Love v. Martin

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION for 16 Report and Recommendation, the Petition is hereby DENIED. Judgment shall be enteredaccordingly. Signed by Honorable David L. Russell on 11/2/18. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LONNIE LOVE,

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) Case No. CIV-17-761-R
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Petitioner,
v.
JIMMY MARTIN, Warden,
Respondent.
ORDER

Petitioner, a state prisoner appearing pro se, filed the instant action seeking a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for
sexual abuse of a child under 12 in the District Court of Caddo County, Case No. CF-13218. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to United States Magistrate
Judge Gary M. Purcell (“Judge Purcell”) for preliminary review. On March 12, 2018, Judge
Purcell issued a Supplemental Report and Recommendation (“Report”) wherein he
recommended the Petition be denied. See Doc 16. The matter is currently before this Court
on Petitioner’s timely objection to the Report, giving rise to the Court’s obligation to
undertake a de novo review of those portions of the Report to which Petitioner makes
specific objection. See Fed. R. Civ. P. 72(b)(3). Having conducted this de novo review, the
Court ADOPTS Judge Purcell’s Report and Recommendation.
Petitioner’s objection primarily consists of his argument that the instant proceedings
violate his due process rights because this Court denied his Motions for Further Expansion

of the Record, to Defer Briefing Time, and to Show Cause. Docs. 19–22. In his Motion for
Further Expansion of the Record and his Objection, Petitioner requests the entire trial
transcript because Respondent included only those transcript excerpts he deemed relevant
in his response. Petitioner relies in part on 10th Cir. R. 10.1(A)(1)(a), which notes that,
“[w]hen sufficiency of the evidence is raised, the entire relevant trial transcript must be
provided.” This rule, however, states an appellant’s duty to provide a record to the appellate
court; it does not govern the duties of Respondent in filing his response before this Court.
See Rule 5(c) of the Rules Governing Section 2254 Cases in United States District Courts
(“The respondent must attach to the answer parts of the transcript that the respondent
considers relevant.”); see also Bagby v. Jones, 495 F. App’x 860, 862 (10th Cir. 2012).
Further, as the Court noted in its Order denying Petitioner’s Motion for Further
Expansion of the Record, “an indigent § 2254 petitioner does not have a constitutional right
to access a free transcript in order to search for error,” and Petitioner “must demonstrate
that his claim is not frivolous” before he is entitled to a transcript. Ruark v. Gunter, 958
F.2d 318, 319 (10th Cir. 1992), quoted in Doc. 22, at 1–2 (citations omitted); see also
Harmon v. Hightower, 149 F. App’x 742, 744 n. 1 (10th Cir. 2005) (“[A] state prisoner
petitioning for a writ of habeas corpus does not have a constitutional right to access a free
transcript in order to search for error. [A petitioner] must establish that his claim is not
frivolous before a court is required to provide him a free transcript. . . . We further note
that the magistrate judge and district court had the benefit of reviewing the entire record of
[petitioner’s] trial in evaluating his claims.” (internal quotation marks omitted)); Sweezy v.
Ward, 208 F.3d 227, 2000 WL 192904, at *2 (10th Cir. Feb. 17, 2000) (Table) (“Sweezey
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argues in his first issue that he was unconstitutionally denied a trial transcript to aid in his
§ 2254 petition. . . . [T]here is no constitutional right to a free transcript on habeas for the
purpose of searching for error. . . . [Petitioner] merely asserts that he needs the transcript
to search for other possible claims. Such naked allegations are not cognizable under § 2254,
and we are not compelled to allow [petitioner] to conduct a search for error.” (internal
quotation marks and citations omitted)).
Petition has shown no need for a free copy of the full trial transcript. First, the Court
has already ruled on this issue—Petitioner demonstrated no need then, and he demonstrates
no need now. See Order, Doc. 22 (“Petitioner is not entitled to a second bite at the apple or
to go on a fishing expedition.”). Second, Petitioner knew of this “piece-meal record” he
decries in his Objection before Judge Purcell issued his Report. He received Respondent’s
response—to which portions of the record deemed relevant by the Respondent were
attached—and was given until November 6, 2017, to reply. See Doc. 12, at 64; Order, Doc.
15 (“Petitioner may reply to the Response . . . on or before November 6th, 2017.”).
Petitioner could have raised his concerns then, but he declined the opportunity to reply.
Raising the issue now—months after Judge Purcell’s Report and this Court’s order denying
Petitioner’s Motion for Further Expansion of the Record—is unavailing. What’s more,
Respondent complied with his obligations: he was required to file, with his response, a
copy of the relevant portions of the transcript, which he did. See Rule 5(c), Rules
Governing Section 2254 Cases in United States District Courts. And, finally, the Court
possesses and has reviewed the entire trial transcript, ameliorating at least some (if not all)
of Petitioner’s concerns. In sum, Petitioner enjoys no absolute entitlement to the transcript,
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and he has made no showing that he is so entitled in this case.1 Accordingly, the Court
turns to Petitioner’s objections to Judge Purcell’s Report.
As stated, the Court “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3) (emphasis added);
see also Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988)
(“[O]nly those issues fairly raised by the objections to the magistrate’s report are subject
to review in the district court . . . .”). Petitioner acknowledges that, by dedicating the bulk
of his Objection to relitigating his Motion for Further Expansion of the Record, he “may .
. . be taking a risk . . . in preserving [his] substantive claims before this [C]ourt,” though
he “do[es] not wish to waive any of [his] rights to object.” Doc. 23, at 2 (emphasis omitted).
Despite the disclaimer, Petitioner spends several pages objecting to Judge Purcell’s
disposition. But even construing Petitioner’s Objection liberally, see Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991), Petitioner objects only to Judge Purcell’s disposition of
his (1) sufficiency of the evidence claims, (2) ineffective assistance of counsel claim, and
(3) cumulative error claim—and even then, only obliquely.2
As the Oklahoma Court of Criminal Appeals (“OCCA”) ruled on all of Petitioner’s
grounds for relief, the Court’s review is limited: Petitioner is not entitled to habeas relief

