United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF
matter is before the Court on Petitioner's petition for a
writ of habeas corpus filed pursuant to 28 U.S.C. §
2254. Petitioner, a pro se prisoner currently incarcerated at
Mabel Bassett Correctional Center in McLoud, Oklahoma,
attacks her conviction in Pontotoc County District Court Case
No. CF-2010-63 for Second Degree Murder. She sets forth the
following grounds for relief:
I. Petitioner's right to confront witness was denied when
Dr. Pfeifer testified about Dr. Tarau's autopsy report.
II. Petitioner's right to confront witness was violated
when Dr. Curtis testified about Dr. Griffin's toxicology
III. The trial court erred when it ruled that admission of
evidence was harmless error, in violation of the
IV. Petitioner's constitutional right to a fair trial was
violated by the admission of evidence of irrelevant and
highly prejudicial bad acts and other crimes.
V. Substantial error violated Petitioner's Fourteenth
Amendment rights when the State was permitted to introduce
bad character evidence of Petitioner and good character
evidence of the deceased.
VI. Petitioner was deprived of a fair trial in violation of
her Fourteenth Amendment rights when the trial court did not
allow the jury to consider the lesser-included offense of
VII. Petitioner was denied her right for jury instructions in
accordance with her theory of defense.
VIII. Petitioner's due process was violated when State
failed to prove her acts caused the death of the victim.
IX. Petitioner was denied effective counsel when counsel
failed to preserve serious errors for appeal.
X. Accumulation of errors guaranteed conviction, depriving
Petitioner of her right to due process and requiring
concedes that Petitioner has exhausted her state court
remedies for the purpose of federal habeas corpus review. The
following records have been submitted to the Court for
consideration in this matter:
A. Petitioner's direct appeal brief.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's Judgment and
Sentence. Moxley v. State, No. F-2011-900 (Okla.
Crim. App. Jan. 8, 2013).
D. Jury trial and sentencing transcripts. D. State court
has not filed a reply to Respondent's response.
the Anti-Terrorism and Effective Death Penalty Act, federal
habeas corpus relief is proper only when the state court
adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
February 14, 2010, Officer Michael Jackson of the Ada Police
Department responded to a dispatch arising from a 911 call
(Tr. 219). The caller, who was Petitioner's neighbor,
reported that he thought Petitioner had pulled out her father
Samuel Moxley's breathing tube. Id. Officer
Jackson entered Samuel Moxley's residence and saw debris
on the floor and the house in disarray (Tr. 220-21). He found
Samuel Moxley on the bathroom floor (Tr. 221). Mr. Moxley was
not breathing, and his tracheostomy tube was in the bathroom
sink (Tr. 222, 239).
Aaron Gray found Petitioner in the laundry room (Tr. 223-24).
She appeared to be very intoxicated and told the officers to
get out of the house. Id. She stated she had started
drinking after she and her father had a fight (Tr. 224). She
admitted pulling out her father's tracheostomy tube, but
said she did not mean to do it. Id. Mr. Moxley died
of asphyxia resulting from the removal of his tracheostomy
tube (Tr. 324).
I: Dr. Pfeifer's Testimony
alleges the introduction by Dr. Eric Pfeifer, the Chief
Medical Examiner for the State of Oklahoma, of the contents
of Dr. Maurice Taran's autopsy report violated her rights
under the Confrontation Clause. She asserts the State did not
show that Dr. Taran was unavailable to testify and that she
was provided a previous opportunity to cross examine
The Oklahoma Court of Criminal Appeals (“OCCA”)
did not address whether the Confrontation Clause claim was
meritorious, instead presuming error and finding it harmless:
. . . Moxley had a right to cross-examine the person who
prepared the original autopsy report if anyone testified as
to its contents, and Dr. Pfeifer could not testify to the
contents of Dr. Tarau's report. Cuesta-Rodriguez v.
State, 2416P.3d 214, 228 (Okla. Crim. App. 2010);
Marshall v. State, 232 P.3d 467, 475 (Okla. Crim.
App. 2010); Melendez-Diaz v. Massachusetts, 557 U.S.
305, 310 (2009); Crawford v. Washington, 541 U.S.
36, 50-51 (2004). Without objection, Pfeifer was qualified as
an expert witness. An expert may testify if his specialized
knowledge will assist the trier of fact to determine a fact
in issue, as long as his testimony (a) is based on sufficient
facts or data, (b) is the product of reliable principles and
methods; and (c) the witness applies those principles and
methods to the facts of the case. Okla. Stat. tit. 12, §
2702. An expert may rely on inadmissible facts or data in
forming opinions, as long as those inadmissible facts or data
are not disclosed to the jury. Okla. Stat. tit. 12, §
2703. Expert witness testimony must be confined to the
expert's own opinions and the expert must be available
for cross-examination. Marshall, 232 P.3d at 475.
