Opinion
CIV-21-701-G
03-16-2022
RAY ROGER JORDAN, Petitioner, v. SCOTT CROW, Director, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner Ray Roger Jordan, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. United States District Judge Charles Goodwin referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Respondent filed a response, Doc. 14, and the state record, which includes the jury-trial transcript (TR. Vols. I-V). Doc. 16. For the reasons set forth below, the undersigned recommends the Court deny habeas corpus relief.
This Report and Recommendation cites court documents by their CM/ECF designation and pagination. Citations to the jury-trial transcript will refer to the original pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Background.
A. Factual background and state court proceedings.
Petitioner's wife, Megan Briggs, left Petitioner on December 13, 2015, and engaged in a relationship with Drew Gibson. TR. Vol. III, at 777-78. On December 20, 2015, Mr. Gibson, Ms. Briggs, and Steven Woodward drove to Brandon Grimland's house to buy methamphetamine. Id. Vol. IV, at 1048, 1056-57.
Meanwhile, Petitioner planned to go to Mr. Grimland's house to confront Ms. Briggs and Mr. Gibson. Id. Vol. III, at 586. Petitioner asked his housemate, Aaron Masterson, to come with him to “watch his back” because he expected trouble with Mr. Gibson. Id. at 587. The two then drove in Petitioner's vehicle to Mr. Grimland's house. Id. at 589. On arrival, Petitioner asked Mr. Masterson to drive the car to a nearby store-presumably so that Ms. Briggs and Mr. Gibson would not see the car when they arrived at the home. Id. at 590.
At the house, Petitioner and Mr. Masterson waited outside at Mr. Grimland's direction. Id. at 595. As they were going to the backyard, Mr. Masterson noticed Petitioner had a black, semiautomatic gun in his right hand. Id. at 595-96. Soon after, Mr. Grimland invited Ms. Briggs, Mr. Gibson, and Mr. Woodward inside to the den to complete the methamphetamine transaction. Id. Vol. IV, at 1059-64. While they were in the den, Mr. Grimland told the group he planned to get a needle. Id. at 1064. Instead, Mr. Grimland came outside to tell Petitioner and Mr. Masterson that Ms. Briggs and Mr. Gibson had arrived. Id. Vol. III, at 597.
Petitioner ran-gun in hand-toward the house, up the stairs, and through the door. Id. at 597, 599-600. Petitioner tackled Mr. Gibson and witnesses heard a gunshot. Id. at 604; id. Vol. IV, at 1065-70. Mr. Gibson grabbed his chest, fell back against the wall, and died on the floor. Id. at 106869. Petitioner said, “I didn't mean to shoot him.” Id. Vol. III, at 604; id. Vol. IV, at 1069. Mr. Gibson's probable cause of death was a gunshot wound to the chest. Id. Vol. II, at 498.
A jury convicted Petitioner of one count of murder in the first degree in Wagoner County District Court. Doc. 14, Ex. 1, at 1. The trial court sentenced Petitioner to life imprisonment. Id. Petitioner made two arguments on direct appeal: (1) the trial court erred by bifurcating the trial; and (2) his trial counsel was ineffective by stipulating-rather than object-to the filing of a Second Page Information describing Petitioner's prior convictions. Doc. 14, Ex. 2, at 10-15. The OCCA denied the appeal. Id. Ex. 4.
Petitioner filed a Motion for Post-Conviction Relief with five propositions in support. Id. Ex. 5. First, Petitioner argued he was denied the effective assistance of appellate counsel because his appellate attorney did not argue his trial counsel was ineffective for: (1) failing to impeach the credibility of state witnesses; (2) failing to call expert witnesses or file a motion to obtain funds to acquire an expert witness; and (3) failing to present meaningful adversarial testing to the case against him. Id. at 5-13. Petitioner also argued:
• The evidence presented at trial was insufficient to prove the elements of first-degree murder;
• The trial court erred by failing to determine whether “extrinsic influence” prejudiced the jury;
• The trial court erred by implying to the jury there was a time limit for the completion of trial;
• Cumulative error based on the arguments made in his postconviction application;Id. at 13-24. The Wagoner County District Court denied Petitioner's first claim because he “d[id] not establish the substantive elements of a claim of ineffectiveness of appellate counsel under Strickland [v. Washington, 466 U.S. 668 (1984)].” Id. Ex. 6. The court denied the remaining claims because Petitioner “fail[ed] to establish that these claims could not have been raised on direct appeal and are, therefore not procedurally barred.” Id.
