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Whitely v. Farris

United States District Court, W.D. Oklahoma

January 10, 2018

LARRY ALAN WHITELY, Petitioner,
v.
JIM FARRIS, Warden, Lexington Assessment and Reception Center, Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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], [1] and Petitioner has filed a Reply [Doc. No. 17]. For the reasons set forth below it is recommended that the Court DENY the Petition.

         I. Relevant Procedural History

         The State tried Petitioner on two counts of lewd molestation of a minor. See Or. at 54-55.[2]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.

         Thereafter, 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].

         The present action timely followed.

         II. Grounds for Federal Habeas Corpus Relief

         Petitioner 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.[3]

         There 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)).

         III. Brief Factual Background

         K.B., 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, 17:05:30-55.

         At 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. 11, 17:04:08-35.

         IV. Standard of Review

         Because the OCCA adjudicated Petitioner's claims on their merits, [4] 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 (2).[5]

         A 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 (2000)).

         “Review 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)).

         “A 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).

         V. Analysis

         A. Petitioner's Ground One - Claims Involving Ineffective Assistance of Counsel

         In 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.

         1. Clearly Established Law

         To 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.

         “Surmounting 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.

         2. Petitioner's Claim Involving Failure to Investigate a Medical Defense

         Petitioner 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.

         a. Background

         K.B. 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 418.

         On 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.

         On re-direct, Dr. McKinnon reiterated that “no trace of abuse doesn't mean abuse didn't happen.” Id. at 435.

         After 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 ...

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