Opinion
CIV-23-439-PRW
05-17-2024
DAVID L. JACKSON Petitioner, v. WILLIAM “CHRIS” RANKINS, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). Mr. Rankins has filed his Response to Petition for Writ of Habeas and Petitioner has filed a Reply. (ECF Nos. 14 & 17). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. PROCEDURAL BACKGROUND
On January 29, 2020, in Case No. CF-2018-598, a Comanche County District Court jury convicted Petitioner of: (1) Discharging a Firearm into a Dwelling, in violation of 21 O.S. § 1289.17A after former conviction of two or more prior felonies; (2) Assault and Battery with a Deadly Weapon, in violation of 21 O.S. § 652 after former conviction of two or more prior felonies; and (3) Possession of a Firearm After Former Conviction of a Felony, in violation of 21 O.S. § 1283(A). Original Record, State v. Jackson, Case No. CF-CF-2018-598 (Comanche Co. Dist. Ct.) 136-139 (O.R.); ECF Nos. 1:1-2; 14-1. The convictions stemmed from the firing of an AR-15 weapon repeatedly from one side of a duplex through the shared duplex wall into four distinct areas of the other side of the duplex where four individuals were located. See ECF No. 14-1:4-5.
On June 17, 2021, following Mr. Jackson's direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction. (ECF No. 14-1). On August 18, 2021, Mr. Jackson filed a petition for a writ of certiorari in the United States Supreme Court, and the request was denied on November 1, 2021. (ECF Nos. 14-4, 14-5, 14-6). On September 8, 2022, Petitioner filed an Application for Post-Conviction Relief in the Comanche County District Court. (ECF No. 14-7). The Comanche County District Court denied the application, but on appeal, the OCCA remanded the case to the district court for entry of a proper order regarding the district court's denial. (ECF Nos. 14-8 & 14-12). On April 17, 2023, the Comanche County District Court issued a new order, denying Petitioner's post-conviction application and on May 1, 2023, the OCCA affirmed the district court's denial. (ECF Nos. 1413 & 14-14).
On May 18, 2023, Mr. Jackson filed a habeas Petition in this Court, alleging seven grounds for relief:
1. A violation of Double Jeopardy;
2. Oklahoma's recoupment statute is unconstitutional;
3. Actual Innocence;
4. Ineffective Assistance of Trial Counsel;
5. Ineffective Assistance of Appellate Counsel;
6. Violation of the Speedy Trial Act; and
7. A violation of Brady v. Maryland, 373 U.S. 83 (1963).(ECF Nos. 1 & 17).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) governs this Court's power to grant habeas corpus relief. Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Coddington v. Sharp, 959 F.3d 947, 952 (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 state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 98 (2011).
For claims adjudicated on the merits, “this [C]ourt may grant . . . habeas [relief] only if the [OCCA's] 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 ‘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, 814 (10th Cir. 2015) (citation omitted). “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) (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, 562 U.S. at 102-103 (citation omitted).
This Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson, 797 F.3d at 824. “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]” Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of 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. (citations 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.” Id. (citation omitted).
The “unreasonable application” prong requires the petitioner to prove that the state court “identifie[d] the correct governing legal principle from [Supreme Court] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Id. (citation 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.'” Id. (citations omitted, emphasis in original). So, to qualify for habeas relief on this prong, a petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 124243 (citation omitted). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
In sum, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562 U.S. at 101-02. Relief is warranted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Id. at 102.
Finally, a federal habeas 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, 135 S.Ct. 2187, 2199 (2015). In other words, when the state appellate court makes a factual finding, the Court presumes the determination to be correct; a petition can only rebut this presumption with clear and convincing evidence. See id. at 2199-22; see also 28 U.S.C. § 2254(e)(1).
If the state appellate court has not addressed the merits of a claim, the Court exercises its independent judgment. See Littlejohn v. Trammel, 704 F.3d 817, 825 (10th Cir. 2013) (“For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our 'independent judgment[.]'") (citation omitted). “And, even in the setting where we lack a state court merits determination, '[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.'” Grant v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (internal citation omitted).
III. GROUND ONE
As stated, Mr. Jackson was convicted of: (1) Discharging a Firearm into a Dwelling and (2) Assault and Battery with a Deadly Weapon, both after former convictions of two or more prior felonies. See supra. On direct appeal, Mr. Jackson argued that two separate charges and subsequent convictions, which were based on a single incident of shooting a firearm, violated his state statutory protection against double punishment under Okla. Stat. tit. 21, § 11(A). (ECF No. 14-2:9-12). In his habeas Petition, he has “rephrase[d]” this claim to allege not only the violation of state law which he had raised in his appeal, but to also allege that the separate charges violated the Double Jeopardy Clause of the United States Constitution.
In support of his argument, Mr. Jackson cites violations of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments as “Double Jearpady” [sic] violations. See ECF No. 1:6. But only the Fifth Amendment is relevant, as that is where the Double Jeopardy Clause is found. See U.S. Const. Amend. V (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”).
A. Petitioner's State Law Claim
As stated, Mr. Jackson alleges that his convictions for Discharging a Firearm into a Dwelling and Assault and Battery with a Deadly Weapon violate Oklahoma's statutory multiple punishments provision, Okla. Stat. tit. 21, § 11. See supra. Under Oklahoma law, a section 11 analysis is “a separate matter, not involving double jeopardy issues.” Davis v. State, 993 P.2d 124, 125 (Okla. Crim. App. 1999). Because this issue involves solely a matter of state law, it does not provide grounds for federal habeas relief. See 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. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, law, or treaties of the United States.”); see also Spradlng v. Addison, 367 Fed.Appx. 938, 941, 2010 WL 681429, at *2 (10th Cir. 2010) (“To the extent Mr. Spradling argues that his conviction violates the prohibition on multiple punishments found at Okla. Stat. tit. 21, § 11, the state court's interpretation of its own laws is not a cognizable claim for federal habeas relief.”) (citing Estele); Howel v. Kaiser, 36 Fed.Appx. 925, 927, 2002 WL 89930, at *2 (10th Cir. 2002) ("As to Mr. Howell's claim that his conviction for both possessing and pointing a firearm after former conviction of a felony violates Oklahoma law against double punishment, we agree with the magistrate judge and the district court that this issue is a matter of state law which is not cognizable in a federal habeas action.”), cert. denied, 537 U.S. 855 (2002). Thus, the Court should: (1) conclude that Petitioner's section 11 claim is not cognizable in this federal habeas proceeding and (2) deny relief on the same.
