Opinion
CIV-23-146-D
11-27-2023
OBALDO ESPINOZA, JR., Petitioner, v. CASEY HAMILTON,[1]Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondent responded to the petition and attached Petitioner's state-court filings and those courts' decisions, as well as portions of the state-court record for Garfield County Case No. CF-2018-19. Doc. 12. Respondent also conventionally filed documents from the state-court record, including the jury trial transcripts (Tr. Vols. I-IV), the original record (O.R.), and pretrial motion transcript (Mot. Tr.). Doc. 14. For the reasons below, the undersigned recommends the Court deny habeas corpus relief.
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. Except for capitalization, quotations are verbatim, unless otherwise specified.
I. Procedural background.
A Garfield County jury convicted Petitioner of aggravated trafficking in illegal drugs (Count One), possession of firearm after former felony conviction (Count Three), and unlawful possession of drug paraphernalia (Count Four).O.R. 262. The trial court sentenced Petitioner to thirty-five years' imprisonment on Count One, ten years' imprisonment on Count Three (consecutive to Count One), and one year of imprisonment on Count Four (concurrent with Count One). Id.
The jury found Petitioner not guilty of possession of proceeds from drug activity (Count Two). O.R. 155.
Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed Petitioner's convictions and sentences in an unpublished summary opinion. Doc. 12, Att. 1, 3.
Petitioner sought post-conviction relief in the state district court, raising twenty grounds for relief. Doc. 12, Atts. 4-9. The state district court denied post-conviction relief, but granted Petitioner leave to amend and supplement two propositions. Doc. 12, Att. 12. Petitioner then filed an Amended Application for Post-Conviction Relief, Doc. 12, Att. 13, which the state district court denied. Doc. 12, Att. 15. Petitioner appealed, Doc. 12, Att. 16, and the OCCA affirmed the denial of post-conviction relief. Doc. 12, Att. 17.
Petitioner now seeks habeas corpus relief from this Court. Doc. 1.
II. Petitioner's claims.
Petitioner raises two grounds for relief. In Ground One, Petitioner asserts his “alleged statements given to police cannot be inferred to have been a confession and the OCCA's determination regarding the alleged confession is objectively unreasonable.” Id. at 14. In Ground Two, Petitioner contends “the state court's order denying relief in post-conviction is ambiguous and does not rest on independent and adequate state court procedural bars and the OCCA's merit based determination is so lacking in justification that de novo review applies.” Id. at 19.
III. Standard of review for habeas relief.
“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't of Corr., 952 F.3d 1242, 1245 (10th Cir. 2020). A petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of petitioner's claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d). Petitioner bears the “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) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).
This Court first determines “whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). Clearly established federal law consists of Supreme Court holdings in cases with facts much like those in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). 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 the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.'” Id. (quoting Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013)). “It 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.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
The “‘unreasonable application' prong requires [the petitioner to prove] that the state court ‘identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.'” Owens, 792 F.3d at 1242 (alterations omitted) (quoting Williams, 529 U.S. at 413). 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.” Id. “In other words, ‘so long as fairminded jurists could disagree on the correctness of the state court's decision,' habeas relief is unavailable.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).
IV. The Court should deny habeas relief.
A. Ground One: Petitioner contends his confession was involuntary because law enforcement officers did not scrupulously honor his stated request to remain silent.
In Ground One, Petitioner asserts his “alleged statements given to police cannot be inferred to have been a confession and the OCCA's determination regarding the alleged confession is objectively unreasonable.” Doc. 1, at 14. He also makes two new arguments not previously raised on direct appeal. He contends that “[h]ad Petitioner confessed to law enforcement there would have been no reason to have three interviews with him and for the OCCA to find any statements give [sic] by Petitioner were voluntary were objectively unreasonable.” Id. at 14. He also contends that “none of the interviews were tape-recorded or video-recorded” and notes that “[t]oday, state law requires custodial interviews to be recorded by law enforcement.” Id. at 15 (citing OKLA. STAT. tit. 22, § 22). Petitioner is not entitled to relief on any of his claims.
