Opinion
CIV-20-966-R
04-29-2021
AARON FRANCIS LANGLEY, Petitioner, v. SCOTT NUNN, 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. Nunn has filed his Response to Petition for Writ of Habeas Corpus and Petitioner has filed a Reply (ECF Nos. 13 & 18). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of September 26, 2015, Rebecca Canzoneri hosted a cookout at her residence. Petitioner lived at the residence with Ms. Canzoneri and her boyfriend, Kirk Dawson. Also present at the cookout were: the victim, Josh Goodwin, his wife, Rozina Gonzalez, her two children, Ray Hailey, and his daughter. At some point in the evening, Ms. Gonzalez spoke to her children in Spanish and Mr. Langley told her she needed to “speak English.” Mr. Goodwin heard the verbal exchange and asked Mr. Langley to apologize to Ms. Gonzalez. Mr. Langley eventually apologized and Ms. Gonzalez left the cookout with her children. Mr. Goodwin stayed at the cookout, and all of the adults were drinking heavily. Throughout the evening, two verbal confrontations occurred between Petitioner and Mr. Goodwin. At some point, Mr. Langley and Mr. Goodwin engaged in a physical altercation which resulted in Petitioner stabbing Mr. Goodwin seven times in his upper body with a pocketknife. Mr. Dawson stopped the fight and called 911. Mr. Goodwin was taken to the hospital for treatment of his injures and Petitioner was arrested.
On May 5, 2017, a jury convicted Petitioner of assault and battery with a deadly weapon. Original Record, State of Oklahoma v. Langley, No. CF-2015-1670 (Okla. Co. Dist. Ct. May 5, 2017) 182 (O.R.). On December 13, 2018, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. (ECF No. 13-3). On December 16, 2019, Petitioner filed an Application for Post-Conviction Relief in the Cleveland County District Court. (ECF No. 13-4). The district court denied the application on February 3, 2020. (ECF No. 13-6). The OCCA affirmed the denial on July 29, 2020. (ECF No. 13-10). Mr. Langley filed the habeas Petition on September 24, 2020. (ECF No. 1).
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 1242-43 (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. Trammell, 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
In Ground One, Petitioner claims that the jury panel was tainted because during voir dire, one of the prospective jurors stated that Mr. Langley had committed a crime. (ECF Nos. 1:5; 13-1:10-12; 18-1:1). Reviewing for plain error, the OCCA rejected this claim on the merits, stating:
Because Mr. Langley appears pro se, the Court must liberally construe his petition. Hall v. Bellmon, 935 F.2d 1106, 1110 (1991). In the Petition, Mr. Langley's Grounds for relief essentially mirror various propositions raised on direct appeal and in an Application for Post-Conviction Relief, but the Petition fails to present any substantive argument. See ECF Nos. 1, 13-1, 13-8. Thus, in an effort to discern the basis of his grounds for habeas relief, the Court refers to the arguments from the briefs he filed in state court. Petitioner has also filed a Reply brief, which the undersigned has considered to the extent Mr. Langley has responded to specific arguments raised by Mr. Nunn's Response or in further support of the arguments as raised in the Petition or in state court.
In Proposition One, Appellant contends that he was denied a fair and impartial jury. He asserts the jury panel was tainted because one of the jurors was biased or partial. . . .
Reviewing the record in the present case, we find that Appellant has not shown the existence of an actual error. Although the juror initially expressed a partiality towards a determination of guilt, the entirety of her voir dire shows that the juror's view were not such that they would prevent or substantially impair the performance of her legal duties in accordance with her instructions and oath. Proposition One is denied.(ECF No. 13-3:4) (internal citations omitted). The Court should conclude that the OCCA's decision was not contrary to, nor an unreasonable application of, Supreme Court precedent.
A. Clearly Established Law
The Sixth Amendment as incorporated by the Fourteenth Amendment guarantees the right of a trial by jury in all state criminal cases. Duncan v. Louisiana, 391 U.S. 145, 150 (1968). The Fourteenth Amendment's Due Process Clause independently requires the impartiality of any jury empaneled to hear a case in a state court. Irvin v. Dowd, 366 U.S. 717 (1961). “In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.” Id. at 722. Potential jurors, however, are not expected to be totally ignorant of the facts surrounding a case. Rather, jurors are considered constitutionally impartial if they can lay aside any preconceived opinions regarding the outcome of the case and “render a verdict based on the evidence presented in court.” Id. at 723. Criminal defendants bear the burden of establishing juror partiality. Id.
B. Habeas Relief is not Warranted on Ground One
Mr. Langley alleges that he was denied the right to an impartial jury based on the testimony of a juror during voir dire. During voir dire, the following exchange occurred between Amanda Everett, counsel for Mr. Langley, and the prospective juror:
MS. EVERETT: Is there anybody that assumes that because Mr. Langley was sitting - and I'm going to call him Aaron. I've known him for a long time because of this case. I call him Aaron. Is there anybody that assumes that because Aaron is sitting in that chair that he did something wrong? Anybody?
PROSPECTIVE JUROR: Yes.
MS. EVERETT: You do?
PROSPECTIVE JUROR: Yes.
MS. EVERETT: You assume that he's done something wrong because he's sitting in that chair?
PROSPECTIVE JUROR: He's been charged with a crime.
MS. EVERETT: So because he's been charged with a crime, what does that mean to you?
PROSPECTIVE JUROR: He's broken the law.
MS. EVERETT: He's broken the law, or he's been accused of breaking the law?
PROSPECTIVE JUROR: He's been accused, you're right. He's been accused of breaking the law.
MS. EVERETT: Do you believe that people aren't accused of breaking the law unless they break the law?
PROSPECTIVE JUROR: Yes.
MS. EVERETT: Yes what?
PROSPECTIVE JUROR: Yes, people have been wrongly accused.
MS. EVERETT: People have been wrongly accused in the past?
PROSPECTIVE JUROR: Yes.
MS. EVERETT: And have there been people who have been wrongly convicted in the past?
PROSPECTIVE JUROR: Yes, ma'am.
MS. EVERETT: What do you think about that?
PROSPECTIVE JUROR: It's a horrible injustice. But we're all human. I would hate to see it happen, but I guess it does.
MS. EVERETT: Do you agree that it would be a terrible thing to send a man who's not guilty of what he's charged of to prison?
PROSPECTIVE JUROR: Absolutely.
MS. EVERETT: Do you all agree? (All prospective jurors say yes).
MS. EVERETT: So, [PROSPECTIVE JUROR] knowing that Mr. Langley has been charged with assault and battery with a deadly weapon, do you have a feeling at this point whether he's probably guilty or not?
PROSPECTIVE JUROR: Not at all.
MS. EVERETT: So you're going to be able to listen to the evidence?
PROSPECTIVE JUROR: Yes.
Transcript of Jury Trial Proceedings, State of Oklahoma v. Langley, Case No. CF-2015-1670 (Cleveland Co. Dist. Ct. May 1, 2017) 161-163 (Trial TR. Vol. I).
As stated, the OCCA found no plain error with respect to Petitioner's claim that he had been denied an impartial jury based on the prospective juror's statements during voir dire. See ECF No. 13-3:3-4. The Tenth Circuit Court of Appeals has held that “Oklahoma's formulation of the plain-error standard is virtually identical to the constitutional test for due process.” Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015). So, when the OCCA rejected Petitioner's claim under the plain-error standard, the decision “effectively disallowed the possibility of a due process violation.” Id. at 1011. This Court must then defer to the OCCA's ruling unless it unreasonably applied the due process test. Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005).
According to Mr. Langley, the jury was tainted based on the prospective juror's initial statement that Petitioner had “broken the law.” But as stated, “jurors are sufficiently impartial under constitutional standards if they can lay aside any preconceived opinions regarding the outcome of the case and ‘render a verdict based on the evidence presented in court.'” See supra, Irvin. Ultimately, the prospective juror stated that she had no feeling regarding Petitioner's guilt, and that she would be able to listen to the evidence prior to reaching a verdict. See supra. As a result, the Court should conclude that the OCCA did not unreasonably apply the Due Process test and habeas relief is not warranted on Ground One. See Goss v. Nelson, 439 F.3d 621, 634 (10th Cir. 2006) (finding no Due Process violation in connection with jury selection when jurors stated they had not: (1) formed an opinion about guilt or innocence, or (2) indicated that they could not be impartial).
IV. GROUNDS THREE AND FOUR
In Grounds Three and Four, Mr. Langley challenges the sufficiency of the evidence to support the conviction. See ECF Nos. 1:8-9; 1-1:1; 13-1:15-34; 148-1:9-17. The OCCA rejected both claims on the merits and this Court should conclude that the OCCA's determination was reasonable.
(ECF No. 13-3:6-8).
A. Clearly Established Law
Under the Due Process Clause of the Fourteenth Amendment, a criminal defendant cannot be convicted of a crime unless the state proves, beyond a reasonable doubt, every essential element of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970). On federal habeas review, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Both direct and circumstantial evidence may be considered in determining whether evidence is sufficient to support a conviction. Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). “Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). As the Supreme Court explained:
First, on direct appeal, “it is the responsibility of the jury-not the court- to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam).
And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.' ” Ibid. (quoting Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).Id. The Court looks to state law to determine the substantive elements of the crime, “but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman, 566 U.S. at 655.
B. Ground Three
To obtain a conviction for assault and battery with a deadly weapon, the State had to show: (1) an assault and battery; (2) upon another person; (3) with a deadly weapon. See OUJI-CR 4-6; 21 O.S. § 652(c). Self-defense can negate liability on a charge of assault and battery with a deadly weapon “if the person reasonably believed that use of deadly force was necessary to protect himself from imminent danger of death or great bodily harm.” OUJI-CR 8-46; see Perez v. State, 798 P.2d 639, 641 (Okla. Ct. Crim. App. 1990); accord, Dawkins v. State, 252 P.3d 214, 220 (Okla. Ct. Crim. App. 2011). Because Mr. Langley had alleged that he had stabbed Mr. Goodwin in self-defense, the jury was instructed on the theory of self-defense and that the State had to prove beyond a reasonable doubt that Mr. Langley was not acting in self-defense. (O.R. 210, 211). Ultimately, the jury concluded that the State had met this burden. See O.R. 182.
In Ground Three, Mr. Langley alleges insufficient evidence to support the conviction based on the State's failure to prove that Petitioner had not acted in self-defense. (ECF No. 1:8; 1-1:1; 13-1:15-29). In support of his claim that he had acted in self-defense, and the State had not met its burden to prove otherwise, Mr. Langley relies on:
In the habeas Petition, Mr. Langley contends that the state had failed to rebut the existence of self-defense-the same argument he had presented in his direct appeal. Compare ECF No. 1:8, 1-1:1 with ECF No. 13-1:15-29. However, the Petition also states: “I had a right to stand my Ground in my home, ” an allegation that was not presented on direct appeal or in his Application for Post-Conviction Relief. Compare ECF No. 1:8 with ECF Nos. 13-1, 13-4, 13-8. Oklahoma does have a “Stand Your Ground” law, see 21 O.S. § 1289.25, but Mr. Langley has never presented an argument related to this law to any state court. Thus, the Court should consider any such claim unexhausted and not ripe for habeas review. See Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 1999) (“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.”); see also 28 U.S.C. § 2254(b)(1)(A).
