Opinion
CIV-19-587-SLP
01-28-2021
JABARI BARRY, Petitioner, v. JEORLD BRAGGS, JR., Warden, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Jabari Barry (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 14). United States District Judge Scott L. Palk initially referred the matter to United States Magistrate Judge Gary M. Purcell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 3, 15). It was subsequently transferred to the undersigned Magistrate Judge. (Doc. 27). Respondent filed a response (Doc. 22), along with the jury-trial transcripts (Tr. Vol. I-IV), the jury-trial exhibits (State Ex.), the state court record (R.), and the sentencing transcript (S. Tr.). (Doc. 24). Petitioner replied. (Doc. 26). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be denied.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Factual Summary
Between approximately 12:30 a.m. and 3:00 a.m. of May 15, 2015, Petitioner, Kenya Laday, Breana Johnson, and others socialized at a house in northwest Oklahoma City. (Tr. Vol. III, at 11-13, 39-44, 176). Ms. Laday and Ms. Johnson testified that Petitioner drank at least six shots of alcohol, drank additional alcohol directly out of the bottle, and smoked marijuana. (Tr. Vol. II, at 195-96, 218; Vol. III, at 46, 98).
Petitioner then drove Ms. Johnson, Ms. Laday, and four other passengers to a gas station and then to a Crest supermarket. (Tr. Vol. II, at 198-99; Vol. III, at 48, 52). Ms. Laday testified that she believed Petitioner was “[r]eally drunk” while driving, and Ms. Johnson testified that Petitioner drank more alcohol in the car. (Tr. Vol. II, at 219; Vol. III, at 51). Ms. Johnson testified that Petitioner acted drunk at the gas station by stumbling, leaning on the counter, and slurring his words. (Tr. Vol. III, at 49-50, 100-01). While at Crest, Petitioner punched two store employees, Christopher Brailas and Brent Abernathy. (Tr. Vol. II, at 173-76).
After leaving Crest, Petitioner drove across the street and entered the parking lot of a Walmart Neighborhood Market at 3:11 a.m., where Rodney Lynch and his wife had just returned to an overnight shift from their lunch break. (Tr. Vol. II, at 149; Vol. III, at 60, 178). According to eyewitnesses, Petitioner drove into the parking lot at a high rate of speed, and an investigating officer testified that Petitioner was travelling at twenty-eight miles per hour. (Tr. Vol. II, at 150; Vol. III, at 63; Vol. IV, at 63-64). Ms. Johnson testified that she told Petitioner to “watch out, there's a man walking,” to which Petitioner responded, “fuck you.” (Tr. Vol. III, at 63-64, 108). Petitioner kept driving, made a sharp left turn in front of the store, and struck and killed Mr. Lynch, who was standing in the crosswalk, on a “YIELD” sign painted on the pavement. (Tr. Vol. II, at 150-51; Vol. III, at 67-68; Vol. IV, at 40, 65; State Exs. 2, 29). An eyewitness testified that she saw the brake lights of the vehicle come on before it turned towards Mr. Lynch, sped up, and struck him. (Tr. Vol. II, at 151). Petitioner was travelling approximately seventeen miles per hour at the moment of the turn. (Tr. Vol. IV, at 64). Mr. Lynch “flew up in the air . . . came down and landed on top of the SUV and then went under.” (Tr. Vol. II, at 151). The vehicle got stuck on his body, and Petitioner “[h]it the gas” and left the parking lot. (Tr. Vol. II, at 151-52).