B. Petitioner's Federal Claim
In Ground One, Mr. Jackson also alleges that the two convictions constituted a violation of the Fifth Amendment's Double Jeopardy Clause. See ECF No. 1:6-9; 17:3. In response, Mr. Rankins argues that Petitioner has not exhausted this claim and that it is subject to an anticipatory procedural default. See ECF No. 14:27-31. In reply, Petitioner blames his appellate counsel for not "properly federalizing the appeal,” yet indicates his belief that the claim was indeed properly raised in the OCCA. See ECF No. 17:1 ("It is crucial to note that the very reason [Petitioner's] Direct Appeal was not federalized was due to the incompetence of his appointed appellate counsel.”); ECF No. 17:3 ("Appellant counsel's deliberate avoidance of using the phrase ‘double jeopardy' in the direct appeal and opting for ‘double punishment' demonstrates a lack of confidence and competence in properly federalizing the appeal.”). The Court should conclude that Petitioner has failed to exhaust the federal claim and it is subject to an anticipatory procedural default.
See ECF No. 17:3.
1. Exhaustion as a Preliminary Consideration
The exhaustion doctrine, a matter of comity which has long been a part of habeas corpus jurisprudence, requires the court to consider in the first instance whether petitioner has presented his grounds for relief to the OCCA. "[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); see Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) ("A state prisoner generally must exhaust available statecourt remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
"Exhaustion requires that the claim be ‘fairly presented' to the state court, which means that the petitioner has raised the ‘substance' of the federal claim in state court.” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (citation omitted). This means "a federal habeas petitioner [must] provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
2. Petitioner Failed to Exhaust the Double Jeopardy Claim
On direct appeal, in “Proposition One,” Petitioner argued: “Section 11 of the Oklahoma Constitution Prohibits One Action From Being Charged as Two Crimes. Here Mr. Jackson Discharged Bullets into a Dwelling. This Act Functioned as the Basis of both the Charge of ‘Firing Into a Dwelling' and 'Assault and Battery' with a Deadly Weapon.” See ECF No. 14-2:9. Throughout the brief, Petitioner's counsel referred to a “Section 11 claim” eight times, but he never once referred to the Fifth Amendment or the Double Jeopardy Clause. However, Petitioner argues that the claim was exhausted, pointing to appellate counsel's use of the phrase “thus being convicted of 4 counts was a double jeopardy violation” in the direct appeal brief. (ECF No. 1:6, n. 4.); see ECF No. 14-2 ("Whether or not counsel articulated the United States Constitution, Amendment V or not[,] the language of ‘thus being convicted of 4 counts was a double jeopardy violation' was and/or is sufficient to federalize this claim before the Oklahoma Court of Criminal Appeals prior to raising the federal claim before this Honorable Court.”).
To be sure, appellate counsel used this phrase when referencing Henderson v. State, Case No. C-2016-40 (Okla. Ct. Crim. App. Feb. 9, 2017), a case from the OCCA which involved a Fifth Amendment Double Jeopardy analysis. See ECF No. 14-2:11. In Henderson, the OCCA found a violation of Double Jeopardy because the appellant had been convicted of four counts of assault and battery for firing four separate shots at a single victim. See ECF No. 14-2:40. The Court began its analysis by noting that the “uninterrupted gunshots were part of a single transaction.” (ECF No. 14-2:40). Because the appellant in Henderson had been convicted of four counts of assault and battery, the OCCA concluded that Double Jeopardy had been violated. (ECF No. 14-2: 40-41).
Here, however, Petitioner was convicted of two separate crimes, not two counts of the same crime, as in Henderson. See supra. Mr. Jackson's appellate counsel recognized the distinction by citing Henderson only for the fact that the four shots in that case had been considered “part of a single transaction,” and then continued his analysis of how Henderson would apply in a Section 11 analysis. See ECF No. 14-2:11. Furthermore, as noted by Respondent, “appellate counsel intentionally raised this double punishment claim under state law because he believed it to be more protective under state law.” (ECF No. 14:28) (citing appellate counsel's brief which argued “[The OCCA] has held that Section 11 has a wider scope than the constitutional provision against double jeopardy.”).
The Court recognizes that the shots being fired as part of the “same transaction” would be relevant to a traditional Double Jeopardy analysis, see Blockburger v. United States, 284 U.S. 299 (1932), but appellate counsel simply did not make the argument. See ECF No. 14-2.
The undersigned recognizes Petitioner's frustration at what he obviously believes to be a poor attempt by appellate counsel to raise the federal claim. However, mere similarity between Petitioner's prior state-court argument and his current argument is insufficient to establish exhaustion under § 2254(b)(1):
The crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim. A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution. But, a “ ‘fair presentation' requires more than presenting 'all the facts necessary to support the federal claim' to the state court. ...
Furthermore, a ‘petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court.” That is, there is no fair presentation if the claim before the state court was only “somewhat similar” to the claim pressed in the habeas petition. Indeed, “mere similarity of claims is insufficient to exhaust.” And the assertion of a general claim before the state court is insufficient to exhaust a more specific claim asserted for habeas relief.Grant v. Royal, 886 F.3d 874, 891 (10th Cir. 2018).
