Martinez v. Royal

Filing 38

ORDER granting 17 Motion for Discovery; granting 29 Motion for Hearing. Because the Court can resolve the adequacy issue as a matter of law, anevidentiary hearing is not warranted on that issue. But Petitioners request for an evidentiary hearin g on the issue of whether he can establish cause and prejudice to avoid the procedural bar of Ground One of his petition, is GRANTED.8 The Court will hold a scheduling conference with counsel for the parties to establish a schedule for discovery. Signed by Honorable Timothy D. DeGiusti on 1/2/2019. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICA ALEXANDER MARTINEZ,
Petitioner,
vs.
TERRY ROYAL,
Respondent.

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NO. CIV-16-1278-D

ORDER
Petitioner is a state prisoner seeking federal habeas relief from a state death
sentence. His petition raised several grounds for relief. He requested discovery and an
evidentiary hearing on some of those grounds, including his first.
In that first ground for relief, Petitioner contends that the jury’s sentencing
determination was tainted by the presence of a Bible in the jury deliberation room.
Through affidavits obtained from three jurors, Petitioner asserts that a Bible was provided
to the jurors by a court official and utilized by one juror who was struggling with
imposing a death sentence. This is a serious constitutional claim as it is axiomatic that a
jury should make its decision free from external influence. See Oliver v. Quarterman,
541 F.3d at 329, 334 (5th Cir. 2008) (discussing Supreme Court precedent). The Court
cannot proceed directly to the merits of the claim, however, because Petitioner did not
raise this claim to the Oklahoma Court of Criminal Appeals (“OCCA”) until his second
post-conviction application.

The Court must first decide whether the claim is

procedurally barred. The Court cannot make this determination from the pleadings,

therefore an evidentiary hearing is warranted on the limited issue of whether Petitioner
can show cause and prejudice to excuse his procedural default.
Procedural Background
Petitioner raised this claim to the OCCA in his second post-conviction application,
which was filed the same day that he filed his habeas petition. Regarding his discovery
of the claim, Petitioner stated in the application as follows:
The factual basis for this claim was not known until current habeas counsel
was able to locate and interview the three jurors . . . who provided the
information supporting this claim. As set out in the fact section, those jurors
were not located until mid-August 2017. Therefore, pursuant to Rule
9.7 (G)(3), Rules of the Oklahoma Court of Criminal Appeals this claim is
timely and can be considered in this subsequent application.
Successive Appl. for Post-Conviction Relief at 14 n.4, Martinez v. State, No. PCD-2017951 (Okla. Crim. App. Sept. 15, 2017). In the fact section, Petitioner told the OCCA that
there was “no reason to think anything improper occurred, and therefore, no reason for
direct-appeal or post-conviction counsel to have investigated the issue,” because
according to the trial transcript, when the jury asked for a Bible, the trial court
“appropriately denied that request.” Id. at 14. Petitioner continued as follows:
As an ordinary part of habeas counsel’s typical habeas investigation, and
with the intention of discussing other issues with the jury, habeas counsel’s
investigator was able to locate and interview the jurors discussed below. In
the course of discussing those other issues with the jurors, the investigator
learned about the presence of a Bible in the jury room during deliberations
and the effect that Bible had on the decision of at least some of the jurors. It
is now known that despite the court’s denial of the jury’s request, a Bible
was indeed provided to the jury and was consulted and relied upon in
arriving at the jury’s death verdict.
2