Petitioner raised the same claims on appeal to the OCCA. Petition in Error with Brief in Support, at 4-5, Jordan v. Oklahoma, No. PC-2021-103 (Okla. Crim. App. Feb. 18, 2021) (filing available at https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&numbe r=pc-2021-103) (last visited Mar. 9, 2022). The OCCA held Petitioner did not meet his burden in establishing an ineffective-assistance-of-appellate counsel claim. Doc. 14, Ex. 7, at 3-5. The OCCA found the remaining claims “either were, or could have been, presented on direct appeal” and were “either waived or res judicata.” Id. at 3.
B. Petitioner's federal habeas claims.
Petitioner raises five grounds for relief in this habeas action:
Ground One: Petitioner was denied the effective assistance of appellant counsel in violation of his Fifth, Sixth, and Fourteenth United States Constitutional Amendment[;]
Ground Two: The State's evidence was illegally insufficient to prove all of the elements of first degree murder and should be vacated as it is in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution[;]
Ground Three: The trial court committed reversible error by failing to ascertain whether extrinsic influence prejudiced the entire jury panel, which violated Petitioners rights under the Seventh and Fourteenth United Stated Constitution[;]
Ground Four: The trial court committed reversible error by implying to the jury that there was a time limit in which the entire trial would be completed, which violated Petitioner's rights under the Seventh and Fourteenth United Stated Constitutional Amendments[;] and
Ground Five: The cumulative errors deprived the Petitioner of a fair proceeding and reliable outcome in violation of his Fifth and Fourteenth United States Constitutional Amendment.Doc. 1, at 6-13. Respondent argues the majority of Ground One should be denied on the merits. Doc. 14, at 10-20. Respondent also contends the remainder of Ground One-in which Petitioner argues he received ineffective assistance from his appellate counsel for failing to bring the claims raised in Grounds Two, Three, Four, and Five-was not exhausted and should be denied on the doctrine of anticipatory procedural bar. Id. at 21-26. Finally, Respondent contends Grounds Two, Three, Four, and Five should be denied because they are procedurally barred. Id. at 26-29.
II. 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 standard “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
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 similar to 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. (internal quotation marks omitted). “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.” Id. (internal quotation marks omitted).
“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.'” Id. (quoting Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. (2006), internal brackets 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. So, to qualify for habeas relief on this prong, Petitioner must show “‘there was no reasonable basis' for the state court's determination.” Id. at 1243 (quoting Cullen, 563 U.S. at 188). “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, 562 U.S. at 101); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
III. Analysis.
A. The Court should deny Petitioner's exhausted ineffective-assistance-of-appellate-counsel claims.
Petitioner argues he received constitutionally ineffective assistance from his appellate counsel because his counsel should have known that the arguments presented on direct appeal lacked merit and instead should have “focused his time on other far more meritorious issues.” Doc. 1, at 6. He contends that because the two propositions presented to the OCCA were “doomed to fail on their face,” that any other propositions raised that had “any amount of merit to them” would have the potential to alter the outcome of the appeal. Id. Specifically, Petitioner asserts his appellate counsel should have raised the following issues on appeal:
• Trial counsel was ineffective for failing to impeach the credibility of state witnesses;
• Trial counsel was ineffective for failing to either call expert witnesses or seek leave to obtain funds to hire expert witnesses;
• Trial counsel was ineffective for failing to present “meaningful adversarial testing” to the case against Petitioner; and
• The issues raised in Grounds Two, Three, Four, and Five from his habeas petition.Id. at 6-8. “[H]ad these issues been properly articulated and presented in his direct appeal,” Petitioner contends that “there is more than a reasonable probability that the omitted claims would have altered the outcome of the appeal had they been raised.” Id. at 6.
