United States District Court, W.D. Oklahoma
HEATON U.S. DISTRICT JUDGE.
John Kennedy Onyango, who is represented by counsel, has
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 seeking relief from his state court
conviction and sentence. The matter was referred to U.S.
Magistrate Judge Bernard M. Jones for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Judge
Jones has issued a Report and Recommendation (the
“Report”) recommending that the petition be
denied. Petitioner has filed an objection to the Report,
which triggers de novo review.
in Payne County convicted petitioner of first degree rape. In
accordance with the jury's recommendation, the court
sentenced petitioner to thirty-five years imprisonment.
Petitioner's conviction and sentence were affirmed on
appeal by the Oklahoma Court of Criminal Appeals
(“OCCA”). Petitioner raised two grounds for
relief in his direct appeal. The OCCA rejected both grounds
in a summary opinion. Petitioner did not seek post-conviction
petitioner relies on the same two grounds for relief as were
raised on direct appeal. Because the OCCA addressed the
merits of petitioner's claims, this court's review is
governed by 28 U.S.C. § 2254(d). The Supreme Court has
stated that Section 2254(d) “erects a formidable
barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Burt v.
Titlow, 571 U.S. ___, 134 S.Ct. 10, 16 (2013). Relief
may only be granted “where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with [the Supreme] Court's
precedents.” Harrington v. Richter, 562 U.S.
86, 102 (2011).
objects to the Report's conclusion rejecting his Sixth
and Fourteenth Amendment claims. He argues his rights were
violated when he was denied the right to call a witness
during his trial and the Report incorrectly applied the
applicable standard in rejecting his argument. The court
habeas corpus relief does not lie for errors of state
law.” Lewis v. Jeffers, 497 U.S. 764, 780
(1990). “In conducting habeas review, a federal court
is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
“In a habeas proceeding claiming denial of due process,
‘we will not question the evidentiary . . . rulings of
the state court unless [the petitioner] can show that,
because of the court's actions, his trial, as a whole,
was rendered fundamentally unfair.” Maes v.
Thomas, 46 F.3d 979, 987 (10th Cir. 1995) (quoting
Tapia v. Tansy, 926 F.2d 1554, 1557 (10th Cir.
1991). “Federal courts must ‘approach such
[fundamental-fairness] analysis with considerable
self-restraint, ' reversing state-court rulings only in
‘the most serious cases, which truly shock the
conscience as well as the mind.'” Sanchez v.
Bryant, 652 Fed. App'x 559, 604-05, (10th Cir. 2016)
(unpublished opinion, alteration in original) (quoting
United States v. Rivera, 900 F.2d 1462, 1477 (10th
Cir. 1990) (internal quotations and citation omitted)).
evaluating a claim based on excluded evidence, the court must
determine whether, looking at the record as a whole,
“the evidence was of such an exculpatory nature that
its exclusion affected the trial's outcome.”
Richmond v. Embry, 122 F.3d 866, 874 (10th Cir.
1997). Here, the excluded testimony was that of a state
social worker. Petitioner's submissions indicate that,
approximately a year prior to the alleged rape of the child
victim, DHS had been investigating allegations of child abuse
by the victim's parents. At trial, defense counsel made
an offer of proof that the DHS worker would testify that, in
her opinion, the victim's parents had coached the victim
and a sibling on what to say to the authorities regarding the
child abuse investigation. Petitioner argues, as he did in
his direct appeal, that “the proffered testimony . . .
was relevant under state evidentiary rules, and material and
relevant in light of his constitutional right to present a
defense.” Doc. #18, p. 6. Specifically, he argues the
excluded testimony was relevant to whether the victim had
been coached in the rape trial. He asserts the OCCA ruling on
this evidentiary issue was an unreasonable application of
Supreme Court precedents.
on a pretrial motion in limine, the trial court ruled that
the disputed evidence was not relevant and that the danger of
prejudice outweighed its probative value. Doc. #13-4, p. 9.
The OCCA, citing Holmes v. South Carolina, 547 U.S.
319, 326 (2006), specifically noted that petitioner had
“a constitutional right to present evidence in his
defense” but also noted that “the evidence
proffered must conform to well established rules of
evidence.” Doc. #13-3, p. 2. The OCCA then concluded
the trial court did not abuse its discretion in excluding the
trial court's decision to exclude the evidence might
reasonably be debated, but its exclusion does not shock the
conscience. The exclusion of this evidence did not obviously
prevent petitioner from receiving a fundamentally fair trial.
The victim and both parents testified at trial and were
subject to petitioner's cross-examination. Petitioner
also testified and was permitted to present a complete
defense. While some judges might well have reached a
conclusion different from that reached by the trial judge
here, the conclusion was not obviously wrong and the
OCCA's determination of the issue did not involve an
unreasonable application of Supreme Court precedent within
the meaning of the AEDPA standard. Petitioner's first
ground fails to establish a basis for relief.
also objects to the Report's rejection of his second
ground for relief. He argues that the prosecutor's
reference to Oklahoma's 85% Rule during closing arguments
deprived him of a fundamentally fair trial. “[A]
prosecutor's improper comments will be held to violate
the Constitution only if they so infected the trial with
unfairness as to make the resulting conviction a denial of
due process.” Parker v. Matthews, 567 U.S. 37,
45 (2012) (quotations and citations omitted).
OCCA has stated that it is “a misleading misstatement
of law which constitutes a substantial violation of 
constitutional and statutory rights” to have a
prosecutor state in closing arguments a defendant “will
only serve 85 percent” of an imposed sentence.
Florez v. State, 239 P.3d 156, 158 (Okla.
Crim. 2010) (emphasis added). At petitioner's trial, the
prosecutor stated: “In Oklahoma, when you're
convicted of rape in the first degree, you have to serve 85
percent of your sentence, and that's what this
instruction tells you. So whatever term you decide, this
instruction tells you he will have to serve 85
percent.” Doc. #13-4, p. 12. Because no objection was
raised at trial, the OCCA reviewed this proposition for plain
error. Doc. #13-3, p. 2. The court concluded that “the
prosecutor's comments merely mirrored the jury
instruction on the 85% rule, thus there is no plain
error.” Id. The jury instruction states:
“A person convicted of Rape in the First Degree shall
be required to serve not less than [85 percent] of the
sentence imposed before becoming eligible for consideration
for parole.” Doc. #13-5.
“disagrees with [the OCCA's] assessment” and
argues that the prosecutor implied “that whatever
sentence the jury imposed would not be valid because
[petitioner] would only serve 85% of it.” Doc. #18, p.
9. The court agrees with the Report that the OCCA's
decision is not contrary to or an unreasonable application of
federal law under the applicable, deferential standard. The
prosecutor's comments did not infect the trial with such
unfairness as would result in a denial of due process.
Petitioner has failed to demonstrate he is entitled to relief
based on the second ground in his petition.
having conducted a de novo review, the court
ADOPTS the Report [Doc. #16] and
DENIES the petition for writ of habeas
corpus. The court also DENIES a certificate
of appealability, as it concludes petitioner has not made
“a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).