United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
Larry Alan Whitely, appearing through counsel, filed a
Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 [Doc. No. 1] challenging his state court
conviction in Case No. CF-2006-250, District Court of
Cleveland County, State of Oklahoma. Chief United States
District Judge Joe Heaton has referred the matter for
proposed findings and recommendations consistent with 28
U.S.C. § 636(b)(1)(B) and (C). Respondent has filed a
Response [Doc. No. 14] and the State Court Records [Doc. Nos.
16, 19],  and Petitioner has filed a Reply [Doc. No.
17]. For the reasons set forth below it is recommended that
the Court DENY the Petition.
Relevant Procedural History
State tried Petitioner on two counts of lewd molestation of a
minor. See Or. at 54-55.The jury convicted Petitioner
on both counts, and per the jury's recommendation, the
trial court sentenced Petitioner to twenty year's
imprisonment on both counts, to be served concurrently.
See Id. at 148, 176-77.
Petitioner filed a direct appeal to the Oklahoma Court of
Criminal Appeals (OCCA). See Brief of Appellant
[Doc. No. 14-Ex. 1]. The state appellate court affirmed the
conviction. See OCCA Summary Opinion [Doc. No.
14-Ex. 3]. Then, Petitioner filed an application for
post-conviction relief, raising in relevant part claims
involving prosecutorial misconduct and ineffective assistance
of trial and appellate counsel. See Petitioner's
Application for Post-Conviction Relief [Doc. No. 14-Ex. 4].
The state district court found that Petitioner had waived his
prosecutorial misconduct and trial counsel claims and then
ordered an evidentiary hearing on Petitioner's
ineffective assistance of appellate counsel claim.
See Order [Doc. No. 14-Ex. 5]. After the evidentiary
hearing, the state court denied relief. See Order
[Doc. No. 14-Ex. 6]. Petitioner appealed, and the OCCA
reversed and remanded for further proceedings. See
OCCA Order Reversing District Court Order Denying Application
for Post-Conviction Relief and Remanding for Further
Proceedings [Doc. No. 14-Ex. 7]. On remand, the state
district court held that Petitioner had successfully shown
that appellate counsel's conduct was deficient, and
granted Petitioner a new direct appeal. See Order
[Doc. No. 14-Ex. 8]. Petitioner appealed on grounds that his
remedy should have been a new trial. See Petition in
Error [Doc. No. 14-Ex. 9]. The OCCA reversed and remanded on
two grounds, holding the state district court had failed to
consider whether appellate counsel's performance was also
prejudicial and that a new appeal was not an available
remedy. See OCCA Denying Application for
Post-Conviction Relief and Remanding Matter to District Court
for Further Proceedings [Doc. No. 14-Ex. 10]. On remand, the
state district court crafted a detailed order, examining the
merits of Petitioner's underlying prosecutorial
misconduct and ineffective assistance of trial counsel claims
and finding no grounds for relief, and thus ultimately
concluded that while appellate counsel's performance was
deficient, it was not prejudicial. See Order (Dist.
Ct. Order dated Nov. 24, 2015) [Doc. No. 14-Ex. 11]. The OCCA
affirmed the district court's order in Petitioner's
subsequent appeal. See Order Granting Request to
Associate Counsel and Affirming Denial of Post-Conviction
Relief (OCCA Order) [Doc. No. 14-Ex. 12].
present action timely followed.
Grounds for Federal Habeas Corpus Relief
alleges in Ground One that his trial counsel was ineffective
for failing to: (1) investigate a medical defense; (2)
investigate and present expert forensic interview testimony;
and (3) investigate and present witness testimony to
discredit the minor child. See Pet. at 17-55.
Appellate counsel was allegedly ineffective in failing to
investigate so as to raise these claims on direct appeal.
See Id. In Ground Two, Petitioner claims that the
State committed prosecutorial misconduct when it threatened a
key witness with loss of her children, preventing Petitioner
from presenting a defense and allowing false evidence to be
admitted at trial. See Id. at 55-60.
is no dispute that Petitioner raised his trial counsel and
prosecutorial misconduct claims for the first time in
post-conviction proceedings. However, Petitioner alleges that
ineffective assistance of appellate counsel was “[t]he
primary reason for this failure, ” Pet. at 13, and, if
meritorious, such an argument could overcome any procedural
bar. See Ryder ex rel. Ryder v. Warrior,
810 F.3d 724, 747 (10th Cir. 2016), cert. denied,
137 S.Ct. 498 (2016) (“A claim of ineffective
assistance of appellate counsel can serve as cause and
prejudice to overcome a procedural bar, if it has
merit.”). Recognizing that the Court would have to look
to the merits of the underlying claims to determine if
appellate counsel was ineffective for purposes of overcoming
the procedural bar, and further recognizing that the OCCA
ultimately denied the underlying claims on the merits,
Respondent concedes that it would be “easier to address
the merits of the barred claims.” Resp. at 11-14. The
Court agrees. See Brown v. Sirmons, 515 F.3d 1072,
1092-93 (10th Cir. 2008) (“[I]n the interest of
efficiency, we have held that we can avoid deciding
procedural bar questions where claims can readily be
dismissed on the merits.” (citation, internal brackets,
and internal quotation marks omitted)).
