Hill v. State of Oklahoma
Filing
23
ORDER denying 4 Motion for Order; adopting Report and Recommendations re 19 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 1/23/2018. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TIMOTHY J. HILL,
Petitioner,
v.
JOE M. ALLBAUGH,
Respondent.
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Case No.
CIV-17-373-D
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se,1 has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, attacking his convictions and
sentences entered in Pontotoc County for child abuse and child neglect. The matter
was referred to United States Magistrate Judge Suzanne Mitchell for initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Respondent filed a
response to the Petition [Doc. No. 15] and Petitioner replied [Doc. No. 18]. On
August 22, 2017, Judge Mitchell issued a Report and Recommendation (R&R or
Report) in which she recommended that the Court deny the petition for habeas
relief [Doc. No. 19]. Petitioner timely objected to the Report [Doc. No. 22].
1
Because Petitioner is proceeding pro se, the Court reviews his objection liberally
and holds it to a less stringent standard than those drafted by attorneys. However,
the Court may not serve as Petitioner’s attorney or advance arguments on his
behalf and search the record for him. Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). A petitioner’s pro se status does not entitle him
to application of different rules. See id.
The Court has read the Report and conducted a de novo review of the
relevant filings. Based upon this review, and as set forth more fully below, the
Court accepts the Report and adopts it as the ruling of this Court.
BACKGROUND
Petitioner lived in Ada, Oklahoma with Staci Lewis and their three-month
old daughter, TH. On June 5, 2012, Ms. Lewis brought TH to the hospital,
claiming that three days earlier, she accidently hit the infant’s head on a door
frame. The attending physician observed the baby’s movements and the child was
transported to Children’s Hospital in Oklahoma City, Oklahoma, where she arrived
weighing 8 pounds, eight ounces, putting her in only the 3rd percentile on infant
growth charts. At Children’s Hospital, tests revealed TH suffered from subdural
hematomas, subarachnoid bleeds, areas of “traumatic infarction” or “traumatic
stroke” (i.e., “damaged brain tissue”), and “extensive multi-layer retinal
hemorrhages involving both eyes.” TH also had multiple fractures to her ribs, tibia,
and distal femur, which were deemed to have occurred at different times.
Dr. John Stuemky, M.D. attested that TH’s brain injuries were significant
and resulted in 20% to 30% of her brain dying. He testified that her head injuries
were a “marker” for “shaken babies.” He further stated that TH’s leg fractures were
caused by pulling, jerking, or twisting, a “classic physical abuse finding,” and her
ribs had been fractured by “squeezing.” Dr. Stuemky stated that TH’s injuries were
2
not consistent with an accident and could not explain her retinal hemmoragges and
fractures. In summary, Dr. Stuemky opined that TH had been subjected to
“fantastic forces” over an ongoing period of time and had been the victim of
“multiple shaking incidents.” With respect to TH’s nutrition, Dr. Stuemky stated
that TH exhibited symptoms of “failure to thrive” and notes she began to gain
weight under routine care while in the hospital. TH’s temporary foster mother also
testified that TH gained weight while in her care.
Petitioner was charged with felony child abuse by failure to protect (Count
One), in the alternative, felony child abuse by injury (Count Two), and felony child
neglect (Count Three). A jury acquitted Petitioner of Count Two, but found him
guilty of felony child abuse by failure to protect and felony child neglect. He was
sentenced to two consecutive thirty-five year sentences. The Oklahoma Court of
Criminal Appeals (OCCA) affirmed the conviction and a subsequent application
for post-conviction relief was denied by the trial court. The OCCA denied
Petitioner’s post-application appeal. This action followed.
Petitioner raised three claims for relief: (1) the OCCA failed to fully address
his claims in violation of the Sixth and Fourteenth Amendments; (2) ineffective
assistance of counsel (trial and appellate); and (3) insufficient evidence.2 After
2
Judge Mitchell found that Petitioner’s allegations did not assert an independent
claim for prosecutorial misconduct. Petitioner does not object to this finding and
3
denying Petitioner’s request for an evidentiary hearing, Judge Mitchell
recommended that the Court reject Petitioner’s first claim for relief. Judge Mitchell
noted that challenges to state post-conviction procedures are not cognizable in
habeas proceedings, but nevertheless found that the OCCA properly addressed
Petitioner’s ineffective counsel claims. R&R at 11. As to Petitioner’s claim of
ineffective assistance of counsel, Judge Mitchell found that, under clearly
established law, Petitioner failed to meet the standard governing ineffective
assistance claims set forth in Strickland v. Washington, 466 U.S. 668 (1984)—
namely, that his trial counsel’s failure to object to certain statements by the
prosecution or his appellate counsel’s failure to argue his trial counsel was
ineffective—was deficient or he was prejudiced by counsel’s performance. See id.
