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Nazario v. Allbaugh

United States District Court, W.D. Oklahoma

February 13, 2018

JIMMY NAZARIO, J.R., Petitioner,
v.
JOE ALLBAUGH, DIRECTOR, Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE

         Petitioner, Jimmy Nazario, Jr., 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-2011-570, District Court of Comanche 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. 8] and the State Court Records [Doc. No. 10], [1] and Petitioner has filed a Reply [Doc. No. 13]. For the reasons set forth below it is recommended that the Court DENY the Petition.

         I. Relevant Factual and Procedural History

         Petitioner, Priscilla Munoz, Albert Dutchover, and Jose Hernandez were walking towards Petitioner's home at the Motif Manor Apartments in Lawton, Oklahoma, when they encountered Ervin Manigault in the parking lot. See Tr. Vol. I, at 230-31. Mr. Manigault approached the foursome, asking if they had been responsible for “tagging” graffiti on the apartments. Id. at 234- 35; Tr. Vol. II, at 27-28, 57. Although Mr. Manigault's friend, Kaneisha Plummer, described Mr. Manigault as calm and said his arms stayed at his sides while he spoke, see Tr. Vol. II, at 106-107, Ms. Munoz and Mr. Dutchover described Mr. Manigault as agitated, yelling, and waving his arms in the air. See Tr. Vol. I, at 273-74; Vol. II, at 27, 42, 58. Petitioner shot Mr. Manigault in the chest, and then again in the back as the victim ran away. See Tr. Vol. I, at 234-36; Vol. II, at 30-32. Mr. Manigault died from his wounds. See Tr. Vol. II, at 219.

         The State tried Petitioner for second degree murder. See Or. at 1-2.[2] Petitioner's attorney argued that the shooting was done in self-defense, see Tr. Vol. I, at 219-21; Vol. III, at 20-25; nevertheless, the jury convicted Petitioner. See Or. at 631. Per the jury's recommendation, the trial court sentenced him to twenty-five years' imprisonment. See Id. at 631, 652.

         Thereafter, Petitioner filed a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA). See Opening Brief of Appellant Jimmy Nazario, Jr. [Doc. No. 8-Ex. 1]. The state appellate court affirmed the conviction. See OCCA Opinion [Doc. No. 8-Ex. 5]. 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 properly impeach the witnesses, failing to bring forth favorable testimony, and introducing prior bad acts. See Pet. at 5-28. In Ground Two, Petitioner claims that the trial court denied him due process when it refused to instruct the jury on the lesser-included offense of heat of passion manslaughter, or, alternatively, that trial counsel was ineffective for failing to request the instruction. See Id. at 28-31. Then, in Ground Three, Petitioner alleges a police detective engaged in improper vouching, and trial counsel failed to object. See Id. at 31-32. Finally, in Ground Four, Petitioner argues that the State committed prosecutorial misconduct when it injected a racial motive into the case that was unsupported by the evidence. See Id. at 32. Petitioner asks for an evidentiary hearing on the ineffective assistance of trial counsel claims. See Id. at 34.

         III. Standard of Review

         When, as here, 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 (2).

         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).

         IV. Analysis

         A. Petitioner's Ground Two - Trial Court's Failure to Give a Lesser-Included Instruction

         In Ground Two, [3] Petitioner alleges that the trial court denied him due process when it failed to instruct the jury on the lesser-included crime of heat of passion manslaughter. See Pet. at 28-30. The OCCA rejected this claim on the merits, see OCCA Opinion at 3, but in this limited circumstance, the state appellate court's decision is irrelevant. Petitioner's is a non-capital case. See supra p. 2. Thus, regardless of the OCCA's decision, Petitioner is not entitled to habeas relief because “[n]either [the Tenth Circuit] nor the Supreme Court has recognized a federal constitutional right to a lesser included instruction in non-capital cases.” Johnson v. Keith, 726 F.3d 1134, 1135 n.2 (10th Cir. 2013); see also Davis v. Roberts, 579 Fed.Appx. 662, 668 (10th Cir.2014) (“The Supreme Court has never recognized a federal constitutional right to a lesser included offense instruction in non-capital cases.”). Accordingly, the Court should deny habeas relief on this portion of Petitioner's Ground Two. Petitioner's remaining Ground Two argument - alleging ineffective assistance of trial counsel - is addressed below.

         B. Petitioner's Ground Three - Alleged Improper Vouching

         According to Petitioner, Lawton Police Detective Roberto Peralta improperly characterized evidence and opined on the credibility of witnesses, depriving him of a fair trial. See Pet. at 31-32. Specifically, Petitioner claims that Detective Peralta: (1) told the jury when “witnesses Munoz and Dutchover were telling the truth and when they were lying or not being forthcoming with the entire truth;” (2) “pronounce[d] that Duthcover had ‘made up' his claim about seeing Mr. Manigault with a knife;” and (3) described the “homicide as a ‘murder, ' which was up to the jury to decide.” Id. at 31.

         Reviewing for plain error, the OCCA rejected this claim on direct appeal, finding:

[T]he testimony did not constitute impermissible vouching. See Warner v. State, 2006 OK CR 40, ¶ 24, 144 P.3d 838, 860-61 (Where there was no expression of personal belief in the witness's credibility or that evidence not presented supports the witness's testimony there is no improper vouching). Furthermore, the witnesses had already testified and admitted that they initially lied and then changed their story to the truth. There is no plain error here.

OCCA Opinion at 4.

         1. Clearly Established Law

         “Improper vouching for witnesses is not considered to impact an express constitutional right.” United States v. Harlow, 444 F.3d 1255, 1266 (10th Cir. 2006) (citation omitted). And, the Supreme Court has never held that witness “vouching testimony itself violates the Due Process Clause.” Parker v. Scott, 394 F.3d 1302, 1310 (10th Cir. 2005); see also Simpson v. Duckworth, No. CIV-11-96-M, 2016 WL 3029966, at *20 (W.D. Okla. May 25, 2016) (unpublished district court order) (citing cases noting the absence of any Supreme Court authority holding that vouching alone violates due process). However, the Tenth Circuit Court of Appeals has recognized that vouching can compromise the fairness of the proceedings and implicate the Fourteenth Amendment's Due Process Clause, but only if it renders the trial fundamentally unfair. See Parker, 394 F.3d at 1310.

         As discussed, the OCCA applied a “plain error” standard to this claim. Notably, “Oklahoma's formulation of the plain-error standard is virtually identical to the constitutional test for due process.” Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015). So when the OCCA “rejected [Petitioner's] claim under the plain-error standard, the decision effectively disallowed the possibility of a due process violation.” Id. This Court must then defer to the OCCA's ruling unless it “‘unreasonably applied'” the due process test. Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (internal brackets and citation omitted); see also Eizember v. Trammell, 803 F.3d 1129, 1138 n.1 (10th Cir. 2015) (holding the court would apply deference to the OCCA's plain error analysis).

         2. ...


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