Respondent contends Ground One should be denied on the merits as to the first three issues. Doc. 14, at 10-20. The undersigned agrees.
The fourth issue-that his appellate counsel should have raised the issues in Grounds Two, Three, Four, and Five-is addressed in § III.B, infra.
1. The OCCA's ruling.
Reviewing Petitioner's claim on appeal from the state district court's denial of post-conviction relief, the OCCA held:
[T]he district court denied relief because it found the underlying claim lacked merit. Upon review, we agree that Petitioner has
failed to demonstrate appellate counsel's ineffectiveness. As set forth in Logan v. State, 2013 OK CR 2, ¶ 5, 293 P.3d 969, 973, postconviction 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. “A court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 592 U.S. 86, 103 (2011) (quoting Strickland, 466 U.S. at 689). Petitioner has failed to rebut this presumption. See Russell v. Cherokee County District Court, 1968 OK CR 45, ¶ 5, 438 P.2d 293, 924 (“the burden is upon the petitioner to sustain the allegations of his petition”). Accordingly, the district court did not abuse its discretion when it denied relief on Proposition 1.Doc. 14, Ex. 7, at 3-5.
2. Clearly established law.
Under clearly established law, Petitioner must show his attorney's performance was deficient and prejudicial. See Strickland, 466 U.S. at 690-91. A court will only consider an attorney's performance “deficient” if it falls “outside the wide range of professionally competent assistance,” and such review “must be highly deferential.” Id. at 689, 690. “[P]rejudice” involves “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. If a claim omitted on direct appeal lacks merit, then counsel's failure to raise it does not amount to constitutionally ineffective assistance under Strickland. See Cargle v. Mullin, 317 F.3d 1196, 1202-03 (10th Cir. 2003) (“[I]f the issue is meritless, its omission will not constitute deficient performance.”).
This Court's review of the OCCA's determination of Petitioner's ineffective-assistance-of-counsel claims is subject to the deference due all state court decisions in the context of federal habeas review. “Surmounting Strickland's high bar is never an easy task.” Harrington, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether [appellate] counsel's performance fell below Strickland's standard.” Id. at 101; see also id. at 105 (“Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). 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.”).
3. The OCCA's determination is not contrary to Strickland .
a. Because his trial counsel was not ineffective for failing to impeach the credibility of the prosecution's witnesses, Petitioner's claim of ineffective assistance of appellate counsel fails.
Petitioner asserts his appellate counsel was ineffective for failing to raise a claim that his “trial counsel was ineffective for failing to impeach the credibility of the state witnesses who had changed their statement.” Doc. 1, at 6. Petitioner contends that “almost all” of the “several people in the home” at the time of the murder “were charged with the death of the victim” and “the statements of each and every witness changed.” Id. at 7. He asserts his “trial counsel should have impeached these witnesses as their initial testimony would have shown that the Petitioner could not have in any way been charged with first degree murder because the elements of the crime were not met.” Id. But the only example Petitioner presents is a comparison of Mr. Masterson's trial testimony to the statement he made to a detective shortly after the murder. Id.
Petitioner asserts that six days after the murder, Mr. Masterson told a detective he did not see Petitioner with a gun, did not suspect Petitioner of having a gun, had never seen Petitioner carry a gun before, and that Petitioner did not have anywhere to get a gun. Id. Further, he contends Mr. Masterson advised the detective that Petitioner had told him that they were going to “stomp” the victim. Id. In contrast, Petitioner maintains Mr. Masterson testified he saw Petitioner with a black semi-automatic pistol. Petitioner asserts that his counsel was aware of the changes in Mr. Masterson's testimony, but “never made any attempt to impeach this testimony with the previous statements” and instead let “the new statements go before the jury unchecked.” Id.