Finally, this Court has previously held that a petitioner's claim to the OCCA regarding a violation of Section 11 was “separate” from a federal-habeas Fifth Amendment Double Jeopardy claim, such that the federal claim was unexhausted for purposes of § 2254(b)(1)(A). See Ledford v. Jone., No. CIV-06-460-R, 2007 WL 427703, at *8-9 (W.D. Okla. Feb. 6, 2007), certificate of appealability denie, 299 Fed.Appx. 797 (10th Cir. 2008); cf Carson v. Ward. No. CIV-05-1049-C, 2006 WL 1744815, at *4 (W.D. Okla. June 22, 2006) (rejecting habeas claim premised upon violation of Okla. Stat. tit. 21, section 11 as raising purely a matter of state law), certificate of appealability denie, 209 Fed.Appx. 788 (2006). For these reasons, the undersigned finds that Petitioner's Fifth Amendment Double Jeopardy claim has not been presented to the state's highest court and is therefore unexhausted for federal habeas purposes.
3. Procedural Bar/Anticipatory Procedural Bar
Beyond the issue of exhaustion, the Court must also examine how the OCCA adjudicated each of a petitioner's grounds for relief, i.e., whether the OCCA addressed the merits of a petitioner's grounds or declined to consider them based on a state procedural rule. “It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.' ” Cone v. Bel, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. at 729). "The doctrine applies to bar federal habeas [relief] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. at 729-30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012) (“When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them.”). "Anticipatory procedural bar occurs when the federal courts apply a procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (citation omitted).
4. Mr. Jackson's Double Jeopardy Claim is Subject to an Anticipatory Procedural Bar
Because Mr. Jackson's Double Jeopardy claim has not been "fairly presented” to the OCCA, it is considered unexhausted for purposes of federal habeas review. At this point, Mr. Jackson could return to state court and exhaust this claim, by filing a post-conviction application. See 22 O.S. § 1086. However, if Petitioner did so, the OCCA would likely find that the claim was procedurally barred under a theory of waiver because it had not been previously raised. See 22 O.S. § 1086 ("Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application[.]”).
The Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground” barring habeas review. See Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (finding Oklahoma's doctrine of waiver to be independent and adequate). Under similar circumstances, the Tenth Circuit Court of Appeals has applied an anticipatory procedural bar to prevent habeas review. See Grant, 886 F.3d at 893 ("if Mr. Grant attempted to pursue this procedural competency claim in state court, that court would deem the claim procedurally barred under Oklahoma law because Mr. Grant could have raised it on direct appeal.”).
As a result, Mr. Jackson can only overcome the anticipatory procedural bar if he is able to demonstrate "cause and prejudice” for the default, or that a fundamental miscarriage of justice has occurred. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish "cause,” the prisoner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). A factor is external to the defense if it "cannot fairly be attributed to” the prisoner. Coleman, at 753.
Here, Mr. Jackson argues appellate counsel's incompetence as "cause” to excuse the procedural default. See supra. It has long been the rule that attorney error is an objective external factor providing cause for excusing a procedural default only if that error amounted to a deprivation of the constitutional right to counsel. See Edwards v. Carpente, 529 U.S. 446, 452 (2000) (holding that ineffective assistance of counsel claim must be presented to state court as independent claim before it can be used to establish cause for procedural default). However, "when a petitioner relies on an [ineffective assistance of counsel] claim to establish cause to overcome a procedural default, the petitioner must first exhaust that [ ] claim in state court.” Smith v. Albaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). Here, however, Petitioner has failed to exhaust his claim that appellate counsel was ineffective.
In his Application for Post-Conviction Relief, Mr. Jackson argued ineffective assistance of appellate counsel. See ECF No. 14-7. But in doing so, his arguments were vague and conclusory, and only asserted appellate counsel's alleged ineffectiveness on Petitioner's “actual innocence” claim. See ECF No. 14-7:13-16; see also ECF No. 14-13:4-6 (District Court's Order denying Petitioner's Application for Post-Conviction Relief, stating: “Petitioner's claim of ineffective assistance of counsel is unspecific except for the assertion that counsel failed to raise his actual innocence claim on direct appeal.”); ECF No. 14-4 (OCCA's Order affirming denial of post-conviction relief). Because Mr. Jackson has failed to exhaust his claim that appellate counsel was ineffective for failing to assert the Double Jeopardy claim on direct appeal, the Court should find that Petitioner has failed to establish “cause” to excuse the procedural default and he is subject to an anticipatory procedural bar on the federal Double Jeopardy claim as presented in Ground One.
Because Mr. Jackson cannot demonstrate cause and prejudice, he can only overcome the procedural bar if he is able to demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. To do so, Petitioner must make a" 'credible' showing of actual innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). That is, he must" 'support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.' ” Id. at 1232 (citation omitted). The Tenth Circuit has adopted the view that “new evidence,” as that phrase is used in an “actual innocence” analysis, is any evidence that was not presented at trial. Fontenot v. Crow, 4 F.4th 982, 1032 (2021). "The gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (citation omitted). If the evidence is considered "new,” the Court may then determine whether, in light of the new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House v. Bel, 547 U.S. 518, 537-538 (2006).
In Ground Three, Petitioner has raised a free-standing actual innocence claim which the undersigned will address below. See infra. However, in an abundance of caution, the undersigned will consider Mr. Jackson's "actual innocence” argument as an attempt to overcome the procedural bar in Ground One. As support for this argument, Petitioner contends that he was at a hardware store and a McDonald's at the time of the crimes, which could be proven through receipts confiscated by police. (ECF No. 1:14-18). Petitioner raised this argument in his Application for Post-Conviction Relief, see ECF No. 14-7:7-10, and the same was considered and denied by the Comanche County District Court and affirmed by the OCCA. See ECF Nos. 14;7, 14-13, & 14-4. Accordingly, this evidence is not considered "new”-it existed at the time of Petitioner's arrest. See ECF No. 1:16, n. 13. As a result, the Court should conclude that the evidence is not considered "new” and therefore, it does not provide a gateway for the Court to consider Petitioner's procedurally defaulted claim in Ground One. See Perez v. Director, Oklahoma Dept of Corrections, No. 14-1271-R, 2015 WL 2131275, at *9 (W.D. Okla. May 6, 2015) (adopting recommendation which denied petitioner's attempt to overcome a procedural default with new evidence, stating: “Petitioner points to nothing new. He only rehashes theories and alleged deficiencies that have been apparent since the time of the traffic stop and trial.”).
