United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN United States District Judge
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.
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.
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.
appealed his convictions to the Oklahoma Court of Criminal
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
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
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
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
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
(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.
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
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.
Exhaustion and request for evidentiary hearing
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 ...