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Brantley v. Allbaugh

United States District Court, N.D. Oklahoma

March 7, 2017

DANIEL W. BRANTLEY, Petitioner,
v.
JOE M. ALLBAUGH, Director, Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL JUDGE.

         Before the Court are Petitioner's 28 U.S.C. § 2254 habeas corpus petition (Doc. 1) and supplemental petition (Doc. 20). Petitioner is a state inmate and appears pro se. Respondent filed a response (Doc. 11) to the original petition and provided the state court record (Docs. 11, 12, 13) for resolution of the claims raised in the petition. Petitioner filed a reply (Doc. 14) to the response. Respondent also filed a supplement response (Doc. 24) to the supplemental petition, along with supplemental state court records (Docs. 24, 25). Petitioner filed a reply (Doc. 26) to the supplemental response. For the reasons discussed below, both the original petition for writ of habeas corpus and the supplemental petition shall be denied.

         BACKGROUND

         In 2011, Petitioner Daniel Brantley lived with his wife, Lorene, and three daughters, S.B., and twins Re.B. and Ra.B., at 3708 South Dogwood Avenue, Broken Arrow, Oklahoma. In May of that year, thirteen (13) year old J.K. visited the home of her friends, the Brantley twins. J.K. claimed that, as she, the twins, and Petitioner were watching television, Petitioner, who was sitting on a couch behind J.K., wrapped his legs around her by criss-crossing them across her waist. Petitioner began to massage J.K.'s shoulders, then moved his hands down to her chest and started rubbing and squeezing her breasts. Petitioner whispered to J.K., “I'm going to take a nap, would you like to come with me?” J.K. moved Petitioner's legs from around her waist, got up and went to the twins' bedroom where she called her mother and asked to be picked up. J.K.'s mother picked her up shortly thereafter. Initially, J.K. did not tell anyone what had happened because her father was a good friend of Petitioner and she thought she would not have been believed.

         Near the end of June 2011, another friend of the twins, thirteen (13) year old S.P., was at the Brantley home for a sleepover. While watching television with the twins and Petitioner, S.P. sat in front of Petitioner between his legs. According to S.P., Petitioner put his hands up her shirt and touched her breasts with both of his hands. After she pushed his hands away, Petitioner slid his hands inside her panties and he touched her “private spot.” As S.P. got up to go the bathroom, Petitioner told her to take off her bra and panties. S.P. did not comply with Petitioner's request. Upon returning to the living room, she sat beside one of the twins. Petitioner then came over to her and asked her to sit by him on the couch to “do some stuff” with him. S.P. said she was tired. She and the twins went to the twins' bedroom. Shortly afterwards, S.P. went to the kitchen to get a drink of water. While in the kitchen, Petitioner told S.P. he wanted to talk to her in the living room. S.P. went to the living room with Petitioner. Petitioner said he was sorry for touching her and that she was attractive to him. He also invited her to “experiment” with him and that if she was too hot in the twins' bedroom, she should sleep with him on the couch. S.P. returned to the twins' bedroom.

         On August 5, 2011, Petitioner called J.K. on her cell phone and invited her to come over. Petitioner told J.K. that “if you want to experiment with someone, I'm always here.” Petitioner ended the conversation by saying, “OK, I love you, honey, bye.”

         J.K. and S.P. eventually told their mothers what had happened. The two girls then filed police reports. As a result, Petitioner was charged in Tulsa County District Court, Case No. CF-2011-3557, with two (2) counts of Lewd Molestation (Counts 1 and 2), and two (2) counts of Lewd or Indecent Proposal to a Child (Counts 3 and 4). During his jury trial, Petitioner testified in his own defense and denied the accusations against him. Petitioner's jury found him guilty as charged and recommended sentences of eight (8) years imprisonment and a $4, 000 fine on Count 1, ten (10) years imprisonment and a $5, 000 fine on Count 2, five (5) years imprisonment and a $2, 500 fine on Count 3, and six (6) years imprisonment and a $3, 000 fine on Count 4. On October 1, 2012, the trial judge sentenced Petitioner in accordance with the jury's recommendation, ordering the sentences to be served consecutively and suspending the sentence on Count 3. See Doc. 12-6 at 3-4. During trial proceedings, Petitioner was represented by attorneys R. Scott Williams and Robert Taylor.

         Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA). On direct appeal, Petitioner, represented by attorney Mark P. Hoover, raised one (1) proposition of error, as follows:

         Proposition: Prosecutorial misconduct deprived Appellant of a fair trial. (Doc. 11-1). On January 10, 2014, in an unpublished summary opinion filed in Case No. F-2012-911, the OCCA denied relief and affirmed the Judgment and Sentence of the trial court. See Doc. 11-3. Petitioner did not file a petition for writ of certiorari at the United States Supreme Court.