IV. GROUND TWO
In Ground Two, Petitioner challenges the constitutionality of Oklahoma's recoupment statute, 22 O.S. § 1355.14, which mandates payment for representation costs by indigent defendants. (ECF Nos. 1:11-14; 14-2:13-19). The OCCA rejected this claim on direct appeal. (ECF No. 13-3:18-19). The Court should conclude that the OCCA's decision was consistent with Supreme Court precedent.
Petitioner raised this claim on direct appeal, arguing that the recoupment statute violated the Fourteenth Amendment. See ECF No. 14-2:13-19. In his habeas Petition, Mr. Jackson additionally argues that the statute violated the Fifth, Sixth, Eighth and Ninth Amendments. See ECF No. 1:13. But the undersigned will not consider these amendments as Petitioner has neither: (1) offered any additional argument pertaining to the same nor (2) exhausted any related claims. See ECF No. 142; 14-5; 14-7.
A. Clearly Established Law
In Gideon v. Wainwright, the Supreme Court held that indigent criminal defendants charged with felonies in state courts are entitled to counsel at public expense under the Sixth Amendment. 372 U.S. 335, 343-44 (1963). Soon after this obligation to provide counsel was placed upon the states, many jurisdictions began to look for ways to recoup the costs of defense counsel from indigent defendants. Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants par for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J.L. Reform 323, 329 (2009). Recoupment refers to a judicial order requiring the defendant to reimburse the government for the cost of representation. Id. Such recoupment orders can take various forms. Id. The order might be made a part of the judgment and sentence, and collected in the same way as fines or other costs. It might also be a civil judgment, enforced as would any civil judgment. Id. at 330. Defense costs include not only attorney's fees, but also investigative and expert services. Id. Recoupment orders may be enforced as civil judgments, part of the criminal sentence, a condition of probation, or some combination thereof. Id. at 331.
In Fuler v. Oregon, 417 U.S. 40 41 (1974), the United States Supreme Court considered the constitutionality of an Oregon state recoupment statute which required that in some cases, a defendant would be responsible for repaying all or part of the “expenses specially incurred by the state in prosecuting the defendant,” and/or the costs of the convicted person's legal defense. Fuler v. Oregon, 417 U.S. at 41. In its analysis, the Court first noted that “the requirement of repayment 'is never mandatory.” Id. at 44. The Court continued by noting “several conditions” which must be met prior to requiring repayment of costs. Id. at 45. First, a requirement of repayment may be imposed only upon a convicted defendant; not upon a defendant who has been acquitted, whose trials end in mistrial or dismissal, and those whose convictions are overturned. Id. Second, a court may not order a convicted person to pay these expenses unless he “is or will be able to pay them.” Id. No requirement to repay may be imposed if it appears at the time of sentencing that “there is no likelihood that a defendant's indigency will end . . ..” Id. Third, a convicted person under an obligation to repay “may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof.” Id. The court is empowered to remit if payment “will impose manifest hardship on the defendant or his immediate family . . ..” Id. at 45-46. Finally, no convicted person may be held in contempt for failure to repay if he shows that 'his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment . . ..” Id. at 46.
Ultimately, the Court upheld the statute as constitutional, because it was “carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so. Those who remain indigent or for whom repayment would work ‘manifest hardship' are forever exempt from any obligation to repay.” Id. at 52-53.
B. No Habeas Relief on Ground Two
As stated, Petitioner challenges the constitutionality of Oklahoma's recoupment statute, 22 O.S. § 1355.14, arguing that it: (1) rendered him without a “free” defense, and (2) required him to pay up front for expert witnesses and an investigator. See ECF No. 1:1113; 14-2:13-19. According to Mr. Jackson, the Oklahoma statute is dissimilar to the Oregon statute in Fuller because:
1. The Oklahoma statute does not give an exception for criminal defendants who are acquitted;
2. The trial court is not required to consider the financial resources of the defendant;
3. There is no provision for the defendant to petition the court for remission; and
4. There is no provision by which the convicted person would not be held in contempt if he did not make a good faith attempt at repayment.(ECF No. 14-2:16). Further, although Petitioner acknowledges that Oklahoma law allows a judicial hearing regarding a defendant's ability to pay/repay fines and costs, Mr. Jackson contends that this safeguard is insufficient because “Rule 8 hearings only consider the financial status of the defendant after a fine or fee is imposed.” (ECF No. 14-2). Petitioner argues that the timing of a Rule 8 hearing is inconsistent with a statement in Olson v. James, 603 F.2d 150, 155 (10th Cir. 1979), a case from the Tenth Circuit Court of Appeals which considered the constitutionality of a Kansas recoupment statute, and stated that “if a person is unlikely to be able to pay no requirement to pay is to be imposed.” (ECF No. 14-2) (citing Olson, 603 F.22d at 1155).
Reviewing for plain error, the OCCA denied relief on this issue on direct appeal, stating:
The State may seek reimbursement for indigent-defense costs, so long as the scheme is “carefully designed to ensure that only those who actually become capable of repaying the state will ever be obliged to do so.” Fuller v. Oregon, 417 U.S. 40, 53 (1974). Payment for these fees in Oklahoma is authorization by Section 1355.14. These fees can only become due in the future, based on the trial court's determination of a defendant's ability to pay at the time he or she is released from prison, 22 O.S.Supp.2016, §983b. Additionally, defendants can only be sanctioned for failing to pay these fees if the failure to pay was willful. Rule 8.1, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021). Finally, the trial court is authorized by Section 1355.14 to waive these fees for “good cause shown by the indigent person,” a highly discretionary standard which certainly benefits defendants. Oklahoma's statutory scheme for reimbursing indigent defense costs comports with Fuller. Proposition II is denied.(ECF No. 14-1:6). An examination of Oklahoma's recoupment statute and related rules substantiates the OCCA's findings.
