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Hill v. Allbaugh

United States District Court, W.D. Oklahoma

January 23, 2018

TIMOTHY J. HILL, Petitioner,
JOE M. ALLBAUGH, Respondent.



         Petitioner, a state prisoner appearing pro se, [1] has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his convictions and sentences entered in Pontotoc County for child abuse and child neglect. The matter was referred to United States Magistrate Judge Suzanne Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Respondent filed a response to the Petition [Doc. No. 15] and Petitioner replied [Doc. No. 18]. On August 22, 2017, Judge Mitchell issued a Report and Recommendation (R&R or Report) in which she recommended that the Court deny the petition for habeas relief [Doc. No. 19]. Petitioner timely objected to the Report [Doc. No. 22].

         The Court has read the Report and conducted a de novo review of the relevant filings. Based upon this review, and as set forth more fully below, the Court accepts the Report and adopts it as the ruling of this Court.


         Petitioner lived in Ada, Oklahoma with Staci Lewis and their three-month old daughter, TH. On June 5, 2012, Ms. Lewis brought TH to the hospital, claiming that three days earlier, she accidently hit the infant's head on a door frame. The attending physician observed the baby's movements and the child was transported to Children's Hospital in Oklahoma City, Oklahoma, where she arrived weighing 8 pounds, eight ounces, putting her in only the 3rd percentile on infant growth charts. At Children's Hospital, tests revealed TH suffered from subdural hematomas, subarachnoid bleeds, areas of “traumatic infarction” or “traumatic stroke” (i.e., “damaged brain tissue”), and “extensive multi-layer retinal hemorrhages involving both eyes.” TH also had multiple fractures to her ribs, tibia, and distal femur, which were deemed to have occurred at different times.

         Dr. John Stuemky, M.D. attested that TH's brain injuries were significant and resulted in 20% to 30% of her brain dying. He testified that her head injuries were a “marker” for “shaken babies.” He further stated that TH's leg fractures were caused by pulling, jerking, or twisting, a “classic physical abuse finding, ” and her ribs had been fractured by “squeezing.” Dr. Stuemky stated that TH's injuries were not consistent with an accident and could not explain her retinal hemmoragges and fractures. In summary, Dr. Stuemky opined that TH had been subjected to “fantastic forces” over an ongoing period of time and had been the victim of “multiple shaking incidents.” With respect to TH's nutrition, Dr. Stuemky stated that TH exhibited symptoms of “failure to thrive” and notes she began to gain weight under routine care while in the hospital. TH's temporary foster mother also testified that TH gained weight while in her care.

         Petitioner was charged with felony child abuse by failure to protect (Count One), in the alternative, felony child abuse by injury (Count Two), and felony child neglect (Count Three). A jury acquitted Petitioner of Count Two, but found him guilty of felony child abuse by failure to protect and felony child neglect. He was sentenced to two consecutive thirty-five year sentences. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and a subsequent application for post-conviction relief was denied by the trial court. The OCCA denied Petitioner's post-application appeal. This action followed.

         Petitioner raised three claims for relief: (1) the OCCA failed to fully address his claims in violation of the Sixth and Fourteenth Amendments; (2) ineffective assistance of counsel (trial and appellate); and (3) insufficient evidence.[2] After denying Petitioner's request for an evidentiary hearing, Judge Mitchell recommended that the Court reject Petitioner's first claim for relief. Judge Mitchell noted that challenges to state post-conviction procedures are not cognizable in habeas proceedings, but nevertheless found that the OCCA properly addressed Petitioner's ineffective counsel claims. R&R at 11. As to Petitioner's claim of ineffective assistance of counsel, Judge Mitchell found that, under clearly established law, Petitioner failed to meet the standard governing ineffective assistance claims set forth in Strickland v. Washington, 466 U.S. 668 (1984)- namely, that his trial counsel's failure to object to certain statements by the prosecution or his appellate counsel's failure to argue his trial counsel was ineffective-was deficient or he was prejudiced by counsel's performance. See id. at 14-21. Lastly, with respect to Petitioner's claim of insufficient evidence, Judge Mitchell found that, under clearly established law, a rational trier of fact could conclude Petitioner willfully or maliciously failed to protect TH from child abuse and neglected her proper nutrition. See id. at 24. Accordingly, Judge Mitchell recommended that the Court find the OCCA reasonably applied federal law in rejecting the foregoing claims and deny Petitioner's petition for habeas relief. See id. at 11, 24. Petitioner timely objected to the Report.


         The Court must review de novo any part of a magistrate judge's report and recommendation to which a proper objection has been made. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). Upon the exercise of such review, the Court may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See id. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires district courts to apply a “difficult to meet and highly deferential standard” in federal habeas proceedings under 28 U.S.C. § 2254. Newmiller v. Raemisch, 877 F.3d 1178, 1194 (10th Cir. 2017). This standard “demands that state-court decisions be given the benefit of the doubt.” See id. (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). A petitioner is entitled to federal habeas relief under § 2254 only if the state court's merit-based decision either:

(1) 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
(2) 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.

28 U.S.C. § 2254(d)(1)-(2).[3]

         A state-court decision is “contrary to” the Supreme Court's clearly established law if it “applies a rule that contradicts the governing law set forth in Supreme Court cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of the Court and nevertheless arrives at a result different from that precedent.” Newmiller, 877 F.3d at 1194 (quoting Williams v. Taylor, 529 U.S. 405, 406 (2000) (paraphrasing omitted)). A state-court decision is an “unreasonable application” of clearly established Supreme Court law if the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Newmiller, 877 F.3d at 1194 (quoting Williams, 529 U.S. at 407-08). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” See id. at 1195 (quoting Williams, 529 U.S. at 410). Thus, federal habeas relief may not be granted simply because the district court concludes that the state court's decision erroneously or incorrectly applied clearly established federal law-the application must also be unreasonable.” See id.

         Even where the state court does not explain its decision, a petitioner must still show that “there was no reasonable basis for the state court to deny relief.” Seeid. (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). A court “must determine what arguments or theories supported or ... could have supported[ ] the state court's decision.” See id. (quoting Harrington, 562 U.S. at 102). The court must then ask “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court.” See Id. ...

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