at 14-21. Lastly, with respect to Petitioner’s claim of insufficient evidence, Judge
Mitchell found that, under clearly established law, a rational trier of fact could
conclude Petitioner willfully or maliciously failed to protect TH from child abuse
and neglected her proper nutrition. See id. at 24. Accordingly, Judge Mitchell
recommended that the Court find the OCCA reasonably applied federal law in
rejecting the foregoing claims and deny Petitioner’s petition for habeas relief. See
id. at 11, 24. Petitioner timely objected to the Report.
the Court, based on its de novo review, finds that this conclusion is supported by
the record.
4
STANDARD OF DECISION
The Court must review de novo any part of a magistrate judge’s report and
recommendation to which a proper objection has been made. 28 U.S.C. §
636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Upon the exercise of such review, the Court
may accept, reject, or modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with instructions. See id. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires district
courts to apply a “difficult to meet and highly deferential standard” in federal
habeas proceedings under 28 U.S.C. § 2254. Newmiller v. Raemisch, 877 F.3d
1178, 1194 (10th Cir. 2017). This standard “demands that state-court decisions be
given the benefit of the doubt.” See id. (quoting Cullen v. Pinholster, 563 U.S. 170,
181 (2011)). A petitioner is entitled to federal habeas relief under § 2254 only if
the state court’s merit-based decision 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.
28 U.S.C. § 2254(d)(1)-(2).3
3
“Section 2254(d)(1)’s reference to clearly established Federal law, as determined
by the Supreme Court of the United States refers to the holdings, as opposed to the
dicta, of the Court’s decisions as of the time of the relevant state-court decision.
5
A state-court decision is “contrary to” the Supreme Court’s clearly
established law if it “applies a rule that contradicts the governing law set forth in
Supreme Court cases” or if it “confronts a set of facts that are materially
indistinguishable from a decision of the Court and nevertheless arrives at a result
different from that precedent.” Newmiller, 877 F.3d at 1194 (quoting Williams v.
Taylor, 529 U.S. 405, 406 (2000) (paraphrasing omitted)). A state-court decision is
an “unreasonable application” of clearly established Supreme Court law if the
decision “correctly identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.” Newmiller, 877 F.3d at 1194 (quoting
Williams, 529 U.S. at 407-08). “[A]n unreasonable application of federal law is
different from an incorrect application of federal law.” See id. at 1195 (quoting
Williams, 529 U.S. at 410). Thus, federal habeas relief may not be granted simply
because the district court concludes that the state court’s decision erroneously or
incorrectly applied clearly established federal law—the application must also be
unreasonable.” See id.
Even where the state court does not explain its decision, a petitioner must
still show that “there was no reasonable basis for the state court to deny relief.” See
Federal courts may not extract clearly established law from the general legal
principles developed in factually distinct contexts, and Supreme Court holdings
must be construed narrowly and consist only of something akin to on-point
holdings.” Newmiller, 877 F.3d at 1194 (internal quotation marks, citations, and
paraphrasing omitted).
6
id. (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). A court “must
determine what arguments or theories supported or ... could have supported[ ] the
state court’s decision.” See id. (quoting Harrington, 562 U.S. at 102). The court
must then ask “whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of [the]
Court.” See id. (quoting Harrington, 562 U.S. at 101). Consequently, a strong case
for habeas relief does not necessarily mean the state court’s conclusion was
unreasonable. See id.
Lastly, the Supreme Court has also stated § 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.” Newmiller,
877 F.3d at 1195 (quoting Harrington, 562 U.S. at 102-03). “Thus, ‘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.’” See id. (quoting Harrington, 562 U.S. at 103). “If [it seems like]
this standard is difficult to meet, that is because it was meant to be.” See id.
