Opinion
CIV-21-153-R
03-10-2022
ALEN DEAN O'BRYANT, Petitioner, v. SCOTT NUNN, Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Petitioner, through counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Docs. 1, 12. United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondent filed his response to the petition, Doc. 17, along with state court records, Doc. 22, and Petitioner replied. Doc. 21. For the reasons set forth below, the undersigned recommends the Court deny habeas corpus relief.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination. Except for capitalization, quotations are verbatim, unless otherwise specified.
I. Factual background.
This case arises from Petitioner's convictions for sexually abusing his nine-year-old stepdaughter L.W. in 2015 at their home in Oklahoma County. See Docs. 1, 12, 17. L.W. first disclosed that Petitioner had sexually abused her to a friend on the school bus. Trial Transcript (Tr.) Vol. II, at 445-46, 455, 473. The friend told L.W. she needed to tell someone so, in August 2015, L.W. told her school principal, Brad Hurley, and the school counselor, Sandra Janowiak, that Petitioner made her “suck his dick” when she got into trouble. Id. at 44245, 454-56. L.W. also disclosed that Petitioner made her “go up and down on it” and, if she was really bad, Petitioner told her she was going to “get it from behind.” Id. at 445, 456. L.W. told Mr. Hurley and Ms. Janowiak that the abuse happened in her parents' bathroom and that Petitioner had been abusing her since the summer of her third-grade year. Id. at 445. Petitioner had last abused L.W. several weeks before her disclosure. Id.
After speaking with L.W., Mr. Hurley immediately called the Department of Human Services (DHS) to report L.W.'s disclosure of abuse. Id. at 447-49. DHS employee Abby Walden arrived at L.W.'s school and spoke with L.W. Id. Vol. III, at 565-68. L.W. told Ms. Walden that Petitioner made her “suck his dick” and “go up and down on it” and he would threaten her with putting “it in [her] behind” if she did not “hurry up and do the dishes.” Id. at 568-69. Ms. Walden did not ask L.W. to give her any further details of the abuse to avoid compromising the necessary forensic interview. Id. at 570.
A few days later, DHS employee Kara Marts interviewed L.W. while Ms. Walden observed the interview. Id. at 572, 816-17, 820, 823; State's Trial Ex. 10. L.W. told Ms. Marts, among other things, that Petitioner would punish her bad behavior by making her “suck his dick, ” by making her “go up and down on it” with her hands, and by “stick[ing] it in her behind.” State's Trial Ex. 10. Petitioner had last made L.W. put her mouth on his penis one to two weeks prior to the interview. Id. It had happened in Petitioner's bathroom while he wore only his socks and it had lasted six to seven minutes. Id. L.W. knew how long it lasted because Petitioner always set a timer on his phone. Id.
About three weeks prior to the interview Petitioner had last put his penis in L.W.'s bottom. Id. L.W. disclosed that sometimes Petitioner would put something called “Pink” on his penis before he “shove[d] it in [her] butt.” Id. Petitioner would ignore L.W. when she cried and when she told him he was hurting her. Id.
Ms. Walden briefed Dr. Mary Stockett, a board-certified child abuse pediatrician, about the details of L.W.'s forensic interview. Tr. Vol. III, at 62629, 636. After that briefing, Dr. Stockett also spoke to L.W. and physically examined her. Id. at 635-36, 639.
L.W. told Dr. Stockett that Petitioner punished her by putting his penis in her mouth, making her touch his penis, and by putting his penis in her “butt.” Id. at 637. Petitioner had been punishing her in this manner since the previous summer and it had happened a few weeks before the interview. Id. Dr. Stockett testified that L.W.'s statements to her were consistent with her forensic interview statements. Id. at 638. And even though Dr. Stockett's physical examination of L.W. yielded no injuries and “normal” results, Dr. Stockett concluded L.W. had been sexually abused. Id. at 639-43.
L.W., who was twelve years old at the time of Petitioner's trial in 2018, testified that, in the summer of 2015, Petitioner began punishing her perceived bad behavior by sexually abusing her. Id. Vol. II, at 476-79. Around twice a week that summer Petitioner would seclude L.W. in his bathroom with the door locked and would make her put his “dick” in her mouth and move her hands on his penis in an up and down motion. Id. at 480-86, 488. Depending on the severity of L.W.'s bad behavior, Petitioner would make her keep his penis in her mouth for various lengths of time and would keep track of the time on his phone. Id. at 484-85, 489-90. L.W. asked Petitioner to stop but he refused and L.W. did not tell her mother or sister because she feared Petitioner's further punishment. Id. at 491.
Sometime in June, Petitioner put his penis in L.W.'s “butt” because L.W. had talked back to her mother the day before. Id. at 492-99. L.W. cried and told Petitioner he was hurting her, but Petitioner told her to stop crying and to “hush.” Id. at 498, 502. Petitioner began putting his penis in L.W.'s anus about once a week that summer. Id. at 502. He also put his hands on L.W.'s “boobs” and on and inside her “private” area which Petitioner told L.W. was her “pussy.” Id. at 503-04.
After L.W. disclosed the abuse, DHS employees took her and her sister into custody on August 27, 2015, because L.W.'s mother, Beth Miller, did not believe L.W. and insisted on continuing her marriage to Petitioner. Id. at 50607; id. Vol. III, at 576, 695-96. At trial, Ms. Miller testified that, at first, she thought that L.W. was lying, that L.W. might have picked up sexual details from reading Ms. Miller's copy of the book Fifty Shades of Grey, that L.W. might have learned sexual terms from other children on the school bus, and that L.W.'s previous mental problems had been exacerbated by a medication change. Id. Vol. III, at 689-92, 711-12. But, after watching L.W.'s forensic interview where she disclosed accurate details about the look and feel of Petitioner's testicles (like sandpaper), the familiar location of the abuse (the bathroom) and Petitioner's attire (socks only) when he was abusing her, and L.W.'s accurate description of the lubricant Petitioner used during his abuse of her, Ms. Miller realized that L.W. was not making up a story. Id. at 697-99. She then filed for divorce from Petitioner but did not regain custody of L.W. and her sister for almost a year after the divorce was final. Id. at 700.