• his testimony that Mr. Goodwin repeatedly yelled at him and threatened to “kick [Petitioner's] ass;” which caused Petitioner to retreat to his bedroom at one point to get away from Mr. Goodwin;
• his testimony that he apologized to Mr. Goodwin's wife in an attempt to diffuse the situation;
• testimony from Ms. Canzoneri that Mr. Langley withdrew from the second confrontation with Mr. Goodwin;
• Mr. Dawson's testimony that Mr. Goodwin “pushed and shoved up against [Mr. Langley's] shoulder a couple of times” during the evening and “appeared to be trying to assert dominance” over Mr. Langley;
• Mr. Dawson's testimony that just prior to the physical assault, he saw Mr. Goodwin push Mr. Langley against the refrigerator, and say “I'm going to kill you;” • Mr. Dawson's testimony that “it looked like self-defense” to him;
• Testimony from Ms. Gonzales regarding how much Mr. Goodwin had been drinking;
• A report from an investigator which showed “horizontal” stab wounds which indicated that Mr. Goodwin and Mr. Langley were face to face during the stabbing, which is inconsistent with Mr. Goodwin's statement that he was stabbed in the back when he was trying to get away from Petitioner; and
• his testimony that Mr. Goodwin walked into the house, announced that he was going to kill Petitioner, pinned him in a corner, and began attacking him, first punching him in the head and then backing up Petitioner into the refrigerator, causing Mr. Langley to react out of fear and stab Mr. Goodwin in self-defense.(ECF Nos. 13-1:23-29; 18-1:9-11).
The OCCA considered and rejected this claim on the merits, stating:
In Proposition Three, Appellant argues that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Taking the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Appellant did not act in self-defense. A reasonable person in Appellant's circumstances and from his viewpoint could not have reasonably believed he was in imminent danger of death or great bodily harm. Instead, the evidence tended to establish that Appellant was the aggressor…. Proposition[] Three [is] denied.(ECF No. 13-3 6-7, 8) (internal citations omitted). In light of the deferential standard under § 2254, the Court concludes that the OCCA's determination was reasonable.
Under Oklahoma law, “[s]elf-defense is an affirmative defense which admits the elements of a charge, but offers a legal justification for conduct which would otherwise be criminal.” McHam v. State, 126 P.3d 662, 667 (Okla. Crim App. 2005). As stated, the jury was instructed that the State had to prove, beyond a reasonable doubt, that Mr. Langley was not acting in self-defense when he stabbed Mr. Goodwin. See O.R. 211. The jury was further instructed that:
• self-defense is not available to a person who was the aggressor; and
• a person is an aggressor when that person by his wrongful acts provokes, brings about, or continues an altercation. The use of words alone cannot make a person an aggressor.(O.R. 212, 215).
Prior to the physical fight which resulted in the stabbing, the evidence shows that Mr. Langley and Mr. Goodwin had engaged in several alcohol-fueled verbal confrontations which began with Petitioner insulting Mr. Goodwin's wife. After the last confrontation, several hours into the evening, the physical fight and subsequent stabbing ensued. (Trial TR. Vol. II 376-377, 384). Mr. Dawson testified that he had been in his room sleeping when he heard a commotion which woke him up at approximately 8:00 p.m. Id. at 500-501. According to Mr. Dawson, he heard Mr. Goodwin tell Mr. Langley he was going to kill him. Id. at 501, 504. Mr. Dawson then entered the kitchen, and saw that Mr. Goodwin had pushed Mr. Langley against the refrigerator and Mr. Langley was stabbing Mr. Goodwin. Id. at 501, 506-508, 526. Mr. Dawson stated that he tried to pull the men apart and the fight ended when Mr. Goodwin saw blood on the floor and began walking away. Id. at 526.
Transcript of Jury Trial Proceedings, State of Oklahoma v. Langley, No. CF-2015-1670 (Cleveland Co. Okla. May 2, 2017) 334-338, 360-361, 373-376, 379-381, 445-51, 453, 469, 471-473, 476 (Trial TR. Vol. II); Transcript of Jury Trial Proceedings, State of Oklahoma v. Langley, No. CF-2015-1670 (Cleveland Co. Okla. May 3, 2017) 571 (Trial TR. Vol. III); Transcript of Jury Trial Proceedings, State of Oklahoma v. Langley, No. CF-2015-1670 (Cleveland Co. Okla. May 4, 2017) 870-872, 875, 899-900 (Trial TR. Vol. IV).
Based on the lack of eyewitnesses to the beginning of the fight, the only evidence regarding who was considered the “aggressor” and who might have been acting out of self-defense is the testimony of the two persons involved-Mr. Goodwin and Mr. Langley.
According to Mr. Goodwin, after spending approximately 20 minutes outside to smoke, he came back inside to use the restroom and was followed by Mr. Dawson and Mr. Langley. Id. at 387. At this point, Mr. Goodwin asked Mr. Langley if he was going to fight him. Id. The men stopped with approximately an arm's length of distance between them and Mr. Langley began punching Mr. Goodwin. Id. at 390-391. Id. Mr. Goodwin tried to block him and threw a punch. Id. at 391-392. At some point, Mr. Goodwin “felt something liquid running down from [his] neck area, ” and realized he was not just in a fist-fight. Id. at 392. According to Mr. Goodwin, Mr. Dawson witnessed the stabbing and “kind of stopped it.” Id. at 425. Mr. Goodwin stated that he walked away and Mr. Dawson gave him a shirt to stop the bleeding. Id. at 393, 417, 418.
According to Mr. Langley, Mr. Goodwin spent the evening verbally harassing Mr. Langley on and off, trying to pick a fight. (Trial TR. Vol. IV. 870-878). After twice apologizing to Ms. Gonzalez, Mr. Langley went to his bedroom to remove himself from the situation and give things time to diffuse. Id. at 878. Mr. Langley eventually came out of his bedroom and went into the kitchen, smoking an e-cigarette. Id. at 881-882. Mr. Langley witnessed Mr. Hailey and Mr. Goodwin talking outside, and shortly thereafter, according to Mr. Langley, Mr. Goodwin came inside, confronted him, stated “I'm going to kill you, ” and threw a punch at his head. Id. at 884-888, 904. According to Mr. Langley, without thinking, he pulled out his pocketknife, a folding Buck knife, and began swinging wildly at Mr. Goodwin, not even aware that he was stabbing Mr. Goodwin. Id. at 888-891, 906-907, 916, 920. Mr. Langley stated that he was “reacting to a situation” and was very afraid, believing that Mr. Goodwin was trying to kill him. Id. at 891. At some point, Mr. Langley stated that the fight lasted no more than ten seconds and stopped when Mr. Dawson pulled Mr. Goodwin off of Mr. Langley. Id. at 888, 892-893.
The Supreme Court “unambiguously instructs that a reviewing court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Cavazos v. Smith, 565 U.S. 1, 7 (2011) (quotations omitted). In this case, the jury chose to believe Mr. Goodwin's version of the events rather than Mr. Langley's. Mr. Goodwin's testimony demonstrated that Petitioner was not acting in self-defense when he was stabbing Mr. Goodwin. Petitioner's attempt to highlight inconsistencies in the evidence merely shows why a “juror might not accept [Mr. Goodwin's] testimony; it doesn't show that a rational juror could not accept it, which is the question on which a sufficiency challenge necessarily must focus.” Matthews v. Workman, 577 F.3d 1175, 1185 (10th Cir. 2009); see also United States v. Cardinas Garcia, 596 F.3d 788, 794 (10th Cir. 2010) (“[W]e will overturn a jury's credibility determination and disregard a witness's testimony only if the testimony is inherently incredible-that is, only if the events recounted by the witness were impossible under the laws of nature or the witness physically could not have possibly observed the events at issue”).
On this record, the Court cannot disturb the OCCA's conclusion that sufficient evidence exists to support the conviction based on the State's proof, beyond a reasonable doubt, that Mr. Langley had not acted in self-defense. Accordingly, the Court should conclude that habeas relief is not warranted on Ground Three.
C. Ground Four
As stated, the crime of conviction, assault and battery with a deadly weapon, required the State to prove beyond a reasonable doubt that Petitioner committed: (1) an assault and battery; (2) upon another person; (3) with a deadly weapon. See OUJI-CR 4-6; 21 O.S. §652(c). In Ground Four, Mr. Langley argues that the evidence was insufficient as to whether the weapon used, the pocketknife, qualified as a “deadly weapon.” (ECF No. 1:9; 1-1:1; 13-1:30-34). The OCCA rejected this claim on the merits, stating:
In the Petition and Reply Brief, and in support of Ground Four, Mr. Langley also alleges that: (1) ”medical records & Dr. testimony fail to prove great bodily injury in fact testimony that does say great bodily injury was perjured at preliminary hearing” and (2) the charging Information added an element of intent not present in the actual statute. (ECF Nos. 1:9; 18-15-17). Mr. Langley did not make these claims when alleging sufficiency of the evidence on direct appeal or in his Application for Post-Conviction relief. See ECF Nos. 13-1, 13-4, 13-8. Accordingly, the Court should not consider these allegations as they pertain to unexhausted claims. Further, because the challenge to the charging Information was raised for the first time in a Reply brief, and not responsive to any arguments raised in the Response, the Court should not consider it. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (“[T]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.”) (citation omitted).
In Proposition Four, Appellant argues that the State failed to prove that the pocket knife was a deadly weapon. Taking the evidence in the present case in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the knife which Appellant used constituted a deadly weapon because he used it in a manner likely to produce death. Goree v. State, 2007 OK CR 21, ¶ 3, 163 P.3d 583, 584 (holding assault and battery with a deadly weapon does not require intent to kill or injure if force used is likely to produce death); Davis v. State, 1960 OK CR 6, ¶ 14, 354 P.2d 466, 471-72 (when charged weapon is not deadly per se it is the manner in which charged weapon is used which controls); Beck v. State, 1941 OK CR 170, 73 Okla. Crim. 229, 234, 119 P.2d 865, 868 (defining deadly weapon as “any instrument so used as to be likely to produce death or great bodily harm.”).
Taking the evidence in the present case in the light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of the offense of Assault and Battery with a Deadly Weapon beyond a reasonable doubt. Proposition[] … Four [is denied].(ECF No. 13-3:7-8). The Court should conclude that the OCCA's determination was not contrary to, nor an unreasonable application of, Supreme Court precedent.