The statute itself states that at the time of judgment and sentence or other final order, “the court shall order any person represented by an attorney employed by the Oklahoma Indigent Defense System or a defense attorney who contracts or volunteers to represent indigents pursuant to the provisions of the Indigent Defense Act to pay the costs for representation in total or in installments and, in the case of installment payments, set the amount and due date of each installment.” 22 O.S. § 1355.14(A). However, Rule 8.1 and its counterpart, 22 O.S. §983b, state that when costs or fines are imposed, “a judicial hearing shall be conducted and judicial determination made as to the defendant's ability to immediately satisfy the fine and costs,” and the hearing is to be held only upon the defendant's release from prison. Finally, the statute specifically allows for a waiver of any fees “upon good cause shown.” 22 O.S. § 1355.14(E).
Based on the forgoing, the Court should: (1) find that the OCCA's reasoning, utilizing Fuller, was not contrary to, nor an unreasonable application of, Supreme Court precedent and (2) deny habeas relief on Ground Two.
V. GROUND THREE
In Ground Three, Mr. Jackson alleges: (1) that he is “actually innocent” of Assault and Battery with a Deadly Weapon and Discharging a Firearm into a Dwelling and (2) the prosecutor acted in violation of Napue v. Illinois, 360 U.S. 264 (1959). (ECF No. 1:14-35).The Court should deny relief on these claims.
Petitioner has also alleged that trial counsel was ineffective for failing to file a Motion pursuant to Brady v. Maryland, 373 U.S. 83 (1963) to obtain evidence in the form of a receipts and a hospital report which he believed had been withheld from the defense. See ECF No. 1:16, 23. Respondent characterizes this as an independent Brady claim, see ECF No. 14:58-60, but the undersigned disagrees. Although Petitioner does assert a Brady claim in Ground Seven, see ECF No. 1:52-58, his claim, as it pertains to Brady and as set forth in Ground Three, relates to trial counsel's ineffectiveness. See ECF No. 1:16, 23. As a result, the undersigned will address this portion of Ground Three when addressing Ground Four, Petitioner's claim that trial counsel had been ineffective. See ECF No. 1:36-42; see infra.
A. Petitioner's “Actual Innocence” Claim
As stated, in part of Ground Three, Petitioner argues that he is actually innocent of the crimes of conviction. See ECF No. 1:14-18. Petitioner exhausted this claim in his post- conviction appeal, see ECF Nos. 14-7, 14-13, 14-14, but the United States Supreme Court has never recognized freestanding actual innocence claims as a basis for federal habeas relief. To the contrary, the Court has repeatedly rejected such claims, noting instead that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceedings.” Herrera v. Coins, 506 U.S. 390, 400 (1993). In rejecting such claims, the Court has observed that “[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Id. at 401.
The Tenth Circuit has echoed the Supreme Court in this regard, stating: “actual innocence does not constitute a freestanding basis for habeas relief."Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th Cir. 2019). As a result, the Court should conclude that habeas relief is not warranted on the “actual innocence” portion of Ground Three.
B. Petitioner's Napue Claim
In Napue v. People of the State of Illinois, 360 U.S. 264 (1959), the United States Supreme Court held that the Due Process Clause is violated if the prosecutor knowingly failed to correct perjured testimony in its case, even when the evidence went only to the credibility of the witness. A Napue violation occurs when: (1) a government witness committed perjury, (2) the prosecution knew the testimony to be false, and (3) the testimony was material. United States v. Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015).
In Ground Three, Petitioner claims that the prosecutor acted in violation of Napue with regard to testimony from B.H., the individual who was shot in the hand, and two detectives-Detective Santiago and Detective Molloy. (ECF No. 1:18-32). But as noted by Respondent, Mr. Jackson failed to raise these issues in state court, and as such they are considered unexhausted. See ECF Nos. 14-2, 14-7. Theoretically, Mr. Jackson could return to state court and exhaust this claim, by filing a post-conviction application, but the OCCA would likely find that the claim was procedurally barred under a theory of waiver because it had not been previously raised. See supra.
As discussed, the Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground” barring habeas review, subject to an anticipatory procedural bar. See supra. As a result, Mr. Jackson can only overcome the anticipatory procedural bar if he is able to demonstrate “cause and prejudice” for the default, or that a fundamental miscarriage of justice has occurred. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish “cause,” the prisoner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). A factor is external to the defense if it “cannot fairly be attributed to” the prisoner. Coleman, at 753.
Here, Petitioner argues “cause” in the form of obstruction by the OCCA, stating:
Mr. Jackson was attempting to file his amended brief to the Oklahoma Court of Criminal Appeals as mandated by the previous O.C.C.A. order and rules of the court. However, O.C.C.A. obstructed Mr. Jackson's right to access the court and violated his Oklahoma Constitutional right to Article II, § 6 and United States Constitution, Amendment V, IX, and XIV. O.C.C.A. affirmed the conviction on May 12, 2023 in an order upon incomplete information.(ECF No. 1:35). Mr. Jackson expounds on this theory on pages 36 and 59 of the Petition, by alleging that the OCCA refused to publish all case law which prevented him from perfecting his appeal in the OCCA. See ECF No. 1:36, 59. Petitioner further claims that: (1) Oklahoma law “mandated an evidentiary hearing” in his case, but he was denied the same, in violation of Due Process. (ECF No. 1:35). For three reasons, the Court should find these arguments unpersuasive.
First, Petitioner argues that the OCCA obstructed his efforts in filing an appeal brief. See supra. But in an order dated March 24, 2023, the OCCA remanded to the Comanche County District Court for a proper order denying Petitioner's Application for Post-Conviction Relief, and gave Mr. Jackson 30 days from the District Court's new order to file a supplemental brief in his post-conviction appeal. See ECF No. 14-12.
Second, Petitioner alleges that the OCCA obstructed his efforts in this regard, by failing to publish all case law, which deprived Mr. Jackson of “locating similar case(s) ruled by the O.C.C.A. to bolster his own post-conviction efforts.” (ECF No. 1:59). The Court should find this argument speculative, at best, and certainly not a basis on which establish “cause” to excuse the procedural default. Furthermore, even if Mr. Jackson had included this issue in an appeal brief, the OCCA would have deemed the issue barred from review, because it had not been initially raised in the Application for Post-Conviction Relief. See ECF No. 14-7; see also Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (noting that exhaustion requires presentation to the state's highest court).