Ms. Laday testified that the group then returned to the house in northwest Oklahoma City, and when the police arrived, she heard Petitioner say that he thought he was going to go to jail. (Tr. Vol. II, at 213-15). Detective Shanna Lakin testified that Petitioner appeared in a glass storm door and was “sweating, upset,” and “kind of aggressive.” (Tr. Vol. III, at 134-35). When she asked Petitioner to step outside, Petitioner asked “for what, for what?” (Tr. Vol. III, at 135). Petitioner did not come outside for several minutes, was aggressive, stepped toward the door like he might come out, and had his hands balled up in fists. (Tr. Vol. III, at 135-36, 146). Sergeant David Hollis testified Petitioner had a knife in his hand. (Tr. Vol. III, at 159). Detective Lakin pulled out her taser, and Petitioner told her that she “better put that shit up.” (Tr. Vol. III, at 136-37). When officers continued to ask Petitioner to come outside, he responded with threats, including telling the officers that they were going to have to kill him, that he was going to kill the officers, and that he would cause the officers physical harm. (Tr. Vol. III, at 138, 150, 158). Petitioner occasionally stepped outside and went back inside. (Tr. Vol. III, at 139-40, 151). After twelve minutes, Detective Lakin deployed her taser at the direction of another officer. (Tr. Vol. III, at 141, 144-45).
Officers who were at the scene testified they did not notice an odor of alcohol on Petitioner. (Tr. Vol. III, at 147, 152). However, Detective Heather Brady, who interviewed Petitioner later that morning, testified she smelled alcohol on Petitioner and learned during the interview that Petitioner had been driving the vehicle while intoxicated. (Tr. Vol. III, at 208; Vol. IV, at 6, 18). Petitioner stated during the interview that he had been drinking heavily before driving the vehicle to Crest. (State Ex. 13).
II. Procedural History
The State charged Petitioner in Oklahoma County, Case No. CF-2015-4070, with one felony count of murder in the first degree, two misdemeanor counts of assault and battery, and one misdemeanor count of threatening to perform an act of violence. (R., at 166). On the first day of trial, Petitioner entered a blind plea of guilty as to the three misdemeanor counts. (Tr. Vol. I, at 3-22; R., at 174-80).
At the conclusion of the four-day trial, the trial court instructed the jury on the charge of murder in the first degree and Petitioner's defense of intoxication. (R., at 20109). The trial court also gave instructions on the lesser-included offenses of murder in the second degree and manslaughter in the first degree. (R., at 210-17). The jury found Petitioner guilty of murder in the second degree and not guilty of murder in the first degree and manslaughter in the first degree. (R., at 262-63). At sentencing, the trial judge sentenced Petitioner to thirty-six years of imprisonment for murder in the second degree, ninety days of imprisonment for each count of assault and battery, and six months of imprisonment for threatening to perform an act of violence, all to be served consecutively. (R., at 277-81). Petitioner's direct appeal was denied by the Oklahoma Court of Criminal Appeals (OCCA). (Doc. 22, Ex. 4).
Petitioner filed a Petition for Writ of Habeas Corpus By A Person In State Custody Pursuant to 28 U.S.C. § 2254 in this court on June 27, 2019. (Doc. 1). Respondent filed a Motion to Dismiss, arguing Petitioner failed to exhaust his state court remedies. (Doc. 7). Magistrate Judge Purcell found that Petitioner raised both exhausted and unexhausted claims and recommended either allowing Petitioner to amend the Petition to dismiss the unexhausted claims or dismissing the Petition in its entirety. (Doc. 11). After Petitioner advised he wanted to amend his Petition (Doc. 12), the court issued an order granting Petitioner leave to file an amended petition (Doc. 13). That Amended Petition is at issue. (Doc. 14).
III. Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep'tof Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was contrary to, or 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.” 28 U.S.C. § 2254(d). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (internal quotation marks omitted). This standard “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, 562 U.S. at 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be diametrically different and mutually opposed to the Supreme Court decision itself.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was objectively unreasonable.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], 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.”).
This court “must accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)). This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1). IV. Analysis.
Petitioner raises five claims for relief, alleging: there was insufficient evidence to support his conviction (Ground One); the trial court failed to properly and thoroughly instruct the jury (Ground Two); the trial court erred in admitting other-crimes evidence (Ground Three); ineffective assistance of trial counsel (Ground Four); and cumulative error (Ground Five). (Doc. 14). As set forth fully below, Petitioner is not entitled to habeas relief on any of these claims.