Here, the jury heard evidence that Mr. Langley used his pocketknife to stab Mr. Goodwin multiple times-in his stomach, chest, right underarm, left back, left upper back, and twice in the neck. (Trial TR. Vol. II 399-402; Trial TR. Vol. III 600, 614-617; Trial Tr. Vol. IV 915-916; State's Exhibits 16-21). The emergency room physician who treated Mr. Goodwin testified that the stabbing caused Mr. Goodwin to suffer a hemothorax- bleeding in the chest area-which, if left untreated, could result in death. (Trial TR. Vol. III 612-613). The jury considered this evidence and ultimately concluded that the manner in which Mr. Langley used the pocketknife, rendered it a deadly weapon. On direct appeal, the OCCA agreed and Petitioner has not rebutted those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). As a result, the Court should conclude: (1) that the OCCA reasonably determined that sufficient evidence existed to support the conviction for assault and battery with a deadly weapon, and (2) habeas relief is not warranted on Ground Four.
As stated, in reviewing a sufficiency of the evidence claim, the substantive elements of the crime are determined by state law. See Jackson v. Virginia, 443 U.S. at 324, n. 16. Under Oklahoma law, a “deadly weapon” is “an instrument which, when used in the ordinary manner contemplated by its design and construction, will or is likely to cause death or great bodily harm.” Beeler v. State, 334 P.2d 799, 806 (Okla. Crim. App. 1959). As noted by Petitioner, “an ordinary pocketknife is not a deadly weapon per se[.]” Ponkilla v. State, 99 P.2d 910, 912 (Okla. Crim. App. 1940). However, to determine whether “an ordinary pocketknife”-i.e.-the pocketknife used by Petitioner-could be considered a “deadly weapon, ” the manner in which the weapon was used is considered and is a question of fact for the jury. See id.; see also Beeler, 334 P.2d at 806.
V. GROUND TWO
In Ground Two, Petitioner contends that the trial court's allowance of “other crimes” evidence to impeach the testimony of State's witness, Kirk Dawson, violated Due Process. (ECF Nos. 1:6; 13-1:12-15; 18-1:2-6). On direct appeal, the OCCA reviewed the trial court's admission of the other crimes evidence for an abuse of discretion, and found none. (ECF No. 13-3:5). In doing so, the OCCA stated:
In his Reply brief, Petitioner sets forth an “Addendum to Proposition 2.” (ECF No. 18-1:7-8). In the addendum, Mr. Langley cites seven Oklahoma state law cases which discuss sentence modification. (ECF No. 18-1:9). The Court should not consider the “addendum” as Petitioner has failed to tie it to the allegations raised in the habeas Petition on Ground Two and the cases are not responsive to any argument in the Response brief.
In Proposition Two, Appellant contends that the State's attempt to impeach Kirk Dawson with Appellant's 2010 conviction for Corporal Injury to Another Person constituted inadmissible other crimes evidence. The Trial court overruled Appellant's objection at trial finding that Appellant had placed his character for peacefulness or nonviolence at issue. We review the trial court's ruling for an abuse of discretion.
The record shows that Appellant placed his character trait of nonviolence or peacefulness at issue when he introduced Dawson's opinion that he was not violent. Thus, the prosecutor was free to attempt to impeach Dawson's opinion with bad character evidence, i.e., Appellant's conviction for Corporal Injury to Another Person. Since the prosecutor properly attempted to impeach Dawson, we find that the trial court did not abuse its discretion.(ECF No. 13-3:5) (internal citations omitted). Because the OCCA did not address the Due Process component of Petitioner's claim-i.e.-the prejudicial impact of the evidence-this Court should address Ground Two de novo. See Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002) (“Although Knighton did raise this constitutional due process argument on direct appeal, the Oklahoma appellate court did not specifically address it. We, therefore, review this habeas claim de novo.”). In doing so, the Court should conclude that habeas relief is not warranted on Ground Two.
A. Relevant Factual Background
On cross-examination of State's witness, Kirk Dawson, defense counsel asked Mr. Dawson if Petitioner was a violent drunk. (Trial TR. Vol. II 528). In response, Mr. Dawson stated, “No.” Id. On re-direct examination, the following exchange occurred between the prosecutor and Mr. Dawson:
THE PROSECUTOR: Ms. Everett asked you about what Mr. Langley is like when he's drunk. Do you remember that question?
MR. DAWSON: Yes, I do, ma'am.
THE PROSECUTOR: And you said that he's not a violent drunk?
MR. DAWSON: No.
THE PROSECUTOR: Is he violent when he is not drunk?
MR DAWSON: No.
THE PROSECUTOR: Would you say he has a reputation for being peaceful or violent or something different?
MR. DAWSON: I know Aaron as being a calm, normal person. He's very aggressive in time to get to work and everything. He's good at that. He's very dependable. Shows up on time. I mean, since I've known him, I've never known him having violent situations until this one, around me.
THE PROSECUTOR: You now said that you've been friends with him from 18 to 20 years ago; is that right?
MR. DAWSON: Yes, about that.
THE PROSECUTOR: Okay. So you certainly knew him in 2010, would you agree?
MR. DAWSON: Yes.
THE PROSECUTOR: Okay. And so are you aware of any violent acts by Mr. Langley in 2010?
MR. DAWSON: No, not around me.
THE PROSECUTOR: Okay. That wasn't my question.
MR. DAWSON: No.
THE PROSECUTOR: All right. So are you aware that he was convicted of corporal injury to another person?
MR. DAWSON: No.
THE PROSECUTOR: Would that change your opinion as to Mr. Langley never being violent?
MR. DAWSON: No.(Trial TR. Vol. II 547-548).
Outside the presence of the jury, defense counsel objected to the prosecutor's line of questioning, stating that the prosecutor was attempting to enter evidence that Mr. Langley had been convicted of a violent crime through the testimony of Mr. Dawson. (Trial TR. Vol II 549). The prosecutor responded, stating that defense counsel opened the door to Mr. Langley's propensity for violence on cross-examination, allowing the State to impeach Mr. Dawson's credibility. (Trial TR. Vol. II 549-550). The trial judge overruled defense counsel's objection, finding that defense counsel put Mr. Langley's character for nonviolence at issue, allowing the State to inquire into prior acts that related to that character trait that was offered by Mr. Dawson on behalf of Mr. Langley. (Trial TR. Vol. III 565).
During jury deliberations, the jury sent a note to the trial judge asking: “What was the 2010 charge of corporal injury? Can we consider it? What is corporal injury?” Court's Exhibit 2, State of Oklahoma v. Langley, No. CF-2015-1670 (Cleveland Co. Dist. Ct.). The trial judge's response was “You have all the law and evidence before you.” Id.
B. Clearly Established Law
“[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, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “Nevertheless, when a state court admits evidence that is ‘so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.'” Ochoa v. Workman, 669 F.3d 1130, 1145 (10th Cir. 2012) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)).
C. Habeas Relief is not Warranted on Ground Two
Mr. Langley contends he was deprived of a fair trial and Due Process of law based on the question raised by the jury in the note they sent to the judge during deliberations. Overruling defense counsel's objection, the trial court had allowed the prior crimes evidence to impeach Mr. Dawson's testimony regarding Mr. Langley's character. See supra. According to Petitioner, the guilty verdict is evidence that “the jury's note [referencing] the admission of the misdemeanor evidence was more prejudicial that probative.” See ECF Nos. 13-1:15; 18-1:5-6. The Court should disagree.
As an initial matter, the undersigned notes that the other-crimes evidence was properly admitted under Oklahoma law because defense counsel had put Mr. Langley's character for nonviolence at issue, allowing the State to inquire into prior acts that related to that character trait. See Douglas v. State, 951 P.2d 651, 667, 1997 OK CR 79, ¶ 44 (Okla. Crim. App. 1997), overruled on other grounds. That leaves only the question of whether the other-crimes evidence was “so unduly prejudicial that it render[ed] [the petitioner's] trial fundamentally unfair.” Payne, 501 U.S. at 825. In light of the evidence of Petitioner's guilt, the Court should answer this question negatively.
Under Oklahoma law, a guilty verdict for assault and battery required the State to prove, beyond a reasonable doubt, that Petitioner committed: (1) an assault and battery; (2) upon another person; (3) with a deadly weapon, and (4) was not acting in self- defense. See OUJI-CR 4-6; 21 O.S. §652(c). The jury was instructed that an assault is “any willful and unlawful attempt or offer to do a bodily hurt to another with force or violence” and a “battery” was defined as “any willful and unlawful use of force or violence upon the person of another.” (O.R. 206-207). As discussed, the State proved, beyond a reasonable doubt, that Petitioner was not acting in self-defense, and that the weapon used to effectuate the stabbing constituted a “deadly weapon” under Oklahoma law. See supra. And according to Mr. Goodwin, Mr. Langley was the aggressor and started the fight by punching, then stabbing, Mr. Goodwin with his pocketknife. See Trial TR. Vol. II 387-392.
In light of the foregoing evidence of guilt, the Court should conclude that the “other crimes” evidence was not so prejudicial to render Petitioner's trial fundamentally unfair. See Lott v. Trammell, 705 F.3d 1167, 1194 (10th Cir. 2013) (finding that habeas petitioner's trial was not rendered fundamentally unfair by the admission of other crimes evidence in light of overwhelming evidence of guilt).
VI. GROUND FIVE
In Ground Five, Petitioner alleges that he was denied his Sixth Amendment right to present a defense through the trial court's refusal to admit a statement from a police officer that Petitioner claims was admissible as an exception to the hearsay rule. (ECF Nos. 1-1:1; 1-2:1; 13-1:34-36; 18-1:18). The OCCA considered and rejected the claim on the merits. (ECF No. 13-3:8-9). The Court should conclude that the OCCA's determination was reasonable.
A. Relevant Factual Background
City of Noble Police Officer Andrew Zerby responded to the 911 call regarding the stabbing and arrived at Mr. Canzoneri's home within approximately one minute of the call. (Trial TR. Vol. III at 640-642). At trial, Officer Zerby testified that as soon as he entered the house, he pulled his service weapon and told Mr. Langley and Mr. Hailey to “get down.” Id. at 726-727. According to Officer Zerby, Mr. Langley seemed scared that a gun was being pointed at him. Id. at 727. Defense counsel then specifically asked Officer Zerby: “Is there anything he said to you about this incident there at the scene?” Id. at 728. At this point, the prosecutor objected and the parties held a conference outside the presence of the jury. Id. at 728-732. According to the prosecutor, defense counsel was attempting to elicit hearsay testimony regarding what Officer Zerby had heard Mr. Langley say shortly after the officer arrived on the scene. Id. at 728. Defense counsel argued that it would like to elicit testimony from Officer Zerby that Mr. Langley had stated “I stabbed him, but it was in self-defense.” Id. 729-730. According to the defense, the testimony would be allowed under the “excited utterance” exception to the hearsay rule. Id. at 728, 730. Defense counsel argued that an appropriate foundation for the exception had been laid because only 60 seconds had passed since the 911 call, a dramatic event had occurred, and Mr. Langley seemed fearful when he made the statement. Id. at 730. Id. The prosecutor, in turn, argued that the statement was purely self-serving hearsay and that a proper foundation had not been laid for the exception to apply. Id. According to the prosecutor, Petitioner's statement was made as a reaction to being scared of a firearm being pointed at him, not as an excited utterance in relation to the stabbing. Id. at 731. The trial judge sustained the objection, finding that the statement was hearsay, and that the defense had not laid a proper foundation for the “excited utterance” exception to the hearsay rule to apply. Id. at 732.
