United States District Court, N.D. Oklahoma
DANIEL W. BRANTLEY, Petitioner,
JOE M. ALLBAUGH, Director, Respondent.
OPINION AND ORDER
E. DOWDELL JUDGE.
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.
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
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.
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.”
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
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,
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.
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.
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
Proposition 3: Appellate counsel failed to cite ineffective
Proposition 4: Appellate counsel failed to ask for an
(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.
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
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).
Claims adjudicated by the OCCA
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)
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
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).
Prosecutorial misconduct (original petition)
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.
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).
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.
Court shall address each allegation of prosecutorial
Improper attempt to define reasonable doubt
Petitioner complains of the following exchange between the
prosecutor and the ...