Police searched Petitioner's home after L.W. gave her forensic interview. Id. at 759-60. They found the bottle of lubricant L.W. had described and had drawn a picture of with the name “Pink” on it in Petitioner's bedroom. Id. at 763, 765, 787-88. Petitioner told police the same day of the search that he could not have sex because he was “impotent.” Id. at 784. But Ms. Miller testified at trial that Petitioner was not impotent. Id. at 699-700.
Petitioner's expert at trial, forensic psychologist Dr. Aaron Pierce, testified that “false outcries” of child sexual abuse occurred in twenty-six to thirty-five percent of cases and, depending on the circumstances, could be higher. Id. Vol. IV, at 886-87. He testified that if a child receives positive feedback after disclosure the child may be encouraged to repeat the accusations. Id. at 890-93, 896. He testified there was no way he, or any expert, could positively determine whether a child had been abused if there was no physical evidence of the abuse and that there was no correlation between consistency and accuracy. Id. at 893-94, 897-99, 900-01.
II. Procedural background.
The State of Oklahoma tried Petitioner for four counts of sexual abuse of a child in Oklahoma County District Court Case No. CF-2015-7659. Doc. 1, at 1. At trial, Petitioner's defense was that L.W. was mentally unstable and was seeking attention by lying about the abuse. Tr. Vol. II, at 516-534; Tr. Vol. III, at 704-12. The jury rejected Petitioner's defense and found Petitioner guilty as charged on each count. The jury recommended and the trial court sentenced Petitioner to life imprisonment on each count. Doc. 1, at 1. The trial court ordered consecutive sentences and granted Petitioner credit for time served before trial. Id.
Petitioner appealed to the Oklahoma Court of Criminal Appeals (OCCA) in Case No. F-2018-294. Doc. 1, at 2; Doc. 17, Ex. 1. The OCCA affirmed Petitioner's convictions and sentences in an unpublished summary opinion issued August 29, 2019. Doc. 1, at 2; Doc. 17, Ex. 5. Petitioner sought certiorari in the United States Supreme Court, but the Court denied it on February 24, 2020. Doc. 1, at 3. Petitioner, through counsel, filed his petition for writ of habeas corpus in this Court on February 24, 2021. Id. at 1. Counsel filed a brief in support of the petition on May 28, 2021, after the Court granted counsel three extensions of time. Docs. 11-12.
III. Standard of review for habeas relief.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this Court's power to grant habeas corpus relief. See 28 U.S.C. § 2254(d). A petitioner is entitled to federal habeas relief only if a State court's merits-based adjudication of his or her claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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.” Id. “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) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice system, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
“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.” Id. at 99; see also Johnson v. Williams, 568 U.S. 289, 301 (2013). In assessing a State court's merits-based decision, this Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015); see also Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). Clearly established federal law consists of Supreme Court holdings in cases where the facts are similar to the facts in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242.
“A state court's decision is ‘contrary to' clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.” Id. (internal quotation marks omitted). “It is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Id. (internal quotation marks omitted).
The “‘unreasonable application' prong requires [the petitioner to prove] that the state court identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.” Id. (internal quotation marks and brackets omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.'” Id. (internal quotation marks omitted). 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 1243 (quoting Cullen, 563 U.S. at 188). “In other words, ‘so long as fairminded jurists could disagree on the correctness of the state court's decision,' habeas relief is unavailable.” Id. (quoting Harrington, 562 U.S. at 101); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
This Court must “accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)). The Court presumes the factual determination to be correct and a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
IV. Petitioner's habeas claims.
Petitioner raises four grounds for relief in his habeas corpus petition. He alleges ineffective assistance of counsel in Ground One, “improper bolstering of witness credibility” in Ground Two, “improper vouching for the minor witness by the prosecutor” in Ground Three, and cumulative error in Ground Four. Doc. 1, at 5-10. Petitioner does not seek an evidentiary hearing in this Court. The undersigned first addresses Grounds Two and Three.
A. Ground Two.
In Ground Two, Petitioner argues the trial court's admission of Dr. Stockett's, Ms. Walden's, Ms. Marts', and Ms. Miller's testimony denied him a fundamentally fair trial because it improperly bolstered the victim's trial testimony. Doc. 1, at 7; Doc. 12, at 25-26. The undersigned finds no basis for habeas corpus relief.
1. Petitioner's examples of vouching.
Petitioner complains that Dr. Stockett “told the jury that in the vast majority of cases of this type the child is not lying about being sexually abused . . . and that she deemed the statements made by L.W. in the forensic interview to be reliable-even though she did not watch the recording of the forensic interview.” Doc. 12, at 26. He also complains that Ms. Walden told the jury she had no concern that L.W. was lying about the allegations. Id. Petitioner next complains that Ms. Marts told the jury that L.W.'s descriptions of the acts of abuse “were not something that a child would talk about unless they actually happened.” Id. at 26-27. And, finally, Petitioner complains that L.W.'s mother testified that “she believed L.W. after watching the forensic interview.” Id.
2. Clearly established law.
The Tenth Circuit does not consider one witness improperly vouching for another witness “to impact an express constitutional right.” United States v. Harlow, 444 F.3d 1255, 1266 (10th Cir. 2006). And the Supreme Court has never held that “vouching testimony itself violates the Due Process Clause.” Parker v. Scott, 394 F.3d 1302, 1310 (10th Cir. 2005). The absence of Supreme Court precedent on the issue would ordinarily preclude habeas relief on a theory involving testimonial vouching. See, e.g., Estelle v. McGuire, 502 U.S. 62, 68 (1991) (holding that a federal habeas court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States”); Ives v. Boone, 101 Fed.Appx. 274, 283 (10th Cir. 2004) (explaining that the petitioner's complaint that the “state trial court improperly allowed several witnesses to vouch for the victim's credibility” was a “state court determination[]” of a “state law evidentiary matter[]” that was “generally unreviewable on habeas corpus review”). But vouching can compromise a trial's fairness and thus implicate the Fourteenth Amendment's Due Process Clause. See Parker, 394 F.3d at 1310. See also Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012) (“[W]hen 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.'” (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991))).
For a due process inquiry, the Supreme Court articulated the test in Lisenba v. California, 314 U.S. 219 (1941):
As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.Id. at 236; see also Parker, 394 F.3d at 1309-10 (holding that for a claim involving improper witness vouching, the court applies the Supreme Court's “general due process standard” it set forth in Lisenba). “An inquiry into the fundamental fairness of the trial requires an examination of the entire proceedings, including the strength of the evidence against the [petitioner].” Hanson, 797 F.3d at 843.