A. Ground One: Petitioner Is Not Entitled To Relief Because the OCCA Reasonably Applied Clearly Established Law Regarding Sufficiency of the Evidence.
In Ground One, Petitioner argues there was insufficient evidence at trial to support his conviction of murder in the second degree. (Doc. 14, at 17-21). Specifically, he asserts the evidence does not establish two elements of the crime - that his conduct was imminently dangerous and that it evinced a depraved mind in extreme disregard of human life. (Id. at 18-20). For the reasons stated below, the court recommends denial of habeas relief on this ground.
Petitioner's brief also states: “Petitioner argues to demonstrate the unreasonable determination of Supreme Court precedent of the State Court the major factor that distinguishes murder from manslaughter must be considered. See Patterson v. New York, 432 U.S. 197, 220 (1977).” (Doc. 14, at 17). Petitioner's argument lacks clarity and does not appear relevant to Ground One. And as Respondent notes, Petitioner's citation to Patterson is from a dissenting opinion and the argument is related to New York statutes. (Doc. 22, at 17 n.8).
1. The OCCA's Ruling
On direct appeal, the OCCA rejected Petitioner's challenge to the sufficiency of the evidence at trial, holding:
[w]e find in Proposition I that, taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that [Petitioner's] conduct was imminently dangerous to another person and showed a depraved mind. To sustain a conviction for second degree depraved mind murder the State must show (a) the death of a human, caused by (b) the defendant's conduct which (c) was imminently dangerous to another person, (d) evinced a depraved mind in the extreme disregard of human life; and (e) was not done with the intention to take the life of any particular individual. 21 O.S.2011, § 701.8; OUJI-CR 2d 4-91. Imminently
dangerous conduct “creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.” OUJI-CR 2d 4-91. A person with a depraved mind commits “imminently dangerous conduct with contemptuous and reckless disregard of, and in total indifference to, the life and safety of another.” Id. The record supports a conclusion that this was more than, as [Petitioner] puts it, a tragic and unlucky collision. We have held that imminently dangerous conduct indicating a depraved mind includes steering into pedestrians, when the evidence gives rise to an inference that the defendant saw the pedestrian before the collision, took “some form of aim”, and could have avoided the collision. Smith v. State, 1984 OK CR 15, ¶ 7, 674 P.2d 569, 572; see also Gibson v. State, 1970 OK CR 171, ¶ 10, 476 P.2d 362, 365 (sufficient evidence of second degree murder where defendant intentionally steered vehicle into oncoming traffic). This proposition is denied.(Doc. 22, Ex. 4, at 2-3).
2. Jackson v. Virginia is the Clearly Established Law Regarding Sufficiency of the Evidence.
Under Supreme Court precedent, the relevant inquiry for a challenge to the sufficiency of the evidence is “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 v. Virginia, 443 U.S. 307, 319 (1979). This standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. “[A] state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was objectively unreasonable.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (internal quotation marks omitted). Thus, courts utilize a “twice-deferential standard” when addressing a sufficiency-of-the-evidence claim on § 2254 habeas review. Id.
3. The OCCA Reasonably Applied Jackson.
Petitioner argues that the State did not have sufficient evidence to convict him of murder in the second degree, which requires proof of conduct imminently dangerous to another person and evincing a depraved mind. See Okla. Stat. tit. 21, § 701.8; Instruction No. 4-91, OUJI-CR(2d). He argues that the evidence regarding his actions - which he frames as speeding in a parking lot while intoxicated - does not amount to such conduct because it does not fit squarely within fact patterns of OCCA cases addressing these elements. (Doc. 14, at 19-20).
The OCCA held that steering into pedestrians where the “evidence gives rise to an inference that the defendant saw the pedestrian before the collision, took some form of aim, and could have avoided the collision,” amounts to imminently dangerous conduct indicating a depraved mind under Oklahoma law. (Doc. 22, Ex. 4, at 2-3) (internal quotation marks omitted). “[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Williams v. Trammell, 782 F.3d 1184, 1195 (10th Cir. 2015) (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)); see also Tillman v. Cook, 215 F.3d 1116, 1131-32 (10th Cir. 2000) (“[S]tate law determines the parameters of the offense and its elements and a federal court may not reinterpret state law.”) (internal quotation marks omitted).