Id. at 15. In his request for an evidentiary hearing, Petitioner asserted that the record
before the OCCA was sufficient to decide the merits of the claim. However, Petitioner
additionally stated that “[i]f the [OCCA] believes further evidence is necessary to resolve
the claim, then [Petitioner] respectfully requests an evidentiary hearing to address these
issues, as well as any procedural concerns the [OCCA] may have.” Mot. for Evidentiary
Hr’g at 1-2, Martinez v. State, No. PCD-2017-951 (Okla. Crim. App. Sept. 15, 2017).
The OCCA refused to review the merits of Petitioner’s claim because he failed to
satisfy the requirements for claims raised in a second post-conviction application.
Pursuant to OKLA. STAT. tit. 22, § 1089(D)(8) (2011),
if a subsequent application for post-conviction relief is filed after filing an
original application, the Court of Criminal Appeals may not consider the
merits of or grant relief based on the subsequent ... application unless:
the application contains claims and issues that have not been and could not
have been presented . . . in a previously considered application filed under
this section, because the legal basis for the claim was unavailable, or
a. (1) the application contains sufficient specific facts establishing that the
current claims and issues have not and could not have been presented...
in a previously considered application filed under this section, because
the factual basis for the claim was unavailable as it was not
ascertainable through the exercise of reasonable diligence on or before
that date, and
(2) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for the alleged error, no reasonable fact
finder would have found the applicant guilty of the underlying offense
or would have rendered the penalty of death.
Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App.
(2008), also states in pertinent part that “[n]o subsequent application for post-conviction
3

relief shall be considered by [the OCCA] unless it is filed within sixty (60) days from the
date the previously unavailable . . . factual basis serving as the basis for a new issue is . . .
discovered.” Relying on these provisions, the OCCA found the claim procedurally
barred because “Petitioner [failed to] establish[] that the factual basis of his claim about
the Bible’s presence or use by one or more jurors during penalty-phase deliberations
could not have been ascertained through the exercise of reasonable diligence prior to
filing Petitioner’s original application in June, 2015, or even before filing his brief on
direct appeal.” Martinez v. State, No. PCD-2017-951, slip op. at 4-5 (Okla. Crim. App.
Oct. 17, 2017).
Based on Petitioner’s presentation of the claim to the OCCA and the OCCA’s
denial of relief based on procedural grounds, Respondent asserts that this Court should
procedurally bar the claim. See McCormick v. Parker, 821 F.3d 1240, 1245 (10th Cir.
2016) (“[P]rocedural default is an affirmative defense.”); Fairchild v. Workman, 579 F.3d
11134, 1143 (10th Cir. 2009) (“The state bears the initial burden of pleading the
procedural bar as an affirmative defense.”).1 Petitioner makes two arguments against the
application of a procedural bar to his Ground One.

He asserts that (1) the bar is

inadequate and (2) there is cause and prejudice to excuse his default. He has requested an
evidentiary hearing on these two matters.2

1

Contrary to Petitioner’s assertion, the Court finds that Respondent adequately raised the
defense in his response.
2

Petitioner requests evidentiary hearings on other matters in his habeas petition, but the Court
will not address those requests at this time.
4

Standard for Evidentiary Hearing
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
precludes an evidentiary hearing were the petitioner “fails to develop the factual basis of
a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). It is unsettled whether this
provision applies to evidentiary hearings on whether a petitioner can avoid a state
procedural bar, but three circuits have found that it does not. See Dickens v. Ryan, 740
F.3d 1302, 1328 (9th Cir. 2014); Henry v. Warden, Ga. Diagnostic Prison, 750 F.3d
1226, 1231-32 (11th Cir. 2014); Cristin v. Brennan, 281 F.3d 404, 416-17 (3d Cir. 2002).
The reasoning is persuasive.

First, § 2254(e)(2), by its plain language, applies to

“claims.” An argument that a petitioner can avoid a state procedural bar is not a claim,
but rather an attempt to avoid a judge-made rule. See Woodford v. Ngo, 548 U.S. 81, 91
(2006) (“[H]abeas law includes the judge-made doctrine of procedural default”);
Coleman v. Thompson, 501 U.S. 722, 750 (1991) (recognizing the “cause and prejudice”
exception to procedural default). Second, allowing an evidentiary hearing on cause and
prejudice does not undermine the interests of comity and the need for state courts to
address errors in the first instance. Petitioners have no reason to develop facts in state
proceedings that would allow them to avoid procedural default at the federal habeas level.
Since § 2254(e)(2) does not apply, the Court looks to the pre-AEDPA standard for
obtaining an evidentiary hearing. See Barkell v. Crouse, 468 F.3d 684, 693 (10th Cir.
2006) (pre-AEDPA standard applies to evidentiary hearings when § 2254(e)(2) does not

5

apply).

