Bellis v. Bryant

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION for 37 Report and Recommendation, For the reasons set forth herein, the Report and Recommendation is ADOPTED IN ITS ENTIRETY and the Petition is DENIED. Judgment shall be entered accordingly. Signed by Honorable David L. Russell on 10/7/20. (jw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
STACY GENE BELLIS,
Petitioner,
v.
JASON BRYANT,
Respondent.1

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No. CV-17-01333-R

ORDER
Petitioner, a state prisoner appearing pro se, filed this action pursuant to 18 U.S.C.
§ 2254, seeking a writ of habeas corpus. Pursuant to 18 U.S.C. § 636(b)(1)(B), the matter
was referred to United States Magistrate Judge Shon T. Erwin for preliminary review. On
May 22, 2020, Judge Erwin issued a Report and Recommendation wherein he
recommended the petition be denied on the merits. Doc. No. 37. The matter is currently
before the Court on Petitioner’s objection to the Report and Recommendation, Doc. No.
42, giving rise to the Court’s obligation to conduct a de novo review of those portions of
the Report and Recommendation to which Petitioner specifically objects. The Court has
conducted this de novo review and finds as follows.
Petitioner’s conviction arose after a confrontation occurring on July 4, 2011. Trial
Tr. Vol. II 36. According to Damian Fortenberry, Petitioner’s then roommate, the two got

1

Jason Bryant, the current Warden at the James Crabtree Correctional Center where Petitioner is confined, is hereby
substituted as Respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts and Rules 25(d) and 81(a)(4) of the Federal Rules of Civil Procedure.

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into a physical altercation and Petitioner took $20.00 from him and left the home. Id. 106.
Upon Petitioner’s return, Mr. Roman Acosta (“Acosta”) confronted him about taking
money from Fortenberry. Id. 184–85. Petitioner then walked outside of the home and got
inside his truck as Acosta continued confronting him by beating his fists on the hood of
Petitioner’s truck. Id. 83–84. Acosta’s girlfriend, Kendra Woodward (“Ms. Woodward”),
stood outside and watched the altercation escalate. Id. 133. Then, a bystander named Ms.
Shelley Ketcherside (“Ms. Ketcherside”) heard the commotion, walked outside and
allegedly witnessed Petitioner “rev [ ] up his truck,” “gun [ ] it,” and drive toward Acosta
and Ms. Woodward. Id. 133–36. After closing her eyes when the engine was revved, Ms.
Ketcherside testified that she opened them to see Ms. Woodward pinned between the truck
and a tree behind her. Id. 135–36. Ms. Woodward testified that Petitioner had “thr[own]
his truck into reverse, and then […] in drive and ran [her] into a tree,” id. 185, 189,
rendering her temporarily unconscious. Id. 190.
Next, Acosta approached the vehicle and continued fighting with Petitioner through
the window. Id. 191. Kimberly Wood, Ms. Ketcherside’s sister-in-law, yelled that
Petitioner “got a knife,” and then another individual, Jason Williams, joined in the fight.
Id. 43–45, 86–87, 269. Eventually, the altercation deescalated, and the parties left the
scene. Shortly thereafter, Ms. Patricia Tanksley, a bystander near the incident, noticed
Acosta was hurt, id. 90, and before long, Acosta died of a “stab wound to his left chest.”2

2

Criminal Appeal Original Record, State’s Exhibit 95, State of Oklahoma v. Bellis, Case No. CF-2011-3858
(Oklahoma Co. Dist. Ct.).