3. The OCCA's ruling.
The OCCA addressed the merits of Petitioner's complaints about improper bolstering of the victim's testimony:
Appellant claims in Proposition Three that the trial court improperly admitted testimony of the examining doctor, the DHS worker, the forensic interviewer, and L.W.'s mother that bolstered L.W.'s credibility.
An expert witness may not vouch for the truthfulness or credibility of a witness. Bench v. State, 2018 OK CR 31, ¶ 90, 431 P.3d 929, 957. “Vouching” occurs when a witness indicates a personal belief in another witness's credibility by implicitly indicating that information not presented to the jury supports the witness's testimony. Id., see Nickell v. State, 1994 OK CR 73, ¶ 7, 885 P.2d 670, 673.
Vouching only occurs if the jury could reasonably believe that the witness is indicating a personal belief in another witness's credibility. Warner v. State, 2006 OK CR 40, ¶ 24, 144 P.3d 838, 860-61, overruled on other grounds by Taylor v. State, 2018 OK CR 6, 419 P.3d 265.
First, regarding the medical expert's opinion, an expert opinion may embrace the ultimate issue as long as it does not tell the jury what result to reach. Day v. State, 2013 OK CR 8, ¶ 11, 303 P.3d 291, 297. Expert testimony generally tends to show that another witness is telling the truth or not. Id. In this case, the expert testimony incidentally corroborated the other evidence, but it did not tell the jurors what result to reach. There is, therefore, no error in the expert testimony.
Regarding the other witnesses, we find that Appellant failed to object to their testimony, thus we review for plain error. Nicholson v. State, 2018 OK CR 10, ¶ 18, 421 P.3d 890, 896-97. To obtain relief, Appellant must now show that a plain or obvious error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. The
Court will then correct plain error only when it seriously affects the fairness, integrity, or public reputation of the proceedings. Simpson v. State, 1994 OK CR 40, ¶ 30, 876 P.2d 690, 701. This Court will not grant relief based on prosecutorial misconduct unless the State's misconduct is so flagrant that it rendered the trial or sentences fundamentally unfair. Nicholson, 2018 OK CR 10, ¶ 18, 421 P.3d at 896-97.
We find that the testimony was proper. It did not improperly vouch for the victim, nor did it improperly tell the jury what result to reach, thus there can be no plain error.Doc. 17, Ex. 5, at 5-7.
4. The admission of the witnesses' testimony did not deprive Petitioner of a fundamentally fair trial.
a. Dr. Stockett's testimony.
Petitioner asserts that “[a] jury does not need an expert to inform it that a witness who testifies in a certain way is truthful or untruthful. See Doc. 12, at 25 (citing United States v. Hill, 749 F.3d 1250, 1262 (10th Cir. 2014)). He argues that is what Dr. Stockett did when she “told the jury that in the vast majority of cases of this type the child is not lying about being sexually abused . . . and that she deemed the statements made by L.W. in the forensic interview to be reliable-even though she did not watch the recording of the forensic interview.” Id. at 26. On direct appeal, the OCCA reviewed the trial court's admission of portions of Dr. Stockett's testimony for an abuse of discretion and found none. Doc. 17, Ex. 5, at 6. The Court may presume, based on the OCCA's rejection of the claim, that it found the admission of the testimony did not render Petitioner's trial fundamentally unfair. The Court should find that decision reasonable.
This Court cannot consider Hill “as part of [Petitioner's] due process challenge.” See Parker, 394 F.3d at 1310 (holding that the petitioner could not “rely on Tenth Circuit cases and other non-Supreme Court authority to show that the OCCA's decision was an unreasonable application of federal law” and stating that the court could not consider the petitioner's cited cases in deciding the due process issue). And the Court declines to consider Petitioner's argument, raised for the first time in his Reply (Doc. 21, at 13), that the OCCA's decision was contrary to, or an unreasonable application of, Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (“The general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.” (internal quotation marks and alteration omitted)).
Reviewing the whole record, the Court finds the admission of Dr. Stockett's testimony did not cause an unfair trial. The testimony Petitioner complains about pertained to Dr. Stockett's general experience with alleged child sexual abuse victims, not her encounter with L.W. Tr. Vol. III, at 634. Dr. Stockett admitted that some children she had dealt with had lied to her, but the prosecutor did not ask, and Dr. Stockett did not opine, about L.W.'s propensity to either lie or tell the truth. Id. And while Dr. Stockett testified she had relied on L.W.'s statements about being sexually abused because the statements were consistent, she did not opine or testify that Petitioner had committed the sexual abuse. Id. at 636-43. As Respondent notes, Petitioner's defense counsel delved into how an expert can determine whether a child victim is lying or telling the truth during his cross-examination of Dr. Stockett and Petitioner presented his own expert to counter Dr. Stockett's testimony. Id. at 651-55; Id. Vol. IV, at 886-87, 900-01. Given these circumstances, coupled with the jurors' ability to weigh L.W.'s credibility for themselves during her testimony, the Court cannot conclude the admission of Dr. Stockett's testimony deprived Petitioner of his right to a fundamentally fair trial.
Petitioner implies Dr. Stockett's testimony was unreliable because she did not view L.W.'s interview. Doc. 12, at 26. But he fails to explain “why it was improper for [Dr. Stockett] to rely on the information provided to [her]” or provide the Court with Supreme Court authority “that would require exclusion of this expert testimony” on this basis. Burling v. Addison, 451 Fed.Appx. 761, 764 (10th Cir. 2011).
b. The testimony of the lay witnesses.
Petitioner complains about the trial court's admission of certain portions of Ms. Walden's, Ms. Marts', and Ms. Miller's testimony. Doc. 12, at 26-27. Because defense counsel did not object to the testimony at trial, the OCCA reviewed it under its plain error standard and found no error. Doc. 17, Ex. 5, at 7.
The Tenth Circuit has stated that “Oklahoma's plain-error test is rooted in due process.” Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005). And “[w]hen a state court adjudicates a federal issue relying solely on a state standard that is at least as favorable to the applicant as the federal standard, [this Court] presume[s] an adjudication on the merits and appl[ies] AEDPA deference.” Id.
