonstrate mental illness is
often passed down through a family.” Original Appl. for Post-Conviction Relief at 13-14.
Next, Petitioner asserts that the OCCA used the wrong prejudice standard. With
reference to the OCCA’s statement that the evidence would not have made a “difference
in the outcome,” Petitioner argues that the OCCA applied a prejudice test contrary to
Strickland’s reasonable probability standard. Pet. at 92. While the OCCA did not parrot
the Strickland standard in this particular sentence, it is abundantly clear that the OCCA
applied the Strickland standard to evaluate all of Petitioner’s ineffectiveness claims.
Harmon, No. PCD-2008-919, slip op. at 3-5, 10. Therefore, this assertion is without
merit.
Petitioner’s third and fourth challenges to the OCCA’s decision are nothing more
than threadbare declarations that it was unreasonable for the OCCA to deny him relief on
68

his claims related to the presentation of additional family witnesses and his assertion that
he was sexually abused as a child. Pet. at 92. The lack of any argument or authority here
is reason enough to deny these contentions. But beyond that, the Court finds that given
the evidence that trial counsel did present about Petitioner’s upbringing, it was not
unreasonable for the OCCA to find that trial counsel were not ineffective for failing to
present more of the same. As for the child sexual abuse, the OCCA denied relief on this
claim because Petitioner failed to make a showing that he had in fact been sexually
abused. The OCCA noted that the only evidence Petitioner had provided to support the
claim was “an affidavit from his grandmother of her suspicions that [he] was sexually
abused by a teenage neighbor when [he] was six or seven years old.” Harmon, No. PCD2008-919, slip op. at 11 (emphasis added). Contrary to Petitioner’s assertion, this is a
reasonable basis for denying the claim.
Finally,26 Petitioner makes the general assertion that “[t]he OCCA never
undertook the kind of probing and fact-specific analysis Strickland requires.” Pet. at 92.
This is completely without merit. A review of the OCCA’s opinion shows that it gave
detailed analysis of all of Petitioner’s ineffectiveness claims, and the Court agrees with its
assessment. Harmon, No. PCD-2008-919, slip op. at 8-17. There is no doubt that
Petitioner had a tragic upbringing and that it influenced his criminal activity. The
evidence which trial counsel presented painted this picture for the jury, and like the

26

The Court notes that Petitioner makes an additional argument for unreasonableness based on
the OCCA’s determination of a claim regarding the unruly behavior of his siblings. Pet. at 92.
Although Petitioner raised that additional claim in post-conviction, he has not raised it here.
Thus, challenging the unreasonableness of that ruling is of no consequence.
69

OCCA, the Court cannot conclude that the additional evidence Petitioner has brought
forth would have, within a reasonable probability, caused a different result. Not only was
the felony murder case against Petitioner overwhelming, but the circumstances of the
crime and Petitioner’s very life history weighed heavily in favor of a death sentence.
Petitioner was on parole when he killed Mr. Choudhury, and it was clear that
Mr. Choudhury’s death was especially heinous, atrocious, or cruel.

But even more

difficult for Petitioner to overcome was the continuing threat aggravator, which was just
as easily satisfied. In addition to a criminal history which began in his teen years,
Petitioner committed three armed robberies in 2004, not including the robbery in this
case, and even more disturbing and detrimental to his mitigation case was his final
robbery, committed a mere nine days after killing Mr. Choudhury. The jury no doubt
took note that Petitioner’s criminal conduct was not hampered by Mr. Choudhury’s
murder. And while Petitioner’s evidence attempts to soften the blow of his antisocial
behaviors, the fact remains that he has them. Ms. Moseley referenced them,27 and
Dr. McGarrahan confirmed them.28 They have been evident since he was a teenager, and

27

Although Petitioner faults Ms. Moseley for giving this damaging testimony and trial counsel
for sponsoring it, the Court notes that her testimony on this issue consisted of minor references
only (Tr. VII, 192-94). So minor, in fact, that the prosecutor did not even mention it on crossexamination or make any reference to it in closing argument.