Petitioner contends he did not steer into Mr. Lynch. (Doc. 14, at 20). But the OCCA was not unreasonable in its determination that the evidence presented at trial, viewed in the light most favorable to the State, was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that he did. Jackson, 443 U.S. at 319. The State presented evidence that Ms. Johnson told Petitioner to “watch out, there's a man walking” when Petitioner entered the parking lot, to which Petitioner responded, “fuck you.” (Tr. Vol. III, at 63-64, 108). An investigating officer testified that Petitioner could have stopped the vehicle prior to striking Mr. Lynch from the spot Ms. Johnson told Petitioner to “watch out.” (Tr. Vol. IV, at 73-74). However, the evidence was that Petitioner made a sharp left turn directly toward Mr. Lynch, who was standing in the crosswalk, and struck him with the car. (Tr. Vol. II, at 151, 157; Vol. III, at 67-68; Vol. IV, at 39-40, 64; State Ex. 2). Petitioner was travelling approximately seventeen miles per hour at the moment of the turn. (Tr. Vol. IV, at 64). An eyewitness testified that she saw the brake lights of the vehicle come on before it turned towards Mr. Lynch, sped up, and struck him. (Tr. Vol. II, at 151). There was evidence that Petitioner could have turned in a manner to avoid where Mr. Lynch was located. (Tr. Vol. II, at 158-59). There was evidence that the parking lot was well lit, and that at the point of impact there was approximately eight times more light than necessary to see Mr. Lynch, who was six feet four inches tall. (Tr. Vol. II, at 157; Vol. IV, at 69). Thus, this court does not disturb the OCCA's determination that Petitioner took “some form of aim” at Mr. Lynch (Doc. 22, Ex. 4, at 2), a determination that was not “objectively unreasonable.”
Bound by the OCCA's interpretation of Oklahoma law, the Court finds the OCCA reasonably applied Jackson when it found that a rational trier of fact considering the evidence presented at trial could find beyond a reasonable doubt that Petitioner's conduct was imminently dangerous to another person and showed a depraved mind. Thus, the court recommends denying Petitioner habeas corpus relief on Ground One.
B. Ground Two: Petitioner Is Not Entitled To Relief Because There Is No Clearly Established Law Entitling Him To Jury Instructions on Lesser-Included Offenses.
In Ground Two, Petitioner argues that the trial court failed to give instructions sua sponte on two lesser-included offenses - second-degree manslaughter and negligent homicide. (Doc. 14, at 21-27).
1. The OCCA's Ruling
On direct appeal, the OCCA found no error in the failure to instruct the jury on second-degree manslaughter and negligent homicide. (Doc. 22, Ex. 4, at 3-4). The court stated:
[Petitioner] neither objected to the instructions as given nor asked for instructions on second degree manslaughter and negligent homicide, and we review for plain error....The trial court must instruct jurors on any lesser included or lesser related offense supported by the evidence. Barnett v. State, 2012 OK CR 2, ¶ 18, 271 P.3d 80, 86. The court must determine whether, based on the evidence presented, jurors could rationally acquit a defendant of the greater offense and convict him of the lesser. Id. [Petitioner] claimed voluntary intoxication as his defense; he argued that he was drunk and high while driving that night, and didn't intend to kill Lynch. A voluntary intoxication defense will support instructions for second degree murder or first degree manslaughter. Martinez v. State, 2016 OK CR 3, ¶ 18, 371 P.3d 1100, 1108. However, [Petitioner] admits that proof of voluntary intoxication while driving will not support instructions for second degree manslaughter (because he was committing the crime of driving while intoxicated) or negligent homicide (because homicide from an accident where the driver defendant is intoxicated is first degree manslaughter). Miller v. State, 1974 OK CR 117, ¶¶ 9-10, 523 P.2d 1118, 1121; Eby v. State, 1985 OK CR 80, ¶ 10, 702 P.2d 1047, 1050. He argues that he should have had the instructions anyway, since his level of intoxication was a contested issue. The question is not whether the issue was contested, but what the evidence showed. The evidence did not support instructions for second
degree manslaughter or negligent homicide. There is no error, and no plain error.(Id.)