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The State charged Petitioner with i) first-degree manslaughter as to the stabbing of
Acosta; ii) assault and battery with a deadly weapon as to hitting and pinning Acosta
against a tree with his truck; iii) assault and battery with a deadly weapon as to hitting and
pinning Ms. Woodward against a tree with his truck; and iv) assault and battery with a
deadly weapon for stabbing Jason Williams in the arm. Trial Tr. Vol. IV 44–45. The jury
acquitted Petitioner of Counts One and Two but convicted Petitioner on Count Three for
assault and battery with a deadly weapon towards Ms. Woodward. Id. 138. The trial court
sustained a demurrer raised by defense counsel as to Count Four. Id. 44–45. Thus,
Petitioner’s habeas petition is limited to his conviction for Count Three.
In the Report and Recommendation, Judge Erwin outlined the subsequent
procedural posture as follows:
Following a direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)
affirmed the conviction. (ECF No. 1-1). On June 15, 2015, Petitioner filed
an Application for Post-Conviction Relief in the Oklahoma County District
Court. (ECF No. 29-8). The district court denied relief and on January 16,
2018, the OCCA declined jurisdiction and dismissed Petitioner’s
postconviction appeal as untimely. (ECF Nos. 29-13 & 29-17:2). On
February 5, 2018, Petitioner filed an Application for Post-Conviction Relief
in the Oklahoma County District Court, seeking an appeal-out-of-time. (ECF
No. 29-18). The Oklahoma County District Court denied the request and on
June 5, 2019, the OCCA affirmed the denial. (ECF Nos. 29-25 & 14-1). On
August 7, 2019, Mr. Bellis filed an amended habeas Petition, alleging […]
twelve grounds of error.
Doc. No. 37, p. 4.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs
this Court’s power to grant habeas corpus relief. For claims adjudicated on the merits, “this
[C]ourt may grant … habeas [relief] only if the [OCCA’s] decision ‘was contrary to, or
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involved an unreasonable application of clearly established Federal law, as determined by
the Supreme Court of the United States’ or ‘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.’” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015) (citation omitted).
The deference embodied in § 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.” Harrington v. Richter, 562 U.S. 86, 102–03
(2011) (citation omitted).
When this Court reviews a state court’s decision, it is precluded from issuing the
writ simply because it concludes in its independent judgment that the state court applied
the law erroneously or incorrectly. Rather, the Court must be convinced that the state
court’s application was also objectively unreasonable. McLuckie v. Abbot, 337 F.3d 1193,
1197 (10th Cir. 2003) (citing Williams, 529 U.S. at 412). “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington, 562 U.S. at 101
(quoting Yarborough v. Alvarado, 541 U.S. 652, 654 (2004)).
Petitioner raises twelve grounds for relief, each of which was addressed by Judge
Erwin in the Report and Recommendation. Doc. No. 37. Petitioner objects to the Report
and Recommendations’ conclusion in Grounds One through Ten. He does not object to the
Report and Recommendations’ conclusion in Grounds Eleven and Twelve. The Court
addresses each in turn.

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I.

Ground One – Oklahoma Stand Your Ground Law
Petitioner alleges that driving his vehicle into Ms. Woodward was excused by

Oklahoma’s Stand Your Ground Law, Okla. Stat. tit. 21 § 1289.25, and that he was
therefore immune from prosecution. Doc. No. 22, p. 7–8.
In state court, the OCCA rejected his claim, explaining that Petitioner waived the
issue by failing to assert it prior to his direct appeal. Doc. No. 1–1, p. 2–3. Notwithstanding
the waiver, the Court explained that Petitioner’s scope of immunity under § 1289.25 did
not immunize him in Count Three because Ms. Woodward was a bystander against whom
deadly force was not immunized. Doc. No. 1–1, p. 2–3. Therefore, he could not prevail on
the merits, and his claim was rejected.
In the Report and Recommendation, Judge Erwin explains that Petitioner’s
argument that the OCCA’s finding of waiver was “arbitrary and violates Due Process” does
not justify habeas relief for two reasons. Doc. No. 37, p. 10. First, because Petitioner only
challenged the OCCA’s finding of waiver and second, because a state court’s interpretation
of state law binds a federal court sitting in habeas corpus.” Id. (quoting Bradshaw v. Richey,
546 U.S. 74, 76 (2005)).
In his objection, Petitioner argues that his claim for immunity in Count Two was
confused with his claim for immunity in Count Three. Doc. No. 42, p. 9. Specifically,
Petitioner argues that he is attempting to claim immunity based on his altercation with
Acosta, which justified the actions he was convicted of in Count Three against Ms.
Woodward. Id. He argues that “[a] person acting in justified self-defense could not be held