Although Petitioner did not raise these arguments in state court, Respondent concedes that all of Petitioner's claims are exhausted. Doc. 12, at 3.
1. The trial court's ruling, Petitioner's subsequent appeal, and the OCCA's Decision.
At trial, Sergeant Justin Hodges testified regarding statements Petitioner made during a custodial interview on January 3, 2018. Tr. Vol. IV, at 52-61. Petitioner told Sergeant Hodges that he came to Enid with a black duffel bag containing methamphetamine and sold it there for the purpose of paying a debt. Id. at 57, 59. Petitioner told Sergeant Hodges that he went to the Lazy H Motel to stay with M.S. in a room he had paid for. Id. at 58-59. In closing argument, the State referenced Sergeant Hodges's testimony regarding Petitioner's statements. Id. at 109-10, 117, 139-40.
That Petitioner admitted to staying in M.S.'s room at the Lazy H Motel is relevant because police found a black duffel bag containing a white crystalline substance, a digital scale with white residue, and $9,180 in cash. Tr. Vol. III, at 16-20. Tests confirmed the white crystalline substance was methamphetamine. Id. at 216.
The trial court addressed whether Petitioner voluntarily confessed at a pretrial Jackson v. Denno hearing. Mot. Tr. 17-213. Officer Damian Neiswanger testified that he read Petitioner his Miranda rights after he placed Petitioner in custody and Petitioner told him he did not want to speak. Id. at 38-39. Officer Neiswanger then put Petitioner in the police car and “walked away” without asking any further questions. Id. at 38. The encounter was not recorded. Id. at 41. Officer Neiswanger testified that he did not recall Petitioner stating he wanted legal counsel. Id.; id. at 179-80.
378 U.S. 368 (1964).
Petitioner testified extensively at the hearing. Mot. Tr. 82-167. But Petitioner's counsel's argument (taken almost directly from Petitioner's direct appeal brief (see Doc. 12, Att. 1, at 14-15)), is based solely on the testimony of the law enforcement officers who spoke to him. See Doc. 1, at 15-16 (citing only testimony from the State's witnesses at the Jackson v. Denno hearing, conceding that the testimony of those witnesses “establish facts which [are], essentially, undisputed,” and noting that “[t]he Court is left to rely solely upon the testimony of law enforcement and nothing more”). Thus, the undersigned relies on Petitioner's counsel's framing of the issue and the testimony of the law enforcement officers. See, e.g., Ellibee v. Fox, 244 Fed.Appx. 839, 841 (10th Cir. 2007) (noting it is not the court's role to “sift through the record to find support for [Petitioner's] arguments” when he has not done so in his briefing); Phillips v. James, 422 F.3d 1075, 1081 (10th Cir. 2005) (“[W]e will not sift through the record to find support for this argument.”).
Miranda v. Arizona, 384 U.S. 436 (1966).
Next, Officer Walter Tuttle interviewed Petitioner at the Garfield County Jail on the morning of January 1, 2018, at least two hours after Petitioner was booked into jail. Id. at 29-30. Officer Tuttle read Petitioner his Miranda rights, and Petitioner agreed to speak with Officer Tuttle and to do so without an attorney present. Id. at 20-21, 23, 183. Petitioner and Officer Tuttle first discussed a case from a different county. Id. at 25. After Officer Tuttle changed the focus of the discussion and asked Petitioner about the items located in the motel room, Petitioner told Officer Tuttle that he did not know anything about that and did not wish to speak anymore. Id. at 24-25, 28. At that point, Officer Tuttle stopped the interview. Id. at 24-25.