1
Indeed, Petitioner seems to inadvertently concede this in a footnote. See Doc. 23, at 3 n. 3 (“These missing
portions of the Record may have valuable information pertinent to Mr. Love’s Defense and prosecution of
this appeal. Are we speculating? Yes.” (emphasis added)).
2

In his habeas petition, Petitioner raised seven grounds for relief: Grounds One and Four asserted
sufficiency of the evidence arguments, Ground Two asserted instructional error, Ground Three asserted
improper admission of testimonial hearsay and violation of Petitioner’s Confrontation Clause rights,
Ground Five asserted evidentiary errors, Ground Six asserted ineffective assistance of counsel, and Ground
Seven asserted cumulative error. See Pet., Doc. 1. These track the grounds for relief Petitioner asserted in
his state court appeal. See Doc. 12-1.
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unless the state court’s adjudication of his claims “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law
. . . ; 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.” Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Regarding Petitioner’s
sufficiency of the evidence claims, the OCCA denied these claims under the governing
standard from Jackson v. Virginia: “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.” 443 U.S. 307, 319 (1979). Where the
state court has so considered a habeas petitioner’s sufficiency of the evidence claim, this
Court’s review, pursuant to AEDPA, is even more circumscribed—the Court asks only if
“the OCCA’s conclusion that the evidence was sufficient constituted an unreasonable
application of the Jackson standard.” Patton v. Mullin, 425 F.3d 788, 796 (10th Cir. 2005);
see also Cavazos v. Smith, 565 U.S. 1, 2 (2011). Petitioner’s objection to the Report
consists of no more than bald, non-specific assertions or reiterations of his trial transcript
argument. Thus, on de novo review, the Court finds no basis for disturbing Judge Purcell’s
well-reasoned conclusion that the OCCA’s application of Jackson was reasonable.
Judge Purcell also found the OCCA’s denial of Petitioner’s ineffective assistance of
counsel and cumulative error claims reasonable under AEDPA. Judge Purcell agreed with
the OCCA’s conclusion that Petitioner demonstrated no prejudice under the two-pronged
standard from Strickland v. Washington, 466 U.S. 668 (1984) to support his ineffective
assistance of counsel claim; likewise, Judge Purcell found the OCCA’s denial of
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Petitioner’s cumulative error claim reasonable, as the OCCA found only one harmless error
that did not deny Petitioner a fair trial. See Moore v. Reynolds, 153 F.3d 1086, 1113 (10th
Cir. 1998) (“Cumulative error analysis applies where there are two or more actual errors;
it does not apply to the cumulative effect of non-errors.”). Petitioner’s objections vis-à-vis
these two claims consist of no more than referencing the claims’ names themselves. These
are not the specific objections contemplated by the Rule, and Petitioner offers no basis
upon which to disturb Judge Purcell’s conclusions.3
Petitioner also asserts several new grounds for relief, including (1) ineffective
assistance of appellate counsel, (2) his actual innocence, (3) the fundamental miscarriage
of justice he continues to suffer, and (4) the unconstitutional vagueness of the statute under
which he was convicted. See Doc. 23, at 10–17. “[T]heories raised for the first time in
objections to the magistrate judge’s report are deemed waived.” United States v. Garfinkle,
261 F.3d 1030, 1031 (10th Cir. 2001) (citing Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996)). Moreover, several of these grounds are either inapposite here or are not proper
freestanding habeas claims when not tethered to an underlying constitutional violation. See,
e.g., Herrera v. Collins, 506 U.S. 390, 404 (1993) (The “fundamental miscarriage of justice

