United States District Court, W.D. Oklahoma
THOMAS H. CROWDER, JR., Petitioner,
JIMMY MARTIN, Warden, Respondent.
REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE
a state prisoner appearing pro se, has filed this
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. Petitioner is challenging his conviction for
lewd or indecent acts with a child under 16 in violation of
Okla. Stat. tit. 21, § 1123 entered in the District
Court of Oklahoma County, Case No. CF-2014-5800. Respondent
has responded to the Petition and filed the relevant state
court records, including the trial transcript
(“Tr.”). The matter has been referred to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. §636(b)(1)(B). For the
following reasons, it is recommended the Petition be denied.
November 2015, Petitioner was tried before a jury on one
count of lewd or indecent acts with a child under
Petitioner was accused of touching the private parts of J.C.,
who was 11 years old at the time. Petitioner was a friend of
J.C.'s family and was at their home with J.C. and her
younger sister, M.C., while their parents and brother were at
an appointment. J.C. reported that she was sitting on the
couch and Petitioner came over and told her that he was
leaving. Petitioner gave her a hug, began rubbing her back up
and down, and then began rubbing her private area over her
shorts. Petitioner was charged under Okla. Stat. tit. 21,
§ 1123 with lewd or indecent acts with a child under 16.
one-day jury trial, the prosecution relied primarily on
J.C.'s testimony. The jury returned a guilty verdict and
recommended a sentence of 25 years imprisonment. On January
7, 2016, the trial court sentenced Petitioner to 25 years
imprisonment but ordered the term of imprisonment suspended
except for the first 12 years.
appeal, Petitioner raised two grounds for relief from the
conviction. In his first ground, Petitioner asserted
insufficient evidence was presented at trial to support his
conviction. In his second ground, Petitioner challenged the
constitutionality of Okla. Stat. tit. 21, § 1123. In a
summary opinion, the Oklahoma Court of Criminal Appeals
(“OCCA”) reviewed and rejected each of
Petitioner's grounds for relief. Response, Ex. 3
(Crowder v. State, No. F-2016-26) (Okla. Crim. App.
Oct. 26, 2016).
filed an Application for Post-Conviction Relief with the
Oklahoma County District Court raising three grounds for
relief that he did not raise during his direct appeal.
Response, Ex. 4. In his first ground, Petitioner asserted
ineffective assistance of trial counsel. Id. at
7-13. In his second ground, Petitioner raised ineffective
assistance of appellate counsel. Id. at 13-17. In
his final ground for relief, Petitioner argued that he was
factually innocent of the crime for which he was convicted.
Id. at 17-19.
Oklahoma County District Court denied Plaintiff's
application. Response, Ex. 5. Petitioner appealed the denial
of his Application for Post-Conviction Relief and the OCCA
affirmed the same. Response, Ex. 6, 7.
Standard of Review of Constitutional Claims
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a federal court cannot grant habeas
relief with respect to a state prisoner's constitutional
claim that was adjudicated on the merits in state court
proceedings unless the state court decision (1) 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) “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). The AEDPA directs
courts to “ensure a level of ‘deference to the
determinations of state courts, ' provided those
determinations did not conflict with federal law or apply
federal law in an unreasonable way.” Williams v.
Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf.
Rep. No. 104-518, p. 111 (1996)).
this standard, a writ of habeas corpus will issue only if
“a state court's application of federal law . . .
is so erroneous that there is no possibility fairminded
jurists could disagree that the state court's decision
conflicts with [the Supreme] Court's precedents.”
Nevada v. Jackson, 569 U.S. 505, 508-09 (2013)
(quotations omitted). Under this deferential standard, even a
showing of “‘clear error' will not
suffice.” White v. Woodall, __ U.S.__, 134
S.Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade,
538 U.S. 63, 75-76 (2003)).
a state court's decision was unreasonable must be
assessed in light of the record the [state appellate] court
had before it.” Holland v. Jackson, 542 U.S.
649, 652 (2004). Consequently, federal habeas “review
is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 180 (2011). In reviewing a
state appellate court's decision, the state court's
findings of fact are presumed correct and entitled to
deference. 28 U.S.C. § 2254(e)(1).
Sufficiency of the Evidence (Ground One)
ground one, Petitioner alleges insufficient evidence was
presented at trial to support his conviction. The appropriate
standard of review for a sufficiency of evidence claim is
“whether, ‘after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the [petitioner guilty] beyond a
reasonable doubt.'” Dockins v. Hines, 374
F.3d 935, 939 (10th Cir. 2004) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). “This
standard of review respects the jury's responsibility to
weigh the evidence and to draw reasonable inferences from the
testimony presented at trial.” Dockins, 374
F.3d at 939. “Because ‘[s]ufficiency of the
evidence is a mixed question of law and fact[, w]e ask
whether the facts are correct and whether the law was
properly applied to the facts, which is why we apply both 28
U.S.C. § 2254(d)(1) and (d)(2) when reviewing
sufficiency of the evidence on habeas.'”
Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir.
2007) (quoting Maynard v. Boone, 468 F.3d 665, 673
(10th Cir. 2006)). The question to be resolved is
“whether the OCCA's conclusion that the evidence
was sufficient constituted an unreasonable application of the
Jackson standard.” Patton v. Mullin,
425 F.3d 788, 796 (10th Cir. 2005).
sufficiency of the evidence inquiry is based on Oklahoma law,
which defines the substantive elements of the crime.
Jackson, 443 U.S. at 309, 324 n.16. In accordance
with Oklahoma law and the State's proffered evidence, the
trial court instructed the jury that the elements of the
crime the State must prove were:
First, the defendant knowingly and intentionally;
Third, the body or private parts;
Fourth, of a child under sixteen years of age;
Fifth, in any lewd or lascivious manner; and
Sixth, the defendant was at least three years older
than the child.