On January 3, 2018, Sergeant Hodges, Detective Shawn Ramsey, and Detective Wilson spoke with Petitioner at the Garfield County Jail for about one hour in an unrecorded meeting. Id. at 44-46, 54, 58, 65, 73. Sergeant Hodges testified that Petitioner “explained his entire story as [he] was trying to read him his Miranda warning.” Id. at 49; see also id. at 190 (testifying that Petitioner immediately started trying to talk when he entered the room). After several attempts to stop Petitioner from making statements, Sergeant Hodges read Petitioner his Miranda rights. Id. at 47. Petitioner agreed to talk and made the statements Sergeant Hodges testified about at trial. Id. at 49-52. Sergeant Hodges and Detective Ramsey both testified that Petitioner agreed to speak to them without an attorney present and at no point told them he wanted to stop talking. Id. at 47, 49, 194.
Sergeant Hodges was aware Petitioner had previously advised Officer Tuttle that he did not wish to speak to him about the drugs. Mot. Tr. 55-56.
At the conclusion of the presentation of testimony at the hearing, the trial judge ruled as follows:
It's my observations that there were no promises made, no threats made, no mistreatment, no coercion. [Petitioner] knew he had a right to speak to an attorney. But he chose to talk with the officers anyway. He was aware of the potential charges. It appeared to the Court that he was willing to talk to the officers so long as he thought it would be helpful to him.
He was Mirandized, repeatedly.
The Court finds [Petitioner's] statement was voluntary and is admissible.Id. at 209-10.
On direct appeal, Petitioner argued: “Because the evidence presented at the Jackson v. Denno hearing showed [Petitioner] invoked his Fifth Amendment right to remain silent and that the investigators did not scrupulously honor the invocation of that right, the trial court erred in ruling that [Petitioner's] statements to police were admissible at trial.” Doc. 12, Att. 1, at 13. The OCCA affirmed the trial court, holding:
[Petitioner] claims the district court erred in finding that his confession was voluntary. He maintains the officers did not scrupulously honor his invocation of his right to remain silent and wore down his resistance with repeated interview attempts.[FN4] The district court conducted a Jackson v. Denno hearing[FN5] to consider the voluntariness of [Petitioner's] custodial statements and held his confession was voluntary and admissible. [Petitioner] did not object to the admission of his confession at trial. He has therefore waived appellate review of this issue for all but plain error. See Mason v. State, 2018 OK CR 37, ¶ 16, 433 P.3d 1264, 1270. Because the district court did not err, [Petitioner] is not entitled to relief. See Hogan v. State, 2006 OK CR 19, ¶ 39, 139 P.3d 907, 923 (stating “[t]he first step in plain error analysis is to determine whether error occurred.”).
Police may question a suspect in custody who has invoked his or her right to silence provided the police “scrupulously honored” the suspect's prior assertion of his or her Fifth Amendment right. Warner v. State, 2006 OK CR 40, ¶ 51, 144 P.3d 838, 865, overruled on other grounds in Taylor v. State, 2018 OK CR 6, 419 P.3d 265. We review claims challenging whether police have scrupulously honored a suspect's invocation of his or her right to silence on a case-by-case basis, considering the totality of the circumstances. Id. Factors to consider are the length of time between interviews, whether Miranda warnings were repeated, whether the same officers questioned the defendant on each occasion, and whether the questioning concerned the same event or offense. See Michigan v. Mosley, 423 U.S. 96, 104-05 (1975) (holding suppression of defendant's incriminating statement from a second interview was not required where officers scrupulously honored his assertion in his first interview of his right to remain silent and ceased questioning and the incriminating statement was obtained after a two-hour interval where Miranda warnings were repeated and a different officer sought information about an unrelated murder); Warner, 2006 OK CR 40, ¶ 51, 144 P.3d at 865 (holding police scrupulously honored defendant's right to silence when questioning ceased and did not resume until five days later by a different officer about a separate crime); Robinson v. State, 1986 OK CR 86, ¶ 6, 721 P.2d 419, 421-22 (holding police scrupulously honored defendant's right to silence when
questioning ceased and did not resume until a day later by a different officer about a different matter).