There is “no practical distinction” between the OCCA's plain error test and the federal due-process test, “which requires reversal when error ‘so infused the trial with unfairness as to deny due process of law.'” Id. at 1125 (quoting Estelle, 502 U.S. at 75). “Because the OCCA applied the same test [this Court] appl[ies] to determine whether there has been a due-process violation, [this Court] must defer to its ruling unless it ‘unreasonably applied' that test.” Id. (quoting 28 U.S.C. § 2254(d)). The undersigned concludes it did not.
i. Ms. Walden's testimony.
Petitioner complains that Ms. Walden “told the jury that she had no concern about L.W. lying about the allegations[]” and that L.W. had “never faltered in what she was saying about the sexual abuse.” Doc. 12, at 26. The record reflects that during his cross-examination of Ms. Walden, defense counsel challenged Ms. Walden about her lack of skepticism concerning L.W.'s allegations. Tr. Vol. III, at 584. He asked her if she had investigated L.W.'s mother's statements that L.W. had lied in the past. Id. In response, Ms. Walden stated that she had investigated those statements by asking L.W.'s mother what she meant by them. Id. When L.W.'s mother replied that L.W. sometimes fought with her sibling and then later denied hitting her sibling, Ms. Walden concluded that example was “typical kid behavior” that did not cause her concern. Id. On redirect examination, the prosecutor clarified that L.W.'s mother had never told Ms. Walden that L.W. had lied about the allegations or that L.W. had ever recanted her statements to Ms. Walden. Id. at 621.
These statements, first elicited by defense counsel, were responsive to counsel's questions and, when viewed in context, did not directly vouch for L.W.'s truthfulness. So the OCCA reasonably concluded the alleged vouching testimony did not render Petitioner's trial fundamentally unfair.
ii. Ms. Marts' testimony.
Petitioner complains Ms. Marts, the forensic interviewer, improperly vouched for L.W.'s credibility by telling the jury that the acts L.W. described “were not something that a child would talk about unless they actually happened.” Doc. 12, at 26-27. But Petitioner's defense counsel elicited the statements he complains about through an open-ended question on cross-examination. Defense counsel asked Ms. Marts to tell the jury about L.W.'s use of certain words that “stood out” to Ms. Marts during L.W.'s interview. Tr. Vol. IV, at 834. Ms. Marts explained that, based on her training and experience, the acts L.W. described were not typical experiences of a nine-year-old. Id. When defense counsel pressed Ms. Marts, she agreed with his summation that there was “no other way” L.W. could have been able to describe the events “other than having actually been abused.” Id. at 835, 840. But when defense counsel pressed her further about whether she thought L.W. was telling the truth, Ms. Marts responded that it was not a part of her job to determine L.W.'s truthfulness. Id. at 836.
On direct appeal, Petitioner alleged the trial court erred in admitting the video of L.W.'s forensic interview into evidence. See Doc. 17, Ex. 1, at 38. The OCCA denied the claim, finding the video was properly admitted under Oklahoma law. Id. Ex. 5, at 7-8. Petitioner's counsel seeks to “remind[]” the Court that the jury watched the video of L.W.'s forensic interview during the trial, “even though L.W. testified in court. Doc. 12, at 27. But Petitioner has not re-asserted this error in his habeas corpus petition, and the Court will not entertain an implication of error.
Generally, “the invited error doctrine . . .prevents a party from inducing action by a court and later seeking reversal on the ground that the requested action was in error.” See United States v. Lopez-Medina, 596 F.3d 716, 733 n.10 (10th Cir. 2010) (“By purposefully questioning [the witness] on what he learned from the informant, [the defendant] cannot now complain the admission of that evidence was error.”).
Defense counsel, seeking to undermine the validity of L.W.'s allegations, purposefully questioned Ms. Marts about her opinion on L.W.'s credibility. Even so, Ms. Marts did not, as the OCCA found, either vouch for L.W. or tell the jury what result to reach. The Court should thus conclude that the OCCA's determination that Ms. Marts' testimony did not undermine the fundamental fairness of Petitioner's trial was reasonable.
iii. Ms. Miller's testimony.
Finally, Petitioner complains that Ms. Miller's testimony about her belief in L.W.'s allegations was unfair. Doc. 12, at 27. But it was defense counsel who asked Ms. Miller about when she started believing L.W.'s allegations. Tr. Vol. III, at 727. And the record, when viewed in context, shows defense counsel designed his questions to Ms. Miller to aid in a strategy of proving that Ms. Miller only changed her initial belief in Petitioner so that she could regain custody of her children-not because she truly believed L.W. Id. at 727- 29. So the OCCA reasonably concluded that Ms. Miller's testimony did not deny Petitioner a fundamentally fair trial.
5. Conclusion.
Petitioner has not shown that the OCCA unreasonably applied federal law when it determined that the admission of the witnesses' testimony did not render Petitioner's trial unfair. Because a “federal court must tread gingerly and exercise considerable self-restraint” in addressing a fundamental fairness claim, Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002), the undersigned recommends denying habeas corpus relief on this ground.
B. Ground Three.
Petitioner asserts in Ground Three that the prosecutor engaged in misconduct by improperly vouching for L.W. and calling Petitioner a “liar” during closing arguments. Doc. 12, at 30-31 (citing Tr. Vol. IV, at 980-82, 986). Petitioner raised this issue in his direct appeal. Doc. 17, Ex. 1, at 38-40. But because defense counsel did not object to the comments, the OCCA reviewed it for plain error:
In Proposition Four Appellant claims the prosecution improperly vouched for L.W. and called Appellant a liar. None of the alleged misconduct was objected to at trial, therefore, review will be for plain error only as set forth above. The prosecutor's argument was in direct response to defense counsel's argument regarding the victim's veracity. Further, the prosecutor was merely comparing the victim's motivation to lie versus Appellant's motivation to lie. The prosecutor's arguments can be described as proper comments on the evidence during closing argument, or proper comments in response to arguments of defense counsel. See Ball v. State, 2007 OK CR 42, ¶ 57, 173 P.3d 81, 95 (Counsel are allowed a liberal freedom in their argument and inferences; reversal is not required unless a defendant's rights are affected). The argument does not amount to plain error. This proposition is denied.Doc. 17, Ex. 5, at 8. The OCCA applied the same fundamental fairness standard as that under federal law, This Court thus applies AEDPA deference and examines whether the OCCA's decision was an unreasonable application of that standard. Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006). The undersigned finds the OCCA reasonably applied Supreme Court law in denying Petitioner's prosecutorial misconduct claim.
