Absher v. Allbaugh

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION 23 of Magistrate Judge Shon Erwin...the court concludes that Mr. Absher's request for habeas relief should be denied for substantially the reasons stated in the Report; the report and recommendation 23 is adopted; petitioner's petition for writ of habeas corpus is denied. Signed by Honorable Joe Heaton on 10/30/2019. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ERIC ABSHER,
Petitioner,
vs.
SCOTT CROW,
Respondent.

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NO. CIV-19-0354-HE

ORDER
Petitioner Eric Absher, a state prisoner appearing pro se, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his state
court conviction. Pursuant to 28 U.S.C. § 363(b)(1)(B) and (C) the matter was referred to
Magistrate Judge Shon T. Erwin for initial proceedings. After examining the Petition and
Brief in Support, Judge Erwin ordered the Oklahoma Attorney General to respond to the
petition.

Judge Erwin has now issued a Report and Recommendation (“Report”)

recommending that the petition be denied. Petitioner has objected to the Report which
triggers de novo review by this court of proposed findings or recommendations to which
objection has been made.
Petitioner was convicted of five counts of lewd acts with a minor. On appeal, the
Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction. Petitioner
sought an evidentiary hearing and filed a motion for post-conviction relief which asserted
eleven grounds for relief. The district court denied his application, and the OCCA affirmed
that denial. His petition asserts thirteen grounds for relief: the one proposition of error
asserted in his direct appeal, the eleven post-conviction grounds for relief, as well as the

denial of an evidentiary hearing by the state courts. He also seeks an evidentiary hearing
in support of the petition.
The Report accurately sets out the standard for review in this habeas proceeding.
That standard is deferential — even doubly deferential as to certain issues — as to those
issues which were determined in state court proceedings based on Supreme Court
precedents. In this case, Judge Erwin analyzed eight of petitioner’s grounds for relief using
the deferential AEDPA standard, four grounds using de novo review, and one ground using
both the deferential standard and de novo review.
Under AEDPA, habeas relief may only be granted if the state court’s adjudication
of the issues “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court” or
“was based on an unreasonable determination of the facts in light of the evidence presented.
28 U.S.C. § 2254(d)(1) & (2). Factual findings are not “unreasonable” just because this or
some other reviewing court might have found the facts differently in the first instance.
Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). Rather, this court must defer to the state
court determination of the issue so long as “reasonable minds reviewing the record might
disagree about the findings in questions.” Id.
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.” Woods v. Etherton, 135 S. Ct. 1149, 1151 (2016). Thus, this court’s review is
highly deferential to the determinations of the OCCA. Further, the review is doubly

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deferential as to issues involving claims of ineffective assistance of counsel.1

The

Strickland v. Washington standard for such claims, like the § 2254(d) standard, is also
“highly deferential and when the two apply in tandem, review is doubly so.” Harrington
v. Richter, 562 U.S. 86, 105 (2011).
The AEDPA deferential standard “does not apply to issues not decided on the merits
by the state court.” Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quotations and
citation omitted). For such claims, the court must exercise “independent judgment” and
review conclusions of law de novo and factual findings for clear error. Id. However, even
where the state court did not decide an issue on the merits, any “state-court findings of fact
that bear upon the claim are entitled to a presumption of correctness rebuttable only by
clear and convincing evidence.” Id. (quotations and citation omitted).
The court concludes that the Report has applied the correct standards of review to
each of petitioner’s grounds for relief. Applying these standards, after de novo review of
the Report, the court concludes that the petition for habeas relief must be denied.
Petitioner’s often conclusory allegations about how his trial would have concluded
differently had his version of events unfolded do not state a basis for relief when tested
against the standards applicable here.
It is unnecessary to discuss the various issues in detail, as the court concludes the
Report’s treatment of them is substantially correct.

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Under the Strickland standard,

Nine of petitioner’s grounds for relief are based on claims of ineffective assistance of

counsel.

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petitioner was not denied effective assistance of either trial or appellate counsel. With
respect to petitioner’s grounds for relief one, two, five, six, eight, nine, and ten about
counsel’s actions, the OCCA adjudication that either counsel was not ineffective is neither
contrary to, nor an unreasonable application of, Supreme Court precedent. Likewise, Judge
Erwin’s de novo determination that trial counsel was not ineffective under the Strickland
standard as alleged in petitioner’s grounds four and seven is proper.
In ground three, petitioner asserts that the trial court lacked subject matter
jurisdiction over him because the information against him was unverified. The Report
analyzed this ground under both the AEDPA and de novo standards. This claim raises a
question of state law that has been resolved by the state courts. As such, it is not a basis
for habeas relief. Even under the de novo standard, the state district court’s finding of fact
that the information had been verified is entitled to a presumption of correctness. No clear
and convincing evidence has been presented to rebut this presumption.
Petitioner’s eleventh ground — cumulative error based on grounds one through ten
— does not state a basis for relief. Like the Report, the court concludes no error was shown
as to those grounds and there is therefore nothing to cumulate.
The Report also correctly concludes on de novo review that Oklahoma law controls
whether petitioner should have been granted an evidentiary hearing on post-conviction
review. The decisions of the Oklahoma courts to not hold an evidentiary hearing does not
raise a ground for habeas relief. Petitioner’s ground twelve raises no claim for relief.
Petitioner’s ground thirteen, that a forensic interviewer improperly vouched for the
two victims, was the one ground for relief asserted in his direct appeal. In that appeal, the
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OCCA determined that error had occurred, but concluded it was harmless. The court
concludes, consistent with the Report, that the OCCA’s conclusion of harmless error was
not unreasonable when measured against the applicable standard.
Finally, the Report correctly concluded that an evidentiary hearing is unnecessary
to resolve this case because the petition can be resolved on the basis of the record before
the court.
The court concludes that Mr. Absher’s request for habeas relief should be denied
for substantially the reasons stated in the Report. The Report and Recommendation [Doc.
#23] is therefore ADOPTED. Petitioner’s Petition for Writ of Habeas Corpus is DENIED.
IT IS SO ORDERED.
Dated this 30th day of October, 2019.

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