We must decide whether police “scrupulously honored” [Petitioner's] invocation of his right to remain silent under the Mosely factors. The record shows the arresting officer asked [Petitioner] no questions once he invoked his Fifth Amendment right. The next interview attempted was hours later by a different officer who repeated the Miranda warnings and [Petitioner] waived his rights and discussed his case pending in another county. When the officer asked about the instant case, [Petitioner] invoked his Fifth Amendment right to remain silent and questioning ceased. According to the officers involved in [Petitioner's] confession interview several days later, [Petitioner] entered the room and began making incriminating statements before his rights could be read and he continued making statements as the interrogating officer tried to read his rights. Once the interrogator was able to finish, [Petitioner] waived his rights and freely spoke with police. Our review of the totality of the circumstances shows that the Mosely factors weigh in favor of finding [Petitioner's] confession voluntary because the interviews by law enforcement were separated by time and place, were conducted by different officers and involved overlapping topics. For these reasons, we find that the district court did not err in rejecting [Petitioner's] voluntariness challenge and that relief is not warranted.
[FN4] Espinoza testified at the Jackson v. Denno hearing. He insisted he told the officer that he did not want to talk to police and waived his rights and confessed because of promises by the interrogating officer to help him.
[FN5] 378 U.S. 368 (1964) (establishing a defendant's right to a hearing on the voluntariness of his inculpatory statements or confession).Doc. 12, Att. 3, at 5-9.
2. The OCCA did not unreasonably determine that the police officers scrupulously honored Petitioner's right to remain silent.
a. Michigan v. Mosley is the clearly established law governing Petitioner's claim.
It is clearly established that
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.Miranda, 384 U.S. at 444. Specifically, the person must “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Id. at 473-74. “[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” Id. at 474.
Addressing “under what circumstances, if any, a resumption of questioning is permissible,” the Supreme Court later held that Miranda did not “create a per se proscription of indefinite duration upon any further questioning by any police officer of any subject, once the person in custody has indicated a desire to remain silent.” Michigan v. Mosley, 423 U.S. 96, 101-03 (1975). Instead, “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning' was ‘scrupulously honored.'” Id. at 104. Turning to the facts of the case, Mosley held that the right to end questioning “was fully respected” where: (1) questioning ceased at the time the defendant initially invoked his right to remain silent; (2) more than two hours separated two interrogations; (3) the second interrogation was conducted by a different officer than the first;(4) the second interrogation was at a different location than the first; (5) the subject of the second interrogation was about a criminal act unrelated to the first; and (6) the second officer gave the defendant a full set of Miranda warnings at the outset of the second interrogation and an opportunity to exercise them. Id. at 104-05. It held those facts did not show “police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 10506.
The Court also noted it was “unclear” how much the officer conducting the second interrogation knew about the first interrogation. Mosley, 423 U.S. at 105.
b. The OCCA did not unreasonably apply Mosley.
Considering the “totality of the circumstances,” the OCCA found “the Mosely [sic] factors weigh in favor of finding [Petitioner's] confession voluntary.” Doc. 12, Att. 3, at 8. This was not contrary to or an unreasonable application of Mosley. In United States v. Alexander, the Tenth Circuit interpreted Mosley to create a “four-part test” allowing police to “reinitiate questioning” after “an individual expresses his desire to remain silent” if: (1) questioning ceased at the time the defendant invoked his right to remain silent; (2) a substantial interval passed before the second interrogation; (3) the defendant was given a new set of Miranda warnings; and (4) the subject of the second interrogation is unrelated to the first. 447 F.3d 1290, 1294 (10th Cir. 2006).Here, the OCCA's findings comport with Alexander's four-part test. See Doc. 12, Att. 3, at 8-9 (finding the officers: (1) immediately ceased questioning when Petitioner asserted his right to remain silent; (2) the second interview took place hours after the first and initially addressed different subject matter; (3) the third interview occurred several days after the first; (4) Petitioner began making incriminating statements as he entered the room; and (5) waived his rights after his Miranda warning could be read). Regarding the fourth factor, the OCCA explicitly found the second interview contained a different subject matter than the first. Id. at 8. It also found that Petitioner started making incriminating statements as soon as he walked in the door to the third interview-effectively meaning law enforcement did not dictate the parameters of the interview. Id.