2. There Is No Clearly Established Law To Support Petitioner's Claim.
“The Supreme Court has never recognized a federal constitutional right to a lesser included offense instruction in non-capital cases.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004); see also Kalbaugh v. Martin, 809 Fed.Appx. 481, 489-90 (10th Cir. 2020) (same). Tenth Circuit “precedents establish a rule of ‘automatic non-reviewability' for claims based on a state court's failure, in a non-capital case, to give a lesser included offense instruction.” Dockins, 374 F.3d at 938 (quoting Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988)). Accordingly, Petitioner cannot succeed on this claim. See Ward v. Allbaugh, 793 Fed.Appx. 712, 716 (10th Cir. 2019) (“[A] petitioner in a non-capital case is not entitled to habeas relief for the failure to give a lesser-included offense instruction even if in our view there was sufficient evidence to warrant the giving of an instruction on a lesser included offense.”) (internal quotation marks omitted), cert. denied, 141 S.Ct. 143 (2020).
Petitioner argues that because he was “charged with first degree murder, a capital offense,” lesser-included offense instructions are required under Beck v. Alabama, 447 U.S. 625 (1980). (Doc. 26, at 5-8). However, in order for Beck to apply, a petitioner must be convicted of a capital crime. 447 U.S. at 627 (“[A] sentence of death [may not] constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.”). See Phillips v. Workman, 604 F.3d 1202, 1210 (10th Cir. 2010) (noting that the first element of a Beck claim is that a petitioner “must establish that the crime on which the trial court refused to instruct was actually a lesser-included offense of the capital crime of which he was convicted”) (emphasis added). Here, Petitioner was not found guilty of a capital offense and was not sentenced to death. Thus, Beck does not provide an avenue for relief. Petitioner also cites Keeble v. United States, 412 U.S. 205 (1973), in support of his argument that a criminal defendant in a non-capital case is entitled to lesser-included offense jury instructions. (Doc. 26, at 7). But Keeble came to the Supreme Court on direct appeal from a federal conviction, 412 U.S. at 206-07, and does not affect the Tenth Circuit's rule of automatic non-reviewability of a state court's failure to issue lesser-included jury instructions in noncapital habeas cases.
In the absence of a clearly established federal law granting Petitioner a right to lesser-included offense instructions, there is no further analysis of the OCCA's application of law. Furthermore, the OCCA's holding was not based on an unreasonable determination of the facts. Accordingly, the court recommends denying Petitioner habeas relief on this ground.
C. Ground Three: Petitioner Is Not Entitled To Relief Because Admission of the Other Crimes Evidence Did Not Violate the Fundamental Fairness Required by the Fourteenth Amendment.
Petitioner argues that the admission of evidence regarding his actions and statements immediately following his collision with Mr. Lynch and prior to his arrest, which he characterizes as “other crimes evidence,” resulted in the denial of his due process rights. (Doc. 14, at 27-31). Specifically, Petitioner contends the following evidence should not have been admitted:
• Detective Lakin's testimony that Petitioner was standing behind a storm door, acting aggressive and challenging when she arrived at the home;
• Sergeant Hollis' testimony that Petitioner was in a fighting stance and had a knife in his hand;
• Detective Lakin's testimony that she took out a taser when Sergeant Hollis said Petitioner had something in his hand, and that Petitioner told her to “put that shit up;”
• Detective Lakin and Officer Brandon Jackson's testimony that Petitioner threatened them, told them that they would have to kill him, and told Detective Lakin that he would kill her if she tased him; and
• testimony regarding Petitioner being tased by Detective Lakin.(Doc. 14, at 28) (citing Tr. Vol. III, at 134-41, 150, 158-59).