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liable (criminally) for resulting harm to a bystandard,” citing Cook v. Hunt, 178 Okla. 477
(Okla. 1936). Id.
However, Cook v. Hunt is a civil suit addressing whether an injured bystander could
hold the party provoking the violence liable for her injuries. Id. It does not interpret §
1289.25. Further, “it is not the province of a federal habeas court to reexamine state-court
determinations on state law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67– 68 (U.S. 1991). Here, the Court cannot
second guess the state court’s interpretation of § 1289.25.
Thus, the Petitioner is not entitled to habeas relief on Ground One and therefore, the
Court adopts Judge Erwin’s recommendation.
II.

Ground Two – Failure to Instruct the Jury on Self-Defense
Petitioner objected to the trial court’s failure to instruct the jury on self-defense as

to Count Three. Doc. No. 22, p. 10–11. The OCCA denied the claim because the
“instruction was not warranted by the evidence.” Doc. No. 1–1, p. 3. Judge Erwin
concluded that the OCCA’s determination was reasonable, and petitioner countered by
arguing that from the Appellant’s Reply Brief (OCCA F-2012-1024), “it clearly shows
were talking about Roman Acosta.” Doc. No. 42, p. 13. Petitioner argues that his selfdefense from the attack by Acosta justified the actions for which he was charged in Count
Three. 3 Id.

3

The Court notes the Petitioner’s inadequate briefing. In his objection to the Report and Recommendation, rather
than addressing the Magistrate Judge’s findings, Petitioner provided the court with portions of his state court postconviction reply, interlineated and edited with new paper. This manner of briefing misconstrues the nature of habeas

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As Judge Erwin states in the Report and Recommendation, however, “as a general
rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas
corpus proceedings, unless they are so fundamentally unfair as to deprive petitioner of a
fair trial and to due process of law.” Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005)
(internal citation omitted). Additionally,
because Petitioner neither raised such issue on direct appeal nor in his habeas
petition, the Court need not consider Petitioner’s secondary theory involving
Ms. Woodward, stemming from the same. See Duncan v. Henry, 513 U.S.
364, 366 (1995) (“If […] petitioner wishes to claim that an evidentiary ruling
[…] denied him the due process of law […], he must say so, not only in
federal court, but in state court.”).
Doc. No. 37, p. 15.
As stated in Ground One, the Court lacks authority to second guess state court
determinations, which applies to state evidentiary rules, absent a showing of a “violat[ion
of] the Constitution, laws or treaties of the United States.” Estelle, 502 U.S. at 67–68.
Petitioner fails to make such a showing. Again, Petitioner’s alternative theory alleging
justified self-defense based on his defense from Acosta resulting in harm to Ms. Woodward
is inapplicable because he failed to raise the issue in his habeas petition or on direct appeal.
Doc. No. 37, p. 15; Duncan, 513 U.S. at 366. Therefore, Petitioner is not entitled to habeas
relief on Ground Two.

relief, especially considering the level of deference afforded by the AEDPA. It is also a confusing way of presenting
an argument.

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III.

Ground Three – Failure to Define “Deadly Weapon” when Instructing the
Jury on Count Three