(quoting Harrington, 562 U.S. at 102) (paraphrasing in original). “At all times,
‘[t]he petitioner carries the burden of proof.’” See id. (quoting Pinholster, 563 U.S.
at 181).
7
DISCUSSION
I.
PETITIONER’S MOTION TO VACATE
At the onset, Petitioner moves to strike the R&R on that basis that, in his
view, the Magistrate Judge exceeded her jurisdiction by taking on “the theatrical
role of a party” in analyzing his claims. The Court finds no merit to this contention.
The Magistrate Judge correctly evaluated Petitioner’s claims under controlling
federal precedent and was required to view the evidence leading to his conviction
in the light most favorable to the prosecution. Petitioner’s repeated accusations that
the Magistrate Judge assumed the role of an advocate in reviewing his claim finds
no support in the record, and his Motion to Vacate the Report and
Recommendation is denied.
II.
THE REPORT AND RECOMMENDATION4
A.
Ineffective Assistance of Counsel
Petitioner contends his attorney was ineffective in the following ways: (1)
failing to investigate and call Staci Lewis as a witness; (2) failing to object to
4
Petitioner also objects to Judge Mitchell’s refusal to construe his petition as
raising an independent habeas claim based on actual innocence. But as Judge
Mitchell noted, this claim was unexhausted and cannot form an independent basis
for federal habeas relief. Slinkard v. McCollum, 675 F. App’x 851, 855 (10th Cir.
2017) (unpublished); Brown v. Oklahoma, 291 F. App’x 907, 909 (10th Cir. 2008)
(unpublished) (“[T]he demonstration of actual innocence merely provides a
gateway to allow federal habeas review of a procedurally defaulted claim. It is not
itself a basis upon which habeas relief may be granted.”) (citing Herrera v. Collins,
506 U.S. 390, 405 (1993)). Petitioner’s objection is overruled.
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certain instances of “prosecutorial misconduct.”5 The OCCA found Petitioner’s
claims to be without merit. Under clearly established law, a successful claim of
ineffective assistance of counsel must meet the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show his
counsel’s performance was deficient in that it “fell below an objective standard of
reasonableness.” See id. at 688. Second, the defendant must show that his
counsel’s deficient performance actually prejudiced his defense. See id. at 687.
This means that “[u]nder Strickland, [a court must] first determine whether
counsel’s representation ‘fell below an objective standard of reasonableness.’ Then
[it asks] whether ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014) (quoting Padilla v. Kentucky, 559
U.S. 356, 366 (2010)). Strickland mandates that the Court be “highly deferential”
in its review of counsel’s performance and “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Strickland, 466 U.S. at 689.
5
Judge Mitchell also rejected Petitioner’s claims of ineffective appellate counsel.
Petitioner does not contest this ruling in his Objection; therefore, the Court will not
consider it. See Fed. R. Civ. P. 72(b)(3)(noting district court is required to
determine de novo any part of the R&R “that has been properly objected to.”)
(emphasis added); see also Burke v. Town of Walpole, 405 F.3d 66, 71 n. 2 (1st
Cir. 2005) (“[O]nly those issues fairly raised by the objections to the magistrate’s
report are subject to review in the district court and those not preserved by such
objection are precluded on appeal.”).
9
Coupled with the AEDPA’s standard of review, “[s]urmounting Strickland’s
high bar is never an easy task,” and “[e]stablishing that a state court’s application
of Strickland was unreasonable under § 2254(d) is all the more difficult.” Sedillo v.
Hatch, 445 F. App’x 95, 98 (10th Cir. 2011) (unpublished) (quoting Harrington v.
Richter, 562 U.S. 86, 105 (2011)).
1)
Staci Lewis
Petitioner contends trial counsel’s performance was deficient by failing to
call Staci Lewis and introduce her testimony that she injured TH on previous
occasions and hid the abuse from him. Petitioner contends trial counsel committed
“grave unprofessional error” by attempting to admit out of court statements made
by Ms. Lewis rather than calling her directly. Specifically, Petitioner states trial
counsel was ineffective in failing to present the following evidence: (1) a recorded
interview in which Ms. Lewis admitted to injuring TH and dropping TH in the
shower and catching her by the leg; (2) letters from Ms. Lewis wherein she
admitted to harming TH; (3) Ms. Lewis’ apologies for hiding the abuse from
Petitioner; and (4) Ms. Lewis’ “erratic behavior” upon being released on bond.
