United States District Court, W.D. Oklahoma
HEATON CHIFE U.S. DISTRICT JUDGE
Sebastian Shepherd is a state prisoner who seeks habeas
relief pursuant to 28 U.S.C. § 2254. He was convicted in
the District Court of Cleveland County, Oklahoma, after jury
trial, of first degree murder, first degree burglary, and two
counts of kidnapping. He appealed his conviction to the
Oklahoma Court of Criminal Appeals (“OCCA”),
which affirmed in an unpublished opinion.
Shepherd later filed this petition for writ of habeas corpus,
proceeding pro se. The petition was referred to U.S.
Magistrate Judge Gary Purcell for initial proceedings. Judge
Purcell has submitted a Second Supplemental Report and
Recommendation [Doc. #35, hereafter the “Report”]
recommending that the petition be denied.
has filed an objection to the Report. However, the objection
does not attempt to come to grips with the Report's
analysis or conclusions in any specific way, relying for the
most part on re-adopting his earlier arguments. Such a
non-specific objection is not sufficient to preserve an issue
for review and any objections are thereby deemed waived.
Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008); see also McMullen v. Bravo, 530 Fed.Appx.
693, 696 (10th Cir. 2013). However, in light of
petitioner's pro se status and his effort to
file at least a general objection, the court has nonetheless
conducted a de novo review of the record and the
basis for the Report's conclusions.
factual background of the case and the circumstances
underlying petitioner's conviction are described in the
Report and the decision of the OCCA, and need not be repeated
here. Further, the Report accurately sets out the applicable
standard for review in this habeas proceeding. That standard
is deferential-indeed, doubly deferential as to claims of
ineffective assistance of counsel-to the OCCA's
resolution of the issues raised here, all of which were first
considered by the OCCA.
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), this court may grant habeas relief
only if the state court' adjudication of the issues
“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).
findings are not “unreasonable” just because this
or some other reviewing court might have found the facts
differently in the first instance. Brumfield v.
Cain, 135 S.Ct. 2269, 2277 (2015). Rather, this court
must defer to the state court determination of the issue so
long as “reasonable minds reviewing the record might
disagree about the finding in question.” Id.
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, 136 S.Ct. 1149,
1151 (2016). In other words, this court's review is
highly deferential to the determination of the OCCA. Further,
as noted above, the review is doubly deferential as to issues
involving claims of ineffective assistance of counsel. The
Strickland v. Washington, 466 U.S. 688, 690-1
(1984), standard for such claims, like the § 2254(d)
standard, is “highly deferential and when the two apply
in tandem, review is doubly so.” Harrington v.
Richter, 562 U.S. 86, 105 (2011).
these standards, the court concludes petitioner is not
entitled to habeas relief for substantially the reasons
stated in the Report. With respect to petitioner's
challenge to the sufficiency of the evidence, the Report
correctly concluded that the OCCA applied the federal
constitutional standard for evaluating such claims-whether,
viewing the evidence in the light most favorable to the
prosecution, a rational juror could have found the defendant
guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). There was plainly
evidence here which prevented the OCCA's determination of
the issue from being viewed as unreasonable under that
petitioner's challenge based on the admission of certain
evidence at trial, the only question for federal habeas
purposes is whether admission of the evidence rendered his
trial “fundamentally unfair, ” hence violating
his Due Process rights. Payne v. Tennessee, 501 U.S.
808, 825 (1991). The Report correctly noted that the OCCA
essentially applied that standard. And for the reasons stated
more fully in the Report, the OCCA's determination of the
question was not outside the bounds of
claim of alleged prosecutorial misconduct also fails. The
OCCA's conclusions that the challenged statements of the
prosecutors were fair comments based on the evidence or that
any questionable statements did not prejudice him were not
also contends that the trial court should have declared a
mistrial based on a witness's surprise identification of
petitioner. However, in light of the trial judge's
immediate instruction to the jury to ignore the surprise
statement and defense counsel's later reference to it
notwithstanding the court's instruction, the OCCA's
rejection of the claim was not unreasonable.
objection to the Report reminds the court that certain of his
claims are also the basis for his ineffective assistance of
counsel claim. However, the OCCA concluded those underlying
claims were either without merit or that any claimed
deficiency in counsel's performance did not prejudice the
petitioner. The OCCA's determination of these issues was
not unreasonable in light of the “double
deference” standard referenced above.
petitioner seeks relief based on cumulative error. The
OCCA's conclusion that there were no errors to cumulate
was not plainly unreasonable, so ...