United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
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.
Relevant Case History
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)).
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
Petitioner did not seek postconviction relief in the state
courts. Am. Pet. at 3.
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),
Ground One: Denial of Right to Present a Complete
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
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
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).
Standard of Review
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
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
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)).
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).
Evidence of Victim's Drug Use and Interaction with Ms.
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
• 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.
• 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.
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
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).
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. §
Evidence Regarding a Lack of Criminal Charges
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.
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. 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. 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)).
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).
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).
Ground Two: Prosecutorial Misconduct
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 ...