One court explicitly disregarded Alexander's “loose pronouncement about the necessity of all four elements in the four-part test” as dicta, and “believe[ed] that the Tenth Circuit, if faced with the issue, would adopt [a] flexible approach . . . which takes account of all relevant circumstances” when determining if police officers scrupulously honored the right to cut off questioning.” United States v. Orduna-Martinez, 491 F.Supp.2d 1021, 1032 (D. Kan. 2007), aff'd, 561 F.3d 1134 (10th Cir. 2009); see also Weeks v. Angelone, 176 F.3d 249, 268 (4th Cir. 1999) (holding “Mosley does not prescribe a bright-line test,” but instead “the touchstone is whether a ‘review of the circumstances' leading up to the suspect's confession reveals that his ‘right to cut off questioning was fully respected'” (quoting Mosley, 423 U.S. at 104)), aff'd, 528 U.S. 225 (2000); United States v. Medina, 2011 WL 5239731, at *4 (D. Utah Nov. 1, 2011) (“Though the Tenth Circuit has not squarely addressed this issue, the majority of the circuits that have addressed it have held that the mere fact that the second interrogation concerns the same subject matter as the first does not, by itself, render the second interview unconstitutional.”). The Court need not determine whether Alexander is dicta, as the OCCA's analysis is not unreasonable under either approach.
While Petitioner asserts the interview was “for the purpose of deriving information about the offenses charged in this case,” Doc. 1, at 15-16 (citing Mot. Tr. 55-56, 72), the officers' purpose for the interview is of little importance where, as the OCCA found, Petitioner entered the room and started making incriminating statements. See Doc. 12, Att. 3, at 8.
Petitioner also cites Edwards v. Arizona, 451 U.S. 477 (1981), in support of his argument. Doc. 1, at 16-18. But Edwards held “that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” 451 U.S. at 484. The Court further held that “an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85.
But Petitioner neither alleges he requested legal counsel nor presents any portion of the record to suggest he requested counsel. Indeed, Petitioner cites only testimony from the State's witnesses at the Jackson v. Denno hearing and concedes that the testimony of those witnesses “establish facts which [are], essentially, undisputed.” Doc. 1, at 15. He also notes that “[t]he Court is left to rely solely upon the testimony of law enforcement and nothing more.” Id. at 16. Police officers consistently testified Petitioner did not request counsel during their encounters. Mot. Tr. 23, 41, 47, 49, 179-80, 194 (officers testifying that Petitioner either agreed to speak to them without counsel or not recalling Petitioner requesting legal counsel). Thus, Edwards is inapplicable to Petitioner's argument.
Petitioner was represented by counsel on direct appeal and has counsel for this action. Thus, the undersigned will not afford Petitioner's claims a more liberal construction. See Wilson v. Allbaugh, No. CIV-18-383-W, 2018 WL 11310302, at *1 n.3 (W.D. Okla. Aug. 7, 2018) (“This Court will not construct legal arguments for Petitioner, nor will it afford his counsel's filings liberal interpretation.” (citing United States v. Fennell, 207 Fed.Appx. 916, 918 (10th Cir. 2006); Bakalov v. Utah, 4 Fed.Appx. 654, 657 (10th Cir. 2001))), adopted, 2018 WL 11310299 (W.D. Okla. Aug. 22, 2018).
The Court should not grant habeas relief on Petitioner's claim that police officers did not scrupulously honor his right to remain silent.
3. The Court should deny the voluntariness arguments Petitioner raises for the first time in this action.
The Court should reject Petitioner's new voluntariness arguments. First, Petitioner notes he was interviewed three times by law enforcement and asserts “[h]ad Petitioner confessed to law enforcement there would have been no reason to have three interviews with him.” Doc. 1, at 14. Based on this assertion, he argues the OCCA's finding that his statements were voluntary was “objectively unreasonable.” Id. Petitioner does not present any clearly established federal law-or any authority at all-suggesting that an individual who is interviewed three times by law enforcement cannot make a voluntary confession. He thus fails to meet his burden of establishing his entitlement to habeas corpus relief on this claim. See Owens, 792 F.3d at 1242 (noting Petitioner bears the burden of showing the state court's decision was either contrary to clearly established federal law or was based on an unreasonable determination of the facts). So the Court should reject it.