In Ground Three, Petitioner alleges the trial court’s failure to define “deadly
weapon” to the jury with regard to Count Three violated his due process rights. Doc. No.
36, p. 2. The OCCA concluded that the error was harmless under Neder v. United States,
527 U.S. 1 (1999). Judge Erwin agreed that the Court evaluates the trial court’s failure to
define “deadly weapon” under Neder, assessing “whether it appear[ed] beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.”
Id. at 15.
Petitioner counters that “any deviation of any constitutional rights is irreparable
harm,” citing Free the Nipple v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019). Doc.
No. 42, p. 19. However, City of Fort Collins addressed “irreparable injury” in its evaluation
of the legal standard governing preliminary injunctions, id., and such standard is
inapplicable in a habeas petition.
Petitioner additionally argues that Apprendi governs his claim under Ground Three,
rather than Neder. Doc No. 42, p. 19. However, as Judge Erwin explained, the Supreme
Court noted that the same treatment was given to both “elements [of a crime]”—governed
by Neder—and “sentencing factors”—governed by Apprendi—for Sixth Amendment
purposes. Washington v. Recueno, 548 U.S. 212, 220 (2006). Thus, the Neder standard
applies. Further, the Supreme Court defined the Neder standard in Brecht, stating that the
proper inquiry is “whether the error ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” 507 U.S. 619, 637 (1993).
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The Tenth Circuit denied a habeas petitioner’s claim in Ledford v. Jones, 299 F.
App’x 797, 801 (10th Cir. 2008), stating “[t]here is no doubt a car can be a deadly weapon”
when it interpreted Oklahoma law and its definition of an automobile as a “dangerous
weapon.” Doc. No. 37, p. 19. Similarly, failing to define “deadly weapon” in the jury
instructions did not have a substantial and injurious effect on the jury’s verdict because the
jury could undoubtedly find that a vehicle could be deadly. For these reasons, Petitioner
has not established that the OCCA’s decision was contrary to, or involved an unreasonable
application of federal law, and is not entitled to relief on Ground Three.
IV.

Ground Four – Improper Exclusion of Mr. Williams Testimony Violating
Right to Complete Defense
In Ground Four, Petitioner argues that the trial court erred when it excluded

testimony from Jason Williams for allegedly violating the Rule of Sequestration, thereby
violating Petitioner’s right to present a complete defense. Doc. No. 42, p. 24. The OCCA
rejected Petitioner’s theory, concluding that the trial court did not abuse its discretion in
excluding the testimony because of William’s violation. Doc. No. 1–1, p. 4.
In the Report and Recommendation, Judge Erwin explained that “Mr. Bellis may
only obtain habeas relief for an improper state evidentiary ruling ‘if the alleged error was
so grossly prejudicial [that it] fatally infected the trial and denied the fundamental fairness
that is the essence of due process.’” Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.
2002). Petitioner argues that the exclusion justifies habeas relief because “[t]here could not
have been a more central witness to establish Mr. Bellis case.” Doc. No. 42, p. 27.
Specifically, he argues that Mr. Williams saying “[o]h my God, Im going to Prison because
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[…] [w]e killed Stacy…” illustrates the importance of his testimony to Petitioner’s claim
of self-defense. Id.
While the “Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense,” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (citation
omitted), “[s]tate and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547
U.S. 319, 324 (2006) (citation omitted). As stated in the Report and Recommendation, to
establish a violation of his right to present a complete defense, Petitioner must make a twopart showing. Doc. No. 37, pp. 23–24. He must show the material would have been
“material and favorable” and that the “trial court’s exclusion of the evidence was arbitrary
or disproportionate to the evidentiary purpose advanced by the exclusion.” Doc. No. 37, p.
24 (citing United States v. Valenzuela–Bernal, 458 U.S. 858, 867, 874 (1982) and United
States v. Scheffer, 523 U.S. 303, 308 (1998)).
Mr. Bellis cannot make the two-part showing because, as Judge Erwin explained
in the Report and Recommendation, “Mr. Williams did not provide any testimony which
would have bolstered a claim of self-defense as to the assault and battery on Ms.
Woodward.” Doc. No. 37, p. 23. Further, as Judge Erwin concluded, the exclusion of the
evidence was not arbitrary or irrational because “the decision to exclude testimony based
on a violation of the Rule […] would not ordinarily justify habeas relief.” Id. p. 21. Thus,
Petitioner’s invocation of his right to present a complete defense does not justify habeas
relief.

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V.

Ground Five – Cumulative Error
Petitioner alleges cumulative error based on the errors raised in Grounds One

through Four. Doc. No. 22, p. 17. “Cumulative error analysis applies when the
constitutional errors committed in the state court trial so fatally infected the trial that they
violated the trial’s fundamental fairness.” Littlejohn v. Trammell, 704 F.3d 817, 868 (10th
Cir. 2013) (citation omitted).
Multiple errors must have been committed in order to invoke the cumulative error
doctrine. Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). The OCCA denied
Petitioner’s claim, stating that “[t]here are no errors, considered individually or
cumulatively, that merit relief in this case.” Doc. No. 1–1, p. 4.
Here, as Judge Erwin states in the Report and Recommendation, there are not
multiple errors to combine, and thus, Petitioner cannot show that even in the aggregate, he
received a fundamentally unfair trial, much less that errors “so fatally infected the trial that
they violated the trial’s fundamental fairness.” Littlejohn, 704 F.3d at 868. Therefore,
Petitioner is not entitled to relief on Ground Five.
VI.