1. The OCCA's Ruling
On direct appeal, Petitioner complained that the trial court abused its discretion in admitting the foregoing evidence. (Doc. 22, Ex. 2, at 25-29). The OCCA denied this claim, holding:
[w]e find in Proposition III that the trial court did not abuse its discretion in admitting evidence of [Petitioner's] conduct towards police immediately after the crime. An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Relevant evidence is that which tends to make the existence of a consequential fact more or less probable. This evidence was admitted to show [Petitioner's] consciousness of guilt. Generally, testimony about the events surrounding an arrest is admissible to prove consciousness of guilt. Allen v. State, 1989 OK CR 79, ¶ 6, 783 P.2d 494, 496-97; see also Camron v. State, 1992 OK CR 17, ¶ 22, 829 P.2d 47, 53 (attempts to “improperly influence a witness, attempts to destroy evidence, flight to avoid arrest, etc., are admissions by conduct”). [Petitioner's] claim
that the evidence was unfairly prejudicial is unpersuasive; the jury convicted him of a lesser included offense and gave him less than the maximum sentence. This proposition is denied.(Doc. 22, Ex. 4, at 4) (select citations omitted).
2. The Fourteenth Amendment Provides the Clearly Established Law for a Fundamental-Fairness Analysis.
Petitioner's argument primarily focuses on the admissibility of evidence under Oklahoma law. “Such an inquiry . . . is no part of a federal court's habeas review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Instead, the court in a federal habeas action “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68. “Nevertheless, when a state court admits evidence that is ‘so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.'” Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)). Thus, the relevant inquiry is “whether, considered in light of the entire record, [the contested evidence's] admission resulted in a fundamentally unfair trial.” Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002), abrogated on other grounds by Johnson v. Williams, 568 U.S. 289 (2013). “[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements . . . [the] federal court must tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted).
3. The Admission of the Evidence Did Not Result in a Fundamentally Unfair Trial.
In Petitioner's amended habeas petition, the section heading for Ground Three generally asserts that the trial court's admission of the other crimes evidence resulted in the denial of due process; however, the actual legal argument addresses only whether the evidence was admissible under state law. (Doc. 14, at 27-31). As Respondent points out, Petitioner did not cite to any relevant federal law in support of this claim, and he did not explain how the trial was fundamentally unfair due to admission of the evidence. (Doc. 22, at 39-40). In his reply brief, Petitioner perfunctorily states that he “has maintained a denial of fundamental fairness.” (Doc. 26, at 8). Petitioner is represented by counsel, and the court would be entitled to reject Ground Three on the basis that Petitioner has failed to meet his burden to establish error warranting habeas relief. See, e.g., Gonzales v. Martin, 2018 WL 4494993, at *1 (W.D. Okla. Sept. 19, 2018) (“Because Petitioner is represented by counsel, he is not entitled to liberal construction of his claims, and the Court will limit its construction to the arguments actually developed by the briefs.”). However, this court can also deny relief on this claim because the admission of the evidence did not render the trial fundamentally unfair.
The only federal law cited in the section of the Amended Petition addressing Ground Three is an argument regarding the sufficiency of the evidence. (Doc. 14, at 30-31). When the same argument was included in this section of the original petition, Judge Purcell determined it to be “so unrelated to Petitioner's argument regarding the admission of other crimes evidence that . . . it was inadvertently asserted into this section of the Petition.” (Doc. 11, at 7-8 n.4). The undersigned agrees, and does not consider this argument here.
The OCCA reasonably determined that under state law, the challenged evidence was relevant and admissible to prove Petitioner's consciousness of guilt. See Allen v. State, 783 P.2d 494, 496 (Okla. Crim. App. 1989) (“Testimony concerning the events surrounding a defendant's arrest is generally admissible as tending to prove the defendant's guilt of the crimes charged.”), overruled on other grounds by Davis v. State, 2018 OK CR 7, 419 P.3d 271. It is not fundamentally unfair to allow the jury to consider relevant, admissible evidence.