According to Petitioner, his “entire defense was founded upon [trial counsel]
presenting the evidence of Ms. Lewis confessing to the abuse and hiding the abuse
from him.” Obj. at 6.
10
The Court finds the OCCA’s decision to deny Petitioner’s ineffective
assistance of counsel claim did not violate clearly established federal law. As
indicated above, the question “is not whether a federal court believes the state
court’s determination” under Strickland “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). And, because the Strickland standard is a
general standard, a state court has even more latitude to reasonably determine that
a defendant has not satisfied that standard. Knowles v. Mirzayance, 556 U.S. 111,
123 (2009); Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012).
The OCCA reasonably could have concluded defense counsel’s performance
was not deficient. The jury heard testimony from state investigators who
interviewed Ms. Lewis. The investigators relayed Ms. Lewis’ confessions whereby
she admitted to hitting TH’s head against a door frame and hiding that abuse from
Petitioner. The jury also heard evidence that Ms. Lewis pled guilty to child abuse
and neglect and that TH’s abuse had been ongoing. On this issue, the Court cannot
unequivocally find that Counsel’s failure to admit similar evidence regarding
Lewis’ action fell below an objective standard of reasonableness. Moreover, in
light of the aforementioned evidence concerning Ms. Lewis, the Court cannot also
say that the result of the trial would have been different had the evidence sought by
Petitioner been admitted. The jury heard evidence that Ms. Lewis had injured the
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child and hid her actions from Petitioner. Petitioner’s objections on this issue are
overruled.
2)
Prosecutor’s Statements
Petitioner alleges that the prosecutor’s comments regarding the element of
“willful and malicious”6 and TH’s condition constituted prosecutorial misconduct
during the trial. Petitioner also alleges the prosecutor unlawfully shifted the burden
of proof to Petitioner. To this end, Petitioner claims ineffective assistance of trial
counsel in failing to object to the prosecutor’s statements—statements he contends
“violated the Constitution and so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Obj. at 9.
Before the Court can assess whether counsel’s performance was deficient in
this regard, the Court must determine, as Petitioner contends, whether the
prosecutor’s remarks “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Stouffer v. Trammell, 738 F.3d 1205, 1221
(10th Cir. 2013) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986));
6
Title 21 OKLA. STAT. § 843.5 generally states that any parent or other person who
“willfully or maliciously” engages in child abuse or child neglect shall be guilty of
a felony. Under the statute, “child abuse” means, inter alia, the “willful or
malicious” failure to protect from harm the health, safety, or welfare of a child. Id.
§ 843.5(A). “Child neglect” means the “willful or malicious” neglect of a child. Id.
§ 843.5(C); see also Oklahoma Uniform Jury Instructions-Criminal (OUJI-CR) §§
4-35, 4-37. For purposes of the statute, “willful” means “a willingness to commit
the act or omission referred to.” OUJI-CR § 4-40D. “Malicious” means “a wish to
vex, annoy or injure another person.” Id.
12
Hamilton v. Mullin, 436 F.3d 1181, 1187 (10th Cir. 2006). As stated, the Court
remains mindful that an unreasonable application of federal law is different from
an incorrect application of federal law. Williams v. Taylor, 529 U.S. 362, 410
(2000). AEDPA thus prohibits the Court from treating a prosecutorial statement as
error if “there is any reasonable argument” to the contrary. Harrington v. Richter,
562 U.S. 86, 105 (2011). Because there is a reasonable argument none of the
statements were error, the Court holds the OCCA reasonably could have concluded
counsel’s performance was not deficient in this regard.
The prosecutor argued that Petitioner’s reluctance to reference TH as “the
baby”—rather than her name—and the fact Petitioner stayed in the house while
Ms. Lewis worked exhibited willful or malicious conduct. Although it is improper
for a prosecutor to misstate the law or evidence, Stouffer v. Trammell, 738 F.3d
1205, 1221 (10th Cir. 2013), a prosecutor is allowed considerable latitude in
responding to defense arguments, commenting on the evidence, and arguing
inferences therefrom. United States v. Gomez-Olivas, 897 F.2d 500, 503 (10th Cir.
1990).