28

Dr. McGarrahan, the mental health expert Petitioner asserts his trial counsel should have
retained, unequivocally diagnosed Petitioner with antisocial personality disorder. Had she
testified consistent with her evaluation, it would not have helped Petitioner’s mitigation case.
Without a doubt, the prosecution would have emphasized the damaging ramifications of such a
diagnosis. See Wilson v. Trammell, 706 F.3d 1286, 1305 (10th Cir. 2013) (“To resolve whether
there was prejudice, we do not consider omitted mitigation evidence in a vacuum.”); Stafford v.
Saffle, 34 F.3d 1557, 1565 (10th Cir. 1994) (acknowledging that antisocial behavior plays into
the jury’s assessment of the continuing threat aggravating circumstance).
70

Petitioner makes no assertion that his antisocial behaviors can be treated or controlled.
Contra Littlejohn v. Trammell, 704 F.3d 817, 865 (10th Cir. 2013) (acknowledging that a
treatable mental health condition is powerful mitigating evidence that a defendant is not a
continuing threat). Under these circumstances, it was not unreasonable for the OCCA to
conclude that trial counsel were not ineffective for the failings Petitioner alleged.
Appellate Counsel Ineffectiveness
After examining the merits of all of Petitioner’s trial counsel claims, the OCCA
went on to find that appellate counsel was ineffective either:
[Petitioner] has not shown that trial counsel was ineffective;
therefore, he cannot show that appellate counsel was ineffective for failing
to raise these instances of ineffective assistance of trial counsel. The
majority of the evidence at issue here was discovered and presented by trial
counsel to [Petitioner’s] jury. [Petitioner] has not shown a reasonable
likelihood that the outcome of his case would have been different had trial
counsel presented the omitted evidence about Lancaster in the first stage of
trial or presented the second stage case in mitigation differently with
additional evidence. Nor has he shown a reasonable likelihood that the
outcome of his appeal would have been different had appellate counsel
raised these instances of alleged ineffective assistance of trial counsel. This
claim is denied.
Harmon, No. PCD-2008-919, slip op. at 17. Given its reasonable analysis of Petitioner’s
trial counsel claims, this determination is likewise reasonable. Therefore, for all the
reasons set forth herein, Petitioner’s Ground Eleven is hereby denied as none of his
ineffective claims have merit.

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L.

Ground Twelve:

Cumulative Error.

In Ground Twelve, Petitioner argues that he is entitled to relief on the theory of
cumulative error.29 “In some circumstances, trial errors might in isolation be
insignificant, but collectively be serious enough to deprive the defendant of fundamental
fairness. When that happens, the defendant may obtain relief on the basis of cumulative
error.” Hancock v. Trammell, 798 F.3d 1002, 1025 (10th Cir. 2015).30 Such is not the
case here. While Petitioner may not have received a perfect trial, given the overwhelming
evidence supporting both his conviction and sentence, the Court concludes that he is not
entitled to relief for any error, individually or cumulatively. Ground Twelve is denied.
V. Motions for Discovery and Evidentiary Hearing.
Petitioner has filed a motion for discovery as well as a motion for an evidentiary
hearing. Docs. 29 and 37. In order to conduct discovery, Rule 6(a) of the Rules
Governing Section 2254 Cases in the United States District Courts requires petitioner to
show good cause. In Bracy v. Gramley, 520 U.S. 899, 908-09 (1997), the Supreme Court
acknowledged that “good cause” requires a pleading of specific allegations showing a
petitioner’s entitlement to relief if the facts are fully developed.    As for an evidentiary
hearing, its “purpose . . . is to resolve conflicting evidence.” Anderson v. Attorney

29

On direct appeal and in his both of his post-conviction applications, Petitioner alleged that he
was entitled to relief on a cumulative error theory. The OCCA thrice denied this claim.
Harmon, No. PCD-2014-71, slip op. at 5; Harmon, No. PCD-2008-919, slip op. at 22; Harmon,
248 P.3d at 946-47.
30

The Tenth Circuit has recently acknowledged its “murky” position “on ‘whether the need to
conduct a cumulative-error analysis is clearly established federal law’ for AEDPA
purposes . . . .” Eizember, 803 F.3d at 1148 n.8 (quoting Hooks v. Workman, 689 F.3d 1148,
1194 n.24 (10th Cir. 2012)).
72

General of Kansas, 425 F.3d 853, 860 (10th Cir. 2005). However, if there is no conflict,
or if the claim can be resolved on the record before the Court, then an evidentiary hearing
is unnecessary. Id. at 859. Petitioner has not shown good cause to warrant discovery,
and the Court finds that an evidentiary hearing is unnecessary because all of Petitioner’s
claims can be determined on the existing record. Accordingly, both motions are denied.
VI. Conclusion.
Having rejected all of Petitioner’s grounds for relief, his Petition for Writ of
Habeas Corpus is DENIED, along with his requests for discovery and an evidentiary
hearing. Docs. 27, 29 and 37. Judgment will enter accordingly.
IT IS SO ORDERED this 14th day of November, 2016.

73