Moreover, Petitioner has not established that the evidence was prejudicial. He was found not guilty of first-degree murder - indicating that the jury did not believe the policeinteraction evidence established that Petitioner had formed a specific intent to kill Mr. Lynch. And as discussed (see supra Part IV(A)), there was sufficient other evidence to convict Petitioner of second-degree murder. Because admission of the challenged evidence did not render the trial fundamentally unfair, the court recommends denying habeas relief on Ground Three.
The introduction of the evidence was not a surprise to Petitioner's defense counsel: the conduct at issue was the basis of a misdemeanor charge of threatening to perform an act of violence, to which Petitioner pled guilty immediately prior to trial. (R., at 174-80). And although Petitioner contends that he was not able “to properly file a motion in limine,” (Doc. 14, at 28), the evidence was the subject of an oral motion in limine before opening statements, which the trial court carefully considered at various stages of the trial. (Tr. Vol. II, at 10-16, 123-24; Vol. III, at 86-95). Indeed, the trial court determined that Petitioner's interaction with the police was relevant to the issue of consciousness of guilt and that the relevancy of the evidence was not substantially outweighed by any prejudicial effects. (Tr. Vol. III, at 94). The trial court, however, did not allow testimony that any of Petitioner's statements amounted to violations of law. (Id.).
D. Ground Four: Petitioner is Not Entitled To Relief Because the OCCA Reasonably Applied the Clearly Established Law Regarding Ineffective Assistance of Counsel.
Petitioner contends that his trial counsel was ineffective because he did not request lesser-included offense instructions for second-degree manslaughter and negligent homicide. (Doc. 14, at 31-33).
1. The OCCA's Ruling
On direct appeal, the OCCA found:
[w]e find in Proposition IV that trial counsel was not ineffective for failing to request instructions on lesser included offenses. [Petitioner] must show that counsel's performance was deficient, and that the deficient performance was prejudicial. We may dispose of [Petitioner's] claim if he fails to show he was prejudiced by counsel's acts or omissions. We found in Proposition II that (as [Petitioner] admits) he was not entitled to instructions on second degree manslaughter or negligent homicide. As these instructions would not have been appropriate, trial counsel was not ineffective in failing to request them. This proposition is denied.(Doc. 22, Ex. 4, at 5) (citations omitted).
2. Strickland v. Washington is the Clearly Established Law on Ineffective Assistance of Counsel.
In order to succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy the standards of Strickland v. Washington, 466 U.S. 668 (1984), and show that his attorney's performance was both deficient and prejudicial. Id. at 687. An attorney's performance is deficient when it falls “outside the wide range of professionally competent assistance.” Id. at 690. The performance is prejudicial when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable,” not “whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The court must use a “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted).
3. The OCCA's Application of Strickland Was Not Unreasonable.
On direct appeal, the OCCA considered whether the failure of Petitioner's trial counsel to request jury instructions for second-degree manslaughter and negligent homicide was deficient performance under Strickland. The OCCA determined that it was not deficient because the jury instructions were not warranted under either the evidence presented at trial or the theory of the defense - an issue that the OCCA had already decided in response to another of Petitioner's claims of error. (Doc. 22, Ex. 4, at 3-5). The question for this court is whether the OCCA's application of Strickland was unreasonable, which in turn requires us to consider whether the OCCA's decision regarding the jury instructions was unreasonable. The undersigned finds that neither of the OCCA's rulings was unreasonable.