The record reflects that both the prosecutor and defense counsel addressed the disparity between the content of the statement Mr. Masterson made to the detective and his testimony at trial. On direct examination, Mr. Masterson testified that his testimony at trial differed from his interview with Detective Elliott from the Wagoner County Sheriffs Office. TR. Vol. III, at 607. Mr. Masterson testified he told Detective Elliott he did not see a gun because he was worried that Detective Elliott would think he was involved in the murder. Id. at 607-08. Mr. Masterson further testified he told Detective Elliott about the gun before the preliminary hearing. Id. at 608. Petitioner's trial counsel cross-examined Mr. Masterson thoroughly. First, he elicited testimony that Mr. Masterson told Detective Elliott that Petitioner did not have a gun during the first interview despite being asked many times. Id. at 630.
Defense counsel also elicited testimony confirming some aspects of Mr. Masterson's interview with Detective Elliott as well as other favorable testimony. For example, on cross-examination, Mr. Masterson testified that Petitioner did not have a gun when they left Muskogee, he did not suspect Petitioner had a gun when they left, Petitioner did not have a gun when they arrived to the scene, and he had not known Petitioner to carry a gun. Id. at 620-21.
Defense counsel also cross-examined Mr. Masterson about a potential motive to change his story. Petitioner's counsel established that Mr. Masterson had been charged with murder and had been held with no bail, but after he testified against Petitioner at the preliminary hearing he was released without bond. Id. at 629, 633, 636-38. Additionally, defense counsel sought to introduce the recorded statement into evidence, but the trial court sustained the prosecution's objection to its admission. Id. at 651-54.
Petitioner's assertion that his trial counsel “never made any attempt to impeach [Mr. Masterson's] testimony with the previous statements” and let “the new statements go before the jury unchecked” is belied by the trial transcript. Doc. 1, at 7. Instead, his counsel questioned Mr. Masterson about the differences between his recorded statement and subsequent testimony and a potential motive for the changes. Thus, Petitioner has not shown his trial counsel's performance was either deficient or prejudicial. Because the underlying claim lacks merit, Petitioner's ineffective assistance of appellate counsel claim fails as well. See Cargle, 317 F.3d at 1202-03; Castro v. Dowling, No. CIV-17-1238-G, 2021 WL 3698398, at *14 (W.D. Okla. Aug. 19, 2021) (“Having determined that trial counsel's conduct was not objectively unreasonable under Strickland, the Court concludes that the omission of the IATC claim from Petitioner's direct appeal does not constitute deficient performance of appellate counsel.”).
b. Petitioner's claim that his trial counsel should have called expert witnesses is speculative and without merit, and his ineffective-assistance-of-appellate-counsel claim fails as a result.
Petitioner contends his appellate counsel should have raised a claim that his trial counsel was ineffective for failing to either call expert witnesses or file a motion seeking funds to secure expert witnesses. Doc. 1, at 7-8. Petitioner notes that the prosecution called “several experts,” but none were called in his own defense. Id. at 7. He argues that “had trial counsel obtained experts of their own, it could have at the very least rebutted the states expert testimony and shown a full picture on the information provided to the jury.” Id. He asserts that had appellate counsel included this claim, “the courts would have seen that Petitioner's United States and Oklahoma Constitutional rights had been violated as any effective and competent counsel, having seen the amount of expert testimony being used by the state, would have done all the necessary steps to at least attempt to secure expert testimony for the defense of their client.” Id. at 8.