B. The OCCA's Ruling
On direct appeal, Petitioner argued that he was denied his Sixth Amendment right to present a complete defense through the trial court's sustaining the objection that the statement was inadmissible hearsay. (ECF No. 13-1:34-36). The OCCA rejected this claim on the merits, stating:
In Proposition Five, Appellant contends that the trial court's determination that his initial statement to the investigating officer constituted inadmissible hearsay denied him the right to present a defense. Although the statement contained a partial admission against interest, it was self-serving. Thus, Appellant could not introduce it into evidence unless it met one of the firmly rooted exceptions to the prohibition against hearsay. Appellant sought to introduce the statement as an excited utterance at trial, however, he was unable to meet the foundational requirements of showing that the statement constituted an excited utterance. Appellant failed to establish that the statement which related to the stabbing was made while the declarant was under the stress of excitement caused by the stabbing and that there was no time for reflection or fabrication. As Appellant failed to show at trial that the statement was admissible under any of the firmly rooted hearsay exceptions, we find that the trial court did not abuse its discretion. Since the proffered testimony was inadmissible we conclude that Appellant was not deprived of his right to present a defense.(ECF No. 13-3:8-9).
B. Clearly Established Law
A criminal defendant has the right under the Sixth Amendment to “a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006). The right to present a defense does not, however, prohibit judges from excluding evidence under well-established rules of evidence. Id. at 326. However, “where constitutional rights directly affecting the ascertainment of guilt are implicated, ” such as testimony critical to one's defense, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In such circumstances, restrictions on the defendant's right to present relevant evidence “may not be arbitrary or disproportionate to the purposes they are designed to serve.” U.S. v. Scheffer, 523 U.S. 303, 330 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987).
C. Habeas Relief is not Warranted on Ground Five
It is without dispute that the Petitioner's statement to Officer Zerby was considered inadmissible hearsay. See Phillips v. State, 756 P.2d 604, 607 (Okla. Crim. App. 1988) (“An out-of-court self-serving exculpatory statement, ... is hearsay, and to be admissible must fall within a firmly rooted hearsay exception[.]”). Here, defense counsel sought to introduce the statement under Oklahoma's “excited utterance” exception to the hearsay rule. See supra. Under this exception, hearsay is admissible as an “excited utterance” if the statement relates to a startling event or condition and was made while the declarant was under the stress of excitement caused by the event or condition. See 12 O.S. § 2803(2).
The record establishes that immediately upon entering Ms. Canzoneri's home, Officer Zerby drew his weapon on Petitioner and yelled at him to “get down.” See supra. The record supports the trial court's finding that the foundation was not established to apply the “excited utterance” exception under these circumstances. Any statement made by Petitioner could arguably have been caused by the stress and excitement of a police officer pointing a loaded firearm at him and yelling, rather than the stress and excitement of the recent stabbing.
The question then becomes whether the trial court applied the hearsay rule, to exclude the evidence, in a way that was “arbitrary or disproportionate to the purpose[s] [the rule] [is] designed to serve.” In Chambers v. Mississippi, the Court addressed this issue and found that while “[o]ut-of-court statements are traditionally excluded because they lack the convictional indicia of reliability.” Chambers, 410 U.S. at 298. The proffered testimony in that case was critical to the petitioner's defense and was “well within the basic rationale of the exception for declarations against interest.” Id. at 302. Thus, the exclusion of the evidence, along with the State's refusal to allow the petitioner to cross-examine the declarant, denied the Petitioner a fair trial. Id. at 300-301.
Here, the statement from Officer Zerby that defense counsel tried to introduce did not have the same reliability as the evidence in Chambers. Instead, the evidence was nothing more than self-serving hearsay which did not qualify as an “excited utterance.” Because the trial court explained its rationale for excluding the evidence, the Court cannot say that the hearsay rule was applied mechanistically in a way that resulted in an arbitrary or disproportionate restriction on Mr. Langley's right to present a defense. See Showalter v. McKune, 299 Fed.Appx. 827, 830 (10th Cir. 2008) (affirming district court's decision that habeas petitioner had not been denied the right to present a complete defense because petitioner's statements (which he attempted to introduce under a hearsay exception) “did not have the same reliability as the evidence at issue in Chambers.”).
Additionally, Mr. Langley himself testified that he had acted in self-defense-the precise theory he had wanted to introduce by means of the alleged “excited utterance” from Officer Zerby that had been excluded. See Trial TR. Vol. IV at 915. Petitioner's testimony, when coupled with the fact that the jury was instructed on: (1) the theory of self-defense and (2) the State's burden to prove that Mr. Langley had not acted in self-defense, obviates any finding of prejudice from excluding Officer Zerby's testimony that would result in a fundamentally unfair trial. See Aviles v. Archuletta, 389 Fed.Appx. 853, 858, 2010 WL 3010346, at *3 (10th Cir. 2010) (holding that exclusion of hearsay statement that petitioner had acted in self-defense did not render the trial fundamentally unfair “because petitioner was fully able to pursue his self-defense theory at trial.”).
See O.R. 209-216.
Based on the foregoing, the Court should conclude that: (1) the OCCA reasonably determined that Petitioner had not been denied his Sixth Amendment right to present a complete defense through the exclusion of Officer Zerby's testimony and (2) habeas relief is not warranted on Ground Five.
VII. GROUND SIX
In Ground Six, Petitioner states: “Trial Court erred by admitting evidence that was more prejudicial that probative. Officer Zerby testified it was not self defense even though there was a motion in limine that prevented this very testimony.” (ECF No. 1-2:1). The Court should conclude that Ground Six is subject to an anticipatory procedural bar.
A. 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 state-court 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).
B. 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. Bell, 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).
C. Ground Six
As stated, in Ground Six, Mr. Langley alleges that the trial court erred by admitting evidence that was more prejudicial than probative-namely, testimony from Officer Zerby that Petitioner had not acted in self-defense. (ECF Nos. 1-2:1; 18-1:19). Previously, because Mr. Langley's habeas grounds had mirrored, without explanation, his propositions raised on direct appeal, the undersigned had liberally construed the Petition to reflect the direct appeal arguments and considered the arguments as raised in his direct appeal brief. See supra. On direct appeal, Petitioner argued that “the trial court erred by admitting evidence which was more prejudicial than probative”-namely Facebook messages and posts from Mr. Dawson and Mr. Goodwin. See ECF No. 13-1:37-40. But in Ground Six as set forth in the habeas Petition, Mr. Langley alleges that testimony from Officer Zerby was the “evidence that was more prejudicial that probative”-a theory completely different than the one raised on direct appeal. Because the issue has not been presented to any state court in the form it is now being raised in the habeas Petition, the Court should conclude that Ground Six is unexhausted. To exhaust Ground Six, Petitioner would have to return to state court and file a second 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. 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[.]”).
In Ground Ten, Petitioner challenges Officer Zerby's testimony as an improper “evidentiary harpoon” and in Grounds Eleven and Fifteen, Petitioner argues, respectively, that trial counsel was ineffective for failing to object to the testimony and appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness on direct appeal. See infra. These arguments will be discussed below. See infra.
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 v. Royal, 886 F.3d 874, 893 (10th Cir. 2018) (“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. Langley 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. at 750. “Cause” under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him, with the result being prejudice to the petitioner. Coleman v. Thompson, 501 U.S. at 753. To demonstrate a fundamental miscarriage of justice, a 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 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). Here, Mr. Langley offers no “cause and prejudice” to excuse the default, nor does he make any argument that a fundamental miscarriage of justice had occurred. See ECF Nos. 1 & 18. As a result, the Court should find that Ground Six is procedurally barred from consideration on habeas review. See Grant v. Royal, 886 F.3d at 902 (“Mr. Grant makes no effort to overcome this bar by arguing cause and prejudice, or a fundamental miscarriage of justice. Consequently, we hold that we are precluded from considering Mr. Grant's procedural due process competency claim.”).
VIII. GROUND SEVEN
Petitioner contends that four instances of prosecutorial misconduct deprived him of a fair trial, both individually and cumulatively. (ECF Nos. 1-2:1; 13-1:40-45; 18-1:20-21). Specifically, he claims the prosecutor: (1) implied that Mr. Langley understood the law; (2) misstated the evidence; (3) bolstered the State's position and witness credibility; and (4) cast aspersions on the defense. (ECF Nos. 13-1:40-45; 18-1:20-21).
Petitioner raised each of his prosecutorial misconduct claims in his direct appeal. (ECF No. 13-1:40-45). After noting its review for plain error, the OCCA concluded that a review of Petitioner's instances of alleged misconduct did not warrant such relief. (ECF No. 13-3:10-12). In doing so, the OCCA stated:
In Proposition Seven, Appellant contends that prosecutorial misconduct deprived him of a fair trial. He concedes that he waived appellate review of this claim for all but plain error when he failed to object to the prosecutor's comments at trial. Therefore, we review his claim pursuant to the test, set out above, and determine whether he has shown actual error, which is plain or obvious, and which affects his substantial rights.
Reviewing the record, we find that Appellant has not shown the existence of an actual error within any of his allegations of prosecutorial misconduct. The prosecutor made appropriate use of Appellant's admission that his pocket knife could constitute a deadly weapon. Similarly, the prosecutor did not misstate the evidence. He did not vouch for the credibility of the victim. The prosecutor did not express his opinion as to Appellant's guilt. The Prosecutor did not engage in name-calling, ridiculing or making derogatory comments about either defense counsel or the chosen defense, thus we conclude that he did not cast aspersions on the defense.
Reviewing the entire record, the cumulative effect of the prosecutor's comments did not deprive Appellant of a fair trial. Therefore, we find that Appellant has not shown error, plain or otherwise, occurred. Proposition Seven is denied.(ECF No. 13-3:10-12) (internal citations omitted).
A. Clearly Established Law
Prosecutorial misconduct can cause constitutional error in two ways. Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018). First, it can prejudice a specific constitutional right, amounting to a denial of the right. Id. Second, “absent infringement of a specific constitutional right, a prosecutor's misconduct may in some instances render a . . . trial ‘so fundamentally unfair as to deny [a defendant] due process.'” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). Inquiry into fundamental fairness requires examination of the entire proceedings, including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase. See Donnelly, 416 U.S. at 643; Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994). Any cautionary steps-such as instructions to the jury-offered by the court to counteract improper remarks may also be considered. See Darden v. Wainwright, 477 U.S. 168, 182 (1986).
Mr. Langley does not argue the comments deprived him of any specific constitutional right. The Court should therefore address only the second type of prosecutorial misconduct.
Under the AEDPA, Mr. Langley also must show the state court's rejection of his prosecutorial misconduct claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.” Parker v. Matthews, 567 U.S. 37, 47 (2012) (quotations omitted).
B. Habeas Relief is not Warranted on Ground Seven
The Court should conclude that none of the alleged instances of prosecutorial misconduct rendered Petitioner's trial fundamentally unfair and the OCCA was reasonable in concluding the same. As a result, habeas relief is not warranted on Ground Seven.