And third, Mr. Jackson's allegations regarding the denial of an evidentiary hearing are insufficient to serve as “cause” to excuse the procedural default, because Petitioner has failed to identify any evidence or develop any argument with regard to how such denial had impeded his efforts to raise the Napue claim on direct appeal. See ECF No. 1. As a result, the Court should conclude that Petitioner's Napue claim is procedurally defaulted. Mr. Jackson can overcome the procedural bar if he is able to make a credible showing of “actual innocence,” see supra, but as previously discussed, Petitioner has failed in this regard. See supra.
Because Petitioner has neither successfully argued “cause and prejudice” to overcome the procedural default on Grounds One and Two, nor made a credible showing that a fundamental miscarriage of justice had occurred due to Petitioner's “actual innocence,” the Court should conclude that the Napue claim as raised in Ground Three is procedurally barred from habeas review.
VI. GROUND FOUR
In Ground Four, Mr. Jackson alleges: (1) ineffective assistance of his privately-retained trial counsel, Ken Sue Dorefel, and (2) collusion between the Prosecutor and District Judge to ensure that Petitioner's privately retained trial attorney would withdraw from his case and his new public defender would not have time to prepare for trial. (ECF No. 1:16, 36-39). The Court should deny relief on these claims.
Mr. Rankins states that Petitioner had also alleged ineffective assistance of his public defender, who was appointed following Ms. Dorefel's withdrawal. See ECF No. 14:76. The undersigned disagrees. In the Petition, Mr. Jackson states that his public defender “was not afforded any time to prepare for Petitioner's trial” and the lack of time prevented the public defender from hiring experts, investigating alibi witnesses, and presenting evidence which Petitioner believes would have been exculpatory. See ECF No. 1:38-39. In his Application for Post-Conviction Relief, Mr. Jackson goes one step further and alleges that his public defender was ineffective for failing to file a motion for continuance or delay in order to better prepare for the trial. (ECF No. 14-7:10, n.8). But this claim is not included in the habeas Petition and the undersigned reads Ground Four, as it pertains to Petitioner's public defender, as mere commentary and not a separate claim.
A. Ineffective Assistance of Trial Counsel
To prepare for trial, Mr. Jackson hired Ms. Dorefel-and paid her $5,000.00. (ECF No. 1:36-37). In Ground Four, Petitioner alleges that Ms. Dorefel was ineffective for failing to “investigate his case”-specifically that she failed to: (1) investigate his alibi and the alleged crime scene and (2) file a Brady Motion to obtain copies of receipts which were allegedly confiscated by the police when Petitioner was arrested and which would have provided him an alibi for the crimes. (ECF No. 1:16, 38). Petitioner also alleges that Ms. Dorefel was coerced into withdrawing from Petitioner's case, and in turn, coerced Petitioner into signing the withdrawal papers unless Mr. Jackson paid her an additional $25,000.00-which Petitioner characterizes as “ransom.” (ECF No. 1:37).
Mr. Jackson raised these claims in his Application for Post-Conviction Relief, see ECF No. 14-7:7, 10-11, but the Comanche County District Court deemed them procedurally barred under a theory of waiver, and the OCCA affirmed. (ECF No. 14-13:3, 14-14:3). As stated, the Tenth Circuit Court of Appeals has recognized the OCCA's finding of waiver to be an “independent and adequate ground” barring habeas review. See supra. Thus, Mr. Jackson can only overcome the procedural bar if he is able to demonstrate “cause and prejudice” for the default, or that a fundamental miscarriage of justice has occurred. See supra.
As “cause,” Mr. Jackson argues: (1) his appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness on direct appeal; (2) the OCCA obstructed his efforts in raising the issue on appeal; and (3) Oklahoma law “mandated an evidentiary hearing” in his case, but he was denied the same, in violation of Due Process. (ECF No. 1:40-42). The Court should find these arguments unpersuasive. First, as discussed, attorney error may provide cause to excuse a procedural default, but only if appellate counsel's ineffectiveness had first been exhausted in state court. See supra. Here, as discussed, Petitioner has failed to exhaust his claim that appellate counsel was ineffective. See supra; see also ECF No. 14-13:4-6 (District Court's Order denying Petitioner's Application for PostConviction Relief, stating: “Petitioner's claim of ineffective assistance of appellant counsel is unspecific except for the assertion that counsel failed to raise his actual innocence claim on direct appeal.”); ECF No. 14-4 (OCCA's Order affirming denial of post-conviction relief).
And, as also discussed, the Court should reject Petitioner's second and third rationales for “cause” because Mr. Jackson's arguments about a lack of access to case law are speculative and Mr. Jackson has failed to identify any evidence or develop any argument with regard to how a denial of an evidentiary hearing in state court had impeded his efforts to raise the ineffective assistance of trial counsel claim on direct appeal. See ECF No. 1. As a result, the Court should conclude that Petitioner's ineffective assistance of counsel claim is procedurally defaulted. Mr. Jackson can overcome the procedural bar if he is able to make a credible showing of “actual innocence,” see supra, but as previously discussed, Petitioner has failed in this regard. See supra.
In his Reply, Mr. Jackson relies on Martinez v. Ryan, 566 U.S. 1 (2012) for the proposition that “a pro-se litigant may for the first time raise I.A.C. of Trial Counsel 'if' he raises I.A.C. of Appellate Counsel as well.” (ECF No. 17:4, 9-10). In Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court explained that ineffective assistance of postconviction counsel is “cause” to forgive procedural default of an ineffective-assistance-of-trial-counsel claim, but only if the State required the prisoner to raise that claim for the first time during state postconviction proceedings. Shinn v. Ramirez, 596 U.S. 366, 371 (2022). In Trevino v. Thaler, 569 U.S. 413 (2013), the Court extended Martinez to apply even when the state provided a theoretical opportunity to raise on direct appeal a claim of ineffective assistance of trial counsel, but the design and operation of the state's procedural requirements for doing so often made that theoretical possibility a practical impossibility. See Trevino, 569 U.S. at 424-429. However, in Fairchid v. Trammel, 784 F.3d 702 (10th Cir. 2015), the Tenth Circuit held that neither Martinez nor Trevino applied to Oklahoma's procedures “because Oklahoma provides a reasonable time to investigate a claim of ineffective assistance before raising it on direct appeal” and a brief raising such claim may be accompanied by a request to supplement the record to specifically develop claims of ineffective assistance of counsel. See Fairchid v. Trammel, 784 F.3d at 721; see also Okla. Ct. Crim. App. R. 3.11. As a result, the Court should reject Petitioner's reliance on Martinez as a basis to salvage his procedurally defaulted claim of ineffective assistance of trial counsel.