Petitioner also argues that “none of the interviews were tape-recorded or video-recorded” and notes that “[t]oday, state law requires custodial interviews to be recorded by law enforcement.” Doc. 1, at 15 (citing OKLA. STAT. Tit. 22, § 22). But “claims of state law violations are not cognizable in a federal habeas action.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).
The Court notes that Oklahoma law only requires law enforcement agencies to “adopt a detailed written policy requiring electronic recording of a custodial interrogation of an individual suspected of homicide or a felony sex offense that is conducted at a place of detention.” OKLA. STAT. tit. 22, § 22. Petitioner, however, was not charged with and suspected of the enumerated crimes. Further, the state law went into effect November 1, 2019-after Petitioner's unrecorded confession occurred. Id.
For the reasons stated above, the Court should deny habeas corpus relief on Ground One.
B. Ground Two: Petitioner asserts he is entitled to de novo review of his claim of ineffective assistance of appellate counsel.
In Ground Two, Petitioner argues that “the state court's order denying relief in post-conviction is ambiguous and does not rest on independent and adequate state court procedural bars and the OCCA's merit based determination is so lacking in justification that de novo review applies.” Doc. 1, at 19.
1. Petitioner's unfruitful efforts to obtain postconviction relief in state court.
Petitioner, appearing pro se, filed an Application For Post-Conviction Relief in the state district court on February 22, 2021, raising twenty propositions for relief. Doc. 12, Atts. 4-9. The state district court entered an order denying Petitioner's application on April 22, 2021. Doc. 12, Att. 12. The court found that all but two of Petitioner's propositions were barred by res judicata. Id. at 3. The trial court denied Petitioner's ineffective-assistance-of-appellate-counsel and recantation claims because both “lack[ed] specificity [and/or] supporting documentation,” but granted him leave to amend and supplement those claims. Id.
Petitioner, again appearing pro se, filed an Amended Application for Post-Conviction Relief on July 7, 2021. Doc. 12, Att. 13. There, Petitioner raised only an ineffective-assistance-of-appellate-counsel claim. Id. at 3-10. He contended his appellate counsel failed to raise the following issues on appeal:
• The evidence presented at trial was insufficient to convict him (and that his trial counsel failed to preserve this issue for appellate review);
• M.S. was an accomplice and her testimony should have been corroborated;
• The warrant issued for Petitioner's phone was not based on probable cause;
• A warrant was required to “ping” M.S.'s phone;
• Trial counsel failed to interview and call exculpatory witnesses and failed to interview prosecution witnesses to prepare for trial; and
• “Federal/tribal authorities should have been involved when it is alleged that a Native American woman has been kidnapped from the reservation/tribal jurisdiction.Id. The state district court denied the amended application, finding Petitioner did not raise a claim that “br[ought] him within” Okla Stat. tit. 22, § 1080, the state statute governing post-conviction relief. Doc. 12, Att. 15, at 2. The court further found:
There is no material fact in issue not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice. No purpose would be served by any further proceedings. This court is satisfied that the Defendant is not entitled to post-conviction relief.Id.
Petitioner, appearing through counsel, filed an appeal with the OCCA. Doc. 12, Att. 16. His brief contained one proposition:
The district court abused its discretion denying the Petitioner's application for post-conviction relief as the court failed to set forth findings of fact and conclusions of law and not analyzing the Petitioner's claims in relation to prejudice and failed to specify what documents that were considered in its decision infringing upon the Petitioner's statutory right to redress on appeal in a postconviction proceeding, Rules of the Court of Criminal Appeals, Rule 5.4.Id. at 7 (capitalization normalized). Petitioner argued that his claim of ineffective assistance of appellate counsel was a “federally protected constitutional claim that may be raised in collateral proceedings.” Id. at 8. He asserted the state district court violated its duty under Oklahoma law to make specific findings of fact and expressly state its conclusions of law relating to each issue presented. Id. (citing Okla. Stat. tit. 22, § 1084).