Under that standard, federal courts have plenary power over habeas matters, and

the decision of whether to hold an evidentiary hearing is within the Court’s discretion.
Townsend v. Sain, 372 U.S. 293, 318 (1963) (overruled on other grounds).
Analysis
The issue before the Court is whether Petitioner is entitled to an evidentiary
hearing to determine whether the Oklahoma procedural bar is adequate and whether he
has established cause and prejudice to avoid the procedural bar. The Court decides that
an evidentiary hearing is not needed to determine that the procedural bar is adequate, but
does conclude that an evidentiary hearing is warranted to determine whether Petitioner
can establish cause and prejudice to avoid procedural default of his claim in Ground One.
1. Adequacy
A state court rule is adequate if it is firmly established and regularly followed.
Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016); Beard v. Kindler, 558 U.S. 53, 60 (2009).
As the Tenth Circuit has repeatedly upheld the OCCA’s application of a procedural bar to
claims raised in a second or subsequent post-conviction application,3 Petitioner does not
present a routine challenge to the adequacy of the rule. Instead, he claims that like the

3

See Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015)(“We have previously held that
the OCCA’s ban on successive post-conviction applications is ... a firmly established and
consistently followed rule.”); Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012) (“We
have repeatedly held that Oklahoma’s procedural default rule meets the adequacy requirement.”);
Spears v. Mullin, 343 F.3d 1215, 1254-55 (10th Cir. 2003) (“[W]e have previously upheld the
adequacy of this particular Oklahoma procedural rule”); Medlock v. Ward, 200 F.3d 1314, 1323
(10th Cir. 2000) (“[W]e have held that Oklahoma’s procedural bar to claims not raised on initial
post-conviction review is independent and adequate.”).
6

petitioner in Lee v. Kemna, 534 U.S. 362 (2002), his case is exceptional and he asks the
Court to find the rule inadequate as applied to his particular claim and circumstances.
In Lee, the petitioner made an oral request for a continuance in the midst of trial
because his alibi witnesses, who had been present that very day at the courthouse, had
inexplicably disappeared. The trial court denied the motion on substantive grounds. No
procedural deficiencies were raised or addressed. On appeal, however, the state appellate
court found that the trial court’s denial was proper because Lee had failed to comply with
a state court rule which required motions for continuance to be made in writing. The
Supreme Court found that the state court’s application of this procedural rule in this
instance was inadequate to bar federal habeas review. Id. at 365-367.
Although the Supreme Court acknowledged the general rule that firmly
established and regularly followed state court rules will “ordinarily” bar federal habeas
review, it held that “[t]here are, however, exceptional cases in which exorbitant
application of a generally sound rule renders the state ground inadequate to stop
consideration of a federal question.” Id. at 376. The Court then found that Lee fell
“within th[is] small category of cases” because (1) the trial court’s ruling was not based
upon Lee’s failure to file a written motion and there was no indication that a written
motion would have changed the trial court’s ruling; (2) state law did not demand strict
compliance with the rule “in the urgent situation Lee’s case presented”; and (3) Lee
“substantially complied” with the rule as only a “[f]ew transcript pages need be read to
reveal the information called for by [the rule].” Id. at 381-87.
7

Petitioner contends that as in Lee, he also substantially complied with the OCCA’s
rule regarding claims raised in a second post-conviction application by (1) advising the
OCCA that the factual basis of his claim was unknown until his habeas counsel’s
investigator was able to locate and interview the jurors and (2) requesting an evidentiary
hearing if the OCCA needed any more information to address any procedural concerns it
may have had.