Petitioner contends that “it cannot be reasonable performance in a murder trial to not request every conceivable instruction supported by the evidence presented that may save a client from life imprisonment or with the crime of negligent homicide, a felony conviction.” (Doc. 14, at 33). However, he admits, and Oklahoma law supports, that “proof beyond a reasonable doubt that the defendant was intoxicated negates the propriety of these instructions.” (Id. at 22). There was ample evidence at trial for the jury to find that the Petitioner was intoxicated. (See supra Part I). Moreover, Petitioner's articulated defense theory to the charge of first-degree murder rested on this very evidence to establish that he did not intend to kill the victim. (Tr. Vol. IV, at 142-144, 196-198). During closing argument, defense counsel told the jury, “[i]n my opening, I told you that the evidence was going to be that [Petitioner] was drinking; that he was high; that he was drunk, and that's all been true.” (Tr. Vol. IV, at 197). Defense counsel argued, “[T]he evidence is clear that [Petitioner] was not himself or not as a normal person should be, and that he was intoxicated on alcohol and on drugs.” (Tr. Vol. IV, at 198). Defense counsel further argued, that Petitioner “turn[ed] left - an unnatural left, an intoxicated left, a drunk left, an out of control left - but he turns left as soon as he can . . . . [be]cause he doesn't want to run into the Walmart. He turns left, and very unfortunately, he hits [the victim].” (Tr. Vol. IV, at 201). Under Oklahoma law, when a defendant “makes admissions by counsel during trial that render every defense unavailable save one, he is deemed to have elected that defense; and may, by his election, foreclose the submission of instructions on other theories of defense or lesser-included offenses inconsistent with his defense.” Grissom v. State, 2011 OK CR 3, ¶ 35, 253 P.3d 969, 982; see also Carter v. State, 879 P.2d 1234, 1249 (Okla. Crim. App. 1994) (“While [a]ppellant is entitled to an instruction on his theory of defense, he is not entitled to instructions on every possible theory of defense.”).
It was not unreasonable for the OCCA to determine that the evidence did not support jury instructions for second degree manslaughter or negligent homicide. (Doc. 22, Ex. 4, at 4). Thus, it was not unreasonable for the OCCA to determine that trial counsel was not ineffective for failing to request them. (Id. at 5). Accordingly, the court recommends denying Petitioner habeas relief on Ground Four.
E. Ground Five: Petitioner Is Not Entitled To Relief Because There Was No Error and Thus No Cumulative Error.
Petitioner contends cumulative error denied him a fair trial. The OCCA denied Petitioner's cumulative error claim on direct appeal, holding, “[w]here there is no error, there is no cumulative error.” (Doc. 22, Ex. 4, at 5). The court finds this was a reasonable application of federal law.
“[W]hen a habeas petitioner raises a cumulative error argument under due process principles the argument is reviewable because Supreme Court authority clearly establishes the right to a fair trial and due process.” Bush v. Carpenter, 926 F.3d 644, 686 (10th Cir. 2019) (internal quotation marks omitted), cert. denied, 140 S.Ct. 2770 (2020). For Petitioner to receive habeas relief, the court “must find that the cumulative effect of the errors determined to be harmless had a substantial and injurious effect or influence in determining the jury's verdict.” Id. (internal quotation marks omitted).
In Bush, the court noted “that the Supreme Court has never recognized the concept of cumulative error” and therefore “question[ed] whether a state appellate court's rejection of a cumulative error argument [could] justify federal habeas relief under the standards outlined in § 2254(d)” because there was no “clearly established Federal law” on the issue. 926 F.3d 644, 686, n.16. Nevertheless, the court considered the issue because it was bound by Tenth Circuit precedent. Id.
The OCCA did not find any harmless errors, and this court does not either. “The cumulative-error analysis applies where there are two or more actual errors. It does not apply, however, to the cumulative effect of non-errors.” Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 915 (10th Cir. 2019) (internal quotation marks omitted), cert. denied, 140 S.Ct. 844 (2020); see also Weimer v. Allbaugh, 766 Fed.Appx. 728, 734 (10th Cir. 2019) (“Here there are no errors, and [petitioner's] claim for habeas relief fails.”). Therefore, the court recommends denying Petitioner habeas relief on this ground.
V. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that the Amended Petition for habeas relief (Doc. 14) be denied on all grounds.
The court advises the parties of their right to object to this Report and Recommendation by Thursday, February 18, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 28th day of January, 2021.