1. The Prosecutor's Alleged Implication that Mr. Langley Understood the law
Mr. Langley alleges that the prosecutor improperly implied that Petitioner “understood the law” when, during closing argument, the prosecutor stated: “You heard from the defendant himself, from his own mouth, Aaron Langley told you that his knife was a deadly weapon.” (ECF No. 13-1:40-41). Citing case law which allowed the prosecutor wide latitude during closing argument, the OCCA found no prosecutorial misconduct associated with the comment, stating that the prosecutor made appropriate use of Appellant's admission that his pocket knife could constitute a deadly weapon (ECF No. 13-3:11). The Court should conclude that the OCCA's determination was reasonable.
The Tenth Circuit Court of Appeals has repeatedly recognized that “considerable latitude is given [to] the prosecutor in closing argument in replying to an argument raised by defense counsel's closing statement.” United States v. Currie, 911 F.3d 1047, 1056 (10th Cir. 2018) (citation omitted); United States v. Janus Indus., 48 F.3d 1548, 1558 (10th Cir. 1995); see United States v. Robinson, 485 U.S. 25, 31 (1988). And courts “should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning.” Donnelly, 416 U.S. at 647.
Here, the challenged statement was made as part of the prosecutor's recitation of the elements of the changed offense during closing argument. (Trial TR. Vol. IV. 944-948). The prosecutor began by stating that the elements of the crime included: (1) assault and battery, (2) upon another person, (3) with a deadly weapon. Id. at 944-946. Regarding each element, the prosecutor then referred to the jury to the particular relevant instruction. Id. at 945-947. Regarding the third element, whether a “deadly weapon” had been used, the prosecutor correctly repeated Mr. Langley's testimony- i.e.-when asked whether the knife could be used as a deadly weapon, Mr. Langley had stated: “[y]es, it can, ” agreeing with the prosecutor that the knife used was capable of killing someone. (Trial TR. Vol. IV 915). Shortly after reminding the jury of Mr. Langley's testimony, the prosecutor referred the jury to Instruction No. 25, which provided the jury with the definition of a “deadly weapon.” Id. at 947; see O.R. 208.
Mr. Langley argues that the prosecutor improperly implied that Petitioner “understood the law” by referencing Mr. Langley's own testimony that the pocket knife could be considered a deadly weapon. (ECF No. 13-1:40-41). Prosecutorial misconduct has been found where the prosecutor misstated the law. See Le v. Mullin, 311 F.3d 1002, 1020 (10th Cir. 2002). But here, the prosecutor did no such thing. Instead, the prosecutor: (1) merely re-stated Petitioner's testimony that the pocket knife could be considered a deadly weapon and then (2) referenced the instruction which provided the legal definition of the same. The prosecutor was entitled to comment on Mr. Langley's testimony during closing argument. See Bland v. Sirmons, 459 F.3d 999, 1025 (10th Cir. 2006) (rejecting prosecutorial misconduct claim when the prosecutor, during closing argument, “reminded the jury” of petitioner's testimony). And the jury instruction referenced shortly after the challenged comment cured any prejudice which might have stemmed therefrom by providing the jury with the legal definition of a “deadly weapon.” See United States v. Taylor, 514 F.3d 1092, 1096-97 (10th Cir. 2008) (finding no prejudice stemming from prosecutor's comments when district court “rapidly” issued curative instruction). Thus, the Court should conclude that the OCCA reasonably found that this comment did not render Petitioner's trial fundamentally unfair.
2. The Prosecutor's Alleged Misstatements of the Evidence
Mr. Langley alleges that one question and two comments made by the prosecutor during closing argument misstate the evidence. The Court should conclude none of the statements rendered the trial fundamentally unfair and that the OCCA made a reasonable determination in concluding the same.
The first comment was the prosecutor's statement to the jury that: “The defendant told you that he didn't realize that he was stabbing Joshua Goodwin until he saw blood everywhere.” (Trial TR. Vol. IV at 952). According to Petitioner, this comment misstated the evidence because he had not testified that the blood was “everywhere.” (ECF No. 13-1:41-42). Indeed, defense counsel immediately objected, whereupon the trial judge admonished the jury that closing arguments were not evidence and that it was up to the jury to recall the facts and evidence that had been presented at trial. (Trial TR. Vol. IV at 952-953). In light of the trial court's admonishment, the OCCA was correct in concluding that the comment had not rendered the trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, at 182 (1986) (finding no prosecutorial misconduct based, in part, on the trial court's instructions to the jurors that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence).
The second challenge pertains to a question presented by the prosecutor to Mr. Langley during cross-examination. At trial, Mr. Dawson had testified that he had talked to the prosecutor at approximately 8:00 am the morning of his testimony and then he had spoken to Mr. Langley, after lunch, before he testified. (Trial TR. Vol. II 509-510).
While examining Mr. Langley, the prosecutor asked Petitioner: “So if Kirk Dawson testified that he had lunch with you, he would be lying?” (Trial TR. Vol. IV at 914). Petitioner answered: “[y]es, he would.” Id. Mr. Langley argues that “[t]he wording of the question was a misrepresentation by the prosecutor of the actual testimony” because it had indicated that Mr. Dawson had eaten lunch with Petitioner. (ECF No. 13-1:42). In examining claims of prosecutorial misconduct, reversal is required “only if the improper conduct influenced the verdict.” United States v. Gordon, 173 F.3d 761, 769 (10th Cir. 1999). Thus, “[a]bsent a showing of prejudice to the defendant, prosecutorial misconduct alone will not support a finding that the trial court abused its discretion.” United States v. Maynard, 236 F.3d 601, 606 (10th Cir. 2000) (internal citations omitted). Clearly, the prosecutor's question to Mr. Langley was an attempt to discredit Mr. Dawson. But as noted by Mr. Langley, the discrepancy regarding whether Petitioner had or had not eaten lunch with Mr. Dawson-i.e.-whether Mr. Dawson had been truthful-was clarified through Petitioner's testimony on re-direct examination, when he testified that he had not eaten lunch with Mr. Dawson on the day in question. (Trial TR. Vol. IV at 920). Based on the clarification, the Court should find no error in the prosecutor's question.
Finally, during closing argument, the prosecutor stated that certain witnesses had “changed their testimony from the statements they had made at the scene, ” specifically, that Mr. Dawson “admitted that when we talked at 8:00 in the morning, the day before his testimony, that he changed his version to after he talked to the defendant at lunchtime on the stand.” (Trial TR. Vol. IV at 986). According to Petitioner, this comment constituted prosecutorial misconduct because “[t]he prosecutor's words did nothing more than mislead the jury. . . [and] [t]he State has a responsibility to restrain from arguing facts (or alleged facts) not in evidence.” (ECF No. 13-1:35). An examination of the record belies Petitioner's claim.
At trial, the following exchange occurred between the prosecutor and Mr. Dawson:
THE PROSECUTOR: Do you remember telling me today that there's no way that Joshua got stabbed in the back after he got stabbed in the stomach because you separated them?
MR. DAWSON: I didn't say there was no way.
THE PROSECUTOR: Okay.
MR. DAWSON: I said I didn't see that part. It could have happened. They were hugging, embraced, he was right when they were hugging.
THE PROSECUTOR: Okay. You did not tell me they were hugging this morning. You said that as soon as you saw him stab him in the stomach, that you separated them.
MR. DAWSON: You may be correct.
THE PROSECUTOR: Okay.
MR. DAWSON: Yes.
…
THE PROSECUTOR: Have you talked to [Mr. Langley] today at all?
MR. DAWSON: Yes.
THE PROSECUTOR: Okay. What did you talk about then?
MR. DAWSON: I was asked to call the attorney's office. I was in your office at the time.
THE PROSECUTOR: I'm confused. I was asking you: What did you talk to Mr. Langley about?
MR. DAWSON: That we were going to court.
THE PROSECUTOR: Okay. And when was that?
MR. DAWSON: It was after lunch I guess.
THE PROSECUTOR: Okay. So you did speak to him after I spoke to you?
MR. DAWSON: Yes.(Trial TR. Vol II 508-510). Thus, the prosecutor correctly stated, during closing argument, that he had gotten Mr. Dawson to admit, on the stand, that he had changed his version of events from the time he had spoken with the prosecutor in the morning until he testified in the afternoon, after he had spoken to the Petitioner after lunch. Simply put, the prosecutor did not misstate the evidence and the OCCA was correct in reaching the same finding and concluding that the statement did not deprive Petitioner of a fundamentally fair trial.
3. The Prosecutor's Alleged Improper Bolstering
Next, Petitioner requests habeas relief based on his contention that the prosecutor impermissibly bolstered the State's position and witnesses and expressed his personal opinion as to Petitioner's guilt. (ECF No. 13-1:43-45). The Court should conclude that habeas relief is not warranted for this challenge.
“[I]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” United States v. Young, 470 U.S. 1, 8, (1985) (quoting ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980)). Impermissible vouching occurs when “the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony.” United States v. Harlow, 444 F.3d 1255, 1262 (10th Cir. 2006) (quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)).
“Improper vouching for witnesses is not considered to impact an express constitutional right.” Harlow, 444 F.3d at 1266. (10th Cir. 2006) (citation omitted). And, the Supreme Court has never held that witness “vouching testimony itself violates the Due Process Clause.” Parker v. Scott, 394 F.3d 1302, 1310 (10th Cir. 2005); see also Simpson v. Duckworth, No. CIV-11-96-M, 2016 WL 3029966, at *20 (W.D. Okla. May 25, 2016) (unpublished district court order) (citing cases noting the absence of any Supreme Court authority holding that vouching alone violates due process). However, the Tenth Circuit Court of Appeals has recognized that vouching can compromise the fairness of the proceedings and implicate the Fourteenth Amendment's Due Process Clause, but only if it renders the trial fundamentally unfair. See Parker, 394 F.3d at 1310 (10th Cir. 2005).
Here, Mr. Langley challenges the prosecutor's statements:
1. that the State “ha[d] Joshua Goodwin's back;”
2. that Mr. Dawson sent the prosecutor's office vulgar Facebook messages;
3. that Officer Zerby was a more reliable witness than Mr. Dawson;
4. that Mr. Dawson “didn't want to rat on his best friend[, ] [Mr. Langley], [b]ecause, in fact, he [Mr. Dawson, ] knew it wasn't self-defense;”
5. regarding a “circle of guilt;” 6. that Mr. Goodwin had not had the benefit, like Mr. Langley had, in seeing all of the evidence.(ECF No. 13-1:43-45). According to Petitioner, these statements constituted improper bolstering and offered a personal opinion of guilt, rendering the trial fundamentally unfair. The OCCA disagreed, stating that no impermissible vouching had occurred and the prosecutor never expressed his personal opinion as to Petitioner's guilt. (ECF No. 13-3:11). In doing so, the OCCA applied a “plain error” standard; concluding that Due Process had not been violated. The Court should conclude that the OCCA's determination was reasonable.
See ECF No. 13-3:10.
