Opinion
CIV-21-394-D
12-01-2021
THORSTEN GUNTER RUSHING, Petitioner, v. KAMERON HARVENEK, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner Thorsten Gunter Rushing, a convicted Oklahoma prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondent filed a response, Doc. 7, and the appellate record from Petitioner's post-conviction proceedings in Comanche County Case No. CF-2014-53. Doc. 9. 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.
I. Procedural history and grounds for relief.
A jury convicted Petitioner of one count of conspiracy to commit first-degree murder and two counts of murder in the first degree. Doc. 7, Ex. 1, at 1. The Comanche County District Court sentenced Petitioner to ten years' imprisonment for conspiracy to commit first-degree murder and life without parole for each count of murder in the first degree, all to be served consecutively. Id.
Petitioner made four arguments on direct appeal: (1) the trial court violated the confrontation clauses of the state and federal constitutions by admitting the preliminary hearing testimony of two witnesses; (2) he was denied his right to testify in his own defense; (3) the jury's consideration of an aggravating circumstance was not reasonably supported by the evidence; and (4) his life sentences without the possibility of parole were excessive. Id. Ex. 2, at 14-29. The OCCA denied the appeal. Id. Ex. 5.
Petitioner-through counsel-filed an Application for Post-Conviction Relief and later amended the application. Id. Exs. 6, 7. In his supporting brief, Petitioner argued: (1) the trial court denied his due process rights by allowing a coerced statement of a co-conspirator to be admitted at trial; (2) his trial counsel was ineffective by failing to present a complete defense; (3) the trial court denied his due process rights by admitting gruesome photographic evidence; and (4) his appellate counsel was ineffective by failing to present his first three arguments on direct appeal. Id. Ex. 7, at 9-15. The Comanche County District Court denied Petitioner's first three claims because they could have been raised on direct appeal. Id. Ex. 8, at 1. The court denied Petitioner's fourth claim on the merits. Id.
Petitioner raised the same claims on appeal to the OCCA. Brief of Petitioner at 4-11, Rushing v. Oklahoma, No. PC-2021-41 (Okla. Crim. App. Mar. 31, 2021) (filing available at https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellateνmbe r=pc-2021-41) (last visited Nov. 8, 2021). Petitioner also argued that the OCCA should not apply the waiver doctrine even though he failed to raise the claims on direct appeal. Id. at 3-4. The OCCA formulated Petitioner's claims as “three propositions of error . . . under the rubric of ineffective assistance of appellate counsel” and affirmed the state district court's order denying relief. Doc. 7, Ex. 9, at 2, 4. The OCCA did not address Petitioner's first three arguments separate from his claim of ineffective assistance of appellate counsel.
Petitioner raises these four grounds for relief in this habeas action:
Ground One: Petitioner's Due Process Rights Under Fourteenth Amendment were violated by admission of coerced statement by co-conspirator at trial[;].
Ground Two: Petitioner was denied effective assistance of Trial Counsel when counsel failed to present a complete defense[;]
Ground Three: Petitioner's Due Process rights were violated by the admission of gruesome photographic evidence[; and]
Ground Four: Petitioner was denied effective assistance of appellate counsel for failing to raise the above three propositions for relief.Doc. 1, at 5-10. Respondent argues that Petitioner's first three grounds plus the unexhausted claim he raises in Ground Four are procedurally barred and that the OCCA made a reasonable merits determination denying the exhausted claim Petitioner raises in Ground Four. Doc. 7, at 8-23.
II. Standard of review for habeas relief.
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep't of Corr., 952 F.3d 1242, 1245 (10th Cir. 2020). A petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of petitioner's claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “was based on an unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254(d). Petitioner bears the “burden to make this showing and it is a burden intentionally designed to be ‘difficult to meet.'” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). 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).
This Court first determines “whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). Clearly established federal law consists of Supreme Court holdings in cases with facts similar to those in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242.
“A state court's decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.” Id. (internal quotation marks omitted). “It is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be diametrically different and mutually opposed to the Supreme Court decision itself.” Id. (internal quotation marks and citation omitted).
