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Crowder v. Martin

United States District Court, W.D. Oklahoma

April 27, 2018

THOMAS H. CROWDER, JR., Petitioner,
v.
JIMMY MARTIN, Warden, Respondent.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         I. Background

         In November 2015, Petitioner was tried before a jury on one count of lewd or indecent acts with a child under 16.[1] 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.

         At the 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.

         On 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).

         Petitioner 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.

         The 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.

          II. Standard of Review of Constitutional Claims

         Under 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)).

         Under 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)).

         “[W]hether 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).

         III. Sufficiency of the Evidence (Ground One)

         In 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).

         The 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;
Second, touched;
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, § 1123.

         Petitioner 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.

         Petitioner 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.

         This 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).

         The 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 has explained:

[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).

         The 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.

         Considering 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.

         Petitioner 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 that position.

         Petitioner's 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. testified:

Q. When he got up to leave, he gave you a hug ...

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