Moxley's argument . . . depends on her claim that, rather
than testifying as an expert, Pfeifer's testimony was
inextricable from Tarau's autopsy report and she should
have been allowed to cross-examine Tarau regarding the
report. In Cuesta-Rodriguez, we found that an expert
witness could not testify as to his own observations made
from an autopsy report, where portions of the original
autopsy report were admitted into evidence and disclosed to
the jury. Cuesta-Rodriguez, 241 P.3d at 229.
Moxley's case differs because the contents of the
original report were neither admitted into evidence nor
disclosed to the jury. For purposes of this case, assuming
without deciding that Moxley is correct, we find that any
error in admitting Pfeifer's testimony was harmless.
After reviewing all the evidence admitted regarding the cause
of death and Moxley's involvement, we are satisfied
beyond a reasonable doubt that the error did not contribute
to the conviction or punishment. Cuesta-Rodriguez,
241 P.3d at 230.
Moxley v. State, No. F-2011-900, slip op. at 3-4
(Okla. Crim. App. Jan. 8, 2013).
alleges this ground for relief is an issue of state
evidentiary law, and federal habeas review is not available
to correct state-law evidentiary errors. See Grant v.
Trammell, 727 F.3d 1006, 1013 (10th Cir. 2013)
(“Matters of state law are theirs, not ours, to
answer.”) (citing 28 U.S.C. § 2254(a); Boyd v.
Ward, 179 F.3d 904, 916 (10th Cir. 1999)), cert.
denied, __ U.S. __, 134 S.Ct. 2731 528 U.S. 1167 (2014).
See also Smallwood v. Gibson, 191 F.3d 1257, 1275
(10th Cir. 1999).
Supreme Court has held that “in § 2254 proceedings
a court must assess the prejudicial impact of constitutional
error in a state-court criminal trial under the
‘substantial and injurious effect' standard”
from Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993).Fry v. Pliler, 551 U.S. 112, 121 (2007).
Confrontation Clause errors are subject to harmless error
analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986). Federal habeas review must determine “whether,
assuming that the damaging potential of cross-examination
were fully realized, a reviewing court might nonetheless say
that the error had substantial and injurious effect or
influence in determining the jury's verdict.”
Littlejohn v. Trammell, 704 F.3d 817, 844-45 (10th
Cir. 2013) (quoting Jones v. Gibson, 206 F.3d 946,
957 (10th Cir. 2000)). Habeas courts conduct harmless error
review de novo, and must consider factors such as
the “importance of the witness' testimony to the
prosecution's case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted,
and . . . the overall strength of the prosecution's
case.” Id. (quoting Van Arsdall, 475
U.S. at 684).
Pfeifer testified that after reviewing the autopsy report and
related notations and photographs, his opinion was that Mr.
Moxley died of asphyxia, meaning a lack of oxygen resulting
from the removal of his tracheostomy tube (Tr. 324-25). Dr.
Pfeifer explained the different types of tracheostomy tubes
and their function in sealing the airway (Tr. 325-26). He
also described the symptoms of asphyxia (Tr. 327-28). He
opined that the autopsy was “quite thorough, ”
and he looked at the report during his testimony to confirm
there was no evidence that Mr. Moxley had a seizure (Tr.
330-32). The autopsy report eliminated lethal trauma, heart
attack, pulmonary embolism, hemorrhagic stroke, certain
drugs, or toxins (Tr. 334-35).
stated by the OCCA, the autopsy report was not admitted into
evidence or disclosed to the jury, and Dr. Pfeifer did not
recite Dr. Tarau's descriptions or conclusions in the
report. Instead, Dr. Pfeifer testified he had reached his own
opinion about the cause of Mr. Moxley's death (Tr. 324).
OCCA also made additional factual finding about testimony
from other witnesses concerning Mr. Moxley's cause of
Several witnesses testified that Moxley admitted pulling out
the victim's tracheotomy [sic] tube. Jurors saw the
videotape of Moxley admitting she pulled out the tube. Two
witnesses testified Moxley was aware that the victim could
not breathe, and might die, if the tube was removed. Moxley
called 911 but did not offer any further help to the victim,
although she returned to the house where he was dying. The
cause of death was asphyxiation after the tracheotomy tube
was removed. The record does not support Moxley's claim
that other, intervening factors could have caused the
Moxley, slip op. at 8. The OCCA's factual
findings are entitled to a presumption of correctness, unless
Petitioner produces clear and convincing evidence to rebut
the presumption. 28 U.S.C. § 2254(e)(1).
careful review of the record, this Court finds that while Dr.
Pfeifer's testimony was important to the
prosecution's case, the testimony was cumulative to the
other evidence before the jury. The prosecution had a strong
case against Petitioner, Dr. Pfeifer was cross-examined, and
other evidence corroborated Dr. Pfeifer's testimony. The
Court further finds Dr. Pfeifer's testimony did not have
a substantial and injurious effect or influence on the
these principles, the Court finds the determination of this
issue by the OCCA was not contrary to, or an unreasonable
application of, clearly established Supreme Court law. 28
U.S.C. § 2254(d)(1). The Court further finds the
OCCA's decision was not based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding. 28 U.S.C. § 2254(d)(2).
Ground I of the petition fails.
II: Dr. ...