Because Petitioner has neither successfully argued “cause and prejudice” to overcome the procedural default on the ineffective assistance of counsel claim in Ground Four, nor made a credible showing that a fundamental miscarriage of justice had occurred, the Court should conclude that this claim as raised in Ground Four is procedurally barred from habeas review.
B. Claims of Collusion
In Ground Four, Petitioner alleges that the Prosecutor and District Judge colluded to ensure that: (1) Petitioner's privately retained trial attorney would withdraw from his case and (2) Mr. Jackson's new public defender would not have time to prepare for the case. (ECF No. 1:37-39). As to the first claim, Mr. Jackson alleges that the prosecutor and district judge threatened Ms. Dorefel with criminal action “should she pursue this case through a jury trial . . . [because] [t]he state knew that the Petitioner's counsel was going to prevail in his trial.” (ECF No. 1:39). As to the second claim, Mr. Jackson argues “The Court and/or the State did not assign [Petitioner] a public defender until the Friday before trial, as trial started the following Monday. This was a deliberate act to stymie Mr. Jackson from proving his factual innocence in trial[.]” (ECF No. 1:38).
Although these claims were raised in Petitioner's Application for Post-Conviction Relief, see ECF No. 14-7, and not explicitly ruled on by the Comanche County District Court, that Court implicitly rejected the claims by stating that “issues that were not raised previously on direct appeal, but which could have been raised, are waived for further review.” (ECF No. 14-13:5). The OCCA affirmed the procedural bar, see ECF No. 14-14:3, which means that Petitioner can only overcome it by establishing “cause and prejudice” to excuse the procedural default or demonstrating that a fundamental miscarriage of justice has occurred. Here, Mr. Jackson has offered nothing, outside of his repeated claims about appellate counsel's ineffectiveness and obstruction from the OCCA and a lack of an evidentiary hearing in state court, to excuse the procedural default. See ECF No. 1:40-42. But as discussed, these arguments are without merit, as is Petitioner's argument that he was “actually innocent” which would open up the gateway to excuse the procedural default. See supra. As a result, the Court should conclude that the claims of collusion, as presented in Ground Four, are procedurally defaulted and not subject to habeas review.
C. Summary
In sum, the Court should deny habeas relief on the entirety of Ground Four.
VII. GROUND FIVE
In Ground Five, Petitioner argues that his appellate counsel was ineffective for failing to address his “argument(s) of Actual-Factual Innocence.” (ECF No. 1:44-46). In the habeas Petition, Mr. Jackson's claim of actual innocence was premised on: (1) his not being present at the crime scene, which he argued could have been proven through receipts which established his alibi and which had been allegedly confiscated by police and (2) the lack of a firing pin in his AR-15, which meant “it would never discharge any of the rounds the state alleged." See ECF No. 1:14-18; 16, n. 12. In his Application for Post-Conviction Relief, Petitioner raised the same argument-that appellate counsel had rendered ineffective assistance for failing to argue Petitioner's “actual innocence" on appeal. Compare ECF No. 1:14-18, 44-46 with ECF No. 14-7:7-10, 13-16.
Mr. Jackson also repeatedly argues that appellate counsel failed to raise several “meritorious claim(s)." ECF No. 1:44-45. But Petitioner never identifies the nature of said claims or why he believes them to have merit. See ECF No. 1. Thus, the Court need not address these conclusory allegations.
In adjudicating the Application for Post-Conviction Relief, the Comanche County District Court denied relief, and the OCCA affirmed. See ECF Nos. 14-13 & 14-14. In the order affirming, the OCCA, citing Supreme Court precedent, only specifically recognized Petitioner's “lack of a firing pin" theory for his actual innocence claim, and therefore only recognized that theory as a basis to support the ineffective assistance of appellate counsel claim as well. See ECF No. 14-14:3-4. Even so, the Court should conclude that the OCCA has rendered an adjudication of the merits on the entirety of Ground Five. In Ryder ex re. Ryder v, Warrior, 810 F.3d 724, 740 (10th Cir. 2016), the Tenth Circuit stated:
AEDPA's deferential standard applies not only to claims the state court squarely addressed, but also to claims it reached only cursorily. As the Supreme Court explained in Harrington v. Richter, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). This burden remains "whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a ‘claim,' not a component of one, has been adjudicated.” Id.Ryder ex re. Ryder v. Warrior, 810 F.3d 724, 740 (10th Cir. 2016). Thus, the Court should conclude that the entirety of Ground Five is subject to a deferential standard of review under the AEDPA. See Absher v. Crow, No, 19-354, 2019 WL 5616976, at *5 (W.D. Okla. 2019) (concluding that AEDPA deference should be owed to the OCCA's adjudication of petitioner's ineffective assistance of counsel claims even though the OCCA did not explicitly recognize each subpart of petitioner's claim), adopted, 2019 WL 5596428 (W.D. Okla. Oct. 30, 2019). In doing so, the Court should defer to the OCCA's decision and conclude that it is neither contrary to, nor an unreasonable application of, Supreme Court precedent.
1. Clearly Established Law
To succeed on his claims, Petitioner must demonstrate that his counsel's performance was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 688, 690-91 (1984). A court will only consider a performance "deficient” if it falls "outside the wide range of professionally competent assistance.” Id. at 690. "[Prejudice” involves "a reasonable probability that, but for counsel's unprofessional errors, the result of the [direct appeal] would have been different.” Id. at 694. Notably, a court reviews an ineffective assistance of counsel claim from the perspective of counsel at the time he or she rendered the legal services, not in hindsight. See id. at 680.