The “‘unreasonable application' prong requires [the petitioner to prove] that the state court ‘identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the prisoner's case.'” Id. (quoting Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. (2006), internal brackets omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was objectively unreasonable.” Id. (citations omitted). So, to qualify for habeas relief on this prong, Petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (citation omitted). “In other words, ‘so long as fairminded jurists could disagree on the correctness of the state court's decision,' habeas relief is unavailable.” Id. (quoting Harrington, 562 U.S. at 101); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
III. Analysis.
A. The Court should deny on the merits the exhausted portion of Ground Four.
In Ground Four, Petitioner asserts he was denied the effective assistance of appellate counsel. Doc. 1, at 10. He argues that his appellate counsel should have raised Grounds One, Two, and Three on direct appeal. Id.
In his supporting facts, Petitioner appears to argue that his appellate counsel was also ineffective for failing to raise an ineffective-assistance-of-trial-counsel claim related to propositions that he made on direct appeal. Doc. 1, at 10. That portion of Petitioner's claim is unexhausted and subject to the anticipatory procedural bar. See infra § III.C.
1. The OCCA's decision.
Reviewing Petitioner's claim on appeal from the state district court's denial of post-conviction relief, the OCCA held:
Petitioner presents three propositions of error to this Court under the rubric of ineffective assistance of appellate counsel. As set forth in Logan v. State, 2013 OK CR 2, ¶ 5, 293 P.3d 969, 973, post-conviction claims of ineffective assistance of appellate counsel are appropriate and are reviewed under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1985). Under Strickland, a petitioner must show both (1) deficient performance, by demonstrating that counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-89. The analysis requires us to examine the merits of the omitted issue. Logan, 2013 OK CR 2, ¶ 6, 293 P.3d at 973-74.
Petitioner first contends that appellate counsel should have challenged the admissibility of a co-conspirator's statements - statements Petitioner contends were coerced. We are unable to evaluate this contention because the record on appeal contains neither the statement nor the trial transcripts.
The record on appeal of a denial of a post-conviction application is limited by Rule 5.2(C)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), and does not include transcripts, exhibits, or filings contained in the original district court record unless these materials were considered by the district court in deciding the application. Petitioner apparently did not provide the District Court with any evidence in support of his post-conviction claims as permitted by Rule 5.2(C)(6)(d).
Petitioner's unsupported assertions are not sufficient to warrant relief. See Russell v. Cherokee County District Court, 1968 OK CR 45, ¶ 6, 438 P.2d 293, 294 (“the burden is upon the petitioner to sustain the allegations of his petition….”).
Next, Petitioner claims that trial counsel was ineffective because he did not present a defense and did not call any witnesses. Petitioner does not identify what his defense should or could have been. And, while Petitioner claims that a former FBI crime scene investigator and a neighbor should have been called to testify, he does not indicate what their testimony would be.
Petitioner's undeveloped claims are insufficient to warrant relief. See Brown v. State, 1997 OK CR 1, ¶ 33, 933 P.2d 316, 324-25 (Because there is a presumption of regularity in trial court proceedings, “it becomes the burden of the convicted defendant - whether on direct appeal or post conviction - to present to this Court sufficient evidence to rebut this presumption.”)
Finally, Petitioner claims that it was error to admit crime scene photographs because they were gruesome. We are unable to evaluate this allegation because the photographs are not included in the record on appeal.Doc. 7, Ex. 9, at 2-4.
2. Clearly established law.
Under clearly established law, Petitioner must show his attorney's performance was deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668, 690-91 (1985). A court will only consider an attorney's performance “deficient” if it falls “outside the wide range of professionally competent assistance, ” and such review “must be highly deferential.” Id. at 689, 690. “[P]rejudice” involves “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. If a claim omitted on direct appeal lacks merit, then counsel's failure to raise it does not amount to constitutionally ineffective assistance under Strickland. See Cargle v. Mullin, 317 F.3d 1196, 1202-03 (10th Cir. 2003) (“[I]f the issue is meritless, its omission will not constitute deficient performance.”).
This Court's review of the OCCA's determination of Petitioner's ineffective-assistance-of-counsel claims is subject to the deference due all state court decisions in the context of federal habeas review. “Surmounting Strickland's high bar is never an easy task.” Harrington, 562 U.S. at 105 (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 [appellate] counsel's performance fell below Strickland's standard.” Id. at 101; see also Id. at 105 (“Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”).
