Williamson v. Parker

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION for 23 Report and Recommendation in its entirety. Signed by Honorable Timothy D. DeGiusti on 11/08/16. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT WILLIAMSON,
Petitioner,
v.
DAVID PARKER,
Respondent.

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Case No. CIV-13-899-D

ORDER
Petitioner Robert Williamson was tried and convicted by jury in the District
Court of Oklahoma County, Oklahoma on three counts of lewd molestation of his
stepdaughter. After an unsuccessful appeal before the Oklahoma Court of Criminal
Appeals, Williamson filed a petition for writ of habeas corpus in this Court
pursuant to 28 U.S.C. § 2254. The matter was referred to Magistrate Judge
Suzanne Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B),
(C). On February 12, 2015, Judge Mitchell issued her Report and Recommendation
(R&R) [Doc. No. 23], which recommended that the Court deny habeas relief.
Before the Court is Williamson’s objection to the R&R.1 Specifically, he
objects to the R&R on the following grounds: (1) 12 OKLA. STAT. § 2414, which
allows introduction of propensity evidence, created fundamental unfairness at trial;
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The Court originally adopted the R&R due to lack of an objection. It subsequently
granted Williamson’s motion for relief from judgment and permitted Williamson to
file an objection out of time [Doc. No. 27]. Williamson’s objection was filed June 3,
2016 [Doc. No. 31].

(2) improper admission of propensity evidence; (3) the Magistrate Judge failed to
properly review certain evidentiary rulings made by the trial court; (4) ineffective
assistance of counsel; and (5) insufficient evidence.
As stated more fully below, the Court, exercising de novo review, overrules
Williamson’s objections and adopts the R&R in its entirety.
STANDARD OF REVIEW
In order to obtain § 2254 habeas relief with respect to claims adjudicated on
the merits in state court, a petitioner must show the state court adjudication resulted
in a decision that was either (1) contrary to clearly established federal law, as
determined by the Supreme Court of the United States, (2) involved an
unreasonable application of clearly established federal law, as determined by the
Supreme Court of the United States, or (3) based on an unreasonable determination
of the facts in light of the evidence presented in the state court proceedings. 28
U.S.C. § 2254(d)(1)-(2). A decision is contrary to federal law if the state court
applied a rule different from the governing law set forth in previous Supreme Court
cases, or if it decided a case differently than the Supreme Court has done on a set
of materially indistinguishable facts. Turrentine v. Mullin, 390 F.3d 1181, 1189
(10th Cir. 2004) (citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A decision
involves an unreasonable application of federal law if the state court correctly
identifies the governing legal principle from Supreme Court precedent, but
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unreasonably applies it to the facts of the particular case.” Id. “Habeas corpus is a
civil proceeding and the burden is upon the petitioner to show by a preponderance
of the evidence that he is entitled to relief.” Beeler v. Crouse, 332 F.2d 783 (10th
Cir. 1964) (citation omitted).
In reviewing Williamson’s objection, the Court must make a de novo
determination of any portion of the R&R to which a specific objection is made, and
may accept, reject, or modify the recommended decision in whole or in part.2
Because Williamson appears pro se, the Court construes his filings liberally.
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). The Court, however,
cannot take on the responsibility of serving as Williamson’s attorney in
constructing arguments and searching the record. Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover, the Court will not supply
additional factual allegations to round out Williamson’s petition or construct a
legal theory on his behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997).
DISCUSSION3
However, pursuant to 28 U.S.C. § 2254(d), the Court’s review of an issue
adjudicated on the merits in state court is limited to the record that was before the
state court, and such review is deferential, not de novo. Black v. Workman, 682
F.3d 880, 895 (10th Cir. 2012).

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The relevant facts have been adequately set forth in the R&R and will not be
restated here, except where necessary to address Williamson’s objections.

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I.