Petitioner's argument amounts to no more than speculation that unidentified experts would provide testimony generally rebutting the prosecution's experts. This type of speculation does not support an ineffective assistance of trial counsel claim. See Bunton v. Atherton, 613 F.3d 973, 982-83 (10th Cir. 2010) (holding the petitioner could not prevail on his claim of ineffective assistance of trial counsel for not calling an expert witness where he “failed to offer any evidence indicating how [the proposed witness] would actually have testified if presented as a witness” and did not “present[] to the state courts an affidavit from [the witness] or anyone familiar with her possible testimony”); Wells v. Falk, 2019 WL 1112394, at *12 (D. Colo. Mar. 8, 2019) (“[Petitioner's] failure to identify a particular expert and specific testimony that would have supported his theory of self-defense means his prejudice argument under Strickland is entirely speculative. As a result, it was not unreasonable to conclude he failed to demonstrate a substantial likelihood of a different result.”); Hammers v. Aldridge, No. CIV-16-244-HE, 2017 WL 2729116, at *7 (W.D. Okla. Jan. 24, 2017) (“Here, Petitioner offers nothing more than speculation regarding how expert witnesses might have testified in support of her defense. This type of speculation is insufficient to demonstrate prejudice.”), adopted, 2017 WL 2728440 (W.D. Okla. June 23, 2017). Because the underlying claim lacks merit, the claim of ineffective assistance of appellate counsel fails as well. See Cargle, 317 F.3d at 1202-03.
c. Because Petitioner's contention that his trial counsel did not present meaningful adversarial testing lacks merit, his claim that his appellate counsel should have raised this issue is also without merit.
Petitioner asserts his appellate counsel was constitutionally ineffective because he did not argue that Petitioner's trial counsel did not present “meaningful adversarial testing” to the State's case. Doc. 1, at 8. He contends his trial counsel did not present a theory of defense to the jury, “never attempted to impeach” the State's witnesses, did not consult or obtain expert witnesses to rebut the State's experts, and did “nothing beyond asking some cursory questions to the state's witnesses.” Id. Petitioner states that his counsel advised him not to take a plea offer of twenty-five years' imprisonment because he “was so sure of his ability to try the case.” Id. Petitioner contends that if his counsel had submitted the State's case to adversarial testing, “he not only would not have been charged with First Degree Murder, he would not have received a life sentence.” Id.
A habeas petitioner is entitled to a presumption of prejudice when counsel does not present meaningful adversarial testing. See United States v. Cronic, 466 U.S. 648, 659 (1984) (“[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.”). But to be entitled to a presumption of prejudice, counsel's “failure must be complete.” Bell v. Cone, 535 U.S. 685, 697 (2002). “[T]he Cronic presumption [is] inapplicable where counsel actively participated in all phases of the trial proceedings.” Turrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (internal quotation marks omitted).
The record belies many of the issues Petitioner identifies-not presenting a theory of defense to the jury, not impeaching the state's witnesses, and not asking more than cursory questions in cross-examination. His attorney presented a theory of defense. In his opening argument, Petitioner's attorney told the jury that Petitioner did not have a gun and evidence would show that prosecution witnesses suggesting otherwise changed their story and may have been under the influence of drugs at the time of the shooting. TR. Vol. II, at 353-64. During closing argument, defense counsel attempted to discount prosecution witnesses' credibility based on their inconsistent statements about whether Petitioner had a gun. Id. Vol. V, at 1211-34. The record also reflects Petitioner's counsel cross-examined the prosecution's witnesses. And Petitioner's trial counsel sought to impeach Mr. Masterson's testimony. See § III.A.3.a., supra.
Additionally, the types of issues raised by Petitioner do not rise to a presumption of prejudice. See Bell, 535 U.S. at 697-98 (“The aspects of counsel's performance challenged by respondent-the failure to adduce mitigating evidence and the waiver of closing argument-are plainly of the same ilk as other specific attorney errors we have held subject to Strickland's performance and prejudice components.”). Instead, the record generally reflects Plaintiff's trial counsel actively participated in the trial by lodging objections, appropriately cross-examining witnesses, and presenting opening and closing statements. Such participation is more than sufficient to amount to adversarial testing. See Fuller v. Warden, Ark. Valley Corr. Facility, 698 Fed.Appx. 929, 939 (10th Cir. 2017) (“Mr. Fuller has not shown that his defense counsel ‘entirely failed' to test the prosecution's case. To the contrary, as the district court detailed, Mr. Fuller's counsel submitted various motions and arguments, crossexamined the state's witnesses, made opening and closing statements, and presented evidence on Mr. Fuller's behalf.”); Hooper v. Mullin, 314 F.3d 1162, 1175 (10th Cir. 2002) (holding no presumption of prejudice where “[d]efense counsel cross-examined the State's guilt-stage witnesses, made objections to the State's evidence, presented some evidence in Petitioner's defense, and made opening and closing arguments”); Cooks v. Ward, 165 F.3d 1283, 1296 (10th Cir. 1998) (holding trial counsel sufficiently tested the prosecution's case in which the attorney was “present in the courtroom” and “conducted limited cross-examination, made evidentiary objections, and gave a closing argument”).
