United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
the Court is the amended petition for writ of habeas corpus
(Doc. 10) filed by Petitioner, a state inmate appearing pro
se. Petitioner challenges his convictions entered in Tulsa
County District Court, Case No. CF-2010-3576. Respondent
filed a response (Doc. 12), and provided the state court
records necessary for adjudication of Petitioner's claims
(Docs. 12, 13). Petitioner filed a reply (Doc. 14). On August
23, 2016, Petitioner commenced a new habeas corpus action by
filing a second petition in Case No. 16-CV-556-JED-PJC. In
his second petition, Petitioner challenges his convictions
entered in Tulsa County District Court, Case No.
CF-2010-3576. By Order filed August 26, 2016 (Doc. 15), the
Court determined that Petitioner could have raised his claims
in a single habeas corpus action and consolidated the two
habeas corpus actions. The second petition has now been filed
of record in this case. See Doc. 18. For the reasons
discussed below, the amended petition for writ of habeas
corpus is denied. In addition, Petitioner's request to
amend his petition to add the claim raised in the second
petition is denied because the new claim is time barred.
February 2010, T.C., the fourteen-year-old stepdaughter of
Petitioner Darren Titus Davis, Sr., claimed that Petitioner
had sexually abused her at their apartment located in Tulsa,
Oklahoma. During the incidents of abuse, T.C.'s younger
brothers, ages 8 and 9, were present. Specifically, T.C.
alleged that between Thanksgiving and Christmas, 2009,
Petitioner rubbed his penis on her. During this incident,
Petitioner held T.C. down while he and T.C.'s younger
brothers tickled T.C. On a separate occasion in the same time
frame, T.C. claimed that Petitioner unbuttoned her pants, put
his hand down her pants, and inserted his finger in her
vagina. During this second incident, the younger brothers
were sitting on the floor of their mother's bedroom
playing a PlayStation III video game while on the bed in the
same bedroom, Petitioner sexually abused T.C.
an investigation, Petitioner was charged with two (2) counts
of Child Sexual Abuse in Tulsa County District Court, Case
No. CF-2010-3576. Petitioner proceeded to be tried by a jury.
At the conclusion of trial, held February 28 and 29, 2012,
the jury found Petitioner guilty as charged. On April 25,
2012, the trial judge sentenced Petitioner, in accordance
with the jury's recommendations, to fifteen (15) years
imprisonment (Count 1) and thirty (30) years imprisonment
(Count 2), and ordered the sentences to be served
consecutively. See Doc. 13-5 at 3. At trial,
attorneys Jessica Battson and J. Brian Rayl represented
perfected a direct appeal in the Oklahoma Court of Criminal
by attorney Richard Couch, Petitioner raised three (3)
propositions of error, as follows:
The trial court abused its discretion in permitting
the State to introduce propensity evidence of other
alleged child molestation by Appellant.
Prosecutorial misconduct denied the Appellant a
The Appellant was deprived of effective assistance
12-1). In an unpublished summary opinion, entered September
26, 2013, in Case No. F-2012-383, the OCCA affirmed the trial
court's judgment and sentence. See Doc. 12-3.
Petitioner did not seek post-conviction relief in the state
courts prior to filing his federal habeas corpus petition.
December 24, 2014, Petitioner filed his original petition for
writ of habeas corpus (Doc. 1). He identified three (3)
grounds of error. The headings for the habeas grounds of
error matched the headings for the propositions of error
presented to the OCCA on direct appeal. Petitioner attached
to his petition the OCCA's unpublished summary opinion
affirming the Judgment and Sentence of the district court, as
well as two handwritten motions, a motion to dismiss and a
motion for a new trial, both captioned in Tulsa County
District Court, Case No. CF-2010-3576.
response to the original petition, Respondent filed a motion
to dismiss, arguing that the petition should be dismissed
without prejudice as a “mixed petition”
containing both exhausted and unexhausted claims.
See Doc. 6. In an Opinion and Order filed May 28,
2015 (Doc. 9), the Court determined that the original
petition was a “mixed petition.” Id. at
4. Petitioner was afforded the opportunity to file an amended
petition to delete the unexhausted claims as identified by
the Court. Id. at 6. The Court specifically advised
Petitioner that the one-year statute of limitations
applicable to habeas petitions had expired on December 27,
2014. Id. at 5-6 n.3.
25, 2015, Petitioner filed his amended petition (Doc. 10). In
response to the amended petition, Respondent asserts that,
while Petitioner had deleted one of his unexhausted claims,
Petitioner's claim of ineffective assistance of counsel
continues to include unexhausted claims. See Doc. 12
at 18-19. Respondent also informed the Court that Petitioner
had filed an application for post-conviction relief in the
state district court and that the application remained
pending. Id. at 1 ¶ 3. On August 10, 2015,
Petitioner filed a reply to the response (Doc. 24), but fails
to acknowledge Respondent's argument that part of his
claim of ineffective assistance remains unexhausted.
August 23, 2016, more than one year after filing his reply in
this case, Petitioner filed a second petition for writ of
habeas corpus in N.D. Okla. Case No. 16-CV-556-JED-PJC. By
Order filed August 26, 2016 (Doc. 15), the two pending habeas
cases were consolidated and a copy of the second petition has
now been filed of record in this case, see Doc. 18.
In his second petition, Petitioner raises one claim:
Ground 1: The state court's rejection of the
petitioner's claim that he was denied the effective
assistance of appellate counsel, was contrary to, or an
unreasonable application of, clearly established federal law.
Id. Recognizing the applicability of the one-year
limitations period, Petitioner asserts the following
Petitioner's trial counsel did not investigate and pursue
evidence that would have proven that he was actually innocent
of the crimes. This evidence was the victim's two (2)
brothers, and it would have shown that no crime was
committed. Therefore, the one-year statute of limitations is
overcome. McQuiggin v. Perkins, 133 S.Ct. 1924
Id. at 6.
initial matter, the Court must determine whether Petitioner
meets the exhaustion requirement of 28 U.S.C. § 2254(b).
Rose v. Lundy, 455 U.S. 509, 510 (1982). With the
exception of the part of his ineffective assistance of trial
counsel claim alleging that counsel failed to
“investigate, consult, inform” with regard to a
witness's testimony, Petitioner presented the claims
raised in the amended petition to the OCCA on direct appeal.
As stated above, Petitioner does not acknowledge
Respondent's position that a portion of his claim is
unexhausted. However, because Petitioner has now utilized
post-conviction relief procedures to exhaust his claim of
ineffective assistance of appellate counsel and failed to
raise his unexhausted claim of ineffective assistance of
trial counsel, the Court finds an absence of available State
corrective process, see 28 U.S.C. §
2254(b)(1)(B), and the claim is not barred by the exhaustion
requirement. Nonetheless, as discussed in Part C, below,
habeas corpus relief on the unexhausted claim is denied based
on an anticipatory procedural bar. The claim of ineffective
assistance of appellate counsel raised in the second petition
was presented to the OCCA on post-conviction appeal and is
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).
New claim of ineffective assistance of appellate counsel is
second petition, Petitioner alleges that “his appellate
counsel was ineffective for failing to raise the claim of
ineffective assistance of trial counsel for trial
counsel's failure to use the victim's two
brothers' testimony at trial to impeach the victim on the
central issue of Petitioner's guilt.” (Doc. 18).
Because Petitioner does not raise an ineffective assistance
of appellate counsel claim in his amended petition for writ
of habeas corpus, the Court shall determine ...