Propensity Evidence
Williamson’s objection largely focuses on the admission of propensity

evidence at his trial. Williamson first challenges the constitutionality of 12 OKLA.
STAT. § 2414(A),4 which is patterned after Federal Rule of Evidence 414, and
states: “In a criminal case in which the defendant is accused of an offense of child
molestation, evidence of the defendant’s commission of another offense or
offenses of child molestation is admissible, and may be considered for its bearing
on any matter to which it is relevant.” Id. At trial, the State introduced propensity
evidence that Williamson had once engaged in lewd acts with his biological
daughter, T.W., who testified that although she was mature enough to bathe
herself, Williamson continued to bathe her to the point it made her feel
uncomfortable. T.W. also testified Williamson would give her open mouth kisses
and lick her face and neck. T.W. stated Williamson’s actions made her feel
“weirded out” and that such contact was not normal. To this end, Williamson
contends that (1) § 2414 creates an “uneven playing field” and is facially
unconstitutional; (2) an underlying offense was not established so as to constitute
propensity evidence; (3) the admitted propensity evidence was irrelevant; (4) the
Although Williamson references 12 OKLA. STAT. § 2413, which, similar to §
2414, admits evidence of other sexual assaults, the OCCA and the Magistrate
Judge both noted he was actually challenging § 2414. See R&R at 17 n. 17.
Williamson’s objection again refers to § 2413; however, just as the Magistrate
Judge liberally construed his challenge as being one to § 2414, the Court construes
his objection in the same way.
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trial court failed to properly determine the admissibility of the evidence; and (5)
the jury was improperly instructed regarding propensity evidence.
Williamson’s objections on this issue raise only state law questions, which
are generally outside the province of a federal habeas court. See Romano v. Gibson,
239 F.3d 1156, 1166 (10th Cir. 2001). Williamson must show that the prejudice
flowing from the admission of propensity evidence was so great as to constitute a
denial of federal constitutional rights by rendering the trial fundamentally unfair.
Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989) (“[S]tate court rulings on
the admissibility of evidence may not be questioned in federal habeas proceedings
unless they render the trial so fundamentally unfair as to constitute a denial of
federal constitutional rights.”) (internal quotations and citations omitted); Warner
v. Workman, 814 F.Supp.2d 1188, 1223 (W.D. Okla. 2011) (same).
In light of this standard, the Court finds Williamson’s objections should be
overruled. First, § 2414 has been deemed facially constitutional by the Tenth
Circuit. See James v. Martin, 567 F. App’x 594, 597 (10th Cir. 2014)
(unpublished); compare United States v. Castillo, 140 F.3d 874, 880 (10th Cir.
1998) (holding that “Rule 414 does not on its face violate the Due Process
Clause.”). Moreover, the Supreme Court has not issued a decision that calls into
question the constitutionality of § 2414 and “[t]he absence of clearly established
federal law is dispositive under § 2254(d)(1).” Littlejohn v. Trammell, 704 F.3d
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817, 825 (10th Cir. 2013) (quoting House v. Hatch, 527 F.3d 1010, 1018 (10th Cir.
2008)). On this issue, Williamson has failed to state any grounds that would
support the requested habeas relief.
Second, the Magistrate Judge did not find the trial court failed to identify an
underlying offense; she merely noted that the trial court “did not specifically state
that Petitioner’s act of open-mouth kissing T.W. constituted a crime[.]” R&R at 20
n. 18. Indeed, the Magistrate Judge noted such act did constitute a crime that
justified the admission of propensity evidence. Id. (citing 21 OKLA. STAT. § 1123).
Williamson’s other arguments in support of this contention go to the
constitutionality of § 2414, which the Court has addressed. This contention is
overruled.
Williamson’s contention that the propensity evidence “overwhelmingly
tainted” his trial finds no support in the record. First, Williamson’s argument in
support of this proposition is generally a continuation of this argument regarding
the constitutionality of propensity statutes. Accordingly, the Court overrules such
objection on its face. See United States v. One Parcel of Real Property Known as
2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996) (An
objection must be “sufficiently specific to focus the district court’s attention on the
factual and legal issues that are truly in dispute.”). Nevertheless, the only lewd act
