United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Reuben Julius Ingram III, appearing pro se, has petitioned
this Court for a writ of habeas corpus, challenging through
28 U.S.C. § 2254 the constitutionality of his criminal
conviction by the State of Oklahoma. See Pet. (Doc.
No. 1); Pet. Ex. 1 (Doc. No. 1-1). United States District
Judge Timothy D. DeGiusti has referred the matter to the
undersigned Magistrate Judge for initial proceedings in
accordance with 28 U.S.C. § 636. Respondent has filed an
Answer (Doc. No. 15), and this matter is now at issue. For
the reasons outlined below, it is recommended that the
Petition be denied.
Relevant Case History
2010, Petitioner was arrested after an Oklahoma City Police
Department (“OCPD”) officer saw Petitioner inside
his vehicle at a convenience store holding up a baggie
containing off-white rocks that later field-tested positive
for crack cocaine. Pet. Ex. 1, at 11-13; Vol. II Trial Tr.
89-102 (State v. Ingram, No. CF-2010-3949 (Okla.
Cty. Dist. Ct. Apr. 21-23, 2014)) (Doc. No. 17
(conventionally filed)). Following a jury trial in the
District Court of Oklahoma County, Oklahoma, Petitioner was
convicted of one count of trafficking in illegal drugs after
two or more prior felony convictions. Original Record
(“OR”) (Doc. No. 17) at 284-89. On May 28, 2014,
Petitioner was sentenced to 30 years' imprisonment. OR
appealed his conviction and sentence to the Oklahoma Court of
Criminal Appeals (“OCCA”). See Ingram v.
State, No. F-2014-489 (Okla. Crim. App.). The OCCA
affirmed Petitioner's conviction and sentence on August
13, 2015. See OCCA Summ. Op. (Doc. No. 15-4);
see also OCCA Corr. Order (Doc. No. 15-5).
Petitioner did not seek postconviction relief in the state
courts. See Pet. at 2-3.
7, 2016, Petitioner filed this federal habeas action, raising
five grounds for relief. See Pet. at 5-15; Pet. Ex.
1, at 14-47, 48; Price v. Philpot, 420 F.3d 1158,
1165 (10th Cir. 2005). Respondent contends, and the record
likewise reflects, that the Petition is timely filed and that
available remedies for all grounds for relief therein have
been exhausted. See Answer at 2; 28 U.S.C.
§§ 2244(d)(1), 2254(b)(1)(A).
Ground One: Prosecutorial Misconduct
Ground One, Petitioner alleges that the State committed
prosecutorial misconduct during its closing argument at trial
by: (i) attempting to shift the burden of proof to the
defense; (ii) improperly invoking societal alarm; and (iii)
vouching for the credibility of a key prosecution witness.
See Pet. at 5-6; Pet. Ex. 1, at 14-23. Petitioner
further argues that the alleged instances of prosecutorial
misconduct, when considered cumulatively, were sufficiently
prejudicial to deprive him of a fair trial. See Pet.
Ex. 1, at 14. These arguments were rejected on their merits
by the OCCA:
Ingram complains that several instances of prosecutorial
misconduct deprived him of his right to a fair trial. When
the challenged actions of the prosecutor are read and viewed
in context, considering the corresponding arguments of
defense counsel and the strength of the evidence, there is
nothing in any of the challenged actions, individually or
cumulatively, that deprived Ingram of a fair trial.
Summ. Op. at 2 (citing Hanson v. State, 206 P.3d
1020 (Okla. Crim. App. 2009)); see also Hanson v.
Sherrod, 797 F.3d 810, 843 (10th Cir. 2015)).
