United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Daniel, Jr., a state prisoner appearing pro se,
filed a Petition for Writ of Habeas Corpus challenging his
state court conviction pursuant to 28 U.S.C. § 2254 (ECF
No. 1) and United States District Judge Stephen P. Friot
referred the matter to the undersigned magistrate judge for
initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B). Respondent filed a Response (ECF No. 9) and the
state court records, (ECF No. 11), and Petitioner thereafter
replied, (ECF No. 12). For the reasons set forth below, it is
recommended that the Court DENY the
Jackson County District Court, Case No. CF-2012-94, the State
charged Petitioner with the first degree murder of Melissa
Debra Bost. (Original Record, Case No. CF-2012-94
(file-stamped May 24, 2012) at 1 (OR)). The jury
convicted Petitioner, and in accordance with its
recommendation, the trial court sentenced Petitioner to life
imprisonment. (OR 209, 294-96).
appealed to the Oklahoma Court of Criminal Appeals (OCCA),
and that court affirmed the conviction. (ECF No. 9:Exs. 1,
3). Petitioner timely proceeded to this Court.
PETITIONER'S HABEAS CLAIM
one habeas claim, Petitioner alleges he is actually innocent
of first degree murder because the State presented
insufficient evidence to support his conviction. (ECF No.
1:4-7). For two reasons, the Court should liberally construe
Petitioner's argument as claiming insufficiency of the
evidence, rather than asserting a free-standing actual
the Supreme Court has not resolved “whether a prisoner
may be entitled to habeas relief based on a freestanding
claim of actual innocence.” McQuiggin v.
Perkins, 569 U.S. 838, 133 S.Ct. 1924, 1931 (2013). So,
interpreting Petitioner's allegation in this manner would
likely result in dismissal. See, e.g., LaFevers v.
Gibson, 238 F.3d 1263, 1265 n.4 (10th Cir. 2001)
(“[A]n assertion of actual innocence, although
operating as a potential pathway for reaching otherwise
defaulted constitutional claims, does not, standing alone,
support the granting of the writ of habeas corpus.”).
Second, Petitioner does not allege there is any newly
discovered evidence - a longstanding requirement to prove
actual innocence. See, e.g., Schlup v. Delo, 513
U.S. 298, 324 (1995). Instead, he alleges that the
State's evidence was insufficient because there was no
forensic evidence linking him to the crime. (ECF No. 1:4-6).
With this description, the undersigned interprets
Petitioner's argument as seeking habeas relief based on
insufficiency of the evidence and not as asserting a
free-standing actual innocence claim.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs this Court's power to grant habeas corpus relief.
“When a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington
v. Richter, 562 U.S. 86, 98 (2011). Where, as here, the
state court has considered the claim on its merits,
“this [C]ourt may grant a habeas petition only if the
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
‘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.'”
Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir.
2015) (citation omitted)). “It is the petitioner's
burden to make this showing and it is a burden intentionally
designed to be ‘difficult to meet.'”
Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir.
2015) (citation omitted). Indeed, this standard
“reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
system, not a substitute for ordinary error correction
through appeal.” Harrington, 562 U.S. at
Court first determines “whether the petitioner's
claim is based on clearly established federal law, focusing
exclusively on Supreme Court decisions.”
Hanson, 797 F.3d at 824. Clearly established federal
law consists of Supreme Court holdings in cases where the
facts are similar to the facts in the petitioner's case.
See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.
2008). If clearly established federal law exists, this Court
then considers whether the state court decision was contrary
to or an unreasonable application of that clearly established
federal law. See Owens, 792 F.3d at 1242.
state court's decision is ‘contrary to' clearly
established federal law ‘if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Court has on a set of materially
indistinguishable facts.'” Id. (citations
omitted). Notably, “‘[i]t is not enough that the
state court decided an issue contrary to a lower federal
court's conception of how the rule should be applied; the
state court decision must be ‘diametrically
different' and ‘mutually opposed' to the
Supreme Court decision itself.'” Id.
“‘unreasonable application' prong requires
[the petitioner to prove] that the state court
‘identified the correct governing legal principle from
Supreme Court decisions but unreasonably applied that
principle to the facts of the prisoner's
case.'” Id. (citations and internal
brackets omitted). On this point, “the relevant inquiry
is not whether the state court's application of federal
law was incorrect, but whether it was
‘objectively unreasonable.'” Id.
(citations omitted). So, to qualify for habeas relief on this
prong, the petitioner must show “‘there was no
reasonable basis' for the state court's
determination.” Id. at 1242-43 (citation
omitted). “In other words, ‘so long as fairminded
jurists could disagree on the correctness of the state
court's decision, ' habeas relief is
unavailable.” Id. at 1243 (citation omitted);
see also Harrington, 562 U.S. at 103 (“As a
condition for obtaining federal habeas relief, . . . a state
prisoner must show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for