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Degeare v. Bear

United States District Court, W.D. Oklahoma

April 18, 2018

COREY E. DEGEARE, Petitioner,
v.
CARL BEAR, Respondent.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE

         This matter is before the Court for review of the Report and Recommendation [Doc. No. 17], issued by United States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Erwin recommends the denial of the Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Within the time limits authorized by the Court, Petitioner, through counsel, filed objections. Accordingly, the Court must make a de novo determination of any portion of the Report to which a specific objection is made, and may accept, modify, or reject the recommended decision in whole or in part. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         BACKGROUND

         Petitioner was charged in Cleveland County District Court after his stepdaughters, K.G. and M.G., made allegations of sexual abuse. The allegations spanned from September 2006 through March 2009. A jury acquitted Petitioner on Count One and convicted Petitioner on Counts Two through Eight.[1] In accordance with the jury's recommendation, the trial court sentenced Petitioner to life imprisonment on Counts Two, Three, and Four and 15 years' imprisonment on Counts Five, Six, and Seven, all running concurrently. O.R. at 209-211. Petitioner received a 10-year suspended sentence on Count Eight, which was ordered to run consecutively to the sentences in Counts Two through Seven. Id.

         Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (“OCCA”). The OCCA affirmed Petitioner's convictions and sentences. Subsequently, Petitioner filed a pro se application for post-conviction relief in the District Court of Cleveland County. Petitioner raised several claims, including ineffective assistance of appellate counsel. The trial court appointed Petitioner counsel and conducted an evidentiary hearing on his ineffective assistance of appellate counsel claim. Thereafter, the trial court issued an order denying post-conviction relief.

         Petitioner, through counsel, then filed an appeal challenging the trial court's order and raising new post-conviction claims. The OCCA affirmed the denial of post-conviction relief and held that Petitioner's new claims had not been properly raised. Petitioner now seeks federal habeas relief from his state convictions.

         STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and 28 U.S.C. § 2254 govern the Court's power to grant federal habeas relief to a state prisoner. Once a state court has adjudicated a particular claim on the merits, Petitioner must demonstrate that the adjudication:

(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “This is a ‘difficult to meet' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations omitted). Indeed, this standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-103 (2011) (internal quotations omitted). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99.

         A state court decision is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law.” Williams v. Taylor, 529 U.S. 362, 405 (2000) (O'Connor, J., concurring and delivering the opinion of the Court). A decision will also be “contrary to” Supreme Court precedent “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 406. The “unreasonable application” prong comes into play when “the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.

         ANALYSIS

         As grounds for habeas review, Petitioner presents one broad claim of ineffective assistance of appellate counsel broken down into numerous sub-claims. Specifically, Petitioner asserts that his appellate counsel should have:

(1) challenged the trial court's ruling preventing Kameron Beckman from testifying that K.G. and M.G. had previously made false allegations of sexual molestation against him;
(2) argued trial counsel was ineffective for failing to present evidence that would have made Mr. Beckman's testimony admissible;
(3) argued trial counsel was ineffective for not calling Kathy Hatelid, a physician's assistant at Children's Hospital, to testify about the lack of physical evidence of rape;
(4) challenged trial counsel's failure to introduce Petitioner's medical records showing he suffered from erectile dysfunction;
(5) claimed trial counsel was ineffective for not cross-examining M.G. about her preliminary hearing testimony where she described Petitioner's genitalia;
(6) raised a prosecutorial misconduct claim involving the State's statement in closing argument that the girls had no motive to lie;
(7) argued trial counsel should have attempted to admit Petitioner's polygraph results at trial;
(8) challenged the inadmissibility of polygraph results as an equal protection violation; and
(9) claimed trial counsel was ineffective for not attempting to introduce evidence that Petitioner's brother was a convicted sex offender and possible alternate perpetrator.

         A. Petitioner's Procedurally Barred Claims

         Judge Erwin held that Sub-Claims Two, Four, Five, Seven, and Nine are procedurally barred. Petitioner concedes that Sub-Claims Five and Nine are procedurally barred, but objects to application of a procedural bar to the other claims. Petitioner's counsel asserts that Petitioner raised the substance of Sub-Claims Two, Four and Seven, “although perhaps inartfully, ” in his post-conviction application filed in Cleveland County District Court. Pet'r's Objections to R&R [Doc. No. 18 at n. 2].

         The Court has carefully reviewed Petitioner's Application for Post-Conviction Relief [Doc. No. 13-4], Petitioner's Brief in Support of his Application for Post-Conviction Relief [Doc. No. 13-5] and the transcript from the evidentiary hearing held before the district court on June 22, 2016. The Court concurs with the conclusions of Judge Erwin and the OCCA that Petitioner did not raise Sub-Claims Two, Four and Seven at the state district court level.

         In his pro se application, Petitioner indicated he had three propositions for relief and referred the Court to his brief regarding those propositions. [Doc. No. 13-4]. Petitioner identified Proposition One in his brief as “Ineffective Assistance of Appellate Counsel in Violation of the Sixth Amendment of the United States Constitution.” [Doc. No. 13-5].

         Under Proposition One, Petitioner alleged that his appellate attorney was ineffective for: (1) failing to remain in contact with him; (2) failing to secure an affidavit from trial counsel admitting his ineffectiveness; and (3) failing to provide Petitioner a copy of his direct appeal brief for review. In a cursory fashion, Petitioner also indicated under that same proposition that he would be addressing “prosecutorial misconduct” and the trial court's “abuse of discretion … in connection with the Rape Shield Clause” and “newly discovered evidence from the Oklahoma County Court Clerk in regards to Kameron Beckman.” [Doc. No. 13-5 at 5]. Petitioner did not indicate in any way that these other alleged errors were tied to his theory that appellate counsel was ineffective. Further, Petitioner indicated he would address his trial counsel's “failures in a separate proposition.” Id.

         Proposition Two was titled, “The Petitioner States that there Exists Evidence of Material Facts Not Previously Presented and Heard that Requires Vacation of Conviction and Sentence in the Interest of Justice.” Id. at 6. Under this proposition, Petitioner attached medical records of M.G. and K.G. from Children's Hospital. Id. at 42-69. Petitioner asserted that this evidence negated his guilt and questioned the reliability of ...


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