Because he was not afforded an evidentiary hearing, Petitioner

additionally asserts that the OCCA denied him a meaningful review of his claim.4
Section 1089(D)(8)(b)(l)5 required Petitioner to allege “sufficient specific facts” to
show that “the factual basis for the claim was unavailable as it was not ascertainable
through the exercise of reasonable diligence on or before that date.” As Respondent has
pointed out, Petitioner’s application did not address the unavailability of the claim. It
also did not address the matter of due diligence. Petitioner did not disclose any efforts
that were made by him (or prior counsel) to discover any jury irregularities, but stated
only that he had recently, and fortuitously, stumbled upon the information supporting his
claim. This does not constitute substantial compliance. In order to show that his claim

4

Petitioner cites to Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994), for the proposition that
an opportunity for a meaningful review is a part of the adequacy question. Brecheen concerned
ineffective assistance of counsel claims and the “countervailing concerns unique” to those
claims. Brecheen, 41 F.3d at 1363-64. Petitioner does not raise an ineffective assistance of
counsel claim with respect to his Ground One. Regardless, Petitioner was not denied a
meaningful opportunity to present his Ground One. As discussed herein, Petitioner was unable to
obtain a merits review because his post-conviction application did not allege sufficient facts to
allow the OCCA to reach the claim.
5

OKLA. STAT. tit. 22, § 1089(D)(8)(b)(1) (2011).

was one that could be considered in a second post-conviction application, Petitioner was
required to show in his application that the claim was one he could not have previously
discovered with the exercise of due diligence. He failed to do so before the OCCA.6
Petitioner does not state why he did not or could not comply with the OCCA’s
pleading requirement. Instead he claims that by seeking an evidentiary hearing, he
offered to address any procedural concerns the OCCA may have had and he faults the
OCCA for not taking him up on his offer. The Court finds no merit to this argument. The
OCCA’s pleading requirement is not unclear, onerous, or unreasonable, and Petitioner
has no excuse for failing to meet it. Petitioner cannot withhold information which would
excuse his late presentation of the claim and then determine the manner in which he
would like to present it. Unlike the circumstances in Lee, Petitioner did not substantially
comply with the OCCA’s requirement to plead sufficient facts to justify a merits review
of his claim in a second post- conviction application.
Petitioner’s case does not involve unique and/or unusual circumstances which
align it with Lee. Petitioner therefore fails to show that the OCCA’s application of §
1089(D)(8) (and Rule 9.7(G)(3)) is inadequate as applied to his case.
2. Cause and Prejudice
Petitioner can avoid the application of a procedural bar to his claim if he can show
cause and prejudice. See Coleman, 501 U.S. at 750 (“In all cases in which a state
6

This conclusion should not be confused with the issue of whether Petitioner can show that the
facts that gave rise to Ground One were reasonably available to him before his second postconviction application. This conclusion only applies to whether Petitioner met the pleading
standard of the OCCA.

prisoner has defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law . . . .”). The Supreme Court has explained cause as
follows:
the existence of cause for a procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s procedural
rule. Without attempting an exhaustive catalog of such objective
impediments to compliance with a procedural rule, we note that a showing
that the factual or legal basis for a claim was not reasonably available to
counsel . . . or that some interference by officials . . . made compliance
impracticable, would constitute cause under this standard.
Murray v. Carrier, 477 U.S. 478, 488 (1986) (quotation marks and citations omitted).
Whether cause and prejudice exists is a question of federal law. Id. at 489.
Petitioner asserts that given events at trial, no one had reason to believe that
anything improper occurred in jury deliberations. In this regard, the trial transcript
reflects that the jury sent out a note during second stage deliberations asking for a Bible.
The trial court denied the request by telling the jury that it had all the law and evidence it
needed to arrive at a verdict. Trial Tr. vol. XII at 30. But based on information recently
provided by a juror, Petitioner contends that a court official, presumably the bailiff,
provided the jury a Bible.

