Monckton v. Bryant et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION 25 of Magistrate Judge Gary Purcell...the petition for writ of habeas corpus is denied...a certificate of appealability is also denied. Signed by Honorable Joe Heaton on 09/28/2017. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL W. MONCKTON,
Petitioner,
vs.
JASON BRYANT, Warden,
Respondent.

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NO. CIV-16-1136-HE

ORDER
Petitioner Michael W. Monckton, a state prisoner appearing pro se, filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to U.S.
Magistrate Judge Gary M. Purcell for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B) and (C). He has issued a Supplemental Report and Recommendation (the
“Report”) recommending that the petition be denied. Petitioner has objected to the Report,
triggering de novo review.
Petitioner’s objection argues that (1) the Report incorrectly determined that hearsay
evidence improperly admitted during trial was not testimonial in nature and, therefore, his
right to confront the declarant pursuant to Crawford v. Washington, 541 U.S. 36 (2004)
was not violated; (2) Judge Purcell improperly evaluated the evidence presented at trial
when making his recommendation; and (3) that the introduction of DNA evidence against
him at trial denied him a fundamentally fair trial.
Testimonial statements include in-court testimony or its functional equivalent such
as affidavits, custodial interrogations, depositions, or pretrial statements that the declarants

or an objective witness would reasonably expect to be used during a criminal prosecution.
Crawford, 541, U.S. at 50-51. Petitioner alleges that the victim’s testimony regarding her
medical diagnosis that she was suffering from Post-Traumatic Stress Disorder was
testimonial. The Report correctly concludes that the Confrontation Clause does not apply
in this instance and that Petitioner is not entitled to habeas relief on this claim. The
diagnosis made by a mental health professional to the victim was not testimonial in nature.
Petitioner’s remaining objections to the Report do not form a valid basis for
avoiding the Report’s conclusions. Any review by this court is very limited in nature and
deferential to the determinations reached in the state court. Under 28 U.S.C. § 2254(d),
relief will not be granted as to claims which were adjudicated on the merits in state court
unless the petitioner establishes (1) that the state court decision was contrary to clearly
established federal law or (2) that it “involved an unreasonable application of” such law.
Harrington v. Richter, 562 U.S. 86, 100 (2011). Petitioner’s arguments regarding the
admission of the DNA evidence and the citing of this fact in the Report do not rise to this
level. Further, Petitioner’s argument that the admission of the DNA evidence deprived him
of a fundamentally fair trial was not included in his petition. It is ordinarily inappropriate
to consider claims raised for the first time in an objection to a report and recommendation,
and no basis is shown for doing so here.
Having conducted a de novo review, the court agrees with Judge Purcell’s analysis
of Petitioner’s grounds for habeas relief.
Accordingly, the Report [Doc. #25] is ADOPTED and the petition for writ of
habeas corpus [Doc. #1] is DENIED. A certificate of appealability is also denied.
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IT IS SO ORDERED.
Dated this 28th day of September, 2017.

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