The OCCA affirmed the state district court's order, holding in relevant part:
[P]ost-conviction claims of ineffective assistance of appellate counsel are appropriate and are reviewed under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must show both (1) deficient performance, by demonstrating that counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-89. The analysis requires us to examine the merits of the omitted issue. Logan, 2013 OK CR 2, ¶ 6, 293 P.3d at 973-74.
In his first order denying relief, Judge Hladik found,
[Petitioner's] complaints concerning appellate counsel lacked specificity and supporting documentation....
In his second order denying relief, after having granted Petitioner leave to amend and reviewing Petitioner's amended application .... Judge Hladik . . . found Petitioner's arguments of ineffective assistance of appellate counsel continued to lack specificity and supporting documentation. We agree.
Petitioner's . . . various unsupported allegations of ineffective assistance of appellate counsel are not sufficient to warrant relief. See Brown v. State, 1997 OK CR 1, ¶ 33, 933 P.2d 316, 324-25 (Because there is a presumption of regularity in trial court proceedings, “it becomes the burden of the convicted
defendant - whether on direct appeal or post conviction - to present to this Court sufficient evidence to rebut this presumption.”); Russell v. Cherokee County District Court, 1968 OK CR 45, ¶ 5, 438 P.2d 293, 294 (“the burden is upon the petitioner to sustain the allegations of his petition”).Doc. 12, Att. 17, at 3-4.
2. Petitioner argues he is entitled to de novo review of his ineffective-assistance-of-appellate-counsel claim.
Petitioner requests a de novo review of his claim of ineffective assistance of appellate counsel. Doc. 1, at 21. He argues:
The State District Court's Order at issue was ambiguous as well as the OCCA's opinion. The State District Court made no factual determination which left an irrebuttable presumption and supports the fact there cannot be a presumption of a procedural bar because that the unexplained order by the OCCA rested on the same grounds as the previous order issued by the district court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). However, Petitioner cannot discuss or otherwise demonstrate how the state court's determination was justified nor should the state court be afforded deference because of Petitioner's federally protected claims raised in state court.Id. at 20. Petitioner further argues the “[s]tate court's determination rested on thin air and cannot be construed as a merit-based determination nor resting on a procedural bar for failing to provide where the independent and adequate grounds come from.” Id. at 22. Thus, he contends he is entitled to de novo review because his ineffective-assistance-of-appellate-counsel-claim was overlooked in state court and because he was entitled to a liberal construction of his claim. Id. at 20-21 (citing Johnson v. Williams, 568 U.S. 289, 302 (2013)).
3. The OCCA's merits-based rejection of his ineffective-assistance-of-appellate-counsel claim was not unreasonable in its application of federal law or its factual determination.
Petitioner's request for de novo review largely rests on his assertions that: (1) the state district court's denial of his amended application for postconviction relief was a procedural ruling that was not on independent and adequate grounds, Doc. 1, at 22; and (2) the OCCA's decision was unexplained and thus rested on the same grounds as the state district court. Id. at 20. But the OCCA's decision amounted to a merits-based determination. Thus, Petitioner is only entitled to relief if the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d). Petitioner does not meet his burden of proof.
