United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of Judge Bernard
M. Jones (Doc. 15) recommending that the Court deny state
prisoner Jerry Don Davis's pro se Petition for a Writ of
Habeas Corpus (Doc. 1). Petitioner filed an objection (Doc.
16) and the Court accordingly reviews the Report de novo.
Petitioner was convicted of First Degree Manslaughter and
Driving While Privilege Revoked following a jury trial in the
District Court of Oklahoma County (“State Trial
Court”), Case No. CF-2010-6556. Following an
unsuccessful appeal and post-conviction proceedings,
Petitioner raises three grounds for federal habeas relief.
The Petition is hereby DENIED.
and Patricia Ann Dixon suffered a motorcycle accident while
traveling in Oklahoma City for a “weekend
getaway” on September 17th, 2010.
See Petition, Doc. 1, at 5-6. Petitioner concedes he
drove with an expired license between Elk City and an
Oklahoma City bar. Id. at 6 n.2. He also admits he
was legally drunk afterward when the two left that bar.
Id. However, he claims Ms. Dixon was driving his
motorcycle thereafter when she rear-ended the car in front of
them, throwing her from the bike and ultimately killing her.
Id. at 6-7.
State of Oklahoma charged Petitioner with First Degree
Manslaughter and Driving While Privilege Revoked. At his jury
trial, the State presented an expert in accident
reconstruction, Oklahoma City Police Master Sergeant Jerry
Hendrick, who testified that based on the available
evidence-Petitioner and Ms. Dixon's injuries, the
skid-marks, the speed of the vehicles, where the parties
ended up following the accident, and other factors- he
believed that Petitioner was driving the motorcycle. See
Id. at 7-8; Doc. 9, at 6-7. Defense counsel thoroughly
cross-examined Officer Hendrick and Petitioner later
testified that Ms. Dixon was the driver. See Trial
Transcript, Doc. 9-12, at 18-22, 29-46, 49-59, 138-91, 204-
09. However, defense counsel did not present an expert
witness to support this theory.
jury deliberations, the jury asked the court by note,
“What do we do in the event of a hung jury on only one
count? We have come to a verdict only on the 2nd
count.” Appellant Brief, Doc. 9-1, at 5. The court
responded in writing, “Please continue to
deliberate.” Id. The record does not reflect
whether the court consulted with either party's counsel
or brought the jury into open court before responding. The
jury continued deliberations and found Petitioner guilty of
both counts. The court thereafter sentenced him to twenty
years imprisonment on the manslaughter charge, running
concurrent with one year imprisonment for driving with
filed an unsuccessful direct appeal, asserting that the court
erred in violating 22 Okla. Stat. § 894, which requires
notice to both parties when the court answers jury questions
during deliberations. See Oklahoma
Court of Criminal Appeals (“OCCA”) Summary
Opinion, Doc. 9-4. Petitioner then sought state
post-conviction relief on two grounds. First, trial counsel
was ineffective for failure to request appointment of an
expert accident reconstruction witness and failure to obtain
such a witness. Second, appellate counsel, who was different
from Petitioner's trial counsel, was ineffective for
failure to assert ineffective assistance of trial counsel.
The State Trial Court denied post-conviction relief (Doc.
9-7), and the OCCA denied Petitioner's post-conviction
appeal (Doc. 9-11).
Habeas Relief Under 28 U.S.C. § 2254
November 25, 2016, Petitioner filed three claims for federal
habeas relief pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
(1) The State Trial Court violated Petitioner's Fifth,
Sixth, and Fourteenth Amendment rights when it
“coercive[ly]” responded “Please continue
to deliberate” to the jury's question without
notification or the presence of counsel. The OCCA rejected
this claim on state grounds on direct appeal.
(2) Appellate counsel denied Petitioner his Sixth Amendment
right to effective assistance by failing to raise ineffective
assistance of trial counsel for not obtaining an expert
accident reconstruction witness. The OCCA rejected this claim
on the merits in post-conviction proceedings.
(3) Trial counsel denied Petitioner his Sixth Amendment right
to effective assistance by failing to request or obtain an
expert accident reconstruction witness. The OCCA rejected the
claim based on a procedural bar, that Petitioner failed to
raise the claim on direct appeal.
See Doc. 1, at 14.
applies a highly deferential standard of review to federal
habeas claims previously “adjudicated on the merits in
State court proceedings.” 28 U.S.C. § 2254(d);
see Burt v. Titlow, 134 S.Ct. 10, 16 (2013). The
Court may grant relief only if Petitioner shows that the
State Trial Court or OCCA 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), (2); see Owens v. Trammell, 792
F.3d 1234, 1242 (10th Cir. 2015) (“It is the
petitioner's burden to make this showing . . . .”).
“‘If this standard is difficult to meet'-and
it is-‘that is because it was meant to be.'”
Burt, 134 S.Ct. at 16 (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)).
court decision is “contrary to . . . clearly
established Federal law” under § 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
[different] result.” 28 U.S.C. § 2254(d);
Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739
(10th Cir. 2016) (quoting Fairchild v. Trammell, 784
F.3d 702, 710 (10th Cir. 2015)). As AEDPA's text clearly
indicates, “it is not the province of a federal habeas
court to re-examine state court determinations on state law
questions.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). Nor can the Court “extract clearly
established [federal] law from the general legal principles
developed in factually distinct contexts”; Supreme
Court holdings “must be construed narrowly.”
House v. Hatch, 527 F.3d 1010, ...