First, the comment that the State “ha[d] Joshua Goodwin's back” was nothing more than a comment on the State's position in representing the victim. It certainly did not impermissibly bolster the testimony of Mr. Goodwin.
Second, the comment that Mr. Dawson had sent the prosecutor's office vulgar Facebook messages was nothing more than a comment on the evidence presented at trial. See Trial TR. Vol. II at 517-518 (discussing Facebook message from prosecutor's office to Mr. Dawson's Facebook page regarding trying to get in touch with Mr. Dawson regarding the trial, and a response from Mr. Dawson's Facebook page that said: “Lick nuts, you sexy beast. Hack someone else. Woo-hoo, off to weld shit.”). This comment was permissible and did not render Petitioner's trial fundamentally unfair. See Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005) (“A prosecutor may comment on and draw reasonable inferences from evidence presented at trial.”).
Third, during closing argument, the prosecutor stated that Officer Zerby had made several attempts to make contact with Mr. Dawson, and that in doing so, Officer Zerby was “a little bit of a more reliable witness than Mr. Dawson.” (Trial TR. Vol. IV. at 988). Although the comment is questionable and could arguably be considered impermissible vouching, the Court should conclude that the comment did not render the trial fundamentally unfair for two reasons. First, the comment was made contemporaneously in relation to discussing Officer Zerby's attempts to contact Mr. Dawson, which was a truthful comment on the evidence presented at trial. See Trial TR. Vol. III at 674-675 (Officer Zerby's testimony regarding his multiple attempts to contact Mr. Dawson). And second, the jury was charged with determining the credibility of the witnesses, which went to the heart of the challenged comment.
Fourth, Mr. Langley challenges the prosecutor's statement during closing argument that Mr. Dawson “didn't want to rat on his best friend, [Mr. Langley], [b]ecause, in fact, he, [Mr. Dawson], knew it wasn't self-defense.” (ECF No. 13-1:44). According to Petitioner, this comment impermissibly “implied knowledge of Mr. Dawson's thinking.” (ECF No. 13-1:44). Even if the comment impermissibly implied Mr. Dawson's, and in turn, the prosecutor's, belief in Petitioner's guilt, the comment did not render the trial fundamentally unfair in light of the numerous jury instructions on self-defense. See supra, Taylor, 514 F.3d at 1096-97 (finding no prejudice stemming from prosecutor's comments when district court issued curative instruction).
Fifth, Mr. Langley challenges the following statement made by the prosecutor, during closing argument: “So, ladies and gentleman, I'm going to show you what I call my circle of guilt.” (ECF No. 13-1:44). This statement was not an impermissible comment on the Petitioner's guilt, because it was followed by the prosecutor's recitation of testimony and evidence. The statement was nothing more than a comment on the evidence, which, as discussed, was permissible. See supra.
Finally, Petitioner alleges that the prosecutor “bolstered Goodwin's testimony by stating, ‘Ladies and gentlemen, he [Goodwin] hasn't had the benefit like the defendant has of seeing all of this evidence.'” (ECF No. 13-1:44). According to Petitioner, the statement is “unfair, ” because the prosecutor could have shown Mr. Goodwin all of the evidence if he had wanted to see it. (ECF No. 13-1:44). But as stated, improper witness bolstering is concerned with whether the prosecutor has indicated a personal belief in the witness' credibility. Mr. Langley's “unfairness” argument misses the mark in this regard. In any event, the Court should conclude that the standard has not been met and as a result, the comment did not render Petitioner's trial fundamentally unfair.
4. The Prosecutor's Alleged Casting of Aspersions on the Defense
Finally, Mr. Langley alleges prosecutorial misconduct through two comments which allegedly “cast aspersions” on the defense. The OCCA rejected this allegation, stating that “[t]he prosecutor did not engage in name-calling, ridiculing, or making derogatory comments about either defense counsel or the chosen defense.” (ECF No. 13-3:12). The OCCA's determination was reasonable.
Mr. Langley challenges two statements from the prosecutor:
1. “And, I asked the defense expert, he didn't want to concede, I think its pretty clear where his bias was, that the knife, you would expect it to drag across the cloth and tear it some more” and
2. “Defense counsel wants you to ignore the law of physics.”(ECF No. 13-1:45). Petitioner does not explain how either of these comments impermissibly “cast aspersions” on the defense and the Court should find that the OCCA reasonably concluded that no aspersions were cast or improper ridiculing of the defense had occurred.
5. No Cumulative Error
Finally, Petitioner alleged that all of the prosecutor's comments cumulatively derived Petitioner of a fair trial. (ECF No. 13-1:45). The OCCA disagreed, stating: “the cumulative effect of the prosecutor's comments did not deprive Appellant of a fair trial.
Therefore, we find that Appellant has not shown that error, plain or otherwise, occurred.” (ECF No. 13-3:12). The Court should find the OCCA's application of the due-process standard was not objectively unreasonable and that its decision does not rest on an unreasonable determination of the facts. See Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006) (finding that in light of the entire proceedings, the Court should not be convinced that the challenged comments, as a whole, impaired the jury's ability “to fairly judge the evidence.”).
In sum, the Court should conclude that habeas relief is not warranted on Ground Seven.
IX. GROUND EIGHT
In Ground Eight, Petitioner argues that the trial court failed to give an instruction, sua sponte, on a lesser-included offense-assault and battery with a dangerous weapon. (ECF Nos. 1-1; 1-2:1; 13-1:45-47; 18-1:22-24). The OCCA denied relief on this claim, stating:
In Proposition Eight, Appellant contends that the trial court erred when it failed to sua sponte instruct the jury on the lesser included offense of Assault and Battery with A Dangerous Weapon. He concedes that he failed to request this instruction at trial. Therefore, we find that he has waived appellate review of this claim for all but plain error. We review his claim pursuant to the test for plain error, set forth above, and determine whether he has shown the existence of an actual error, which is plain or otherwise, and which affects his substantial rights.
Applying the test set forth in Shrum v. State, . . . we find that Assault and Battery with a Dangerous Weapon is a lesser related offense of Assault and Battery with a Deadly Weapon. … However, we conclude that the evidence did not warrant an instruction upon the lesser related offense. Here, prima
facie evidence of the lesser related offense was not presented at trial. A rational jury could not have found Appellant guilty of Assault and Battery with a Dangerous Weapon and acquitted him of Assault and Battery with a Deadly Weapon. Accordingly, we find that the trial court did not abuse its discretion. Proposition Eight is denied.(ECF No. 13-3:12-13) (internal citations omitted).
The threshold question is whether the OCCA's holding was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See supra. Absent Supreme Court law, the OCCA's holding cannot be either contrary or unreasonable; i.e.-the lack of Supreme Court law is fatal to a petitioner's request for habeas relief. See House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008). That circumstance is present here.
“The Supreme Court has never recognized a federal constitutional right to a lesser included offense instruction in noncapital cases.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (citing Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980)); see also Fero v. Kerby, 39 F.3d 1462, 1480 (10th Cir. 1994) (“a state court's failure to submit a lesser included offense instruction cannot form the basis for federal habeas relief”) (citing Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993)). The Tenth Circuit follows a rule of “automatic non-reviewability” for habeas claims based on a trial court's failure to give a lesser-offense instruction in non-capital cases. Dockins, 374 F.3d at 938 (quoting Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir. 1988)). As a result, the Court should conclude that Petitioner is not entitled to habeas relief on Ground Eight. See Davis v. Roberts, 579 Fed.Appx. 662, 668 (10th Cir. 2014) (noting the “court quickly dismissed [petitioner's] claim [that the trial court failed to instruct on a lesser included offense]” and dismissing the appeal).
X. GROUND NINE
In Ground Nine, Petitioner claims that he was prejudiced a result of the trial judge's reading of jury instructions between closing arguments presented by the prosecutor and defense. (ECF Nos. 1-2; 13-1:47-51; 18-1:25). Reviewing for plain error, the OCCA rejected this claim on the merits, stating:
In Proposition Nine, Appellant contends that he was deprived of a fundamentally fair trial when the trial court failed to comply with the order of trial as set forth in 22 O.S. 2011, § 831. He asserts that he was prejudiced when the trial court read two of the instructions to the jury immediately following the prosecutor's argument and prior to defense counsel's argument.
Appellant concedes that he failed to object to the trial court's actions at trial. Therefore, we find that he waived appellate review of this claim for all but plain error. We review Appellant's claim, pursuant to the test, as set out above, and determine whether he has shown an actual error, that is plain or obvious, and which affected his substantial rights.
Reviewing the record in the present case, we find that Appellant has not shown the existence of an actual error that is plain or obvious. The trial court's giving additional instructions to the jury after the prosecutor's closing argument and before the defense's closing argument is not favored, however, it does not constitute plain error. We further find that the placement of the additional instructions did not shift the burden of proof or otherwise affect Appellant's substantial rights. Proposition Nine is denied.(ECF No. 13-3:13-14). The Court should conclude that the OCCA's determination was reasonable.
A. Clearly Established Law
As discussed, it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions, such as the timing of the jury instructions. See supra, Estelle. However, under the Due Process clause, the Court will examine the claim to ensure that the jury instruction timing did not render the trial fundamentally unfair. See supra, Ochoa.
B. No Habeas Relief on Ground Nine
At the close of trial, both parties discussed jury instructions outside the jury's presence. (Trial TR. Vol. IV. at 926-943). Following the discussion, the jurors re-entered the courtroom, the Court read the jury instructions aloud, and then instructed the prosecutor to give a closing argument. Id. at 943-944. At the close of the prosecutor's argument, the Court stated that the last three instructions read to the jury had somehow “got[ten] mixed up.” Id. at 961. As a result, the court re-read instructions Nos. 38 & 39 to the jury prior to defense counsel's closing argument. Id. at 961-963. The court explained that instruction No. 38 concerned how to mark the jury form, depending on whether it concluded, beyond a reasonable doubt, that the defendant committed the crime, or whether it concluded that the State had failed to prove each element of the charged offense beyond a reasonable doubt. Id. at 962. The trial court also instructed the jury, via instruction No. 38, that if it rendered a verdict of guilty, it would also determine the proper punishment, which could include up to life imprisonment and a $10,000 fine. Id. The trial court then instructed the jury, via instruction No. 39 that a person convicted of assault and battery with a deadly weapon shall be required to serve not less than 85% of the sentence before becoming eligible for parole. Id. at 962-963. The trial court also informed the jury that if the sentence was life imprisonment, parole eligibility would be calculated on a term of 45 years. Id. at 963. Following the instruction, the trial court informed defense counsel to proceed with her closing argument. Id.
According to Mr. Langley, the timing of the “mixed up” instructions which were read by the court between closing arguments resulted in a “prejudicial shifting of the burden of proof.” (ECF No. 13-1:49). The OCCA found otherwise, and the Court should agree and find that the timing of the jury instructions did not result in a fundamentally unfair trial.
