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Davis v. Albaugh

United States District Court, W.D. Oklahoma

May 1, 2018

PHILLIP ANTONIO DAVIS, Petitioner,
v.
JOE M. ALLBAUGH, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.

         Petitioner Phillip Antonio Davis, appearing through counsel, has filed an Amended Petition for Writ of Habeas Corpus (Doc. No. 6), challenging through 28 U.S.C. § 2254 the constitutionality of his criminal conviction by the State of Oklahoma. United States District Judge Vicki Miles-LaGrange has referred the matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636. Respondent Director Joe M. Allbaugh has filed an Answer (Doc. No. 13), Petitioner has replied (Doc. No. 21), and this matter is now at issue. For the reasons outlined below, it is recommended that the Amended Petition be denied.

         I. Relevant Case History

         In the early hours of October 20, 2012, Petitioner fired a shotgun one time, killing a man who was outside a window at the apartment of Petitioner's friend Signolia Vaughn. Vol. II Trial Tr. 77, 138, 151-52 (State v. Davis, No. CF-2012-6782 (Okla. Cty. Dist. Ct. Nov. 4-6, 2013)) (Doc. No. 15 (conventionally filed)). Following a jury trial in the District Court of Oklahoma County, Oklahoma, Petitioner was convicted of one count of first- degree murder and one count of possession of a firearm after former conviction of a felony. Vol. III Trial Tr. 105, 118, 136. On December 26, 2013, Petitioner was sentenced to life imprisonment on the first-degree murder count and two years' imprisonment on the firearm count. Original Record (“OR”) at 245-48 (Doc. No. 23 (conventionally filed)).

         Petitioner appealed to the Oklahoma Court of Criminal Appeals (“OCCA”). See Davis v. State, No. F-2014-25 (Okla. Crim. App.). The OCCA affirmed Petitioner's convictions and sentences on April 29, 2015. See OCCA Summ. Op. (Doc. No. 13-4) at 1-7.[1] Petitioner did not seek postconviction relief in the state courts. Am. Pet. at 3.

         On July 28, 2016, Petitioner filed this federal habeas action. See Doc. Nos. 1, 10. Respondent acknowledges, and the record reflects, that this action was timely filed and that available remedies for the grounds for relief raised by Petitioner have been exhausted, except as noted. See Answer at 2; 28 U.S.C. §§ 2244(d)(1), 2254(b)(1)(A).

         II. Discussion

         A. Ground One: Denial of Right to Present a Complete Defense

         1. Background

         In Ground One, Petitioner argues that the trial court's exclusion of certain evidence violated his right to present a complete defense. See Am. Pet. at 8-12. Specifically, Petitioner argues that he should have been permitted to present evidence regarding the victim's drug use, the victim's relationship with and conduct toward Ms. Vaughn, and whether Ms. Vaughn had been charged with any crime in connection with the shooting. See id.; see also Pet'r's Reply at 3-17.[2]

         On direct appeal, the OCCA rejected this argument:

As to Proposition I, evidence of the victim's drug use and threatening conduct toward Signolia Vaughn was not relevant to whether [Petitioner's] use of deadly force was reasonable under the circumstances, because both Vaughn and [Petitioner] claimed they had no idea who the would-be intruder was. In any event, the jury did, in fact, hear a fair amount of testimony on these subjects. Because a witness's possible bias is always a proper inquiry, the trial court erred by not allowing defense counsel to ask Vaughn whether her testimony was affected by the possibility of her being charged in connection with the victim's death. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); Lankister v. State, 1956 OK CR 67, ¶ 9, 298 P.2d 1088, 1090. However, this error was harmless beyond a reasonable doubt, because [Petitioner] does not point to any part of Vaughn's testimony that was inconsistent with his own account to police, or which otherwise prejudiced his theory of defense. Al-Mosawi v. State, 1996 OK CR 59, ¶¶ 49-51, 929 P.2d 270, 283. Proposition I is denied.

OCCA Summ. Op. at 3 (citations omitted); see Pet'r's Appellate Br. (Doc. No. 13-1) at 17-38 (citing Crane v. Kentucky, 476 U.S. 683 (1986); U.S. Const. amend. VI).