In its order affirming the denial of Petitioner's application for postconviction relief, the OCCA first summarized the standard set forth in Strickland, 466 U.S. 668-the clearly established federal law governing claims of ineffective assistance of counsel. Doc. 12, Att. 17, at 3. It then noted that the “analysis requires us to examine the merits of the omitted issue.” Id. The OCCA found that “Petitioner's arguments of ineffective assistance of appellate counsel . . . lack[ed] specificity and supporting documentation.” Id. at 4. Then, it stated that the “unsupported” allegation of ineffective assistance of appellate counsel was not “sufficient to warrant relief” and cited cases for the proposition that it was Petitioner's burden to present sufficient evidence to support his claims. Id. This amounts to a decision on the merits. See Matthews v. Workman, 577 F.3d 1175, 1182 (10th Cir. 2009) (“The OCCA's decision qualifies for AEDPA deference as an adjudication on the merits of Mr. Matthews's federal due process claim because it was not a procedural ruling in which the court dismissed the claim as improperly before it. Rather, the state court's decision was a substantive determination that the claim was unsupported by any evidence, competent under that state's rules of evidence.” (internal quotation marks and brackets omitted)); Rushing v. Havernek, No. CIV-21-394-D, 2022 WL 987655, at *4 (W.D. Okla. Mar. 31, 2022) (“The OCCA made a merits determination that, without evidentiary support, his ineffective assistance claims could not meet the Strickland standard.”), cert. of appealability denied, 2022 WL 17333067 (10th Cir. Nov. 30, 2022).
Petitioner makes no arguments and presents no evidence to suggest that the OCCA unreasonably determined that he did not present sufficient evidence to support his claims. Thus, the OCCA's factual finding is presumed correct. See Owens, 792 F.3d at 1243 (“[W]e presume the state court's factual findings are correct and place the burden on the petitioner to rebut that presumption by clear and convincing evidence.”); see also Pinholster, 563 U.S. at 181 (holding “[t]he petitioner carries the burden of proof” to show a state court's decision was contrary to established federal law or was based on an unreasonable determination of the facts). Additionally, Petitioner is represented by counsel, and it is not the Court's role to “sift through the record to find support for [Petitioner's] arguments” when he has not done so in his briefing. Ellibee, 244 Fed.Appx. at 841; see also Phillips, 422 F.3d at 1081 (“[W]e will not sift through the record to find support for this argument.”).
When faced with a merits-based state-court decision, this Court's “review is limited to examining whether the highest state court's resolution of a particular claim is contrary to, or an unreasonable application of, clearly established federal law.” Alverson v. Workman, 595 F.3d 1142, 1155 (10th Cir. 2010) (citing Johnson v. McKune, 288 F.3d 1187, 1200-01) (10th Cir. 2002)). “In other words, [the Court's] focus is on OCCA's rationale for affirming the state trial court's denial of” Petitioner's Amended Application for PostConviction Relief. Id.
An exception exists when the state's highest court issues an “unexplained order.” Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991). Although Petitioner relies on Ylst, the OCCA's order was not “unexplained” within Ylst's meaning. See id. (“[A]n unexplained order . . . mean[s] an order whose text or accompanying opinion does not disclose the reason for the judgment.”).
The OCCA did not unreasonably apply Strickland. The Tenth Circuit addressed a similar case in which “[t]he OCCA concluded that [the petitioner] failed to present sufficient factual and evidentiary support for his arguments alleging ineffective assistance of appellate counsel.” Rushing v. Havernek, 2022 WL 17333067, at *2 (10th Cir. Nov. 30, 2022). The court noted that the OCCA, like here, “did not fault [the petitioner] for failing to make factual claims; it faulted him for failing to support them by developing the postconviction record.” Id. Ultimately, it held “the OCCA did not unreasonably apply Strickland or unreasonably determine the facts when it denied relief on [the petitioner's] claim that his appellate counsel provided ineffective assistance.” Id. Based on the similarities between this case and Rushing, the undersigned does not find that the OCCA unreasonably applied Strickland.
The undersigned notes that even if Petitioner were entitled to a de novo review of his ineffective-assistance-of-appellate-counsel claim, he would not meet his burden of establishing entitlement to relief because he makes no argument related to the merits of the claim.
For the reasons stated above, the Court should deny Ground Two.
V. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court deny the petition for habeas corpus relief.
The undersigned advises the parties of their right to object to this Report and Recommendation by December 18, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned 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 referred to the undersigned Magistrate Judge in this matter.