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Pace v. Bear

United States District Court, N.D. Oklahoma

September 8, 2017

CHESTER PACE, Petitioner,
v.
CARL BEAR, Warden,[1] Respondent.

          OPINION AND ORDER

          TERENCE KERN United States District Judge

         Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 4) filed by Petitioner, a state inmate appearing pro se. Respondent filed a response (Dkt. # 14) to the petition and provided the supporting state court record (Dkt. ## 14, 15, 16). Petitioner filed a reply to the response (Dkt. # 17). For the reasons discussed below, the petition for writ of habeas corpus shall be denied.

         BACKGROUND

         During the early evening hours of April 20, 2011, Petitioner Chester Pace violently assaulted his girlfriend, Verhonda Hamilton, at the home they shared in Tulsa, Oklahoma. Petitioner used his hands and arms to strangle Hamilton causing her to black out, vomit, and urinate on herself and the bed. During the assault, Hamilton claimed Petitioner inserted his fingers in her vagina without her consent. Hamilton also claimed that later that night, after Petitioner gave her a large white pill to help her relax, Petitioner inserted his penis into her vagina without her consent. On April 21, 2011, Hamilton went to the Records Division of the Tulsa Police Department (TPD) where she worked as a records clerk. There, she told a TPD Officer, Paula Anderson, that her boyfriend had assaulted her. Anderson took Hamilton to the Family Safety Center where she was interviewed by a TPD family violence detective. Hamilton was also examined by a Sexual Assault Nurse Examiner (SANE) at Hillcrest Hospital. The SANE nurse reported that Hamilton's voice was hoarse, suggesting injury to her larynx or trachea. Hamilton also had a split lip and bruising on her neck, but no vaginal tears, redness, or swelling. When interviewed by a TPD sex crimes unit detective, Petitioner admitted that he threw Hamilton on the floor, ripped her clothes off, slapped her around, threw water on her, choked her, and that he and Hamilton had sex. However, he claimed the sex was consensual.

         As a result of those events, Petitioner was charged in Tulsa County District Court, Case No. CF-2011-1579, with Domestic Assault and Battery by Strangulation (Count 1), First Degree Rape (Count 2), and Rape by Instrumentation (Count 3), all After Former Conviction of Two or More Felonies. Petitioner proceeded to be tried by a jury. On August 16, 2012, at the conclusion of trial, Petitioner's jury found him guilty of Counts 1 and 3, and not guilty of Count 2. See Dkt. # 15-5, Tr. Vol. IV at 633-34. The jury recommended sentences of five (5) years imprisonment as to Count 1 and twenty-five (25) years imprisonment as to Count 3. Id. at 646. On August 27, 2012, the trial judge sentenced Petitioner in accordance with the jury's recommendation and ordered the sentences to be served consecutively. See Dkt. # 15-7, Tr. Sent. at 5. During trial proceedings, Petitioner was represented by attorney David Phillips.

         Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA).

         Represented by attorney Stuart W. Southerland, Petitioner raised six (6) propositions of error, as follows:

Proposition 1: The alleged acts of strangulation (with one hand) and rape with a finger (using the other hand) merge into a single act which can be only punished under a single statute. Appellant's conviction in either Count One or Count Three must be reversed.
Proposition 2: It was error to fail to instruct the jury on the definition of “great bodily harm” in Count One, Domestic Assault and Battery by Strangulation. This case must be remanded for a new trial before a properly instructed jury.
Proposition 3: The jury was improperly instructed as to the range of punishment in Count One, Domestic Assault and Battery by Strangulation After Former Conviction of Two or More Felonies. The correct range of punishment is three to ten years and not three years to life.
Proposition 4: Appellant received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
a) Failure to object to multiple punishment for a single act.
b) Failure to request an instruction defining intent to cause “great bodily harm, ” a required element of Domestic Assault and Battery by Strangulation as alleged in Count One.
Proposition 5: Prosecutorial misconduct undermined Appellant's right to a fair trial and denied him due process under Article II, §§ 7, 20 of the Oklahoma Constitution and the Fourteenth Amendment of the United States Constitution.
a) The prosecutor offered his opinion that the defense witness was a liar while bolstering his own witnesses.
b) The prosecutor attempted to shift the burden of proof in closing argument by suggest[ing] that defense counsel should have requested a test of the alleged victim's blood for drugs.
Proposition 6: The accumulation of error in this case deprived Appellant of a fair trial and due process of law in violation of the Fourteenth Amendment to the United States Constitution.

(Dkt. # 14-1). On September 5, 2013, in an unpublished summary opinion filed in Case No. F-2012-828, the OCCA denied relief and affirmed the Judgment and Sentence of the trial court. See Dkt. # 14-3.

         On October 24, 2014, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 4). Petitioner raises the same six grounds of error raised on direct appeal. Id. Respondent filed a response (Dkt. # 14) to the petition, arguing that Petitioner is not entitled to habeas corpus relief. On March 12, 2015, Petitioner filed a document titled “Petitioner's Response Brief to the State's Petition for Writ of Habeas Corpus” (Dkt. # 17). The Clerk of Court docketed Petitioner's “Response Brief” as a reply to the response to the petition. Id. However, within the reply, Petitioner asks for both appointment of counsel and for a thirty (30) day extension of time “to rightfully respond” to Respondent's response.

         The Court denies both Petitioner's requests for appointment of counsel and for an extension of time. There is no constitutional right to counsel beyond the direct appeal of a conviction. See Swazo v. Wyoming Department of Corrections, 23 F.3d 332 (10th Cir. 1994). Also, the Court finds no further briefing is necessary for adjudication of Petitioner's habeas claims.

         ANALYSIS

         A. Exhaustion and request for 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 ...


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