“Even when a state court fails either to mention the federal basis for the claim or cite any state or federal law in support of its conclusion, we presume the court reached a decision on the merits.” Simpson v. Carpenter, 912 F.3d 542, 583 (10th Cir. 2018) (internal quotation marks omitted).
1. Clearly established law.
“To obtain habeas relief on a prosecutorial misconduct claim, a petitioner must show that the prosecutor's alleged misconduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Haak v. Whitten, 799 Fed.Appx. 621, 625 (10th Cir. 2020) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). This analysis requires a habeas court to examine the prosecutor's remarks in the context of the entire trial to determine whether the jury was able to fairly judge the evidence in light of the prosecutor's conduct. Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006).
Petitioner does not claim the prosecutor's comments deprived him of a specific constitutional right and as already noted, vouching itself does not “impact an express constitutional right.” Harlow, 444 F.3d at 1266; Parker, 394 F.3d at 1310. The Court thus analyzes the prosecutor's remarks for fundamental unfairness. See, e.g., Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (“Generally, a prosecutor's improper remarks require reversal of a state conviction only if the remarks ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” (quoting Donnelly, 416 U.S. at 643)).
2. The OCCA reasonably concluded the prosecutor did not improperly vouch for L.W. and the comments did not deny Petitioner a fundamentally fair trial.
“Argument or evidence is impermissible vouching only if 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.” Thornburg, 422 F.3d at 1132 (internal quotation marks omitted). But directing the jury's attention “to evidence that tends to enhance or diminish a witness's credibility” is not improper. Id.
Petitioner complains the prosecutor's comments in the State's final closing argument about L.W.'s description of what happened to her as “not expected and is shocking” was error that denied him a fair trial. Doc. 12, at 30 (citing Tr. Vol. IV, at 980). He also complains that the prosecutor improperly told the jury that Ms. Miller was telling the truth when she believed L.W. Id. at 30-31 (citing Tr. Vol. IV, at 980-82).
During Petitioner's counsel's closing argument, he asked the jurors to consider whether L.W.'s demeanor on the witness stand was what they would expect from “somebody who's been sexually abused.” Tr. Vol. IV, at 951. He surmised L.W. had learned the words “pussy” and “dick, ” not from any actual abuse, but from the internet, a graphic book, or from other children on the school bus. Id. at 951-53. And he expressed disbelief that any of the State's witnesses were surprised to hear that and other sexual language from a nine-year-old child. Id. at 952-54.
In his final closing argument, the prosecutor responded to defense counsel's attempt to deemphasize L.W.'s experiences by reminding the jurors that L.W., a young child, had used those words and others to describe acts of anal penetration and anal sodomy. Id. at 979-80. The prosecutor argued that L.W.'s knowledge of those acts at all was “shocking” because it is “not something you expect from a nine-year-old.” Id. at 980.
The prosecutor's statements were reasonable inferences from the testimony presented during trial and were made in response to defense counsel's argument. When viewed in context, the statements cannot be construed as indications by the prosecutor that he knew something more about L.W.'s credibility than what the jury could deduce from the trial evidence or as an explicit personal assurance of L.W.'s veracity. The prosecutor was thus free to make these arguments which did not impermissibly vouch for L.W.'s credibility. Thornburg, 422 F.3d at 1132; see also Russell v. Bryant, 781 Fed.Appx. 721, 728 (10th Cir. 2019) (noting that prosecutors are “free to” argue “a reasonable inference from the record” (citing United States v. Young, 470 U.S. 1, 9 n.7 (1985))); Black v. Workman, 682 F.3d 880, 909 (10th Cir. 2012) (holding the prosecutor's statement during closing argument “was not an unreasonable response” to defense counsel's argument (citing Young, 470 U.S. at 12-13)). Based on the record, the Court cannot conclude that the OCCA's finding that these statements were proper comments on the evidence was an unreasonable application of federal law. See, e.g., Edwards v. McCollum, No. CIV-16-1423-M, 2018 WL 833603, at *9 (W.D. Okla. Feb. 12, 2018) (finding the OCCA's determination there was no impermissible vouching to be reasonable where the “prosecutor did not make personal assurances of [the victim's] veracity or suggest that information not before the jury supported [the victim's] testimony”).
Petitioner also complains the prosecutor improperly vouched for L.W.'s allegations by arguing to the jury that Ms. Miller was telling the truth by believing L.W. Doc. 12, at 30-31. The Court disagrees.
The record shows that defense counsel cast doubt upon Ms. Miller's credibility during his closing argument by stating that the “government” had easily “ben[t] her will” and had forced her to choose between Petitioner and her child. Tr. Vol. IV, at 957. He told the jurors that the government had put her in an “impossible situation” and asked the jurors if there was any doubt in their minds that she would “say anything” against Petitioner to keep custody of her children. Id. at 958-59.
In reply, the prosecutor asked the jurors to consider the trial testimony and to decide for themselves the motive behind Ms. Miller's change in position. Id. at 980-82. The prosecutor's arguments, when viewed in context, cannot be described as impermissible vouching. He did not personally assure the jurors that Ms. Miller, and in turn L.W., was telling the truth. In fact, he told the jurors that he was not “championing [her] as mom of the year.” Id. at 982. And he did not point to evidence or information not presented to the jury to support her testimony. Instead, the prosecutor directed the jury's attention to trial evidence that tended to enhance Ms. Miller's credibility, not diminish it. Id. at 981. Those arguments were not improper vouching. Thornburg, 422 F.3d at 1132. The Court finds, therefore, that the OCCA's determination that these comments did not deny Petitioner a fundamentally fair trial was reasonable.
3. The OCCA reasonably concluded the prosecutor's closing arguments about Petitioner's veracity did not deny Petitioner a fundamentally fair trial.
Finally, Petitioner claims that the prosecutor's closing arguments about his veracity were improper. Doc. 12, at 31 (citing Tr. Vol. IV, at 986). He claims the prosecutor called him a liar even though he did not testify at trial. Id. The Court agrees with the OCCA that the prosecutor made permissible comments on Petitioner's veracity. See Bland, 459 F.3d at 1025 (“[I]t is permissible for the prosecution to comment on the veracity of a defendant's story.”).
In denying L.W.'s allegations of sexual abuse, Petitioner told the investigating detective that he was impotent and could not have sexual relations. Tr. Vol. III, at 784. Ms. Miller testified that Petitioner was not impotent because he had sexual relations with her. Id. at 699-700.
