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Harris v. Allbaugh

United States District Court, N.D. Oklahoma

April 6, 2018

JOE ALLBAUGH, Director, [1] Respondent.



         Before the Court is Petitioner's amended 28 U.S.C. § 2254 habeas corpus petition (Doc. 12). Petitioner, a state inmate appearing pro se, challenges the constitutional validity of the judgment and sentence entered against him in Tulsa County District Court Case No. CF-2012-480. In that case, Petitioner was convicted of first degree rape, after former conviction of two or more felonies, and sentenced to life without the possibility of parole. Petitioner alleges he is entitled to federal habeas relief because (1) the trial court erroneously admitted prejudicial propensity evidence, (2) the prosecutor deprived him of a fair trial by invoking juror sympathy during the second phase of his bifurcated trial, (3) trial counsel provided ineffective assistance, and (4) the State failed to present sufficient evidence to support his conviction. Respondent filed a response to the petition (Doc. 16), and provided the state court records necessary to adjudicate Petitioner's claims (Docs. 16, 17). Petitioner filed a reply (Doc. 22), and submitted supporting documents (Doc. 23). For the reasons discussed below, the Court finds the habeas petition shall be denied.


         Under 28 U.S.C. § 2254(e)(1), a state court's factual findings are presumed correct unless a habeas petitioner rebuts that presumption “by clear and convincing evidence.” Following review of the record, trial transcripts, trial exhibits, and other materials submitted by the parties, the Court finds the factual background provided in the Oklahoma Court of Criminal Appeals' decision affirming Petitioner's conviction and sentence is adequate and accurate. Therefore, the Court adopts the following summary as its own:

In the early evening of November 1, 2011, A.T. left her Tulsa home, with the intent of walking to a local bar. As she walked she held out her thumb hoping to get a ride. A vehicle described by A.T. as a Ford Explorer-type pulled over and parked ahead of her. The driver offered her a ride. She approached the vehicle cautiously, decided it would be safe to “catch a ride for a couple of blocks, ” and got in the car. The driver introduced himself as “Mark” and asked why she was going to a bar. She told him she had fought with her boyfriend and wanted a few drinks. “Mark” proposed to take her to the Vegas Club several miles away as an alternative to her local bar. A.T. accepted his offer and the two made casual conversation on the way. When the vehicle passed the Vegas Club[, ] A.T. asked where they were going. “Mark” told her he had a friend nearby and wondered if she used drugs. A.T. told him she did not and then realized he had turned into a field near a water treatment facility. He told her it was a nice night to look at the stars.
“Mark” parked the car, got out and opened A.T.'s door. He asked her to get out; she refused. He then ordered her to get out. When she did, he forced her against the car and tried to kiss her. She refused, spitting in his face. A.T. testified she had fought his advances, but the man was strong enough to throw her to the ground, jump on her, grab her hair and bash her head into the ground. She freed herself twice, but finally he pinned her to the ground choking her with one hand and blocking her breath with the other. When she felt a sharp object pressing into her neck, she stopped resisting. He pulled off her belt, unbuttoned and pulled down her pants. After some initial difficulty in achieving an erection, he raped A.T., thrusting his penis into her vagina. After he ejaculated, he drove away, ignoring A.T.'s pleas to take her back to her neighborhood.
Alone, A.T. walked toward a busy highway hoping for help. She testified that two law enforcement officers stopped to check on her, but refused to take her home or to a hospital. She said they ridiculed her. An ambulance also arrived, but because of A.T.'s hysteria, the attendant documented the encounter noting A.T. refused service and left her. She reached her boyfriend and friend by cell phone. They took her home and later called for an ambulance to take her to the hospital for a rape exam.
A few months later, Detective Eagan of the Tulsa police department interviewed A.T. and showed her a six person photo display. A.T. identified one of the men in the lineup as her attacker and estimated her certainty at 95 percent. She said her hesitation stemmed from her inability to see the man's teeth because her attacker was missing his two front teeth. She described her rapist as white, thin, in his 50's, with pockmarks on his face and a “salt and pepper” mustache. At trial, A.T. identified [Petitioner] as the man who raped her.
Three other women, H.W., D.C., and S.G., each testified that she was also sexually assaulted by [Petitioner]. Those assaults took place within three months of the incident described by A.T. Each assault bore similarities to the attack on A.T., and each of the three women identified [Petitioner] as her attacker.

Doc. 16-4, Harris v. State, No. F-2013-288 (Okla. Crim. App. 2014) (unpublished) (hereafter, “OCCA Op.”), at 2-4.[2]

         Following a bifurcated trial, a Tulsa County jury convicted Petitioner of first degree rape, in violation of Okla. Stat. tit. 21, §§ 1111, 1114 & 1115, after former conviction of two or more felonies.[3] Id. at 1; see also Doc. 16-1, Judgment and Sentence, at 1. Consistent with the jury's recommendation, the trial court imposed a sentence of life without the possibility of parole and a $10, 000 fine. Doc. 16-1 at 1; see also Doc. 17-3, Tr. Trial vol. 3, at 216.

         Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), raising four propositions of error. See Doc. 16-2, Pet'r App. Brief, at 2. In an unpublished opinion filed March 18, 2014, the OCCA affirmed Petitioner's conviction and sentence. Doc. 16-4, OCCA Op., at 1, 13. Petitioner did not seek further review of the OCCA's decision by filing a petition for writ of certiorari with the United States Supreme Court. See Doc. 12 at 3. Also, nothing in the record shows Petitioner filed an application for post-conviction relief in state court.[4]

         Petitioner filed a federal habeas petition on March 20, 2015, asserting nine claims. Doc. 1.

         By Order filed October 29, 2015 (Doc. 11), the Court advised Petitioner the petition was subject to being dismissed as a “mixed petition” because it contained both exhausted and unexhausted claims.

         As directed by the Court, Petitioner filed an amended petition (Doc. 12) on November 30, 2015. In his amended petition, Petitioner seeks habeas relief on the same four claims he presented to the OCCA on direct appeal:

Ground 1: Abuse of discretion by trial court in admitting evidence of sexual propensity that was prejudicial towards Petitioner.
Ground 2: Prosecutorial misconduct during 2nd stage did deprive Petitioner a fair trial.
Ground 3: Ineffective assistance of counsel at jury trial.
Ground 4: Insufficient evidence to prove beyond doubt Petitioner was guilty of crime charged.

Doc. 12 at 5, 7, 8, 10.

         Respondent concedes, and the Court finds, that Petitioner timely filed his federal habeas petition. Doc. 16 at 1; see 28 U.S.C. § 2244(d)(1) (imposing one-year period of limitation for filing federal habeas petition). Respondent contends, however, that “portions of the arguments presented in Grounds 1-3 are still unexhausted” despite the Court's prior order directing Petitioner to omit exhausted claims. Doc. 16 at 1-2; see Id. § 2254(b)(1)(A) (requiring state prisoner to exhaust available state remedies before filing federal habeas petition). As to the exhausted portions of Petitioner's claims Respondent deems exhausted, Respondent contends Petitioner is not entitled to habeas relief because Petitioner's Ground 1 claim alleges only an error of state law and § 2254(d) bars habeas relief on his remaining claims. Doc. 16 at 4-21.


         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may grant habeas relief to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In addition, before a federal court may grant habeas relief, a state prisoner must exhaust available state-court remedies, id. § 2254(b)(1)(A), by “fairly present[ing] the substance of his federal habeas claim[s] to state courts, ” Hawkins v. Mullins, 291 F.3d 658, 668 (10th Cir. 2002).

         When a state court adjudicates the merits of a state prisoner's federal claims, a federal court may not grant habeas relief on those claims unless the prisoner demonstrates that the state court's adjudication of those claims either (1) “resulted in a decision that was contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States, ” id. § 2254(d)(1); (2) “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, ” id.; or (3) “resulted in a decision that was based on an unreasonable determination of the facts” in light of the record presented to the state court, id. § 2254(d)(2). As used in § 2254(d)(1), the phrase “clearly established Federal law” means “the governing legal principle or principles” stated in “the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

         “To determine whether a particular decision is ‘contrary to' then-established law, a federal court must consider whether the decision ‘applies a rule that contradicts [such] law' and how the decision ‘confronts [the] set of facts' that were before the state court.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (alterations in original) (quoting Williams, 529 U.S. at 405, 406). When the state court's decision “‘identifies the correct governing legal principle' in existence at the time, a federal court must assess whether the decision ‘unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413). An “unreasonable application of” clearly established federal law under § 2254(d)(1) “must be ‘objectively unreasonable, ' not merely wrong; even clear error will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Lockyer, 538 U.S. at 75-76). Likewise, under § 2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As previously stated, the federal court must also presume the correctness of the state court's factual findings unless the state prisoner rebuts that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         The standards set forth in § 2254 are “difficult to meet” by design, Harrington v. Richter, 562 U.S. 86, 102 (2011), and require federal habeas courts to give state court decisions the “benefit of the doubt, ” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Thus, as a precondition to obtaining federal habeas relief a state prisoner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

         Even if a state prisoner overcomes § 2254(d)'s “formidable barrier, ” Burt v. Titlow, 571 U.S. 12, 16 (2013), federal habeas relief is not automatic. Instead, overcoming that barrier permits the federal court to review the prisoner's constitutional claims de novo, rather than through AEDPA's deferential lens. See Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014) (explaining that satisfaction of § 2254(d)'s standards “effectively removes AEDPA's prohibition on the issuance of a writ” and “requires [federal habeas court] to review de novo” petitioner's claims- without deference to state court's decision-to determine whether petitioner is entitled to habeas relief). Further, even if the federal court finds constitutional error on de novo review, it “must assess the prejudicial impact of [that] constitutional error . . . under the ‘substantial and injurious effect' standard set forth in Brecht [v. Abrahamson, 507 U.S. 619 (1993)], whether or not the state appellate court recognized the error and reviewed it for ...

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