Brief Factual Background
then in fifth grade, wrote a letter to her friends saying
that her stepfather (Petitioner) had raped her, and after one
of the friends reported it, K.B. was removed from the home.
Tr. of Partial Proceedings (dated Jan. 24, 2007) at 24-27.
Thereafter, Tracy Koelling conducted a forensic interview
with K.B., and K.B. denied anyone was hurting her at home.
Tr. Vol. III at 554, 560 & State's Ex. 11. Then,
while she was at a shelter, Moore police officer Jeff Cox
came and questioned K.B. Id. at 458 &
State's Ex. 2. Although K.B. initially denied the
allegations, she later said that what she had written to her
friends was true and she had not wanted to tell anyone
because she did not want to be taken from her parents.
Id., State's Ex. 2, 9:41-10:55. K.B. eventually
said Petitioner had been putting his “penis in her
butthole.” Id. at State's Ex. 2,
17:39-17:60. Based on this disclosure, Officer Cox took K.B.
back to Ms. Koelling, who performed a second forensic
interview with K.B. Id. at 463-65, 570. During that
second interview, K.B. discussed the disclosure in more
detail, again saying Petitioner had, on multiple occasions,
put his penis in her bottom. Id., State's Ex.
11. K.B. said she fought back but denied that she had ever
bled afterwards. Id., State's Ex. 11,
trial, K.B. testified that Petitioner had repeatedly placed
his penis in her anus, without lubrication, and that she
“fought back.” Tr. of Partial Proceedings (dated
Jan. 24, 2007) at 32, 36-43, 71-73. She stated that “it
wouldn't like physically hurt, but it would - it would
just feel weird because I know it's not meant to go right
there, because he would like have to force it in
there.” Id. at 40. K.B. said during the act,
Petitioner's body “would go up and down” and
“oozy stuff would come out [of his penis] a few
times.” Id. at 39-40. K.B. told Ms. Koelling
that the “gooey stuff” was cold. State's Ex.
Standard of Review
the OCCA adjudicated Petitioner's claims on their merits,
they are governed by the standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). Pursuant to the AEDPA, this Court may grant habeas
relief only if the state court's adjudication
“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” or “was based on an unreasonable
determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d)(1) and
state-court decision is contrary to clearly established
federal law under 28 U.S.C. § 2254(d)(1) if it
“applies a rule that contradicts the governing law set
forth in Supreme Court cases or confronts a set of facts that
are materially indistinguishable from a decision of the
Supreme Court and nevertheless arrives at a result different
from that precedent.” Ryder ex rel. Ryder, 810
F.3d at 739 (internal quotation marks omitted). “A
state-court decision is an ‘unreasonable
application' of Supreme Court precedent if the decision
‘correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular
prisoner's case.'” Fairchild v.
Trammell, 784 F.3d 702, 711 (10th Cir. 2015)
(quoting Williams v. Taylor, 529 U.S. 362, 407-08
of a state court's factual findings under §
2254(d)(2) is similarly narrow.” Smith, 824
F.3d at 1241. Factual findings are not unreasonable merely
because on habeas review the court “would have reached
a different conclusion in the first instance.”
Brumfield v. Cain, __ U.S. __ 135 S.Ct. 2269, 2277
(2015) (citation omitted). Instead, the court must defer to
the state court's factual determinations so long as
“reasonable minds reviewing the record might disagree
about the finding in question.” Id.
“Accordingly, a state court's factual findings are
presumed correct, and the petitioner bears the burden of
rebutting that presumption by ‘clear and convincing
evidence.'” Smith, 824 F.3d at 1241
(citing 28 U.S.C. § 2254(e)(1)).
state court's determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court's
decision.” Woods v. Etherton, __ U.S.
__, 136 S.Ct. 1149, 1151 (2016) (internal quotation marks and
citation omitted). “The state court decision must be so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
(internal quotation marks and citation omitted).
Petitioner's Ground One - Claims Involving Ineffective
Assistance of Counsel
Ground One, Petitioner alleges that his trial attorney was
ineffective for failing to: (1) investigate a medical
defense; (2) investigate and present expert forensic
interview testimony; and (3) investigate and present witness
testimony to discredit the minor child. See Pet. at
17-55. Appellate counsel was then ineffective for failing to
investigate and raise these issues on direct appeal. See
Id. In relevant part, the state district court found no
prejudice in trial or appellate counsel's conduct and the
OCCA affirmed on those grounds. See Dist. Ct. Order
dated November 24, 2015 at 7-12; OCCA Order at 5-10. The
Court should find the OCCA's decision to be a reasonable
application of federal law.
Clearly Established Law
succeed on his claims, Petitioner must demonstrate that his
trial and appellate counsel's performances were deficient
and prejudicial. See Strickland v. Washington, 466
U.S. 688, 690-91 (1984). A court will only consider a
performance “deficient” if it falls
“outside the wide range of professionally competent
assistance.” Id. at 690.