Response, Ex. 9; see Okla. Stat. tit. 21, §
concedes the fourth and sixth elements are met. Reply at 13.
Thus, by this Petition, Petitioner challenges whether any
reasonable trier of fact could have concluded, based on the
evidence, that he knowingly and intentionally touched
J.C.'s private parts in a lewd and lascivious manner. He
relies on alleged inconsistencies between J.C.'s
statements to investigators and her trial testimony to
challenge the sufficiency of the evidence.
first raised this argument on direct appeal, and the OCCA
denied relief on the merits, stating:
We review sufficiency of the evidence claims in the light
most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Davis v.
State, 2011 Ok CR 29, ¶ 74, 268 P.3d 86, 111. This
Court will accept all reasonable inferences and credibility
choices that tend to support the verdict. Id. We
find the evidence sufficient to support the conviction under
21 O.S.Supp.2013, § 1123. This proposition is denied.
Response, Ex. 3 at 2.
Court's task “is limited by AEDPA to inquiring
whether the OCCA's application of Jackson was
unreasonable.” Matthews v. Workman, 577 F.3d
1175, 1183 (10th Cir. 2009); accord Hooks v.
Workman, 689 F.3d 1148, 1167 (10th Cir. 2012). To the
extent Petitioner's challenge presents a mixed question
of fact and law, review is also governed by 28 U.S.C. §
2254(d)(2), and the Court “ask[s] whether the facts are
correct” in determining whether the state court's
decision “was based on an unreasonable determination of
the facts in light of the evidence presented.”
Hooks, 689 F.3d at 1163 (quotations omitted).
question before this Court is not whether Petitioner
presented evidence that could have supported an acquittal,
but whether it was objectively unreasonable for the OCCA to
conclude the State presented sufficient evidence that the
jury could have found Petitioner guilty of the first, second,
third, and fifth elements of the charge of lewd or indecent
acts with a child under the age of 16. As the Tenth Circuit
[I]n a sufficiency challenge, the pertinent question is
whether the evidence introduced at the trial resulting in the
defendant's conviction is sufficient to allow a rational
trier of fact to convict. Of course, defense counsel was free
to attempt to impeach [a witness] at the second trial by
pointing to inconsistencies between her testimony then and at
the first trial. And, the jury was free to disbelieve [the
witness] on account of those putative inconsistencies. But
all that proves is that a rational juror might not
accept [the witness's] testimony at the second trial; it
doesn't show that a rational juror could not
accept it, which is the question on which a sufficiency
challenge necessarily must focus.
Matthews, 577 F.3d at 1185 (emphasis in original).
State presented five witnesses against Petitioner at trial,
relying primarily on testimony from J.C. Petitioner was a
friend of J.C.'s family and on July 2, 2014, J.C. was at
home with her sister, M.C., and Petitioner while her parents
were at an appointment with her brother. Tr. at 20-21, 70. At
some point on that date, J.C. was watching TV while sitting
on the loveseat, her sister, M.C. was asleep on the couch in
the same room, and Petitioner was sitting by M.C.'s feet.
Tr. at 22-23, 70. J.C. testified that Petitioner moved to sit
next to her on the loveseat. Tr. at 24. He sat on the middle
of the loveseat and J.C. was sitting next to the arm of it.
Tr. at 24-25. She testified that Petitioner told her that he
was about to leave and rubbed her back in an up and down
movement over her bra strap. Tr. 25, 29-31. Then
Petitioner's hand touched her private area over her
clothes. Tr. at 25-26, 31-32. She identified her private area
as below her waist and above her knees, on the front of her
body. Tr. at 25-26. She further testified that while
Petitioner's hand was touching her private area, he moved
it back and forth. Tr. at 28-29, 31. She described the
episode as lasting between a long and short amount of time.
Tr. at 31. J.C. got off the loveseat and walked quickly to
the bathroom in her room. Tr. 29, 32. She texted her mom from
there and told her what had occurred. Tr. 32, 51, 53-54.
this testimony and evidence, and viewing all reasonable
inferences therefrom in the State's favor, the OCCA's
conclusion that the evidence was sufficient for a conviction
under Okla. Stat. tit. 21, § 1123 was not an
unreasonable application of Jackson and was not
based upon an unreasonable determination of the facts.
relies upon alleged inconsistencies regarding statements J.C.
initially made to her mother and investigators as compared to
her trial testimony to argue that the evidence was
insufficient to support a conviction. The Court has already
noted that in considering a sufficiency of the evidence
challenge, the question is not what conclusions a juror might
reach, but what conclusions a juror could reach. Petitioner
cites to J.C.'s initial text message to her mother which
stated that Defendant “rubbed her back” and
“touched her private spot.” Tr. at 51. He
contends this is inconsistent with her testimony that he
rubbed both her back and her private parts. Tr. 25-26, 28-29,
31-32. He also challenges J.C.'s testimony in which she
described that she was sitting up on the loveseat, with her
hands kind of in her lap, a position she illustrated for the
jury. Tr. at 55. Petitioner argues that he could not have
touched her in the way she described if she was sitting in
primary defense in this matter is that during the events in
question, he was standing, bent down to hug J.C. goodbye,
fell, put his hand down on the couch to break his fall, and
in doing so, may have inadvertently touched her private area.
He cites to part of J.C's testimony arguing that she
acknowledged Petitioner fell and then changed her
description. Specifically, during cross-examination, J.C.
Q. When he got up to leave, he gave you a hug ...