During his second closing argument, the prosecutor referenced this testimony for the jury before arguing that Petitioner had lied in making this statement because he was trying to get out of trouble. Id. Vol. IV, at 986. The prosecutor then contrasted Petitioner's incentive to lie with L.W.'s to dispute defense counsel's argument that L.W. was lying to gain positive attention. Id. at 964-66, 986-87.
The Court finds the prosecutor's argument was based on the evidence and on the proper inferences the jury could draw from the evidence about Petitioner's and L.W.'s veracity. See, e.g., Bland, 459 F.3d at 1025 (holding that the prosecutor's arguments that the petitioner had a motive or reason to lie to spare himself the death penalty, were permissible comments on the petitioner's veracity given the petitioner's own testimony (internal quotation marks omitted)); see also Russell, 781 Fed.Appx. at 729 (noting the court had “rejected claims of prosecutorial misconduct where [the] characterization [of testimony as a lie] can be fairly perceived as commentary on the record evidence, ” and stating that “prosecutors are allowed considerable latitude in responding to defense arguments, commenting on the evidence, and arguing inferences therefrom” (internal quotation marks omitted)). The OCCA thus reasonably determined the prosecutor's comments did not render Petitioner's trial fundamentally unfair.
4. Conclusion.
Petitioner fails to show that the OCCA's adjudication of prosecutorial misconduct claims was either contrary to, or an unreasonable application of, clearly established federal law. The undersigned therefore recommends the Court deny habeas corpus relief on this ground.
C. Ground One.
In Ground One, Petitioner asserts his trial counsel rendered ineffective assistance by failing to present evidence to impeach Ms. Miller and demonstrate her motive to lie, by failing to object to the admission of the video of L.W.'s forensic interview as cumulative hearsay, by failing to object to Dr. Stockett's testimony which vouched for L.W., and by failing to adequately advise petitioner of his right to testify or remain silent and to prepare him to testify. Doc. 1, at 5; Doc. 12, at 19-24. The undersigned finds no basis for habeas relief.
1. Clearly established law.
To establish ineffective assistance of counsel, Petitioner must show his attorney's performance was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 690-91 (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. To avoid the “distorting effects of hindsight, ” a court should judge an attorney's conduct “from counsel's perspective at the time.” Id. at 689-90. “[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. In assessing prejudice, a court must look “at the totality of the evidence, not just the evidence helpful to the petitioner.” Moore v. Gibson, 195 F.3d 1152, 1178 (10th Cir. 1999).
“Surmounting Strickland's high bar is never an easy task.” Harrington, 562 U.S. at 105 (internal quotation marks omitted). This Court defers to the OCCA's merits determination of Petitioner's Strickland claim, and this “review is doubly deferential . . . because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ....” Woods v. Etherton, 578 U.S. 113, 117 (2016) (internal quotation marks and citations omitted). On habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101. “This is different from asking whether defense counsel's performance fell below Strickland's standard.” Id. This Court “must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Id. at 105. “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. This Court must “afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods, 578 U.S. at 117 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). “Habeas relief is warranted only where there is no ‘possibility for fairminded disagreement' with the state court's decision.” Frederick v. Sharp, No. CIV-19-37-SLP, 2020 WL 4352749, at *3 (W.D. Okla. July 29, 2020) (quoting Harrington, 562 U.S. at 102-03).
Citing Strickland, the OCCA rejected Petitioner's ineffective assistance of counsel claim on direct appeal holding:
Appellant argues in Proposition One that he was denied the effective assistance of counsel and has filed a motion for evidentiary hearing in connection with this claim. See Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.2018, Ch. 18, App.
This Court reviews this claim to determine whether counsel's performance was unreasonably deficient under prevailing professional norms; and, if so, whether that performance deprived Appellant of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We review Appellant's accompanying motion for evidentiary hearing, the attached affidavits, and extra-record evidence to determine whether Appellant has provided sufficient information to show clear and convincing evidence of a strong possibility that trial counsel was ineffective. Rule 3.11(B)(3)(b).
This standard is less demanding than Strickland, as it is easier to show clear and convincing evidence of a strong possibility that counsel was ineffective than to show, by a preponderance of the evidence, that counsel's performance was both unreasonably deficient and resulted in prejudice. When we grant an evidentiary hearing under this standard, we do not find that counsel was ineffective, but that Appellant has shown a strong enough possibility that he should be afforded a further opportunity to develop his claim. When we deny a request for evidentiary hearing, we
necessarily find that Appellant has not shown defense counsel to be ineffective under at least one of the two required prongs of Strickland. Simpson v. State, 2010 OK CR 6, ¶ 47, 230 P.3d 888, 904.
Appellant claims that trial counsel's conduct amounted to ineffective assistance for several reasons. First he claims that counsel was ineffective for failing to memorialize the victim's mother's statements before she changed her opinion about the validity of the accusations and presenting evidence of her continued contact with Appellant even after she presumably changed her opinion and divorced Appellant. Next he claims that counsel was ineffective for failing to object to the victim's hearsay statements as cumulative evidence. He claims next that counsel was ineffective in failing to object to prejudicial testimony and the hearsay evidence presented by a medical expert. Lastly, Appellant claims counsel was ineffective in failing to adequately advise him of his right to testify or remain silent and in failing to prepare him for the possibility of testifying.
After reviewing these claims, we find that trial counsel's actions do not fall below reasonable standards of professional conduct. Appellant has not shown that the strategy chosen by trial counsel was deficient. Any objections that trial counsel might have made to the complained of evidence would have been properly overruled. Finally, we find that the motion for evidentiary hearing does not show by clear and convincing evidence a possibility that trial counsel was ineffective.
Reviewing Appellant's Proposition One and his motion for evidentiary hearing under these standards, we find no relief is warranted. Proposition One and the motion for evidentiary hearing are denied.Doc. 17, Ex. 5, at 2-5.
2. Discussion.
a. The OCCA reasonably concluded defense counsel did not provide ineffective assistance by failing to obtain Ms. Miller's statement before trial.
