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Arp v. McCollum

United States District Court, N.D. Oklahoma

May 2, 2017

SAMUEL ARP, Petitioner,
TRACY McCOLLUM, Warden, Respondent.



         Before 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 be denied.


         In 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.

         As a 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.

         Petitioner 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 was error.
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.

         On July 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 relief.

         On June 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.


         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 presented his claims to the OCCA on post-conviction appeal and they 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. Claim adjudicated by the OCCA (Ground 1)

         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, the OCCA addressed Petitioner's claim of ineffective assistance of appellate counsel claim on the merits. Therefore, the Court will review ...

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