3. The OCCA reasonably determined that Petitioner's appellate counsel was not constitutionally ineffective.
The OCCA's decision affirming the state district court's order as it relates to Petitioner's ineffective-assistance-of-appellate-counsel claim amounts to a decision on the merits. Although the OCCA noted that Petitioner did not provide the trial court with “any evidence in support of his post-conviction claims as permitted” by OCCA rules, Doc. 7, Ex. 9, at 3, the court did not dismiss Petitioner's claim on that basis. Instead, the OCCA appropriately cited the Strickland standard and determined that because Petitioner did not adequately develop the record in the post-conviction proceeding, he did not meet his burden of proving the merits of his ineffective-assistance-of-appellate-counsel claims. Id. at 2-4. The decision thus constitutes a merits determination. See Matthews v. Workman, 577 F.3d 1175, 1182 (10th Cir. 2009) (“The OCCA's decision qualifies for AEDPA deference as an adjudication on the merits of Mr. Matthews's federal due process claim because it was not a procedural ruling in which the court dismissed the claim as improperly before it. Rather, the state court's decision was a substantive determination that the claim was unsupported by any evidence, competent under that state's rules of evidence.”) (internal quotation marks and brackets omitted).
Because the OCCA decided Petitioner's claim on the merits, this Court may only consider the record before the OCCA in the post-conviction appeal. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (“If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”); Eaton v. Pacheco, 931 F.3d 1009, 1019 (10th Cir. 2019) (limiting the record on habeas review to what was before the Wyoming Supreme Court when it made its determination on the merits), cert. denied, 140 S.Ct. 2771 (2020). Based on this limited record-which does not include trial transcripts or exhibits-the OCCA's decision was not based on an unreasonable application of Strickland or an unreasonable determination of the facts. See Doc. 9.
B. The exhausted portions of Grounds One, Two, and Three are procedurally barred.
Grounds One, Two, and Three-with one exception addressed below- were first raised in Petitioner's application for post-conviction relief. See Doc. 1, at 6-9 (acknowledging that Petitioner did not raise the claims on direct appeal). Because the claims were raised for the first time on collateral review, the state district court found they were procedurally barred. Doc. 7, Ex. 8, at 1 (“[Petitioner's] application alleges four propositions of error, but acknowledges that the first three could have been raised on direct appeal. As a result, Propositions 1, 2, and 3 are denied.”). The OCCA did not address these claims directly, instead addressing them “under the rubric of ineffective assistance of appellate counsel.” Id. Ex. 9, at 2.
Ordinarily, “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.” Johnson v. Williams, 568 U.S. 289, 298 (2013) (internal quotation omitted). But here, state-law procedural principles confirm that Petitioner's claims are barred because he did not raise them on direct appeal. Although the OCCA did not directly address the claims, this Court looks back to the state district court's decision that the claims were procedurally barred because they could have been brought on direct appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“[W]here, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.”); cf. Kernan v. Hinojosa, 578 U.S. 412, 415 (2016) (applying Ylst, but finding the presumption had been refuted). And Petitioner admitted in his application to the state district court that the issues could have been raised on direct appeal and noted the “bar to the assertion of alleged errors which could have been raised on direct appeal but were not” in his brief to the OCCA. Doc. 7, Ex. 7, at 2-4.
A federal court may not consider claims defaulted in state court on adequate and independent state procedural grounds “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A state procedural default is ‘independent' if it relies on state law, rather than federal law.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). “A state procedural default is ‘adequate' if it is firmly established and regularly followed.” Id.; see Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002).
The OCCA's waiver rule is based on Oklahoma state law and is “considered ‘independent' for purposes of federal habeas review.” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014). For ineffective-assistance-of-trial-counsel claims-such as Ground Two-the procedural rules are adequate only if a petitioner “is represented at trial and on appeal by different attorneys, and either the defendant's ineffective-trial-counsel claim could be resolved solely on the trial record before the direct-appeal court or the defendant could have expanded the direct-appeal record to present his ineffective-assistance claim adequately.” Spears v. Mullin, 343 F.3d 1215, 1252 (10th Cir. 2003). Petitioner had different counsel at trial and on appeal. Compare Doc. 7, Ex. 1, at 1 (noting Petitioner's counsel at the trial level) with Id. Ex. 2, at 2 (noting Petitioner's counsel at the appellate level). Further, the OCCA's rules permit an appellant to supplement the record “when an allegation of the ineffective assistance of trial counsel is predicated upon an allegation of failure of trial counsel to properly utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial.” OCCA R. 3.11(B)(3)(b); see also Castro v. Dowling, No. CIV-17-1238-G, 2021 WL 3698398, at *7 (W.D. Okla. Aug. 19, 2021) (finding claim subject to a procedural bar where the petitioner “‘fail[ed] to assert that Oklahoma's remand procedure, as provided by Rule 3.11 of the Rules of the Oklahoma Court of Criminal Appeals, would not have permitted him to supplement the record adequately for his ineffectiveness claim on direct appeal.'” (quoting Coronado v. Ward, 517 F.3d 1212, 1215 (10th Cir. 2008))). Thus, Oklahoma's waiver rule is both independent and adequate as it pertains to Ground Two. For claims not involving the ineffective assistance of counsel-such as Ground One and the exhausted portion of Ground Three-the state's procedural bar is both independent and adequate without additional qualification. See Smith, 550 F.3d at 1274 (“This court has found Oklahoma's bar of claims not raised on direct appeal to be independent and adequate with respect to claims other than ineffective assistance of counsel[.]”). Thus, Grounds One, Two and the exhausted portion of Ground Three must be dismissed unless Petitioner shows either (1) cause and actual prejudice, or (2) a fundamental miscarriage of justice if relief is not granted.