Standard of Review
as here, a § 2254 habeas claim has been adjudicated on
the merits by the state courts, a deferential standard of
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), we must apply a highly deferential standard in
§ 2254 proceedings, one that demands that state-court
decisions be given the benefit of the doubt. If a claim has
been “adjudicated on the merits in State court
proceedings, ” we may not grant relief under §
2254 unless the state-court 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 “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)(1), (2). The phrase “clearly
established Federal law, as determined by the Supreme Court
of the United States, ” id. § 2254(d)(1),
refers to the holdings, as opposed to the dicta, of the
Court's decisions as of the time of the relevant
Under the “contrary to” clause of §
2254(d)(1), we may grant relief only 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. And under the
“unreasonable application” clause, we may grant
relief only if the state court identifies the correct
governing legal principle from the Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case. An unreasonable application of federal
law is different from an incorrect application of federal
law. Indeed, a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013)
(alterations, citations, and internal quotation marks
Statements Relating to the Burden of Proof
considering a habeas challenge based on alleged prosecutorial
misconduct, courts differentiate between conduct that would
deprive the Petitioner of a specific constitutional right and
that which would otherwise render the trial fundamentally
Ordinarily, a prosecutor's misconduct will require
reversal of a state court conviction only where the remark
sufficiently infected the trial . . . to make it
fundamentally unfair, and, therefore, a denial of due
process. Nonetheless, when the impropriety complained of
effectively deprived the defendant of a specific
constitutional right, a habeas claim may be established
without requiring proof that the entire trial was thereby
rendered fundamentally unfair.
Id. at 990 (omission in original) (citation and
internal quotation marks omitted). Here, because only
Petitioner's contention regarding the State's burden
of proof implicates the deprivation of a specific
constitutional right, the undersigned addresses this argument
first. See Id. at 990-91 (analyzing claim that State
improperly characterized its burden of proof to determine if
the misconduct “effectively deprived the defendant of a
specific constitutional right” (internal quotation
marks omitted)); Morris v. Workman, 382 F. App'x
693, 696 (10th Cir. 2010) (“Where prosecutorial
misconduct directly affects a specific constitutional right
such as the presumption of innocence, a petitioner may obtain
relief by demonstrating that the constitutional guarantee was
so prejudiced that it effectively amounted to a denial of
that right.” (internal quotation marks omitted)).
support of this argument, Petitioner points to the
prosecutor's comments during the State's final
closing argument for the first stage of trial. First, the
It's not reasonable to come to the conclusions that
[defense counsel] is asking you to come to. [Defense counsel]
says it's our burden, which it fully, completely is. The
State always has the burden of proof. He's absolutely
right. Do you know what? They also have subpoena power. They
have subpoena power to call in anybody that they want, and
they didn't do that.
Vol. III Trial Tr. 31. Petitioner's counsel then objected
at the bench that the State was trying to shift the burden of
proof. See Id. at 31-32. The trial court overruled
the objection, and the prosecutor concluded:
burden lies on us, but he has that subpoena power .....
[Detective Jacob McClain] was the witness the State called
because he's the one that saw all of the elements of this
crime, all of the elements that we have to prove to you. He
can produce his own witnesses. Burden is on us. He has that
power. I submit to you that there's absolutely no
evidence to suggest he wasn't holding that bag of crack
Vol. III Trial Tr. 32-33; see also Id. at 35; Pet.
Ex. 1, at 20.
prosecutor making a closing argument may properly
“comment on the circumstances of the crime made known
to the jury during trial” and “possesses
reasonable latitude in drawing inferences from the
record.” Hooper v. Mullin, 314 F.3d 1162, 1172
(10th Cir. 2002). Rather than reflecting an attempt to shift
the burden of proof, the prosecutor's remark as to the
absence of any evidence to contradict the State's case
was “a fair comment on the evidence” that had
been presented during the trial. Id. The statements
made by the prosecutor, as quoted above, accurately reference
the State's burden of proof and do not mischaracterize or
negate that burden. See Sanchez v. Bryant, 652 F.
App'x 599, 606-07 (10th Cir. 2016) (rejecting argument
that the prosecution improperly attempted to shift the burden
of proof when the prosecutor had “noted the lack of
evidence to substantiate” the defense theory and
“acknowledged the State's burden of proving every
element, but contended that the evidence showed
guilt”). Moreover, the jury was instructed on the
presumption of innocence afforded Petitioner and as to the
burden upon the State to ...