United States District Court, W.D. Oklahoma
COREY E. DEGEARE, Petitioner,
CARL BEAR, Respondent.
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
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).
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. 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.
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
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
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
(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;
(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.
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.
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
(2) argued trial counsel was ineffective for failing to
present evidence that would have made Mr. Beckman's
(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
(4) challenged trial counsel's failure to introduce
Petitioner's medical records showing he suffered from
(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.
Petitioner's Procedurally Barred Claims
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].
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.
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].
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
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 ...