1. Petitioner cannot establish cause and prejudice.
Petitioner contends he did not raise Grounds One, Two, or Three on direct appeal because his appellate counsel was ineffective by not raising the issues. Doc. 1, at 6-9. But as discussed above in relation to Ground Four, the OCCA reasonably held appellate counsel was not constitutionally ineffective for failing to raise these issues on direct appeal. Thus, Petitioner cannot establish “cause” to overcome the procedural bar on that basis. See Sherrill v. Hargett, 184 F.3d 1172, 1175-76 (10th Cir. 1999) (holding that because “the same legal standards govern petitioner's underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, [the court] must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim” and finding because petitioner's appellate attorney was not ineffective under Strickland, petitioner's ineffective assistance of appellate counsel claim “has no merit and cannot constitute ‘cause' for his procedural default in state court” (citation omitted)); Davis v. McCollum, No. CIV-16-1347-R, 2018 WL 587238, at *7 (W.D. Okla. Jan. 29, 2018) (“Petitioner's ineffective assistance of appellate counsel claim is meritless. Thus, he lacks cause to overcome his procedural default.”). Because Petitioner lacks cause, the Court need not address whether he suffered actual prejudice. See Steele v. Young, 11 F.3d 1518, 1522 n.7 (10th Cir. 1993) (“As Steele has not shown cause, we need not discuss whether he has been actually prejudiced.”).
2. Petitioner does not demonstrate a fundamental miscarriage of justice.
The fundamental miscarriage of justice exception to procedural default is “a markedly narrow one, implicated only in ‘extraordinary case[s] where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (citation omitted). The Supreme Court instructs that “prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “The gateway should open only when a petition presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (internal quotation marks and citation omitted). Petitioner does not meet this standard because he does not present any new evidence of his innocence.
Because Petitioner's claims are subject to a procedural bar and he has not established cause or a fundamental miscarriage of justice, the Court should deny Grounds One, Two, and the exhausted portion of Ground Three.
C. The Court should deny the remaining unexhausted claims because they would be procedurally barred if Petitioner returned to state court to exhaust them.
Portions of Grounds Three and Four are unexhausted, but the Court should deny them because they would be barred by the doctrine of anticipatory procedural default.
1. Exhaustion requirement.
“A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition.” Bland, 459 F.3d at 1011; see also 28 U.S.C. § 2254(b)(1)(A). “Exhaustion requires that the claim be ‘fairly presented' to the state court, which ‘means that the petitioner has raised the ‘substance' of the federal claim in state court.'” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (quoting Bland, 459 F.3d at 1011). This means “a federal habeas petitioner [must] provide the state courts with a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted).
“[T]he crucial inquiry is whether the ‘substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (citation omitted). “A petitioner need not invoke ‘talismanic language' or cite ‘book and verse on the federal constitution.'” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)). But, a “‘[f]air presentation' requires more than presenting ‘all the facts necessary to support the federal claim' to the state court.” Bland, 459 F.3d at 1011 (quoting Anderson, 459 U.S. at 6).
Quite simply, a “petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before the state court.” Id. So if the claim before the state court was only “somewhat similar” to the claim Petitioner presses in the habeas petition, there is no fair presentation. Duncan v. Henry, 513 U.S. 364, 366 (1995).