3
To be sure, Plaintiff asserts a claim of “ineffective assistance of Appellate Counsel” for failure to object
to “any and all testimony from Valoree Palmer,” which Petitioner argues “should have been suppressed due
to it being vindictive towards him for turning [Ms. Palmer] in to D.H.S.” Doc. 23, at 10. Petitioner raises
an ineffective assistance of appellate counsel for the first time in this objection; such a claim, consequently,
is waived. See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). To the extent this argument
pertains to Petitioner’s trial counsel, Petitioner offers no basis in this statement for the Court to disturb
Judge Purcell’s conclusions. And while Petitioner has asserted an ineffective assistance of trial counsel
claim throughout his state appeals process and this collateral review, his claim has never been based on a
theory of vindictiveness. Rather, his ineffective assistance of counsel claim has always been predicated on
an instructional error argument. See Doc. 1, at 15; Doc. 12-1, at 56–57. Thus, like ineffective assistance of
appellate counsel, this new theory is also waived. See Garfinkle, 261 F.3d at 1031.
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exception” or “claim of ‘actual innocence’ is not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.”); see also Davis v. McCollum, No. CIV-161347-R, 2018 WL 587238, at *3 n. 1 (W.D. Okla. Jan. 29, 2018).4
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Proceedings, the Court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant. A certificate of appealability may issue only if the applicant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard, the movant must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong. See United
States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013). For the reasons stated above, the
Court finds that Petitioner has not satisfied this standard and so DENIES a certificate of
appealability as to its ruling on Petitioner’s § 2254 petition.

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Petitioner also moves for appointment of counsel. See Doc. 23, at 14–16. Petitioner has no right to counsel
for habeas corpus proceedings. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 821 n. 29 (10th Cir.
1995) (citing Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994)). Where no evidentiary hearing is
warranted, the Court enjoys discretion to appoint counsel “if the interests of justice so require.” 18 U.S.C.
§ 3006A(a)(2); see also 28 U.S.C. § 2254(h). “The decision to appoint counsel is left to the sound discretion
of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1112 (10th Cir. 2001). As the Court finds
Petitioner’s claims to be meritless, it declines to appoint counsel. See Abdullah v. Norris, 18 F.3d 571, 573
(8th Cir. 1994); see also Johnson v. Avery, 393 U.S. 483, 487 (1969) (“In most federal courts, it is the
practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief
passes initial judicial evaluation and the court has determined that issues are presented calling for an
evidentiary hearing.”); Bagby, 495 F. App’x at 862 (district court was within its discretion to deny
petitioner’s request for appointment of counsel where “the issues in [the] case [were] not overly complex
and no evidentiary hearing was required.”); Kenebrew v. Dowling, No. CIV-14-654-D, 2015 WL 6438853,
at *3 (W.D. Okla. Oct. 21, 2015) (“While Petitioner expresses concern that he is not adequately prepared
to present his claims, he appears to understand the issues in the case and to have represented himself in an
intelligent manner to date.” (emphasis added)).
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Judge Purcell’s thorough Report and Recommendation, Doc. 16, is hereby
ADOPTED in its entirety and the Petition is hereby DENIED. Judgment shall be entered
accordingly.
IT IS SO ORDERED this 2nd day of November 2018.

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