“[P]rejudice” involves “a reasonable
probability that, but for counsel's unprofessional
errors, the result of the [trial or direct appeal] would have
been different.” Id. at 694. Notably, a court
reviews an ineffective assistance of counsel claim from the
perspective of counsel at the time he or she rendered the
legal services, not in hindsight. See Id. at 680.
Strickland's high bar is never an easy
task.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (internal quotation marks and citation omitted).
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult [as] [t]he standards created by
Strickland and § 2254(d) are both highly
deferential and when the two apply in tandem, review is
doubly so.” Id. (internal quotations marks and
citations omitted). “When § 2254(d) applies, the
question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland's
deferential standard.” Id.
Petitioner's Claim Involving Failure to Investigate a
first claims that his trial attorney failed to investigate a
medical defense which “would have yielded powerful
evidence of [Petitioner's] innocence.” Pet. at 19,
22. The Court should deny habeas relief on this allegation.
testified that Petitioner had to “force” his
penis into her anus, without lubrication, and that she
“fought back.” Tr. of Partial Proceedings (dated
Jan. 24, 2007) at 32, 36-43, 71-73. She also claimed that it
did not hurt, id. at 40, 73-75, and she told Ms.
Koelling that she did not bleed. State's Ex. 11,
17:05:30-35. After K.B. was removed from her home, Dr. Mark
McKinnon, M.D. performed a sexual assault examination on the
child. Tr. Vol. III at 414. He admitted that while he had
been trained to take sexual assault histories, he personally
did not do so for fear they could cause bias in the findings,
and stated that he did not take K.B.'s history.
Id. at 412-14. Regarding K.B.'s physical exam,
Dr. McKinnon testified “there was no physical
indication of abuse.” Id. at 414-16. When
asked whether that was uncommon, Dr. McKinnon testified that
“in 90 percent of the cases or more of confirmed sexual
abuse, there are no physical findings.” Id. at
416. Dr. McKinnon explained “the anal genital, the
genitourinary or anal region of a human body is highly
vascularized; in other words, it has good blood flow, so it
heals quickly. Whether it's vaginal or anal penetration .
. . you can put an instrument or a penis in there, and it
will - it's very elastic, and it just - it will not show
anything.” Id. at 417. When asked “[i]f
there was evidence . . . that [K.B.] had been abused - has
been sexually abused anally for a long period of time, would
that surprise you that you did not have any findings”
the physician answered: “It would not surprise
me.” Id. Dr. McKinnon explained again:
“Anal penetration could occur. There could be an
abrasion . . . and then three weeks later you could see
absolutely nothing on a physical exam.” Id. at
cross examination, Petitioner's attorney asked Dr.
McKinnon about a 1986 study which allegedly found that
“40 to 50 percent of boys and girls with a history of
anal penetration have abnormalities identified on the
examination.” Id. at 420-21. Dr. McKinnon
stated that he was not familiar with that study. Id.
at 421. However, upon further questioning, Dr. McKinnon
admitted that even when performed consensually, “anal
sex sometimes causes injury” and he agreed that the
absence of lubrication would “increase the likelihood
of injury.” Id. at 423-24. The physician also
agreed that unlubricated anal sex would likely be painful.
See Id. According to Dr. McKinnon, whether anal
injury occurs would likely depend on: (1) the size of the
object introduced; (2) the presence or absence of force; (3)
the use or nonuse of lubricants; and (4) the amount of
cooperation. See Id. at 424-25. The physician also
agreed that it “stands to reason” that frequent,
forceful, anal penetration would create “a greater
chance of injury.” Id. at 426. Dr. McKinnon
testified that anal injuries are more likely to bleed because
the area is highly vascularized. See Id. at 427.
Finally, Dr. McKinnon agreed that an anal tear could
“leave a scar” and that he had not found any
scars on K.B. Id. at 428. At the conclusion of
cross-examination, Dr. McKinnon again agreed that he
“did a thorough sexual assault exam, and . . . found no
trace of sexual abuse.” Id. at 434.
re-direct, Dr. McKinnon reiterated that “no trace of
abuse doesn't mean abuse didn't happen.”
Id. at 435.
trial, at Petitioner's request, Dr. John H. Stuemky, M.D.
reviewed K.B.'s testimony, Dr. McKinnon's medical
exam, and K.B.'s various interviews. Or. at 479-80. Dr.
Stuemky expressed concern about K.B.'s interviews and
opined that K.B.'s medical assessment was
“incomplete” because Dr. McKinnon had failed to
conduct a “medical history.” Id. at 480.
Dr. Stuemky further explained:
[S]ome of the information disclosed by the girl indicating
multiple episodes of anal rape and that it was forced and
against her will, and in the absence of lubricant and not
hurting is also rather difficult to believe. This includes
feeling ejaculate and that it was cold. If all the above
occurred - forced anal rape, multiple times, without
lubricant, against her will, would seem more likely that
there should have been physical findings. All of the above
would be of great concern.
Furthermore, denial of pain does not fit with her allegations
of fighting back and that force was used.
The child's detailed description of fighting back along
with the allegations of violent forced attacks simply does
not fit with ongoing child ...