United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE
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],  and Petitioner has filed a Reply [Doc. No.
13]. For the reasons set forth below it is recommended that
the Court DENY the Petition.
Relevant Factual and Procedural History
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.
State tried Petitioner for second degree murder. See
Or. at 1-2. 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,
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
Grounds for Federal Habeas Corpus Relief
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.
Standard of Review
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).
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
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)).
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).
Petitioner's Ground Two - Trial Court's Failure to
Give a Lesser-Included Instruction
Ground Two,  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.
Petitioner's Ground Three - Alleged Improper
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.
for plain error, the OCCA rejected this claim on direct
[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
OCCA Opinion at 4.
Clearly Established Law
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.
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).