Because the underlying claim lacks merit, Petitioner's claim that his appellate counsel was ineffective for failing to argue that his trial counsel failed to present meaningful adversarial testing is not grounds for relief. See Cargle, 317 F.3d at1202-03.
B. The remaining portion of Ground One is unexhausted and the Court should apply an anticipatory procedural bar because it would be procedurally barred if Petitioner returned to state court to exhaust it.
The fourth aspect of Petitioner's ineffective-assistance-of-appellate-counsel claim is that “the rest of the grounds raised on this motion could and should have been raised on Petitioner's direct appeal.” Doc. 1, at 8. This portion of Ground One is unexhausted and the Court should deny it because the doctrine of anticipatory procedural default bars it.
1. Exhaustion requirement.
“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.” Bland, 459 F.3d at 1011; 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) (quoting Bland, 459 F.3d at 1011). 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) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)).
“[T]he 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.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012). “A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution.'” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)). But, a “‘[f]air presentation' requires more than presenting ‘all the facts necessary to support the federal claim' to the state court.” Bland, 459 F.3d at 1011 (quoting Anderson, 459 U.S. at 6).
Quite simply, a “petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court.” Id. So if the claim before the state court was only “somewhat similar” to the claim Petitioner presses in the habeas petition, there is no fair presentation. Duncan v. Henry, 513 U.S. 364, 366 (1995).
To be fairly presented, the state-court claim must be the “substantial equivalent” of its federal habeas counterpart. Picard, 404 U.S. at 278. To satisfy exhaustion, then, the habeas petition's focus-as well as the alleged error that it identifies-cannot substantively diverge from what the petitioner had presented to the state court. See, e.g., Bland, 459 F.3d at 1012 (noting that the habeas “challenge to the actions of the prosecution differs significantly from” the state-court “challenge to the instructions given by the court,” even where both concerned the propriety of a given jury instruction). Nor is it acceptable for the habeas petitioner to “shift” the “basis for [his or her] argument” away from what was previously raised in state court. Gardner v. Galetka, 568 F.3d 862, 872 (10th Cir. 2009) (claims were not “substantially the same” where petitioner's state-court ineffective-assistance claim hinged on counsel's inaccurate description of petitioner's injury, but his habeas claim was grounded on counsel's failure to undertake a thorough investigation of the murder weapon); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (holding that petitioner did not exhaust his state court remedies where he “raised an ineffective assistance of counsel claim on direct appeal, [but] he based it on different reasons than those expressed in his habeas petition”).
2. Petitioner did not exhaust the remaining portion of Ground One.
Petitioner asserts he exhausted his state-court remedies. Doc. 1, at 8. Specifically, he contends he “raised [them] on his Application for PostConviction Relief as separate propositions, asserting as he did in that application, that they should have been raised on direct appeal and add to the argument that Appellant counsel was ineffective in only raising two meritless claims.” Id. The Court disagrees and finds the claim is unexhausted.
Petitioner did not bring an ineffective-assistance-of-appellate-counsel claim based on his appellate attorney's failure to raise the issues in Grounds Two, Three, Four, and Five. Instead, Petitioner brought Grounds Two, Three, Four, and Five as stand-alone claims of trial-court error without reference to his appellate counsel's performance. See Doc. 14, Ex. 5, at 14-24. Because the stand-alone claims did not allege that his appellate counsel was insufficient for failing to bring them, the undersigned finds he did not fairly present the claim to the state district court.