Grounds Six Through Ten – Procedural Bar
Grounds Six through Ten were not addressed by the OCCA because Petitioner failed

to timely file his petition in error, after the District Court of Oklahoma County denied his
application for post-conviction relief. Doc. No. 22, p. 29. In the Report and
Recommendation, Judge Erwin explains that Grounds Six through Ten are procedurally
barred pursuant to Petitioner’s lack of timeliness. Doc. No. 37, p. 26.
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Petitioner objects by stating that his late filing of his post-conviction appeal brief
should have been equitably tolled, that the OCCA “completely ignored the motion for
extension of time,” and that he should be given retroactive application of the updated
timeline governing the filing of habeas petitions, pursuant to OCCA Rule 5.2(A). Doc. No.
42, pp. 33–35.
“A habeas claim is generally subject to procedural bar when the OCCA declines to
consider a claim’s merits based on a state procedural rule that is independent and
adequate.” Id. (citing Coleman v. Thomson, 501 U.S. 722, 750 (1991)). ‘To be independent,
the procedural ground must be based solely on state law […] To be adequate, the procedural
ground must be strictly or regularly followed and applied evenhandedly to all similar
claims…” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (citation omitted). If
the rule is independent and adequate, a petitioner must show either cause and prejudice, or
a fundamental miscarriage of justice, to overcome the default. Id. at 1159 (citation omitted).
The Tenth Circuit has recognized that the OCCA’s dismissal on timeliness is
“independent and adequate.” Johnson v. Champion, 288 F.3d 1215, 1226–27 n.3 (10th Cir.
2002). Thus, the only issue is whether Petitioner can show cause and prejudice or a
fundamental miscarriage of justice. As Judge Erwin explains in the Report and
Recommendation, Petitioner failed to explain why the rule was the result of cause or
prejudice when he “[did] not further elaborate” in his petition. Doc. No. 37, p. 28.
Further, a fundamental miscarriage of justice did not occur. In Hackett v. Farris,
2014 WL 4825263, at *16 (N.D. Okla. Sept. 25, 2014), the Northern District of Oklahoma
noted that ineffective assistance of a prison law clerk and “unfamiliarity with the legal
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system” were insufficient to excuse a procedural default. To show that a fundamental
miscarriage of justice occurred, Petitioner must make a “‘credible’ showing of actual
innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). Petitioner introduces no
new exculpatory evidence indicating that such a fundamental miscarriage of justice
occurred.4 Thus, the Court adopts the Report and Recommendation’s conclusion that
Grounds Six through Ten are procedurally barred.
VII.

Grounds Eleven and Twelve – No Objections

Petitioner does not object to Judge Erwin’s recommendation in Grounds Eleven and
Twelve. The Court thus adopts Judge Erwin’s findings in Grounds Eleven and Twelve.
VIII. Conclusion
Finally, Rule 11 of the Rules Governing Section 2254 Cases requires a district court
to issue or deny a Certificate of Appealability upon entering a final adverse order. A
Certificate of Appealability may be issued only if the petitioner made a substantial showing
of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), and he shows “that reasonable
jurists could debate whether … the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (Internal quotation marks omitted). Petitioner
has failed to make either showing and accordingly, the Court declines to issue a Certificate
of Appealability.

4

Allegations of Ms. Kendra Woodward lying are not independently sufficient to create a credible showing of actual
innocence.

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For the reasons set forth herein, the Report and Recommendation is ADOPTED IN
ITS ENTIRETY and the Petition is DENIED. Judgment shall be entered accordingly.
IT IS SO ORDERED this 7th day of October 2020.

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