T.W. described was Williamson kissing her with an open mouth and using his
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tongue. The trial court instructed the jury that they could consider such testimony
for its tendency, if any, to show Williamson’s predisposition or inclination to
engage in acts of child molestation. The trial court cautioned the jury that it could
not convict Williamson solely on the basis that they believed he committed the
other offenses. The fact that such evidence may be prejudicial to Williamson does
not render it inadmissible unless it is unfairly prejudicial or otherwise
objectionable, and the record does not reflect the evidence in this case was “so
prejudicial in the context of the proceedings as a whole that [the defendant] was
deprived of the fundamental fairness essential to the concept of due process.”
United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998) (citation omitted).
Williamson next contends the trial court failed to conduct an evidentiary
hearing before the propensity evidence was admitted. Under Oklahoma law,
“propensity evidence must be proved by clear and convincing evidence and is
subject to the balancing test for all relevant evidence-whether its probative value is
substantially outweighed by its prejudicial effect.” Johnson v. State, 2010 OK CR
28, ¶ 6, 250 P.3d 901, 903 (citing Horn v. State, 2009 OK CR 7, ¶ 40, 204 P.3d
777, 786).5 At the outset, the Court overrules Williamson’s objection as he has not
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In Horn, the OCCA held:
[T]rial courts should consider, but not be limited to the following
factors: 1) how clearly the prior act has been proved; 2) how probative
the evidence is of the material fact it is admitted to prove; 3) how
seriously disputed the material fact is; and 4) whether the government
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shown that any prejudice flowing from the evidentiary ruling was so great as to
constitute a denial of federal constitutional rights by rendering the trial
fundamentally unfair. Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989).
Moreover, the record belies Williamson’s claim. The OCCA determined that “[t]he
district court substantially complied with the requirements for the admission of
propensity evidence set forth in [Horn], and ... the district court did not abuse its
discretion in admitting the propensity evidence in this case under [§ 2414].” The
Court, likewise, sees no abuse of discretion. The trial court heard extensive pretrial arguments regarding the admissibility of the evidence and subsequently ruled
the evidence probative of the issue of propensity. This contention is without merit.
Lastly, Williamson contends the trial court’s jury instructions on propensity
were unconstitutional. Specifically, he contends Instruction No. 12’s statement that
he “may have” committed another offense, as opposed to stating he “actually did”
commit an offense, “d[id] not adequately guide the discretion of the jury [and]
fail[ed] to limit the jury’s deliberation to acceptable considerations.” “To obtain
habeas relief on his jury-instruction claim, [Williamson] has to show that the
can avail itself of any less prejudicial evidence. When analyzing the
dangers that admission of propensity evidence poses, the trial court
should consider: 1) how likely is it such evidence will contribute to an
improperly-based jury verdict; and 2) the extent to which such
evidence will distract the jury from the central issues of the trial. Any
other matter which the trial court finds relevant may be considered.
Id. at 786.
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instructions were ‘so fundamentally unfair as to deprive [him] of a fair trial and ...
due process of law.’” Walker v. Allbaugh, __ F. App’x __, 2016 WL 4540811, at
*2 (10th Cir. Aug. 30, 2016) (unpublished) (quoting Nguyen v. Reynolds, 131 F.3d
1340, 1357 (10th Cir. 1997) (paraphrasing added)).
The OCCA found the jury was properly instructed concerning the use of
propensity evidence and that the “instruction was taken verbatim from the
instruction quoted with approval in [Johnson, supra]” and was “substantially
similar” to the Oklahoma uniform instruction. “The OCCA’s finding the jury
instructions accurately reflected state law is fatal to [Williamson’s] habeas claims.”
See Parker v. Allbaugh, No. CIV-16-80, 2016 WL 4005388, at *6 (W.D. Okla.
June 24, 2016) (citing Parker v. Scott, 394 F.3d 1302, 1318-19 (10th Cir. 2005);
Adkins v. Six, 320 F. App’x 850, 852 (10th Cir. 2009) (unpublished) (paraphrasing
added)). The Court, accordingly, finds the instruction was not so “fundamentally
unfair” as to deprive Williamson of a fair trial.
II.

