United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
the Court is the 28 U.S.C. § 2254 habeas corpus petition
(Dkt. # 1) filed by Petitioner, a state inmate appearing pro
se. Respondent filed a response (Dkt. # 8) to the petition
and provided the state court record (Dkt. ## 8, 9) for
resolution of the claims raised in the petition. Petitioner
filed a reply (Dkt. # 15) to the response. For the reasons
discussed below, the petition for writ of habeas corpus shall
2011, Petitioner Samuel Arp lived with his girlfriend, Marsha
Watkins, at the Victor South Apartments located in Tulsa,
Oklahoma. Petitioner had a collection of knives and swords in
the apartment. On April 27, 2011, the couple had an argument
and Petitioner stabbed Watkins in the chest with a Samurai
sword from his collection. Watkins also sustained two
defensive stab wounds to her left arm and a fractured left
arm. During a 911 call, Watkins stated that she had been
stabbed. Petitioner attempted to transport Watkins in the
couple's van for medical treatment. However, Tulsa Police
Officer Anthony First, responding to Watkins' 911 call,
stopped the van as Petitioner drove away from the apartment
complex. Petitioner exited the driver's door and rushed
towards Officer First, yelling incomprehensibly and growling
like an animal. After he was handcuffed, Petitioner became
angrier and angrier, dropped his shoulder and again rushed
Officer First. Once Petitioner was finally subdued, Officer
First, a trained paramedic, was able to assess Watkins'
condition and began providing medical treatment. Watkins was
eventually transported to Saint Francis Hospital where she
was stabilized and treated for her wounds. Watkins remained
hospitalized for six days.
result of those events, Petitioner was charged in Tulsa
County District Court, Case No. CF-2011-1607, with Assault
and Battery With a Dangerous Weapon, After Former Conviction
of Two or More Felonies (Count 1), and Obstructing an Officer
(Count 2). At trial, Petitioner presented a defense of
self-defense. At the conclusion of a two stage trial,
Petitioner's jury found him guilty as charged and
recommended a sentence of sixty (60) years imprisonment as to
Count 1 and thirty (30) days in jail as to Count 2. On
October 24, 2011, the trial judge sentenced Petitioner in
accordance with the jury's recommendation and ordered the
sentences to be served concurrently. During trial
proceedings, Petitioner was represented by attorneys J. Brian
Rayl and Jessica Battson.
appealed his convictions to the Oklahoma Court of Criminal
Appeals (OCCA). On direct appeal, Petitioner, represented by
attorney Curtis M. Allen, raised three (3) propositions of
error, as follows:
Proposition 1: Missy Iski's wide ranging testimony in the
State's case in chief about abused women and their
abusers where there was no evidence of ongoing domestic abuse
Proposition 2: Marsha Watkins was called as a rebuttal
witness to rebut Mr. Arp's statement that he stabbed her
in self defense. Instead, Ms. Watkins's testimony went on
for thirty-nine pages and eventually expanded to include
additional allegations of uncharged misconduct.
Proposition 3: The State is entitled to prove that Mr. Arp
had been previously convicted of felonies to enhance his
punishment. The State was not entitled to inform the jury
that Mr. Arp was a convicted murderer or to misstate the term
of years of imprisonment or to use that information to argue
for a greater sentence.
(Dkt. # 8-1). On February 20, 2013, in an unpublished summary
opinion filed in Case No. F-2011-971, the OCCA denied relief
and affirmed the Judgment and Sentence of the trial court.
See Dkt. # 8-3. Petitioner did not file a petition
for writ of certiorari at the United States Supreme Court.
5, 2013, Petitioner filed an application for post-conviction
relief in state district court raising claims of ineffective
assistance of appellate counsel and factual innocence.
See Dkt. # 8-4 at 2-4. That application was denied
on October 31, 2013. See Dkt. # 8-5. Petitioner
filed a post-conviction appeal raising three propositions of
error: (1) the state district court erred in failing to hold
an evidentiary hearing on his claim of factual innocence, (2)
the state district court misapplied state and federal law in
denying his claim of ineffective assistance of appellate
counsel, and (3) the state district court erred in failing to
appoint counsel as requested. See Dkt. # 8-6 at 3-4.
By Order filed February 20, 2014, in Case No. PC-2013-1097
(Dkt. # 8-7), the OCCA affirmed the denial of post-conviction
18, 2014, Petitioner filed his federal petition for writ of
habeas corpus (Dkt. # 1). Petitioner raises the following
grounds of error:
Ground 1: Petitioner was denied effective assistance of
[appellate] counsel, contrary to the Sixth Amendment.
Ground 2: The evidence was insufficient to convict Petitioner
of the charge.
Ground 3: Petitioner was/is factually innocent, and the State
court failed to address his claims of innocence on the
merits, which is a violation of due process.
Ground 4: Petitioner was denied due process of law when the
state court (district & appellate) failed to apply the
controlling Supreme Court Law to the case before it.
Id. Respondent filed a response (Dkt. # 8) to the
petition, arguing that Petitioner is not entitled to relief
under 28 U.S.C. § 2254(d) as to Ground 1, his Ground 2
claim is procedurally barred, and Grounds 3 and 4 are not
cognizable on federal habeas corpus review.
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 presented his claims to the
OCCA on post-conviction appeal and they are exhausted.
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).
Claim adjudicated by the OCCA (Ground 1)
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
the OCCA addressed Petitioner's claim of ineffective
assistance of appellate counsel claim on the merits.
Therefore, the Court will review ...