[Doc. #16-2].

Petitioner’s cause, therefore, is that he

reasonably relied on the trial court’s ruling that the jury would not be provided a Bible
and that the violation of this order by a court official was an external impediment to his

discovery of the claim.
If the facts show that the bailiff did provide the jurors a Bible after the trial judge
denied their request, Petitioner could very likely establish cause for avoiding the
procedural default. First, it would seem that the factual basis for this claim was not
reasonably available to counsel before the second post-conviction application.

The

record shows that the jury requested a Bible, and the court declined that request. There
was no other indication of misconduct. If, in fact, the bailiff provided the jury a Bible,
there is nothing in the record that would suggest counsel should have known of that fact.
And while interviewing jurors may be a helpful endeavor, and in certain circumstances
even vital, there is no blanket rule that counsel should interview jurors in the absence of
evidence of impropriety. See Sallie v. Humphrey, No. 5:11-CV-75 (MTT), 2013 WL
4011009 at *8 (M.D. Ga. Aug. 6, 2013) (finding that Williams v. Taylor, 529 U.S. 420,
442 (2000), “stands for the proposition that there is not a general duty to investigate the
background of every juror.”). Whether counsel should have investigated in this situation
is a highly fact-specific inquiry, weighing in favor of an evidentiary hearing.
Second, the evidence may also show that state officials impeded Petitioner’s
ability to bring this claim prior to his second application for post-conviction relief. The
Eleventh Circuit has found that concealment by state officials can serve as such an
impediment. In Ward v. Hall, that Circuit determined the petitioner established cause for
the procedural default by establishing that during deliberations, the jury asked the bailiff
about parole, a question that jurors were not to consider during deliberations. 592 F.3d

1144, 1177 (11th Cir. 2010). The Circuit found that since neither the bailiff nor the trial
court informed the attorneys of the question or the response, the state had concealed the
jury’s question, providing cause for avoiding the default. Id. at 1176.
Ward is persuasive here. If the evidence shows that the bailiff provided the Bible
without informing the parties, Petitioner may be able to establish the type of impediment
found in Ward. These factual questions cannot be resolved on the record as it now exists.
As these factual disputes prevent the Court from determining, as a matter of law, whether
there is cause to avoid the procedural bar, an evidentiary hearing is warranted.7
An evidentiary hearing is also warranted to determine whether Petitioner can
establish prejudice stemming from the alleged use of the Bible in jury deliberations.
There is nothing in the record at this point to indicate that the use of the Bible actually
changed a juror’s mind, and Fed. R. Evid. 606(b) does not allow jurors to testify about
their subjective considerations during deliberations. But there is certainly evidence that a
Bible was introduced into the deliberations. How the Bible came to be in the room and
how it was used are both factual issues relevant to whether petitioner suffered prejudice.
Limited discovery and an evidentiary hearing are necessary to clarify the prejudice issue.

7

The evidentiary hearing will likely include limited discovery. Petitioner has submitted a
motion for discovery related to various claims. [Doc. #17]. Two requests relate directly to
Ground One. They are an interrogatory related to identifying the individual who had contact
with the jury and a request to depose that individual. The two requests are granted. The
remainder of the motion for discovery remains for resolution at a later time.

Conclusion
Because the Court can resolve the adequacy issue as a matter of law, an
evidentiary hearing is not warranted on that issue.

But Petitioner’s request for an

evidentiary hearing on the issue of whether he can establish cause and prejudice to avoid
the procedural bar of Ground One of his petition, is GRANTED.8 The Court will hold a
scheduling conference with counsel for the parties to establish a schedule for discovery,
briefing, and other matters.
IT IS SO ORDERED this 2nd of January, 2019.

8

The parties should assume that, if Petitioner is able to overcome the procedural bar, the Court
will consider the evidence from the evidentiary hearing in determining the merits of Petitioner’s
Ground One. The parties should therefore be prepared to present all relevant evidence regarding
that claim.