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McKinley v. McCollum

United States District Court, W.D. Oklahoma

April 18, 2017

TIMOTHY NEAL MCKINLEY, Petitioner,
v.
TRACY McCOLLUM, Warden, NORTH FORK CORRECTIONAL FACILITY, Respondent.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Petitioner, a state prisoner appearing pro se, filed this action pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred to United States Magistrate Judge Gary M. Purcell for preliminary review. On March 7, 2017, Judge Purcell issued a Report and Recommendation wherein he recommended the Court deny the Petition. The matter is currently before the Court on Petitioner's timely objection to the Report and Recommendation, which gives rise to the Court's obligation to conduct a de novo review of those portions of the Report and Recommendation to which Petitioner makes specific objection. Having conducted this de novo review, the Court finds as follows.

         Petitioner was convicted in the District Court of Cleveland County on ten counts of an eleven-count indictment, consisting of seven counts of Lewd Acts with a Child Under 16 in violation of Okla. Stat. tit. 21 § 1123 (Counts 1, 3, 4, 5, 6, 7 and 9), one count of Rape, in First Degree by Instrumentation, Victim Under Age 14, in violation of Okla. Stat. tit. 21 § 1114(A)(7)(Count 2), two counts of Forcible Oral Sodomy in violation of Okla. Stat. tit. 21 § 888 (Counts 8 and 11). He was sentenced to terms of either twenty years (Counts 1, 3, 4, 6, and 7) or life imprisonment (Counts 2, 5, 8, 9 and 11). The court ordered the twenty-year sentences on Counts 1, 3, 4, and 6 to run concurrently to one another and consecutively to the life sentence imposed on Count 2. The life sentence on Count 2 was ordered to run concurrently with the life sentence on Count 8. The sentences in Counts 7, 8, 9, and 11 were to run consecutively to one another as well as to the life sentence on Count 2. Following his conviction Petitioner sought relief from the Oklahoma Court of Criminal Appeals via direct appeal; that court affirmed his conviction on August 8, 2013. Both the District Court of Cleveland County and the Oklahoma Court of Criminal Appeals denied Petitioner's requests for post-conviction relief. Petitioner currently seeks relief on the same grounds raised in the state court, as well as a single additional ground. As noted, Judge Purcell concluded Petitioner's claims lack merit, and this Court concurs.

         In Ground One, Petitioner contends the trial testimony of C.S., the victim, was not credible, characterizing the testimony as contradictory of her prior forensic interviews and her preliminary hearing testimony. Petitioner raised this claim on direct appeal, asserting that C.S.'s testimony required corroboration under extant Oklahoma authority. As noted in the Report and Recommendation, the Oklahoma Court of Criminal Appeals addressed this claim on direct appeal and concluded that the admission of the testimony was not contrary to Oklahoma law, and further that there was sufficient evidence to support Petitioner's convictions, such that his due process rights were not violated.

         The majority of Petitioner's argument is devoted to his contention that because C.S.'s testimony was incredible, that it required corroboration. As noted by Judge Purcell, however, corroboration is an issue of state law, and thus does not support federal habeas relief. “No direct Supreme Court precedent requires corroboration of child witness testimony.” Parker v. Scott, 394 F.3d 1302, 1314 (10th Cir.2005). Parker was convicted of child sexual abuse and argued the child victim's testimony was “so inconsistent that, absent corroboration, it denied him due process.” Id. at 1314. The Tenth Circuit reviewed Parker's habeas claim under the sufficiency of the evidence standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Under Jackson, to determine whether the child's testimony was sufficient to convict Parker, we must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. 2781. “This ... standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

Parker, 394 F.3d at 1314.

         As in Parker, the Jackson standard is the appropriate one for application herein. The Oklahoma Court of Criminal Appeals applied Jackson and concluded on direct appeal that the evidence was sufficient to support his convictions. A federal habeas court's review under Jackson is “sharply limited, and a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotations and alterations omitted). See also Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (in reviewing the sufficiency of the evidence, the federal habeas court “may not weigh conflicting evidence nor consider the credibility of witnesses, ” but must “ ‘accept the jury's resolution of the evidence as long as it is within the bounds of reason.'”) (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). Accordingly, despite Petitioner's arguments to the contrary, it is not the province of this Court to re-determine witness credibility. As such, although Judge Purcell failed to acknowledge the testimonial inconsistencies identified by Petitioner in his Reply brief, the Report and Recommendation properly concludes Petitioner is entitled to relief only if the Oklahoma Court of Criminal Appeals' decision was contrary to or an unreasonable application of Jackson.[1] “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction [is] ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318. This court, having reviewed the entire record, concludes that the evidence could reasonably support the jury's finding of guilt on each of the counts of conviction.

         In Ground Two of the Petition, Mr. McKinley argues the trial court erred in admitting unfairly prejudicial evidence, thereby depriving him of a fundamentally fair trial. He asserts “[a]pparently there were images, which were never downloaded to any file on the laptop computer, that were inappropriate, and I received blame for these images even though I had nothing to do with them. My accuser claims I showed her images, but she never identifies these images at trial or any hearing. There is also testimony not given at trial that my accuser and others went to pornsites.” Doc. No. 1, p. 11. Petitioner admits he only partially raised this issue on direct appeal, and that the Oklahoma Court of Criminal Appeals denied relief. The Report and Recommendation thoroughly and correctly analyzed the applicable law and properly concluded that Petitioner failed to establish he was entitled to habeas relief on this basis.

         In Ground Three, Petitioner asserts trial counsel was prohibited from presenting a theory of defense. He asserts the trial court improperly precluded his counsel from presenting evidence to show that his accuser has been in the presence of child abuse elsewhere, and that a person known as “Mama Dee” wanted custody of C.S. He further asserts that C.S.'s half-sister stated she believed C.S. was making accusations at “Mama Dee's” request.

         Mama Dee, Deanna Harp Wilson, testified as a witness for the State. She had been a neighbor of C.S.'s family and C.S. resided with her for a period of time. Defendant's theory of the case included that Ms. Wilson wanted the children in C.S.'s family to reside with her.

Q: And you're not trying to get those kids out of there?
A: Just to stay with me. That was -
Q: To stay with you, yes, exactly.
A: I mean, not on a permanent basis, just when - just when they ...

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