         2. Standard of Review

         Where, as here, a claim has been adjudicated on the merits by the state courts, a deferential standard of review applies in a subsequent § 2254 habeas action:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we must apply a highly deferential standard in § 2254 proceedings, one that demands that state-court decisions be given the benefit of the doubt. If a claim has been “adjudicated on the merits in State court proceedings, ” we may not grant relief under § 2254 unless the state-court decision “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 in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States, ” id. § 2254(d)(1), refers to the holdings, as opposed to the dicta, of the Court's decisions as of the time of the relevant state-court decision.
Under the “contrary to” clause of § 2254(d)(1), we may grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts. And under the “unreasonable application” clause, we may grant relief only if the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. An unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.

Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013) (alterations, citations, and internal quotation marks omitted).

         With respect to the claimed constitutional violation, “‘[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.'” Id. at 985 (quoting Crane, 476 U.S. at 690). To this end, “[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence ‘may not be arbitrary or disproportionate to the purposes they are designed to serve.'” Id. (quoting Michigan v. Lucas, 500 U.S. 145, 151 (1991)).

         “[T]he Supreme Court has never questioned the traditional reasons for excluding evidence that may have some relevance, ” however. Id. And “‘only rarely'” has the Supreme Court held “‘that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.'” Id. at 986 (alteration omitted) (quoting Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013)). Examples of such a violation include when the state court “provided no rationale for the exclusion, could not defend an absurd rule, or had failed to examine the reliability of the specific evidence in that case.” Id. at 987 (citations omitted).

         3. Discussion

         a. Evidence of Victim's Drug Use and Interaction with Ms. Vaughn

         Petitioner first argues that he was improperly prohibited from presenting evidence regarding the victim's drug use and the victim's relationship with and conduct toward Ms. Vaughn prior to the shooting. See Am. Pet. at 9-10; Pet'r's Reply at 4-15. In this regard, Petitioner cites several evidentiary rulings:

• At trial, the State called Ms. Vaughn to testify. During cross-examination defense counsel attempted several times to ask Ms. Vaughn about her dealings with the victim shortly before the shooting and about Ms. Vaughn's feelings toward the victim. The trial court sustained the State's objections, finding the questions called for hearsay or were irrelevant. See Vol. II Trial Tr. 90-92, 95-98, 99.
• The State called Velvet Mustin, the victim's mother, to testify at trial. During cross-examination, defense counsel attempted to ask Ms. Mustin about an incident when Ms. Vaughn had told the victim to leave her apartment and had asked Ms. Mustin for assistance. The trial court initially permitted the questioning, but when Ms. Mustin testified that the incident had occurred the same week as the shooting-rather than on the same day-the court sustained the prosecution's relevance objection. See Id. at 33-36.
• Prior to trial, Petitioner's counsel had filed a motion in limine that included a request to admit evidence that the victim was under the influence of PCP at the time of his death. OR 140-42. At a pretrial hearing, the trial court reserved ruling on the request. See Second Pretrial Mot. Hr'g Mot. Tr. 16-23 (State v. Davis, No. CF-2012-6782 (Okla. Cty. Dist. Ct. Nov. 1, 2013)) (Doc. No. 15). At trial, the trial court permitted Petitioner's counsel to question a Del City Police Department officer about a glass PCP vial found on the ground about ten feet from the shooting victim but advised counsel not to ask whether the vial had belonged to the victim. See Vol. II Trial Tr. 201, 202-06, 208-09; see also Id. at 235-39.
• Defense counsel sought to introduce evidence at trial regarding a toxicology report that had been conducted on the victim. See Id. at 229-34. The trial court denied admission of that evidence on the grounds that it was irrelevant and highly prejudicial. Id.

         Petitioner has not shown that the OCCA improperly applied Oklahoma's rules of evidence “in a per se or mechanistic manner”; rather, the state court “analyzed [the defense's] evidence on the merits” and found it properly excludable. Dodd, 753 F.3d at 988 (internal quotation marks omitted); see OCCA Summ. Op. at 3. As to each of the evidentiary rulings set forth above, the prosecution advanced a “‘rational justification'” for the exclusion of the disputed evidence, and “there were rational grounds for exclusion” by the trial court. Dodd, 753 F.3d at 987 (quoting Crane, 476 U.S. at 691); see Vol. II Trial Tr. 33-36, 90-92, 95-96, 97-98, 99, 202-06, 229-34; OR 166-69. Likewise, the OCCA's conclusion on direct appeal that the disputed evidence was irrelevant is supported by a reasoned discussion and analysis. See OCCA Summ. Op. at 2-3 (citing cases).