To be fairly presented, the state-court claim must be the “substantial equivalent” of its federal habeas counterpart. Picard v. Connor, 404 U.S. 270, 278 (1971). To satisfy exhaustion, then, the habeas petition's focus-as well as the alleged error that it identifies-cannot substantively diverge from what the petitioner had presented to the state court. See, e.g., Bland, 459 F.3d at 1012 (noting that the habeas “challenge to the actions of the prosecution differs significantly from” the state-court “challenge to the instructions given by the court, ” even where both concerned the propriety of a given jury instruction). Nor is it acceptable for the habeas petitioner to “shift” the “basis for [his or her] argument” away from what was previously raised in state court. Gardner v. Galetka, 568 F.3d 862, 872 (10th Cir. 2009) (claims were not “substantially the same” where petitioner's state-court ineffective-assistance claim hinged on counsel's inaccurate description of petitioner's injury, but his habeas claim was grounded on counsel's failure to undertake a thorough investigation of the murder weapon); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (holding that petitioner did not exhaust his state court remedies where he “raised an ineffective assistance of counsel claim on direct appeal, [but] he based it on different reasons than those expressed in his habeas petition”).
2. Petitioner did not exhaust portions of Grounds Three and Four.
In Ground Three, Petitioner asserts his “[d]ue [p]rocess rights were violated by the admission of gruesome photographic evidence.” Doc. 1, at 8. As supporting facts, he contends his “trial counsel failed to object to the admission of gruesome photographs including a gunshot wound to the head of a child and a series of pictures showing the deceased, blood, and, gore.” Id. Petitioner did not raise this issue on direct appeal. Doc. 7, Ex. 2. In his post-conviction action, Petitioner only challenged the trial court's admission of the photographs, not his counsel's performance in failing to object to their admission. Id. Ex. 7, at 13-14 (arguments to state district court); Brief of Petitioner at 10-11, Rushing, No. PC-2021-41 (Okla. Crim. App. Mar. 31, 2021) (arguments to the OCCA). The undersigned thus finds the portion of Ground Three alleging ineffective assistance of trial counsel is unexhausted because Petitioner did not give the state court an opportunity to adjudicate the claim. See Anderson, 459 U.S. at 6.
In Ground Four, Petitioner asserts his appellate counsel was ineffective for failing to raise the first three grounds. Doc. 1, at 10. Petitioner states:
Appellate counsel raised four propositions, ignoring the above propositions of error. Importantly, Trial Counsel objected to the introduction of the coerced statement of the co-conspirator, yet Appellate Counsel failed to raise this issue on direct appeal. Further, Appellate Counsel was ineffective for failing to raise the
effectiveness of trial counsel for failing to object and for failing to raise the issues related to Proposition 2-4.Id. Respondent contends “it appears that [Petitioner] is arguing that in addition to the four propositions of error appellate counsel presented on direct appeal, appellate counsel should have also alleged that trial counsel was ineffective for failing to object and preserve the issues presented in” Propositions II, III, and IV on direct appeal. Doc. 7, at 18 n.4 (internal citation omitted). Respondent argues Petitioner did not exhaust this portion of the claim. The Court agrees, as Petitioner did not argue to the state court that his counsel was ineffective for failing to raise additional arguments relating to those made on direct appeal. See Id. Ex. 7, at 14-15 (arguments to the state district court); Brief of Petitioner at 4-5, Rushing, No. PC-2021-41 (Okla. Crim. App. Mar. 31, 2021) (arguments to the OCCA); see also Smallwood, 191 F.3d at 1267 (holding a petitioner did not exhaust his state court remedies where he “raised an ineffective assistance of counsel claim on direct appeal, [but] he based it on different reasons than those expressed in his habeas petition”).
Petitioner's poorly worded argument is not entitled to liberal interpretation because he is represented by counsel. Wilson v. Allbaugh, No. CIV-18-383-W, 2018 WL 11310302, at *1 n.3 (W.D. Okla. Aug. 7, 2018) (“This Court will not construct legal arguments for Petitioner, nor will it afford his counsel's filings liberal interpretation.” (citing United States v. Fennell, 207 Fed.Appx. 916, 918 (10th Cir. 2006); Bakalov v. Utah, 4 Fed.Appx. 654, 657 (10th Cir. 2001))), adopted, 2018 WL 11310299 (W.D. Okla. Aug. 22, 2018). The Court, however, agrees with Respondent's interpretation.