Neither instruction, on its face, shifted the burden of proof, nor is such claimed by Mr. Langley. Indeed, the jury was repeatedly instructed, even during the challenged instruction, that the State bore the ultimate burden of proof. See O.R. 187, 198, 205, 211, 221; see also Trial TR. Vol. IV. 962 (“If you have a reasonable doubt of the defendant's guilt of the charge of assault and battery with a deadly weapon, or if you find that the State has failed to prove each element of assault and battery with a deadly weapon beyond a reasonable doubt, you should return a verdict of not guilty[.]”). Essentially, the trial court did nothing more than clarify Instruction Nos. 38 & 39 and did not argue “the correctness or incorrectness” of Mr. Langley's guilt or innocence. Thus, the Court should conclude that the timing of the instructions did not render the trial fundamentally unfair.
XI. GROUND TEN
In Ground Ten, Petitioner alleges that “an evidentiary harpoon”-specifically testimony from Officer Zerby-deprived him of a fair trial. (ECF Nos. 1-2; 13-1:51-54; 18-1:26-27). In support of this claim, Petitioner references the challenged testimony as “testimony that was prevented by motions in limine.” (ECF No. 1-2:2). Prior to trial, the Court sustained defense counsel's motion in limine to exclude testimony from Officer Zerby on the ultimate issue of whether Petitioner had acted in self-defense. (O.R. 91). On direct appeal, Petitioner challenged two statements from Officer Zerby as “evidentiary harpoons” which arguably were in violation of the ruling on the motion in limine. First, on direct examination, the prosecutor asked Officer Zerby why he took pictures of Mr. Langley's hands at the crime scene. (Trial TR. Vol. III at 673). In reply, Officer Zerby stated: “We wanted to make sure that this wasn't a self-defense.” Id. Second, in response to a question on direct examination regarding whether Ms. Canzoneri had made any statements about Mr. Langley acting in self-defense, Officer Zerby stated:
In his Reply Brief, Petitioner also alleges that the “other crimes” evidence of a 2010 misdemeanor committed by Mr. Langley in an attempt to impeach Kirk Dawson's testimony (see Ground Two) also constituted an “evidentiary harpoon.” (ECF No. 18-1:4). But the Court should not consider this claim, because: (1) it is raised for the first time in Mr. Langley's Reply brief and (2) has not been exhausted in state court. See supra.
“No, sir. In fact, she told me she wanted him to go to jail.” Id. at 679.
On direct appeal, Mr. Langley challenged these statements as “evidentiary harpoons” which deprived him of a fair trial. (ECF No. 13-1:51-54). The OCCA rejected this claim on the merits, stating:
In Proposition Ten, Appellant contends that Officer Zerby injected two separate evidentiary harpoons during his testimony. He concedes that he waived appellate review of this claim for all but plain error when he failed to object to this testimony at trial. Therefore, we review his claim pursuant to the test for plain error, set forth above, and determine whether he has shown the existence of an actual error, which is plain or obvious, and which affects his substantial rights.
Reviewing the record in the present case, we find that Appellant has not shown the existence of an actual error that is plain or obvious. The testifying officer did not inject information indicating other crimes, thus, we conclude that his testimony did not constitute an evidentiary harpoon. Proposition Ten is denied.(ECF No. 13-3:14-15) (internal citations omitted). The Court should conclude that Mr. Langley is not entitled to habeas relief on Ground Ten.“[A]n ‘evidentiary harpoon' is a metaphorical term used to describe an attempt by a government witness to deliberately offer inadmissible testimony for the purpose of prejudicing the defendant.” United States v. Cavely, 318 F.3d 987, 996 n. 2 (10th Cir. 2003) (citation omitted). In Oklahoma, an “evidentiary harpoon” exists only when the witness voluntarily “inject[s] information indicating other crimes.” Bruner v. State, 612 P.2d 1375, 1378-79 (Okla. Crim. App. 1980).
Officer Zerby's testimony in response to direct examination questions which involved references to self-defense, did not, by definition, constitute improper “evidentiary harpoons” under Oklahoma law as neither response concerned evidence of “other crimes.” See supra. Furthermore, the Court should conclude that the testimony did not render the trial fundamentally unfair for two reasons. First, the jury was instructed, at length, on the issue of self-defense, and informed that the State bore the burden of proving, beyond a reasonable doubt, that Mr. Langley had not acted in self-defense. See O.R. 209-216. Second, sufficient evidence was tendered at trial for the jury to find Petitioner guilty. See supra. Thus, any prejudicial effect Officer Zerby's statements might have had were minimal.
As stated, federal habeas corpus relief does not lie to review state law questions about the admissibility of evidence. See Estelle, supra. On habeas review, this Court can only review state court evidentiary rulings “ ‘to determine whether the error was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process.'” Hooker v. Mu lin, 293 F.3d 1232, 1238 (10th Cir. 2002).
XII. GROUND ELEVEN
In Ground Eleven, Petitioner alleges that trial counsel was ineffective in seven ways:
1. by allowing the jury to hear testimony regarding evidence of a misdemeanor crime (see Ground Two);
2. by failing to object to a juror whom Petitioner believes tainted the jury (see Ground One);
3. by failing to object to numerous instances of prosecutorial misconduct (Ground Seven);
4. by failing to object to the trial court reading jury instructions between the parties' closing arguments (see Ground Nine);
5. by failing to object to the evidentiary harpoons involving Officer Zerby's testimony (Ground Ten);
6. by failing to request a lesser-included instruction (Ground Eight); and 7. by “breaking her own motions in limine.”(ECF Nos. 1-2:2; 13-1:54-55; 18-1:28).
Mr. Langley also alleges his trial counsel was ineffective for “not asserting medical evidence to disprove [the] State.” (ECF Nos. 1-2:2; 18-1:19). Respondent correctly argues that this issue is unexhausted, as it has never been presented to the highest state court, either on Petitioner's direct appeal or during post-conviction proceedings. See ECF Nos. 13:47-52. In his Post-Conviction Application, Petitioner addressed this issue as it related to appellate counsel's ineffectiveness. See ECF No. 13-4:15-17. But in the post-conviction appeal, Mr. Langley did not assert that either trial or appellate counsel had been ineffective for “not asserting medical evidence to disprove [the] State.” See ECF No. 13-9. To exhaust this issue, Petitioner would have to return to state court and file a second 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. See supra, 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[.]”). As discussed, the OCCA's finding of waiver is an “independent and adequate ground” barring habeas review. See Thacker, 678 F.3d at 835. Because Mr. Langley offers no cause to excuse the procedural default, nor makes an argument that fundamental miscarriage of justice had occurred, the Court should apply an anticipatory procedural bar to prevent habeas review of this portion of Ground Eleven. See supra, Grant, 886 F.3d at 893 (discussion of anticipatory procedural default).Respondent also alleges that Petitioner did not exhaust the claim involving trial counsel's alleged ineffectiveness for “breaking her own motions in limine.” (ECF No. 13:47-52). The Court should disagree. In the post-conviction appeal, Mr. Langley asserted this claim, arguing that trial counsel was ineffective for failing to object to the testimony that was barred by a motion in limine and appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness on direct appeal. See ECF No. 13-9:3. The OCCA concluded that appellate counsel was not ineffective, and in doing so, addressed the merits of the underlying claim regarding trial counsel's ineffectiveness. See ECF No. 13-10:5. Thus, the Court should conclude that Petitioner has exhausted the claim alleging trial counsel's ineffectiveness for “breaking her own motions in limine.”
The Court should conclude that none of Petitioner's claims entitle him to habeas relief.
A. Clearly Established Law
Under clearly established law, Petitioner must demonstrate his attorney's performance was deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 690-691 (1984). A court will only consider an attorney's performance “deficient” if it falls “outside the wide range of professionally competent assistance.” Id. at 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.
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 (internal quotation marks and citation omitted). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense 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.”).
B. Petitioner's First Six Allegations
Of the previously listed allegations of ineffective assistance of trial counsel, the OCCA addressed and rejected the first six claims on the merits when ruling on Petitioner's direct appeal, stating:
Appellant argues that counsel was ineffective for failing to raise the challenges that he now raises in Propositions One, Two, Five, Seven, Eight, Nine, and Ten. We determined in those propositions that Appellant had not shown that plain and reversible error had occurred. Since the merits of the underlying claims have been rejected, we find that Appellant has not shown ineffective assistance of counsel. Proposition Eleven is denied.(ECF No. 13-3:16) (internal citations omitted). The Court should find that the OCCA's conclusion was reasonable.
The OCCA incorrectly stated that Petitioner had challenged trial counsel's ineffectiveness as it pertained to Proposition Five on direct appeal. Although Petitioner referenced “Proposition V” in the direct appeal brief when discussing trial counsel's alleged ineffectiveness, the reference was obviously a typographical error. The direct appeal stated: “There were numerous examples of prosecutorial misconduct which were not met with an objection. See Proposition V.” (ECF No. 13-1:54). But “Proposition V” concerned the admissibility of inadmissible hearsay. See ECF No. 13-1:34-36. Proposition Seven concerned the alleged instances of prosecutorial misconduct. See ECF No. 13-1:40-45.
As discussed, none of the first six underlying claims for which Petitioner alleges ineffectiveness of counsel have merit. See supra. As a result, the Court should conclude that Petitioner is not entitled to habeas relief on the related allegations of ineffective assistance of counsel. See Hanson v. Sherrod, 797 F.3d 810, 837 (2015) (noting that “before [the petitioner] can succeed on his counsel's failure-to-object claims, he must show that the underlying prosecutorial-misconduct claims themselves have merit. . . . We conclude that none of [the petitioner's] underlying prosecutorial-misconduct claims have merit. As such, we do not engage in an analysis of whether his counsel was ineffective for failing to object to them.”); see also Willingham v. Mullin, 296 F.3d 917, 934 n.6 (10th Cir. 2002) (noting that where substantive claims have been rejected on the merits, “separate consideration of the associated ineffective assistance claims is unnecessary”).
C. Petitioner's Seventh Allegation
In addition to the claims of ineffective assistance of counsel that Mr. Langley raised on direct appeal, he also alleged that trial counsel was ineffective for “breaking her own motions in limine.” (ECF Nos. 1-2:2; 18-1:19). The gist of Petitioner's claim is that trial counsel failed to object when Officer Zerby stated that he had taken pictures of Mr. Langley's hands at the crime scene “to make sure that this wasn't a self-defense”because previously, the court had granted a motion in limine to exclude any testimony from Officer Zerby regarding self-defense. (O.R. 91).
(Trial TR. Vol. III at 673).
In ruling on Petitioner's post-conviction appeal, the OCCA addressed this claim in the context of Petitioner's allegation that appellate counsel had been ineffective for failing to raise trial counsel's ineffectiveness on direct appeal. See ECF No. 13-10:5. In doing so, the OCCA applied Strickland, and stated: “Petitioner has not shown that [trial] counsel's performance was either deficient or resulted in prejudice.” (ECF No. 13-10:5). The Court should conclude that the OCCA's determination was neither contrary to, nor an unreasonable application of, Supreme Court precedent.