         On March 20, 2014, Petitioner filed his federal petition for writ of habeas corpus (Doc. 1), alleging, as he did on direct appeal, that prosecutorial misconduct deprived him of a fair trial. Respondent filed a response (Doc. 11) to the petition and asserts that, under 28 U.S.C. § 2254(d), Petitioner is not entitled to habeas corpus relief.

         On September 16, 2014, almost six (6) months after filing his habeas petition, Petitioner filed an application for post-conviction relief (Doc. 24-1) in state district court. On June 1, 2015, the state district judge denied the requested relief (Doc. 24-2). Petitioner appealed, raising four (4) propositions, as follows:

Proposition 1: Appellate counsel failed to properly analyze and prepare for the direct appeal.
Proposition 2: Appellate counsel failed to properly act on petitioner's requests.
Proposition 3: Appellate counsel failed to cite ineffective trial counsel.
Proposition 4: Appellate counsel failed to ask for an evidentiary hearing.

(Doc. 24-4 at 4-7). Petitioner also sought an evidentiary hearing (Doc. 24-5). On December 15, 2015, in Case No. PC-2015-603, the OCCA affirmed the denial of post-conviction relief (Doc. 24-6). On January 6, 2016, Petitioner filed a “Supplement to Habeas Corpus 2254 Application and Brief in Support” (Doc. 20). Petitioner supplements the original petition with four claims of ineffective assistance of appellate counsel, as raised in state post-conviction proceedings. Respondent filed a supplemental response (Doc. 24), arguing that, under 28 U.S.C. § 2254(d), Petitioner is not entitled to habeas corpus relief on his claims of ineffective assistance of appellate counsel.

         ANALYSIS

         A. Exhaustion/Evidentiary Hearing

         Before addressing Petitioner's habeas claims, the Court must determine whether Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner's claims raised in the original and supplemental petitions were presented to the OCCA on direct and post-conviction appeal, respectively, and are exhausted.

         The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 184-85 (2011); Williams v. Taylor, 529 U.S. 420 (2000).

         B. Claims adjudicated by the OCCA

         The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain federal habeas relief only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 102-03 (2011); Williams v. Taylor, 529 U.S. 362, 386 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme Court's] decisions.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (citations omitted).

         When a state court applies the correct federal law to deny relief, a federal habeas court may consider only whether the state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002). An unreasonable application by the state courts is “not merely wrong; even ‘clear error' will not suffice.” White, 134 S.Ct. at 1702 (citing Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). The petitioner “‘must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Id. (quoting Richter, 562 U.S. at 103); see also Metrish v. Lancaster, 133 S.Ct. 1781, 1787 (2013). Section 2254(d) bars relitigation of claims adjudicated on the merits in state courts and federal courts review these claims under the deferential standard of § 2254(d). Richter, 562 U.S. at 98; Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

         Here, Petitioner presented his habeas claims to the OCCA on direct and post conviction appeal. Because the OCCA addressed Petitioner's claims on the merits, the Court will review the claims under the standards of § 2254(d).

         1. Prosecutorial misconduct (original petition)

         In the single ground of error raised in the original petition (Doc. 1), Petitioner claims that he was deprived of a fair trial by prosecutorial misconduct. Specifically, Petitioner claims that the prosecutor improperly attempted to define reasonable doubt, vouched for the credibility of a witness, and introduced victim impact evidence to elicit sympathy for the victim. Id. at 4-17.

         Prosecutorial misconduct, if it occurs, can “create constitutional error in one of two ways.” Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir. 2009). “First, prosecutorial misconduct can prejudice ‘a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right.'” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). When this occurs, a petitioner need not show that his entire trial was rendered fundamentally unfair. See Dodd v. Trammell, 753 F.3d 971, 990 (10th Cir. 2013). “Second, even if the prosecutor's improper remarks do not impact a specific constitutional right, they may still create reversible error if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Matthews, 577 F.3d at 1186 (quoting Donnelly, 416 U.S. at 643).

         In this case, the record reflects that defense counsel did not object to the prosecutor's remarks. As a result the OCCA reviewed for plain error. Oklahoma defines plain error as “an error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense, ” Simpson v. State, 876 P.2d 690, 698 (Okla. Crim. App. 1994), and “impinges on the fundamental fairness of trial.” Cleary v. State, 942 P.2d 736, 753 (Okla. Crim. App. 1997). “Oklahoma's formulation of the plain-error standard is virtually identical to the constitutional test for due process.” Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015); Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (finding “no practical distinction between the formulations of plain error . . . and the federal due-process test, which requires reversal when error so infused the trial with unfairness as to deny due process of law” (citation and internal quotation marks omitted)). When the OCCA rejects a claim “under the plain-error standard, the decision effectively disallow[s] the possibility of a due process violation.” Hancock, 798 F.3d at 1011.

         The Court shall address each allegation of prosecutorial misconduct.

         a. Improper attempt to define reasonable doubt

         First, Petitioner complains of the following exchange between the prosecutor and the ...


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