3. The Court should deny the unexhausted portions of Grounds Three and Four based on anticipatory procedural default.
Petitioner's unexhausted claims in Grounds Three and Four are barred by the doctrine of anticipatory procedural default. See Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015) (explaining that anticipatory procedural default applies “where a petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be procedurally defaulted on remand”). As discussed above, Petitioner previously sought post-conviction relief in the Oklahoma courts. If Petitioner were to return to state court to exhaust the unexhausted portions of these claims, he would be raising them in a second application for post-conviction relief. That said, “Oklahoma requires a post-conviction relief applicant to raise all grounds for relief which he actually knows or should have known through the exercise of due diligence in his original application for relief.” Id. Because the arguments are presented for the first time in this habeas action after Petitioner already filed a direct appeal and a post-conviction action, they are procedurally barred. See Cummings v. Sirmons, 506 F.3d 1211, 1222 (10th Cir. 2007) (“readily” concluding that ineffective assistance of trial counsel claim, raised for the first time in habeas petition and thus unexhausted, was procedurally barred: “[a]lthough the claim is technically unexhausted, it is beyond dispute that, were Cummings to attempt to now present the claim to the Oklahoma state courts in a second application for post-conviction relief, it would be deemed procedurally barred”) (citing Okla. Stat. tit. 22, §§ 1086, 1089(D)(2)).
A petitioner can overcome procedural default by establishing either cause for the default and actual prejudice from the alleged violation of federal law, or that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Petitioner does not establish either.
Petitioner has not established cause for the default. As for Ground Four, Petitioner does not allege any cause for failing to present the unexhausted portion of his ineffective assistance of appellate counsel claim in his initial post-conviction action. Even if Petitioner argued his post-conviction counsel was ineffective for failing to raise the claim, it would not constitute cause. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012) (“[T]he failure of Mr. Banks's post-conviction counsel to present his claim cannot serve as cause for the default.”); Castro v. Dowling, No. CIV-17-1238-G, 2021 WL 3698398, at *6 n.2 (W.D. Okla. Aug. 19, 2021) (“[I]neffectiveness of postconviction counsel may not be invoked as cause for any procedural default in the trial court, because there is no Sixth Amendment right to effective counsel in such proceedings.”).
Petitioner fares no better with his Ground Three claim. Although Petitioner argues he did not bring the claim because his appellate counsel failed to raise it, to constitute cause Petitioner must first fairly present the underlying ineffective assistance of counsel claim to the state court as an independent claim. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (“The exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.”); Tripp v. Whitten, No. CIV-20-246-SLP, 2020 WL 4043987, at *3 (W.D. Okla. June 18, 2020) (“[B]efore ineffective assistance of appellate counsel can be considered ‘cause' to excuse a procedural default, the ineffective assistance of counsel claim itself must have been fairly presented to the state court as an independent claim.”), adopted, 2020 WL 4041117 (W.D. Okla. July 17, 2020). Petitioner did not bring an ineffective-assistance-of-appellate-counsel claim based on trial counsel's failure to object to gruesome photographs. Instead, the claim turned on the trial court's admission of the photographs on post-conviction relief. See Doc. 7, Ex. 7, at 15 (arguing “appellate counsel failed to raise the above propositions on direct appeal”); Brief of Petitioner at 5, Rushing, No. PC-2021-41 (Okla. Crim. App. Mar. 31, 2021) (asserting his appellate counsel should have raised “further grounds” established below). Thus, appellate counsel's failure to bring the claim cannot be considered “cause” to excuse the anticipatory procedural default. Because Petitioner did not establish cause, the Court does not consider whether he was actually prejudiced. See Steele, 11 F.3d at 1522 n.7.
In his brief to the OCCA, Petitioner noted the “further grounds” were “specifically related to the performance of trial counsel.” Brief of Petitioner at 5, Rushing, No. PC-2021-41 (Okla. Crim. App. Mar. 31, 2021). But Petitioner's discussion of his claim related to the gruesome photographs did not address a deficiency in his trial counsel's performance. Id. at 10-11. And even if the Court construed Petitioner's ineffective-assistance-of-appellate-counsel claims to include appellate counsel's failure to raise an ineffective-assistance-of-trial-counsel claim on direct appeal, the OCCA denied the claim on the merits. Doc. 7, Ex. 9. Thus, Petitioner cannot demonstrate “cause” and cannot overcome the procedural bar on that basis. See Sherrill, 184 F.3d at 1175-76.
As noted above, Petitioner does not present any new evidence suggesting actual innocence, so he cannot establish that failure to consider his unexhausted claims results in fundamental unfairness. Thus, the Court should deny the unexhausted portions of Grounds Three and Four based on anticipatory procedural bar.
IV. 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 December 15, 2021, 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.