With these standards in mind, the Court finds the comments in this case
were proper. The prosecutor’s statements concerning the “willful and malicious”
factor simply argued that Petitioner’s conduct satisfied that element. The
prosecutor’s statements concerning TH’s nutrition were supported by evidence
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showing that TH showed “failure to thrive” symptoms upon admittance to the
hospital, and gained weight while in the hospital and upon release to foster care.
Although Petitioner has presented what he views as conflicting evidence, the
dispositive factor at this stage of the proceedings is whether there is any reasonable
argument for the prosecutor’s statements. Here, the prosecution was permitted to
comment on the evidence and argue what it felt were reasonable inferences to
deduct from such evidence. The Court finds no error in this regard.
Lastly, the Court finds the prosecutor’s argument did not shift the burden of
proof to Petitioner in light of the trial court’s subsequent instructions to the jury
that the burden of proof is with the government. See Gomez-Olivas, 897 F.2d at
503-04. In sum, the Court finds Petitioner has not shown that the OCCA’s
conclusion that there was no ineffective assistance of counsel “was contrary to, or
involved an unreasonable application of, clearly established Federal law” under §
2254. In fact, he has not shown ineffective assistance at all.
B.
Insufficient Evidence
Petitioner lastly contends there was insufficient evidence of guilt. The
Supreme Court clearly established the constitutional right to sufficient evidence of
guilt in Jackson v. Virginia, 443 U.S. 307, 324 (1979). See Lott v. Trammell, 705
F.3d 1167, 1219 (10th Cir. 2013) (agreeing Jackson provided “the clearly
established law applicable to [an insufficient evidence] claim”). So, the question is
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“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Jackson’s standard for
evidence sufficiency “must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Id. at 324 n.16.
To convict Petitioner of child abuse by failure to protect, the State had to
prove: (1) he was a person responsible for a child’s health, safety, or welfare; (2)
he willfully/maliciously; (3) failed to protect from harm/(threatened harm) the
health, safety, or welfare; (4) of a child under the age of eighteen. OUJI-CR § 4-35.
To convict Petitioner of child abuse by failure to protect, the State had to prove: (1)
he was responsible for the child’s health, safety, or welfare; (2) Petitioner
willfully/maliciously; (3) failed/omitted to provide; (4) inter alia, either adequate
nurturance, food, care, or supervision; (5) for a child under the age of eighteen.
OUJI-CR § 4.37. As noted above, “willful” means “a willingness to commit the act
or omission referred to.” OUJI-CR § 4-40D. “Malicious” means “a wish to vex,
annoy or injure another person.” Id.
As illustrated above, viewing the evidence in the light most favorable to the
prosecution, the State provided evidence establishing that Petitioner lived with TH,
was a primary caretaker, yet TH had suffered multiple instances of shaking and
abuse, resulting in, at different times, significant injuries to her head and body.
15
When TH was admitted to the hospital, she was malnourished. This supports a
finding that Petitioner deliberately failed to protect TH from harm and provide her
with proper nurturance, food, care, or supervision. More importantly, Petitioner has
failed to show the OCCA unreasonably applied Jackson in rejecting his claim.
Accordingly, the Court finds that Petitioner’s insufficiency of the evidence claim is
without merit and his objection on this issue is overruled.
C.
Evidentiary Hearing
A district court has discretion in determining whether to allow an evidentiary
hearing on a § 2254 claim. Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010).
Because each of Petitioner’s claims can be resolved on the basis of the record
alone, the Court finds an evidentiary hearing is unnecessary. See Kinkead v.
Standifird, 502 F. App’x 792, 797 (10th Cir. 2012) (unpublished) (affirming
district court’s denial of evidentiary hearing where each of petitioner’s claim could
be resolved on existing record).
CONCLUSION
The Magistrate Judge’s Report and Recommendation is ADOPTED as set
forth herein. A judgment shall be issued accordingly.
Moreover, the Court finds a certificate of appealability (COA) should not be
issued. A COA may issue only if the petitioner “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies
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this standard by demonstrating that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further. MillerEl v. Cockrell, 537 U.S. 322, 326 (2003). Upon consideration, and for the reasons
set forth herein, the Court finds the requisite standard is not met in this case.
Therefore, a COA is DENIED.
IT IS SO ORDERED this 23rd day of January 2018.
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