Other Evidentiary Rulings
In addition to his challenges to the admission of propensity evidence,

Williamson contends the Magistrate Judge failed to consider numerous evidentiary
rulings by the trial court that, in his view, “rendered the trial fundamentally unfair.”
Williamson’s objection is divided into two categories: evidence excluded at trial
and evidence admitted at trial. Williamson objects to the trial court’s exclusion of
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the following evidence: (1) an acquaintance heard the victim sing the phrase “get a
new daddy”;6 (2) after the incident, his wife sent him numerous provocative
messages in an effort to rekindle their relationship; (3) the victim may have seen
videos of an explicit nature; (4) the victim often masturbated; and (5) expert
testimony that Defendant did not have the psychological makeup of a child abuser.
Williamson objects to the admission of the following evidence: (1) T.W.’s
testimony (i.e., the propensity evidence); (2) child hearsay statements; (3) res
gestae evidence; (4) explicit pictures taken from the Williamson family computer;
and (5) home videos of Williamson and his wife having sex.
A.

Excluded Evidence

The OCCA found the trial court committed no error in excluding the
foregoing evidence, with the exception of the victim singing the words to “Get A
New Daddy,” as it was relevant to bias and motive to fabricate. However, the court
found such exclusion did not materially affect the trial. The court went on to find
that the evidence admitted was relevant and proper.
As noted above, a federal court may not provide habeas relief on the basis of
state court evidentiary rulings unless they rendered the trial so fundamentally
unfair that a denial of constitutional rights results. Based on its review of the

“Get A New Daddy” is a song that, in satirical fashion, instructs children on how
they can get rid of their father by accusing him of molestation and other lewd
behavior.
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record, the Court finds that the evidentiary rulings at issue did not result in a
fundamentally unfair trial. Specifically, there was no evidence that the victim knew
the full lyrics to the song “Get A New Daddy” or that she had seen the
accompanying music video. As to Williamson’s relationship with his wife, his
attorney was allowed to introduce evidence that they had an ongoing sexual
relationship. As to the videotapes, the trial court only excluded speculation that
Williamson had been upset because some sex tapes had previously been left out in
the open. Moreover, the trial court allowed Williamson’s attorney to question his
wife about the victim’s alleged propensity to masturbate and rejected further
evidence on the grounds it was cumulative. As to the excluded expert testimony,
the trial court found such evidence invaded the province of the jury. The OCCA
affirmed this finding, as well as the others, concluding Williamson cited no
authority for the admission of an expert opinion that a defendant who is on trial for
sex crimes is or is not a pedophile. The Court finds no constitutional error in these
evidentiary rulings and finds Williamson’s objection should be overruled.
B.

Admitted Evidence

The Court reaches the same conclusion with respect the evidence admitted at
trial. The issue of T.W.’s testimony, i.e., the propensity evidence, has been
adequately discussed and will not be restated. With respect to the child hearsay
statements, the trial court conducted a pre-trial hearing regarding the admissibility
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of

such

statements

and

concluded such statements, inter alia,

were

contemporaneous to the alleged abuse, consistent, and had sufficient indicia of
reliability and trustworthiness. Williamson’s counsel cross-examined every child
hearsay witness. The OCCA determined the trial court did not err in admitting the
statements. With respect to res gestae evidence, Williamson does not cite to any
particular item of evidence he contends was improperly admitted. Construing his
argument liberally, Williamson appears to again challenge the State’s introduction
of propensity evidence, which has been addressed herein.7 As to the explicit
pictures, such evidence was deemed relevant as the victim had testified Williamson
showed her pictures of naked people. Finally, the State did not introduce evidence
of Williamson’s video tapes.
The Court finds the foregoing evidentiary rulings and occurrences did not
deprive Williamson of a fair trial and his objections relating to these issues are
denied.

