Strickland v. Allbaugh et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION 30 of Magistrate Judge Gary Purcell...after de novo review the court concludes that the petition must be denied for the reasons stated in the order and the report and recommendation...the report and recommendation is adopted...the petition for writ of habeas corpus 10 is denied. Signed by Honorable Joe Heaton on 03/23/2021. (lam)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MATTHEW SCOTT STRICKLAND,

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Petitioner,
vs.
JIMMY MARTIN,
Respondent.

NO. CIV-17-0843-HE

ORDER
Petitioner Matthew Scott Strickland, a state prisoner appearing through counsel,
filed a habeas petition pursuant to 28 U.S.C. § 2254 challenging his state court convictions.
The matter was referred to Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. §
636(b)(1)(B) & (C) for initial proceedings. After the case was stayed and petitioner
exhausted his state court remedies, Judge Purcell ordered the state to respond to the
petition.

With the petition fully briefed, Judge Purcell has now issued a Second

Supplemental Report and Recommendation (the “Report”) recommending that the petition
be denied. Petitioner has objected to the Report, which triggers de novo review of the
matters to which objection has been made.
Petitioner was convicted of first degree murder, assault and battery with a deadly
weapon, and wearing body armor during the commission of a felony. The charges arose
out of a shootout with his mother Jill Sides and stepfather Ottie Sides. Petitioner’s mother
died of gunshot wounds, and Mr. Sides was wounded. A central issue in the trial was who

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shot first and whether petitioner was acting in self defense. Petitioner contends that his
mother fired two shots before he returned fire.
The petition asserts the same grounds for relief that petitioner presented to the
Oklahoma Court of Criminal Appeals (“OCCA”) on direct appeal and on appeal from the
denial of post-conviction relief: insufficiency of the evidence; prosecutorial misconduct;
two claims of ineffective assistance of counsel, and cumulative error.

The Report

thoroughly addresses each claim and concluded that each should be denied. Petitioner’s
objections are essentially restatements of his arguments considered by Judge Purcell. The
court concludes that the Report properly resolved each claim.
Petitioner objects to the Report’s conclusion that the OCCA’s determination as to
the sufficiency of the evidence was not contrary to law or an unreasonable finding as to the
facts or their application. Specifically, petitioner contends that the OCCA’s rejection of
his sufficiency argument — that the state did not disprove his self-defense argument
beyond a reasonable doubt — was erroneous because its summary discussion of the issue
did not demonstrate that the OCCA conducted a de novo review of the trial evidence. But
in federal habeas proceedings, the OCCA’s decision is entitled to deference even though
its resolution of a claim is summary in nature. Paine v. Massey, 339 F.3d 1194, 1198 (10th
Cir. 2003). Further, where a determination of the sufficiency of the evidence is involved,
this court’s review is even more deferential.

Under AEDPA, “the question becomes

whether the OCCA’s conclusion that the evidence was sufficient constituted an
unreasonable application of the Jackson standard.” Hooks v. Workman, 689 F.3d 1148,

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1166 (10th Cir. 2012) (quotations and citations omitted). Under this deferential standard,
the OCCA’s determination withstands petitioner’s challenge.
Next, petitioner objects to the Report’s conclusion that the OCCA properly
concluded that he was not deprived of a fundamentally fair trial when the prosecutor
referred to him as a cold-blooded several times during closing arguments. He contends
that the contextual facts surrounding the use of the term demonstrate that the trial was
unfair. The court disagrees. The OCCA’s conclusion that petitioner had not shown that
the prosecutor’s arguments seriously affected the fairness of the judicial proceeding was
not contrary to or an unreasonable application of the law.1 The prosecutor’s conduct was
not so egregious as to undermine the fundamental fairness of the trial.
With respect to the ineffective assistance of counsel claims, petitioner first claims
his appellate counsel was ineffective for failing to raise on appeal the ineffectiveness of his
trial counsel in dealing with his mental health status. Specifically, he argues his trial
counsel failed to conduct a sufficient investigation into his mental health and mental health
records and that, rather than suppressing those records, he should have allowed them to be
testified about. Petitioner contends that if the forensic psychiatrist he later retained in
support of his post-conviction relief efforts had testified at trial, there is a reasonable
probability the psychiatrist could have relied on petitioner’s mental health history to testify
in some fashion that would have generated a different outcome. That strikes the court as
extraordinarily unlikely and, in any event, a conclusion to the contrary would have been

1

The OCCA reviewed the prosecutorial misconduct claim under the plain error standard because
no objection to the use of the term was made at trial.

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well within the range of trial counsel’s reasonable professional judgment. Those mental
health records included evidence that petitioner had confided to a psychologist that he had
a “hit list” of people he wanted to kill and that his mother was on the list. It is difficult to
imagine a more prejudicial piece of evidence in a trial for killing his mother. The court
fully concurs in the Report’s conclusion that the OCCA’s determination of the issue was
not an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner also argues that his counsel were ineffective for failing to retain a forensic
expert to review police reports and physical evidence related to the shootout. An expert
report submitted with his post-conviction relief efforts calls into question an argument used
by prosecutors during the trial — that a bullet found in one of his mother’s pockets may
have fallen there after first passing through her husband’s leg and was therefore some
corroboration of their theory that petitioner fired the first shot. The report highlights that
there was no biological evidence obtained from the bullet indicating that it had passed
through any portion of anybody. But the report also noted that the absence of such
biological evidence did not resolve the issue of who fired the first shot, and a jury would
still be left to resolve the issue on the basis of the limited testimony that was available.
Against that backdrop, the OCCA concluded that petitioner’s trial counsel was not
ineffective for failing to retain a shooting or forensics expert to rebut the state’s theory of
the case and that appellate counsel was not ineffective for failing to raise the argument.
The court applied the proper standard in reaching that conclusion. Therefore, as the Report
correctly noted: “Viewed through the doubly deferential lenses of Strickland and the
AEDPA, the OCCA’s decision is not contrary to, or an unreasonable application of,
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Supreme Court law.” Report at 29. Petitioner’s second ineffective assistance of counsel
claim also fails.
Finally, with respect to petitioner’s cumulative error argument, the court agrees with
the Report in concluding petitioner has not shown otherwise harmless errors to which a
cumulative error analysis should be applied.
After de novo review, the court concludes that the petition must be denied for the
reasons stated here and in the Report. The Report [Doc. #30] is ADOPTED. The Petition
for Writ of Habeas Corpus [Doc. #1] is DENIED.
IT IS SO ORDERED.
Dated this 23rd day of March, 2021.

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