         Nor has Petitioner shown any basis for undermining the OCCA's factual finding that “the jury did, in fact, hear a fair amount of testimony on these subjects.” OCCA Summ. Op. at 3; see, e.g., Vol. II Trial Tr. 28-29, 33, 34-35, 37, 38-39, 40-41, 44-46, 57-58, 61, 86-90, 92-95, 98-99, 108-12, 122-24, 208-10. And Petitioner does not argue that Oklahoma's relevant statutes and jurisprudence are facially unconstitutional or improper or otherwise attempt to show that Petitioner's right to present a complete defense was violated by an “absurd” state evidentiary rule that “‘could not be rationally defended.'” See Dodd, 753 F.3d at 986, 987 (quoting Jackson, 133 S.Ct. at 1992).

         Petitioner therefore cannot show that he was denied the right to present a complete defense or that the OCCA's determination contradicted or unreasonably applied “clear Supreme Court precedent” or “was based on an unreasonable determination of the facts.” Dodd, 753 F.3d at 987; 28 U.S.C. § 2254(d)(2); see Id. § 2254(d)(1), (e)(1).

         b. Evidence Regarding a Lack of Criminal Charges

         During recross-examination of Ms. Vaughn, defense counsel asked whether she had been charged with murder or another crime in connection with this case. The trial court sustained the State's objection, noting that the question was irrelevant and outside the scope of the redirect examination. See Vol. II Trial Tr. 124.

         The OCCA found that the trial court had erred but such error was harmless under the standard articulated by the Supreme Court in Chapman v. California.[3] See OCCA Summ. Op. at 3 (citing Al-Mosawi, 929 P.2d at 283, and finding error “harmless beyond a reasonable doubt”). On habeas review, however, the Court applies the standard of review outlined in Brecht v. Abrahamson.[4] See Littlejohn v. Trammell, 704 F.3d 817, 833 (10th Cir. 2013) (internal quotation marks omitted). Under this standard, Petitioner's entitlement to relief rests upon a showing that the trial court's exclusion of the disputed evidence “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht, 507 U.S. at 631); see also Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2015). “[A] ‘substantial and injurious effect' exists when the court finds itself in ‘grave doubt' about the effect of the error on the jury's verdict.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995)).

         No such prejudicial effect or influence on the jury's verdict has been shown here. Petitioner argues that because Ms. Vaughn was reluctant or claimed a lack of memory as to certain questions regarding the victim during the State's direct examination, it was “vital” for Petitioner to present a lack of any criminal charges against Ms. Vaughn as “[t]he most likely reason” for her hesitation and as refutation of the prosecution's suggestion that Petitioner and Ms. Vaughn had planned to murder the victim. Pet'r's Reply at 16-17; see Vol. II Trial Tr. 45-49, 57-58. But despite any evasiveness by Ms. Vaughn, there was considerable evidence and testimony, including Petitioner's own admissions, to support the State's essential contention that Petitioner picked up his loaded shotgun, aimed it at a person in the window, and fired a single shot, killing the victim. See infra Part II.E. Petitioner was permitted to cross-examine Ms. Vaughn on other matters relevant to her credibility, and there also was evidence before the jury that undermined Petitioner's assertions of self-defense, defense of another, and defense of property. See, e.g., Vol. III Trial Tr. 19 (police detective testifying that Petitioner initially claimed someone else shot the victim but eventually stated that he was the shooter).

         Petitioner therefore has not shown that any error by the trial court in this regard “had substantial and injurious effect or influence in determining the jury's verdict, ” and he is not entitled to relief on this basis. Brecht, 507 U.S. at 637 (internal quotation marks omitted).

         B. Ground Two: Prosecutorial Misconduct

         Petitioner next argues that the prosecution engaged in misconduct during closing argument by attempting to shift the burden of proof and making inappropriate comments. See Am. Pet. at 12-13. This argument was rejected by the OCCA:

As to Proposition III, because [Petitioner] did not object to the prosecutor's closing comments at the time they were made, we review this claim only for plain error. Speculation that Vaughn conspired with [Petitioner] to kill the victim, and make it look like a home invasion, was not unbelievable, given the peculiar circumstances surrounding the shooting. We find all of the ...

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