Even if counsel should have objected to Officer Zerby's testimony as barred by the motion in limine, the Court cannot conclude that the OCCA was unreasonable in not finding that but for counsel's errors the result of the proceeding would have been different. The jury was instructed, at length, on the issue of self-defense, and informed that the State bore the burden of proving, beyond a reasonable doubt, that Mr. Langley had not acted in self-defense. See O.R. 209-216. In addition, Petitioner himself testified that he had acted in self-defense. (Trial TR. Vol. IV. 870-920). In light of the jury instructions and Petitioner's testimony, any prejudicial effect from Officer Zerby's testimony which alluded to the fact that Petitioner might not have acted out of self-defense was minimal. Thus, the Court should conclude that the OCCA did not unreasonably apply Strickland in rejecting Petitioner's claim.
In sum, Petitioner is not entitled to habeas relief on Ground Eleven.
XIII. GROUND TWELVE
In Ground Twelve, Petitioner alleges that “cumulative error” deprived him of a fair trial. (ECF Nos. 1-2:2; 18-1:29). Petitioner raised this issue on direct appeal, and to the extent Petitioner's habeas Ground Twelve mirrors his direct appeal claim, Petitioner is alleging cumulative error based on habeas Grounds One, Two, Three, Four, Five, Seven, Eight, Nine, Ten, and part of Ground Eleven. See supra. However, in addition to the cumulative errors alleged on direct appeal, Petitioner raises additional allegations of cumulative error in the habeas Petition, alleging:
See ECF No. 13-1:55-56.
• “D.A. using personal opinion breaking motions in limine;”
• “Defense not introducing medical evidence which disproves deadly weapon claim;” and
• “d.a. knowingly using perjured testimony at prelim to satisfy a deadly weapon charge.”(ECF No. 1-2:2). The OCCA denied the cumulative error claim on direct appeal, but has not ruled on the additional allegations as presented in the habeas Petition because Mr. Langley has not presented the issues, either individually, or cumulatively, to any state court.
See ECF No. 13-3:16.
A. Clearly Established Law
“[T]he Supreme Court has never recognized the concept of cumulative error.” Bush v. Carpenter, 926 F.3d 644, 686 n.16 (10th Cir. 2019). Thus, “because there is no ‘clearly established Federal law' on this issue, ” it is questionable “whether a state appellate court's rejection of a cumulative error argument can justify federal habeas relief under the standards outlined in § 2254(d).” Id.
Assuming, however, it is clearly established that cumulative error can violate the federal constitution, the court looks only to “federal constitutional errors, and such errors will suffice to permit relief under cumulative error doctrine only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial's fundamental fairness.” Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir. 2013) (internal quotation marks omitted). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Bush, 926 F.3d at 686 (internal citations and alterations omitted). It is a petitioner's burden to demonstrate “that the errors resulted in actual prejudice.” Id. (internal quotation marks omitted).
B. No Habeas Relief
As demonstrated above, Petitioner's objections regarding the disposition of the Grounds he alleges cumulatively deprived him of a fair trial, as raised in Ground Twelve on his direct appeal, lack merit. See supra. Thus, there is no constitutional error to cumulate. See Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 915 (10th Cir. 2019) (“The cumulative-error analysis applies where there are two or more actual errors. It does not apply, however, to the cumulative effect of non-errors.”).
Regarding the additional allegations of error which Mr. Langley raises in his Petition and which he alleges cumulatively acted to deprive him of a fair trial, the Court should deem the claim unexhausted. To exhaust a claim alleging cumulative error on these issues, Mr. Langley would have to raise it in a second post-conviction application. If Petitioner chose this route, the OCCA would likely refuse to hear the claim, finding that it had been waived. See supra. Thus, the Court should apply an anticipatory procedural default to any claim of cumulative error based on the three claims raised in the Petition as part of Ground Twelve.
In sum, the Court should deny habeas relief on Ground Twelve.
XIV. GROUND THIRTEEN
In Ground Thirteen, Mr. Langley alleges that the trial court was divested of subject matter jurisdiction because the Information filed in his underlying criminal case was not properly “verified.” (ECF Nos. 1-2:2; 13-9:1-2; 18-1:30). Specifically, Petitioner alleges:
“Felony information was unverified and failed to invoke the subject matter jurisdiction of Cleveland County Court empowering it to act. [Information was not signed under oath by States [sic] attorney.”] (ECF No. 1-2:2). The OCCA rejected this claim on the merits, stating:
At Proposition One, Petitioner argues the information filed in this case was unverified and failed to invoke the jurisdiction of the trial court. Petitioner fails to cite any authority establishing that his information was insufficient to confer jurisdiction on the trial court. The standard in a court of record is that ‘[t]he information must set forth a statement of facts constituting the offense sufficient to form the essentials of the crime and apprise a defendant of what he must meet.' There is more than adequate evidence in the appellate record to establish that the information was proper and sufficient to invoke the jurisdiction of the trial court.(ECF No. 13-10:3).
Under Oklahoma law, a criminal Information is not valid unless it includes: (1) endorsement by the district attorney and (2) a proper verification. Buis v. State, 792 P.2d 427, 430 (Okla. Ct. Crim. App. 1990). Such requisites confer subject matter jurisdiction on the court, allowing the case to proceed. Lynch v. State, 909 P.2d 800, 803-04 (Okla.Ct. Crim. App. 1995). The governing statute provides:
The district attorney shall subscribe the district attorney's name to informations filed in the district court and endorse thereon the names and last-known addresses of all the witnesses known to the district attorney at the time of filing the same, if intended to be called by the district attorney at a preliminary examination or at trial.22 O.S. § 303(A). The verification guarantees the accuracy of the factual allegations while the district attorney's signature ensures the prosecution is being conducted in good faith by the State and that it is not the work of private citizens. See Buis, 792 P.2d at 430.
In Ground Thirteen, Mr. Langley asserts that the Information in his state criminal case was not properly verified as required under Oklahoma law. (ECF Nos. 1-2:2; 13-9:1-2; 18-1:30). To the extent Petitioner is challenging the adequacy of the Information under state law, the Court should conclude that habeas relief is not warranted. See Absher v. Crow, ___ Fed. Appx.____, 2021 WL 71256, at *2 (10th Cir. 2021) (noting that petitioner's claim that the trial court lacked subject matter jurisdiction because his criminal information was not verified and endorsed by the prosecution “was not cognizable to the extent it relied on Oklahoma law.”); Shaffer v. Boone, 3 Fed.Appx. 675, 687-88 (10th Cir. 2001) (Petitioner's allegation that the trial court lacked subject matter jurisdiction because the Information in his underlying criminal case had not been properly verified in accordance with Oklahoma law “raise[d] [an] issue[ ] of interpretation of state law and as such [was] not cognizable in a federal habeas case.”). “And to the extent Mr. [Langley] invoke[s] the [Due Process Clause of] the Fourteenth Amendment, he offers no evidence to rebut the state post-conviction court's presumptively correct finding that the information was verified and endorsed.” Absher, ___ Fed.Appx. ___, 2021 WL 71256, at *2.
The Court should conclude that habeas relief is not warranted on Ground Thirteen.
XV. GROUND FOURTEEN
In Ground Fourteen, Petitioner alleges “State prosecutor failed to provide due process to Petitioner as a criminal defendant as required by State and Federal laws” by using “false testimony” and “altered evidence” at trial. (ECF Nos. 1-2:2; 18-1:31). Specifically, Mr. Langley alleges error based on the prosecutor's “failure to correct” testimony from a first responder on the scene who testified that the victim, Mr. Goodwin suffered eight stab wounds, when, in actuality, Mr. Goodwin had only been stabbed seven times. (ECF Nos. 13-4:9; 13-9:2-3).
In his Application for Post-Conviction Relief to the Cleveland County District Court, Petitioner alleged additional instances of the prosecutor's failure to accord due process. See ECF No. 13-4:9-12. But on appeal to the OCCA, Mr. Langley limited his challenge to the State's use of the allegedly “improper” testimony regarding the number of stab wounds received by the victim. See ECF No. 13-9:2-3.
In affirming the district court's denial of post-conviction relief, the OCCA deemed this claim procedurally barred. (ECF No. 13-10:2-3). This Court should respect the procedural bar, as Petitioner has not argued cause and prejudice to excuse the default or that the circumstances present a fundamental miscarriage of justice. See ECF Nos. 1 & 18; see supra, discussing procedural bar.
XVI. GROUND FIFTEEN
In Ground Fifteen, Petitioner alleges “ineffective assistance of appellate counsel for failure to assert trial counsels [sic] ineffectiveness. [Appellate counsel did not raise issues of perjury evidence not being introduced and motions in limine being broken by both state and defense counsel.” (ECF No. 1-2:2). Arguably, these claims had been raised in Mr. Langley's post-conviction brief to the Cleveland County District Court. See ECF No. 13-4:15-17) (Petitioner's argues that: (1) appellate counsel failed to object to “purjured [sic] information”-i.e. testimony that Mr. Goodwin had suffered 8 stab wounds that involved vital organs and (2) trial counsel failed to object to testimony from Officer Zerby which had been disallowed prior to trial via a motion in limine). But of the two claims, only the latter regarding the motion in limine had been raised in the post-conviction appeal. There, Petitioner alleged that appellate counsel was ineffective “for failing to enforce a Motion in Limine filed by trial counsel.” (ECF No. 13-9:3). Petitioner explained:
Prior to trial, [defense counsel] filed a Motion in Limine to prevent Officer Andrew Zerby from testifying as to his belief and opinion that this was not a case of self-defense. The judge sustained counsel's Motion in Limine. However, during trial, Officer Zerby testified and gave his opinion that this was not a case of self-defense. Officer Zerby's testimony was allowed without any objection by trial counsel.
Clearly, trial counsel's failure to enforce her own Motion in Limine was error and prejudiced Mr. Langley's defense. Whether or not Appellant acted in self-defense was a question for the jury, and trial counsel allowing this inflammatory and prejudicial testimony above her own Motion in Limine denied Appellant the effective assistance of counsel and a fair trial.(ECF No. 13-9:3).
In rejecting Petitioner's claim that appellate counsel had been ineffective for failing to raise trial counsel's ineffectiveness on direct appeal, the OCCA examined the underlying claim and concluded that trial counsel had not been ineffective. (ECF No. 13-10:5). As a result, the OCCA rejected Petitioner's related claim that appellate counsel had rendered ineffective assistance. (ECF 13-10:4-5).
In Ground Eleven, the undersigned concluded that the OCCA had reasonably found no merit to Petitioner's claim that trial counsel had been ineffective for failing to object to Officer Zerby's testimony which had been barred by a motion in limine. See supra. Based on the lack of merit in the underlying claim, the Court should conclude that OCCA was reasonable in determining that appellate counsel was not ineffective by failing to allege, on direct appeal, that trial counsel had been ineffective for failing to object to the testimony. See Cargle v. Mullin, 317 F.3d 1196, 1202-03 (10th Cir. 2003) (if the issue that appellate counsel omitted on direct appeal is meritless, then appellate counsel's failure to raise it does not amount to constitutionally ineffective assistance under Strickland).
Habeas relief is not warranted on Ground Fifteen.
XVII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 17, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is 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).
XVIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.