“Surmounting Strickland's high bar is never an easy task.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks and citation omitted). “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [as] [t]he standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so.” Id. (internal quotations marks and citations omitted). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. "[I]n analyzing an appellate ineffectiveness claim based upon the failure to raise an issue on appeal, [a court] look[s] to the merits of the omitted issue[.]” Cargle v. Mulin, 317 F.3d 1196, 1202 (10th Cir. 2003) (citations and internal quotation marks omitted). “[O]f course, if the issue is meritless, its omission will not constitute deficient performance.” Id. Absent a "reasonable probability” that the omitted claim would have resulted in relief, there is no ineffective assistance of appellate counsel. Neil v. Gibson, 278 F.3d 1044, 1057 & n.5 (2001).
2. Denial of Habeas Relief Based on the OCCA's Holding
“[T]his Court has repeatedly held that when ‘the OCCA addresses an ineffective assistance of appellate counsel claim on the merits, and concludes, in essence, that it would not have reached a different outcome had the appellate counsel raised the omitted claims on direct appeal, the Court can already be assured that appellate counsel's conduct was not prejudicial under Strickland! ” Christian v. Farris, No. CIV-13-1325-C, 2017 WL 1088371, at *10 (W.D. Okla. Jan. 13, 2017) (unpublished report and recommendation) (citation omitted), adopted, 2017 WL 1082473 (unpublished district court order), certificate of appealability denied, 701 Fed.Appx. 717 (10th Cir. 2017). Based on that theory alone, this Court has denied habeas relief on ineffective assistance of appellate counsel claims, see id., and the Tenth Circuit has concluded “that reasonable jurists wouldn't debate the ... assessment[.]”” Christian, 701 Fed.Appx. at 721. So, on this basis, the Court may find that the OCCA's Strickland analysis was a reasonable application of federal law and deny habeas relief on Ground Five. See Helm v. Dennis, No. 21-1139, 2022 WL 2334994 (W.D. Okla. May 27, 2022), adopted, 2022 WL 2329140 (W.D. Okla. June 28, 2022); Dyer v. Farris, No. CIV-16-941-C, 2018 WL 5931129, at *5-6 (W.D. Okla. July 6, 2018), adopted, 2018 WL 5929637 (W.D. Okla. Nov. 13, 2018); see also Pradia v. McCollum, No. CIV-13-385-D, 2016 WL 3512034, at *12 (W.D. Okla. May 10, 2016), adopted, 2016 WL 3512264 (W.D. Okla. June 22, 2016); Jackson v. Martin, No. CIV-12-702-W, 2013 WL 5656105, at *1, *4 (W.D. Okla. Oct. 15, 2013) (collecting cases where this Court has held that a petitioner cannot establish appellate counsel's ineffectiveness where the OCCA has announced already that “the outcome of the state appeal would not have changed had appellate counsel raised the relevant claim” (citation omitted)), certificate of appealability denied, 572 Fed.Appx. 597 (10th Cir. 2014). Based on the forgoing, the Court should conclude that habeas relief is not warranted on Ground Five.
VIII. GROUND SIX
In Ground Six, Mr. Jackson alleges a violation of his Sixth Amendment right to a speedy trial. (ECF No. 1:49-51). Petitioner raised this issue for the first time in his Application for Post-Conviction Relief. See ECF No. 1:49, 14-7:16-18. The Comanche County District Court found the claim procedurally barred under a theory of waiver, and the OCCA affirmed. See ECF Nos. 14-13 & 14-14. As stated, although waiver is considered an "independent and adequate ground” barring habeas review, Mr. Jackson may overcome the procedural bar by demonstrating cause and prejudice. See supra. Here, however, Mr. Jackson blames appellate counsel for failing to raise the issue on direct appeal and repeats his arguments regarding the OCCA's obstruction of Petitioner's attempt to file an appeal brief and order and evidentiary hearing. See ECF No. 1:49, 51. But as discussed, Petitioner failed to exhaust his claim against appellate counsel, rendering it inapplicable to establish "cause” and the arguments regarding the OCCA are insufficient to establish cause and prejudice. See supra. Finally, Mr. Jackson has offered no argument which would support a claim that a fundamental miscarriage of justice had occurred. See supra; see ECF No. 1:49-51. Accordingly, the Court should find that Ground Six is procedurally barred and not subject to habeas review.
IX. GROUND SEVEN
In Ground Seven and in part of Ground Three, Petitioner argues that the State concealed evidence which would prove: (1) that police failed to perform forensic testing on Petitioner which could prove his innocence and (2) that he was not present when the crimes of assault with a deadly weapon and discharging a firearm into a dwelling, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner raised these issues for the first time in his Application for Post-Conviction Relief. See ECF No. 1:56, 14-7:7, 19-21. The Comanche County District Court found the claim procedurally barred under a theory of waiver, and the OCCA affirmed. See ECF Nos. 14-13 & 14-14. As stated, although waiver is considered an “independent and adequate ground” barring habeas review, Mr. Jackson may overcome the procedural bar by demonstrating cause and prejudice. See supra. Here, however, Mr. Jackson blames appellate counsel for failing to raise the issue on direct appeal and repeats his arguments regarding the OCCA's obstruction of Petitioner's attempt to file an appeal brief and order and evidentiary hearing. See ECF No. 1:56-58. But as discussed, Petitioner failed to exhaust his claim against appellate counsel, rendering it inapplicable to establish “cause” and the arguments regarding the OCCA are insufficient to establish cause and prejudice. See supra. Finally, Mr. Jackson has offered no argument which would support a claim that a fundamental miscarriage of justice had occurred. See supra; see ECF No. 1:4951. Accordingly, the Court should find that Ground Seven is procedurally barred and not subject to habeas review.
X. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
It is recommended that the Court DENY the habeas Petition.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by May 6, 2024, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
XI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.