Petitioner faults his attorney for failing to obtain Ms. Miller's statement supporting him before trial and using the statement to impeach her credibility during trial. Doc. 12, at 19-21. He also wanted counsel to introduce text messages between him and Ms. Miller and photographs showing that Ms. Miller continued associating with him after she viewed the forensic interview and after she had divorced Petitioner. Id. at 20. He claims such evidence would have convinced the jury that “she really did believe that nothing had happened” between him and L.W. Id. at 21. Respondent argues none of this outside evidence was necessary because Ms. Miller testified about it all under oath at trial. Doc. 17, at 12-13. And the OCCA found counsel's strategy was not deficient. Id. Ex. 5, at 4. The Court agrees.
Under Oklahoma law, “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded the opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon.” Okla. Stat. tit. 12, § 2613(B). The OCCA holds that if a witness admits to the prior inconsistent statement, that admission serves the purpose of impeachment and the extrinsic evidence of a prior statement is not necessary. Neal v. State, 837 P.2d 919, 920-21 (Okla. Crim. App. 1992).
During trial, Ms. Miller was questioned both by the prosecutor and defense counsel about her initial disbelief of L.W.'s allegations against Petitioner. Tr. Vol. III, at 689-92, 695-97, 713-17, 727-29, 750, 752. She never denied changing her mind or that she wanted, at first, to remain married to Petitioner despite the custody issue. Id. at 697-700, 722-24, 727-28. So any statement procured before trial was unnecessary for impeachment purposes and defense counsel's failure to obtain one was not deficient conduct. Cf. Maher v. Allbaugh, No. CIV-15-26-C, 2017 WL 6349174, at *7 (W.D. Okla. Dec. 12, 2017) (noting that trial counsel had questioned the witness who had admitted to making inconsistent statements and finding “there was no need to admit her handwritten statement, and its absence from the admitted evidence did not prevent an effective examination”). And because counsel made the jurors fully aware of Ms. Miller's changing allegiance so they could sufficiently judge her credibility, it was unnecessary for him to present additional evidence of her lingering association with Petitioner. Especially given that it was not Ms. Miller who was Petitioner's victim but L.W., and the jury heard L.W.'s testimony and observed her demeanor during trial, the Court cannot say that the result of the trial would have been different had the trial court admitted the evidence Petitioner sought. The Court should thus find the OCCA reasonably applied Strickland in rejecting this claim on direct appeal. See, e.g., Harrington, 562 U.S. at 105 (“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.”).
She even admitted during cross-examination that she told the authorities she thought L.W. was “manipulating them.” Tr. Vol. III, at 714.
Ms. Miller testified that she hoped she and Petitioner could just continue their marriage and he could “have a separate life” from her children. Tr. Vol. III, at 696-97.
b. The OCCA reasonably concluded defense counsel did not provide ineffective assistance of counsel by failing to object to the trial court's admission into evidence of L.W.'s forensic interview as cumulative evidence.
Petitioner faults his counsel for failing to raise an objection to the trial court's admission into evidence of L.W.'s forensic interview as cumulative. Doc. 12, at 21. Respondent argues the OCCA reasonably concluded that the trial court would have properly overruled any objection to its admission and thus counsel's conduct was not ineffective. Doc. 17, at 17. The Court agrees.
Petitioner argues counsel should have objected to the trial court's admission of L.W.'s forensic interview because the jury had already heard her “live” testimony. Doc. 12, at 21. But, under Oklahoma law, it is not error for the trial court to admit a forensic interview, after an appropriate reliability hearing, even when the child-victim testifies at trial. See, e.g., Jones v. State, 781 P.2d 326, 329 (Okla. Crim. App. 1989) (holding there was no needless duplication of evidence where the testimony of each witness about the victim's statements was “necessary”); see also Folks v. State, 207 P.3d 379, 383 (Okla. Crim. App. 2008) (“We recognize that while this interpretation of [Okla. Stat. tit. 12, ] § 2803.1 may allow the State to present its principal witness twice, it does not invariably operate to allow the State to bolster its version of the facts.”); cf. Hamburger v. Allbaugh, 679 Fed.Appx. 665, 667 (10th Cir. 2017) (holding that the OCCA did not unreasonably apply “any clearly established federal law” when it found no error in the trial court's admission of the childvictim's forensic interview). The OCCA concluded that any objection to the trial court's admission of the forensic interview would have been overruled. Doc. 17, Ex. 5, at 4. The Court should find the OCCA's conclusion that counsel was not ineffective on this basis was objectively reasonable. See, e.g., Williams v. Trammell, 782 F.3d 1184, 1204 (10th Cir. 2015) (holding that the OCCA's conclusion that counsel's performance was not deficient was reasonable under Strickland's deferential standard where any objection to the evidence on relevance grounds lacked merit and would have been overruled).
c. Having found Petitioner is not entitled to habeas corpus relief on his claim of improper admission of Dr. Stockett's testimony, he is likewise not entitled to relief on his claim of ineffective assistance of counsel for failing to object to Dr. Stockett's testimony.
Petitioner claims his counsel should have objected to the admission of Dr. Stockett's testimony because she improperly vouched for L.W. Doc. 12, at 22. To “succeed on his counsel's failure-to-object claims, he must show that the underlying” claim itself has merit. Hanson, 797 F.3d at 837. As discussed above, the admission of Dr. Stockett's testimony did not deprive Petitioner of a fundamentally fair trial. See supra § IV(A)(4)(a). For that reason, Petitioner “is likewise not entitled to relief on this claim of ineffective assistance of trial counsel.” Glossip v. Trammell, 530 F. App'x. 708, 739 (10th Cir. 2013); 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”).
d. The OCCA reasonably concluded defense counsel was not ineffective for allegedly failing to properly advise Petitioner of his right to testify or prepare him to testify.
Petitioner asserts he was denied his constitutional right to testify because his attorney did not adequately advise him of his right to testify in his own defense and did not prepare him to testify. Doc. 12, at 22-24. On direct appeal, Petitioner submitted an affidavit in support of his motion for evidentiary hearing stating he would have chosen to testify at trial if he had “been prepared” by his counsel. Doc. 17, Ex. 2, at 7-8. Petitioner's counsel also submitted an affidavit to the OCCA stating that he had “never discussed” the issue of testifying with Petitioner. Id. at 54. He also stated that his “default position” is to not call a defendant as a witness, that he did not prepare Petitioner to testify at trial, and that he had no “strategic decision” for his actions. Id. at 54-55. But at the conclusion of the presentation of evidence, Petitioner and his counsel told the trial court that they had discussed Petitioner testifying:
Counsel: Your Honor, we have discussed with Mr. O'Bryant his right to testify or not. And after having our advice and having discussed it, the way he feels about it, it's - - he believes that at this time he will not exercise his right to testify. And we'll exercise his right not to testify.Tr. Vol. IV, at 913. The trial court then asked Petitioner in open court and outside the presence of the jury about his decision:
Trial court: Mr. O'Bryant, I know that you've had the opportunity to talk with your lawyers about this case, about the trial strategy in the case. So I recognize that sometimes some things change when you start a case. By the time we get to the end of the case strategy may change, opinions may change. But when your attorneys told me that - - that they had been informed by you after discussion that you did not wish to testify in this case, is that true?