After the state district court found his standalone claims were procedurally barred, Id. Ex. 6, Petitioner made the following argument on appeal to the OCCA:
The District Court here attempts to deny the Petitioner's claims procedurally without any consideration for the merits of the issues brought forth. Petitioner is a pro-se incarcerated litigant with absolutely no formal legal training who asked the District court in the beginning of his motion to take this into consideration and asked for the protection as granted in Hall v. Bellmon, 935 F.2d 1106 (CA 10 OK 1991) “This rule means that if the Court can reasonably read the pleading to state a valid claim on which the Petitioner could prevail, if should do so despite the Petitioner's failure to site proper authority, his poor syntax and sentence construction of unfamiliarity with pleading requirements.”Brief of Petitioner at 7, Jordan v. Oklahoma, No. PC-2021-103 (Okla.Crim App. Feb. 18, 2021) (emphasis in original). Quoting his brief before the state district court, Petitioner continued:
“All of the facts and issues that Petitioner puts forth can be found within the appellant file or were brought to the attention of the appellant attorney by the Petitioner through letters. That the appellant attorneys ineffectiveness came from inattention and lack of care, not any time of strategic decision based on the information
available, and had these issues been properly articulated and presented in his direct appeal, there is more than a “reasonable probability” the omitted claims would have “altered the outcome” of the appeal had they been raised.”
All other issues where raised as separate positions simply so that the Petitioner could show not only the standard of review but the argument and authority of each issue. To not rule on the merit of each of the issued raised and deny them procedurally would not only resort in a complete miscarriage of justice but a violation of Petitioner's Oklahoma and United States constitutional rights.Id. at 7-8 (emphasis in original). Even construed liberally, Petitioner merely associated his standalone claims with his appellate counsel's deficient performance. The undersigned does not find this argument to amount to a fair presentation to the OCCA of his claim that his appellate counsel was ineffective for failing to raise Grounds Two, Three, Four, and Five. Thus, the claim is unexhausted.
3. The Court should deny the unexhausted portion of Ground One based on anticipatory procedural default.
Petitioner's unexhausted claim in Ground One is barred by the doctrine of anticipatory procedural default. See Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015) (explaining that anticipatory procedural default applies “where a petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be procedurally defaulted on remand”). As discussed above, Petitioner previously sought post-conviction relief in the Oklahoma courts. If Petitioner were to return to state court to exhaust the unexhausted portions of this claim, he would be raising it in a second application for post-conviction relief. “Oklahoma requires a postconviction relief applicant to raise all grounds for relief which he actually knows or should have known through the exercise of due diligence in his original application for relief.” Id. Because the arguments are presented for the first time in this habeas action after Petitioner already filed a direct appeal and a post-conviction action, they are procedurally barred. See Cummings v. Sirmons, 506 F.3d 1211, 1222-23 (10th Cir. 2007) (“readily” concluding that ineffective assistance of trial counsel claim, raised for the first time in habeas petition and thus unexhausted, was procedurally barred: “[a]lthough the claim is technically unexhausted, it is beyond dispute that, were Cummings to attempt to now present the claim to the Oklahoma state courts in a second application for post-conviction relief, it would be deemed procedurally barred” (citing Okla. Stat. tit. 22, §§ 1086, 1089(D)(2))); Meyer v. Crow, No. CIV-20-1125-J, 2021 WL 6773139, at *23 (W.D. Okla. Nov. 15, 2021) (finding claims of ineffective assistance of appellate counsel subject to anticipatory procedural bar “[b]ecause Petitioner has previously filed a direct appeal and postconviction action” and the claims “could have been adequately raised previously”), adopted, 2022 WL 289174 (W.D. Okla. Jan. 31, 2022).
A petitioner can overcome procedural default by establishing either cause for the default and actual prejudice from the alleged violation of federal law, or that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner establishes neither.
“Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him impeded his efforts to comply with the State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (internal quotation marks and alterations omitted). Petitioner must show “prejudice arising from the errors that form the basis of [his] substantive claims” in order to establish the prejudice prong. Smith v. Allbaugh, 921 F.3d 1261, 1271 (10th Cir. 2019) (internal quotation marks omitted). Petitioner has supplied no justification for failing to present his claim in state court and the undersigned cannot find any. Thus, he has not established cause for his procedural default. Because he has not shown cause, the Court need not address whether he suffered actual prejudice. See Steele v. Young, 11 F.3d 1518, 1522 n.7 (10th Cir. 1993) (“As Steele has not shown cause, we need not discuss whether he has been actually prejudiced.”).
The fundamental miscarriage of justice exception to procedural default is “a markedly narrow one, implicated only in extraordinary cases where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (internal quotation marks and alteration omitted). The Supreme Court instructs that “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “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) (quoting Schlup, 513 U.S. at 316). Petitioner does not meet this standard because he does not present any new evidence of his innocence. Thus, the Court should deny the unexhausted portions of Ground One based on anticipatory procedural bar.
C. Grounds Two, Three, Four, and Five are procedurally barred.
Grounds Two, Three, Four, and Five were first raised in Petitioner's application for post-conviction relief. See Doc. 1 at 10-14 (acknowledging the grounds were raised for the first time in a post-conviction action). The OCCA held:
Concerning Propositions 2 through 5, we agree with the district court; these claims either were, or could have been, presented on direct appeal. As such, they will not be considered on postconviction because they are either waived or res judicata. Fox v. State, 1994 OK CR 52, ¶ 2, 880 P.2d 383-84. For this reason, it was
not an abuse of discretion for the district court to deny relief on Propositions 2, 3, 4, and 5.Doc. 14, Ex. 7, at 3.
A federal court may not consider claims defaulted in state court on adequate and independent state procedural grounds “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. “A state procedural default is ‘independent' if it relies on state law, rather than federal law.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). “A state procedural default is ‘adequate' if it is firmly established and regularly followed.” Id.; see Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002).
The OCCA's waiver rule is based on Oklahoma state law and is “considered ‘independent' for purposes of federal habeas review.” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014). Except for claims involving ineffective assistance of counsel, “Oklahoma's [waiver rule] meets the adequacy requirement.” Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012); see also Smith, 550 F.3d at 1274 (“[T]his court has found Oklahoma's bar of claims not raised on direct appeal to be independent and adequate with respect to claims other than ineffective assistance of counsel[.]”). Thus, the OCCA's holding that Petitioner had waived review of his claims was based on an independent and adequate state procedural rule. Thus, Grounds Two, Three, Four, and Five must be denied unless Petitioner shows either (1) cause and actual prejudice, or (2) a fundamental miscarriage of justice if relief is not granted. He cannot establish either.
Petitioner contends he did not raise Grounds Two, Three, Four, and Five on direct appeal because his appellate counsel was ineffective by not raising the issues. Doc. 1, at 10-14. Although Petitioner argues he did not bring the claims because his appellate counsel failed to raise them, to constitute cause Petitioner must first fairly present the underlying ineffective assistance of counsel claim to the state court as an independent claim. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (“[T]he exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.”); Danylchuk v. Dowling, 803 Fed.Appx. 194, 197 (10th Cir. 2020) (holding “ineffective-appellate-counsel claims are subject to anticipatory procedural bar and cannot serve as cause for the default” where the petitioner “never fairly presented these claims to the state courts and he would be precluded from doing so now”). Because the alleged ineffective assistance of appellate counsel does not constitute cause and Petitioner provides no other justification, the Court need not address whether he suffered actual prejudice. See Steele, 11 F.3d at 1522 n.7.
As noted above, Petitioner does not establish a fundamental miscarriage of justice because he does not present any new evidence of his innocence. Thus, his claims are subject to a procedural bar, and the Court should deny Grounds Two, Three, Four, and Five.
IV. Recommended ruling and notice of right to object.
For these reasons, the undersigned Magistrate Judge recommends the Court deny the petition for habeas relief.
The undersigned advises the parties of their right to object to this report and recommendation by April 6, 2022, 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 and terminates the referral to the undersigned Magistrate Judge in the captioned matter.