Under the res gestae exception, evidence of bad acts or other crimes may also be
admissible where they form a part of an “entire transaction” or where there is a
“logical connection” with the offense charged. Eizember v. State, 2007 OK CR 29,
¶ 77, 164 P.3d 208, 230 (citation omitted). Evidence is considered res gestae
when: (1) it is so closely connected to the charged offense as to form part of the
entire transaction; (2) it is necessary to give the jury a complete understanding of
the crime; or (3) when it is central to the chain of events. Id. (citation omitted).
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III.

Ineffective Assistance of Counsel
In order to establish an ineffective assistance of counsel claim, Williamson

must show that (1) his counsel’s performance fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense. Byrd v.
Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (citing Strickland v. Washington,
466 U.S. 668, 687-88 (1984)). The failure to satisfy either prong is dispositive.
Hooks v. Workman, 689 F.3d 1148, 1186 (10th Cir. 2012). In the § 2254 context, a
petitioner faces an even greater challenge, because the federal court’s review
becomes “doubly deferential” in that it defers to (1) the state court’s determination
that counsel’s performance was not deficient and (2) the attorney’s decision in how
to best represent a client. Id. at 1187.
Williamson alleges his trial counsel was ineffective because he failed to (1)
conduct a preliminary hearing; (2) failed to interview propensity witnesses; and (3)
failed to fully challenge the propensity evidence. On this issue, the OCCA held
Williamson had shown neither that his trial counsel was ineffective at trial or in his
investigation, nor that there is a reasonable probability that the outcome of his trial
would have been different had trial counsel handled his case differently. Based on
its review of the record, the Court agrees with the OCCA’s conclusion. The record
shows Williamson’s counsel filed numerous pre-trial motions and participated in
several pre-trial hearings regarding the admissibility of certain evidence.
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Moreover, Williamson’s speculation as to what an interview of his ex-wife and
biological daughter would have revealed is speculation. In addition, Williamson
concedes that the decision not to cross-examine his ex-wife may have been
strategic. Lastly, Williamson’s counsel made substantial objections to the
propensity evidence at issue.
Based on the record, the Court finds trial counsel did not perform deficiently
with regard to pre-trial and trial matters, nor has Williamson satisfied the prejudice
prong of Strickland. Therefore, Williamson has failed to show that the OCCA’s
adjudication of these claims was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court.
IV.

Insufficient Evidence
Williamson’s final argument is that the evidence was insufficient to establish

guilt beyond a reasonable doubt as to Count One, which alleged Williamson, in
violation of 21 OKLA. STAT. § 1123(A)(5)(c), committed lewd acts by exposing his
penis to the victim and asking her if she wanted to “learn more.” The foregoing
subsection makes it a felony for any person to knowingly and intentionally, “[i]n a
lewd and lascivious manner and for the purpose of sexual gratification ... cause,
expose, force or require a child to look upon the body or private parts of another

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person[.]” Williamson contends the State failed to prove the “sexual gratification”
element beyond a reasonable doubt.
To be entitled to federal habeas relief based upon the insufficiency of the
evidence, Williamson must establish that, viewing the record in the light most
favorable to the prosecution, no rational trier of fact could have found him guilty
beyond a reasonable doubt. Hale v. Gibson, 227 F.3d 1298, 1334 (10th Cir. 2000).
There was evidence admitted at trial that Williamson licked the victim’s vagina;
masturbated before her to the point of ejaculation; placed her mouth on his penis;
and made her touch his penis. The OCCA found that the evidence, viewed in the
light most favorable to the State, was sufficient to prove beyond a reasonable doubt
that Williamson exposed himself for the purpose of receiving sexual gratification.
Utilizing the same standard, the Court concludes a rational trier of fact could have
found him guilty beyond a reasonable doubt. Therefore, Williamson has failed to
show that the OCCA’s adjudication of this claim was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court. Habeas corpus relief is denied on this issue.

CONCLUSION
The Magistrate Judge’s Report and Recommendation is ACCEPTED and
ADOPTED in its entirety as set forth herein. A judgment shall be issued forthwith.
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IT IS SO ORDERED this 8th day of November, 2016.

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