Petitioner: Yes, sir.
Trial court: Now you understand you have a complete Constitutional right to testify in this case? You understand that?
Petitioner: Yes, sir.
Trial court: As well, you have a complete Constitutional right to not testify in this case; you realize that?
Petitioner: Yes, sir.
Trial court: The Court proposes an instruction that if you don't testify I will instruct the jury that they're not to basically consider that in any way in their determination in this case. Do you understand that?
Petitioner: Yes, sir.
Trial court: So are you telling me that it is your desire at this time that you would not be testifying in this case?
Petitioner: Yes, sir.
Trial court: All right. Thank you.Id. at 916-17. On direct appeal, the OCCA considered this record as well as defense counsel's and Petitioner's post-trial statements on the issue. Doc. 17, Ex. 5, at 2-5. The OCCA concluded the record did not establish counsel's ineffectiveness on this basis. Id. at 4-5. The Court agrees.
“[I]t cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.” Rock v. Arkansas, 483 U.S. 44, 49 (1987). The crux of Petitioner's complaint here is that the trial court did not ask him “why he chose not to take the stand” and his counsel did not “prepare” him to testify. Doc. 17, Ex. 2, at 8. But the Supreme Court has never mandated that a criminal defendant's waiver of the right to testify be memorialized on the record or required that a trial court delve into the reasons behind a defendant's decision before the waiver is effective. See, e.g., Cannon v. Trammell, 796 F.3d 1256, 1273 n.9 (10th Cir. 2015) (“Nothing in this circuit, or any other . . . requires defendants to waive their right to testify on the record and we decline to adopt such a rule now. To the contrary, requiring judges to question each non-testifying defendant about his decision not to testify may result in defendants feeling pressured to give up their right not to testify.” (citing United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995)); see also Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir. 2016) (“[T]he Supreme Court has never articulated the standard for assessing whether a criminal defendant has validly waived his right to testify or determined who has the burden of production and proof under particular circumstances.”). “The right to testify qualitatively differs from those constitutional rights which can be waived only after the court inquires into the validity of the waiver.” Pennycooke, 65 F.3d at 11. Because a criminal defendant can choose either to testify or not to testify depending on the facts and circumstances of the case, the decision is necessarily “an important part of trial strategy best left to the defendant and counsel without the intrusion of the trial court, as that intrusion may have the unintended effect of swaying the defendant one way or the other.” Id.
The Court does not dispute that defense counsel's post-trial statements on this issue are troubling. He states he had no reasoned strategy behind his failure to discuss with or prepare Petitioner to testify and that he made a “very bad decision.” Doc. 17, Ex. 2, at 55. But Strickland “calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.” Harrington, 562 U.S. at 110. Certainly, at minimum, any competent attorney would discuss this right with their client. And, here, both counsel and Petitioner represented to the trial court that they had discussed the issue. Tr. Vol. IV, at 913, 916-17.
This Court may not “insist counsel confirm every aspect of the strategic basis for his or her actions” as “[t]here is a ‘strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.'” Harrington, 562 U.S. at 109 (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam)). Although counsel may now “subjectively believe, viewing the case with the distorting effects of hindsight, and perhaps magnifying his own responsibility for an unfavorable outcome, ” that he erred in failing to call Petitioner to the stand, the OCCA's decision denying this claim “is not so unreasonable that there is no room for fairminded disagreement.” Frederick, 2020 WL 4352749, at *13 (internal quotation marks and citations omitted).
As Respondent points out, Petitioner does not identify, beyond a general denial of the allegations, what his testimony would have been or how it would have affected the trial's outcome. Doc. 17, at 25. And as the Court has already noted, defense counsel vigorously and skillfully cross-examined the state's witnesses and presented an expert to dispute the state's evidence. “It is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy.” Harrington, 562 U.S. at 111. The undersigned therefore recommends the Court deny habeas corpus relief on this ground.
3. Conclusion.
Petitioner has failed to show that his counsel's conduct was both deficient and prejudicial. He therefore cannot overcome the doubly deferential hurdle created by Strickland and § 2254(d) to obtain habeas corpus relief on his ineffective assistance of counsel claims. Id. at 105.
D. Ground Four.
Finally, Petitioner alleges cumulative error denied him a fair trial. Doc. 1, at 10; Doc. 12, at 32-33. On direct appeal, the OCCA held:
Finally, in Proposition Six, Appellant claims that the accumulation of errors denied him a fair trial and that he should be granted a new trial. We find that there are no individual errors requiring relief. As we find no error that was harmful to Appellant, there is no accumulation of error to consider. Barnett v. State, 2011 OK CR 28, ¶ 34, 263 P.3d 959, 969. Proposition Six is, therefore, denied.Doc. 17, Ex. 5, at 9. The undersigned finds this was a reasonable application of federal law.
1. 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 it is clearly established that cumulative error can violate the federal constitution, this 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 quotation marks and alterations omitted). It is a petitioner's burden to show “that the errors resulted in actual prejudice.” Id. (internal quotation marks omitted).
2. Discussion.
The undersigned concludes the OCCA's decision on Petitioner's cumulative-error claim was not contrary to or an unreasonable application of clearly established federal law. Petitioner has identified no errors which would prompt a cumulative-error analysis. See, e.g., Harlow, 444 F.3d at 1269 (holding that a cumulative error analysis applies to the “cumulative effect of two or more” actual errors, “not [to] the cumulative effect of non-errors”). The undersigned therefore recommends the Court deny habeas corpus relief on this ground.
V. Recommended ruling and notice of right to object.
For the reasons discussed above, the undersigned recommends the Court deny the petition for habeas relief.
The undersigned advises the parties of their right to object to this Report and Recommendation by March 31, 2022 under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.