United States District Court, W.D. Oklahoma
THOMAS H. CROWDER, Petitioner,
JIMMY MARTIN, Respondent.
L. RUSSELL UNITED STATES DISTRICT JUDGE
filed the instant action seeking a writ of habeas corpus with
regard to his conviction in the District Court of Oklahoma
County in No. CF- 2014-5800. Pursuant to 28 U.S.C. §
636(b)(1)(B) and (C), the matter was referred to United
States Magistrate Judge Gary M. Purcell for preliminary
review. On April 27, 2018, Judge Purcell issued a Report and
Recommendation wherein he recommended the Petition be denied.
The matter is currently before the Court on Petitioner's
timely objection to the Report and Recommendation, which
gives rise to the Court's obligation to undertake a
de novo review of those portions of the Report and
Recommendation to which Petitioner makes specific objection.
Having conducted this de novo review, the Court
finds as follows.
commences his objection by arguing that the instant
proceedings violate his due process rights, because Judge
Purcell denied his Motion for Further Expansion of the Record
(Doc. No. 16). Therein Petitioner requested copies of the
entire transcript because the response to the petition only
included the pages that Respondent deemed relevant to the
outcome of the petition. Petitioner relied in part on a Tenth
Circuit Rule which provides, “[w]hen sufficiency of the
evidence is raised, the entire relevant trial transcript must
be provided.” 10th Cir. R. 10.1(A)(1)(a). This rule,
however, refers to an appellant's duty to provide a
record to the appellate court; it does not define the duty of
the State in filing its response in this Court. See
Rule 5 of the Rules Governing Section 2254 Cases; see
also Bagby v. Jones, 495 Fed.Appx. 860, 862 (10th Cir.
August. 3, 2012).
“an indigent § 2254 petitioner does not have a
constitutional right to access a free transcript in order to
search for error.” Ruark v. Gunter, 958 F.2d
318, 319 (10th Cir.1992) (per curiam). Thus, where a
petitioner cannot show need for a free transcript, any
request will be denied. See Sweezy v. Ward, No.
99-6131, 2000 WL 192904, at *1 (10th Cir. Feb.17, 2000).
Petitioner has not shown any need for a free copy of the
state record. Respondent was required to file, along with his
answer, a copy of the relevant portions of the transcript.
Rule 5(c), Rules Governing Section 2254 Cases in United
States District Courts. Accordingly, Petitioner was furnished
the portions of the transcript Respondent deemed relevant in
responding to the petition. Additionally, the Court has the
entire transcript of the trial, obviating one of
Petitioner's concerns. Furthermore, Petitioner is not
required to provide citations to the record to support his
claims, but rather he must only provide facts to the Court to
support the claims. Ruark, 958 F.2d at 319 (holding
that claim that transcript was needed to prove allegations
was insufficient to require its production). Accordingly, the
Court turns to Petitioner's objection to the Report and
Recommendation as it addresses the merits of his claims.
first contention is that the evidence was insufficient to
support his conviction for violation of Okla. Stat. tit. 21
§ 1123, lewd molestation.
Oklahoma statute under which Petitioner was convicted, tit.
21, § 1123, applies to defendants who “[l]ook
upon, touch, maul, or feel the body or private parts of any
child ... in any lewd or lascivious manner by any acts
against public decency and morality.” §
1123(A)(2). Much of Petitioner's objection is premised on
speculation or statements not supported by the record. For
example, he speculates the State did not immediately file
charges because the victim was being coached as to her story.
He also misstates the testimony of the forensic interviewer,
Rebecca Peterson, asserting that the agency received money
for every case referred to prosecution, which is contrary her
testimony. The Report and Recommendation
thoroughly and correctly analyzed Petitioner's
sufficiency of the evidence argument, and upon de
novo review, the Court finds no basis for disturbing
Judge Purcell's conclusion.
extent Petitioner contends that the Magistrate erred in
concluding that the touching could be over the clothing as
opposed to of the naked body, this conclusion is supported by
Oklahoma law. A conviction under § 1123 “does not
require the body or private parts looked upon, touched,
mauled or felt to be naked.” Heard v. State,
201 P.3d 182, 183 (Okla. Crim. App. 2009) (quotation
omitted); United States v. Gieswein, 887 F.3d 1054,
1059 (10th Cir. 2018).
second contention is that § 1123 is unconstitutionally
vague. Defendant contends in his objection to the Report and
Recommendation that the ability to obtain a conviction for
touching over the clothing “gives vitality to
accidental not intentional touching.” Doc. No. 25, p.
11. A conviction under § 1123 requires a finding by the
jury of six elements, two of which undercut Defendant's
theory. As the jury was instructed in this case, the first
two elements require proof that defendant knowingly and
intentionally touched the victim. Furthermore, the fifth
element requires that the touching have been in a lewd or
lascivious manner. Jury Instruction No. 19, Doc. No. 10-9.
Accordingly, Petitioner's theory that § 1123 renders
accidental touching unlawful is inaccurate.
objection Petitioner cites to Robison v. State,
F-98-724 (Ok. Crim. App.1999). His reliance on
Robinson is misplaced; the conviction overturned was
premised on allegations that Mr. Robinson looked upon his
stepdaughter in an intentionally lewd and lascivious manner,
not that he toucher her.
To be criminal under the charging statute, Appellant must
have looked upon the child's body or private parts. While
the statute does not say “naked body” or
“naked private parts, ” we believe the pairing of
the work “body” with the term “private
parts, ” indicates the legislature intended something
more than the act of staring between the legs of someone who
is wearing both underwear and boxer shorts, even under the
circumstances set forth in this case.
Robinson v. State, F-98-724, *2 (Ok. Crim. App. July
29, 1999). Robinson, therefore, does not undercut
the above-cited authorities that permit a conviction under
Oklahoma law for lewd touching over the clothing. The Report
and Recommendation contains a thorough analysis addressing
Petitioner's vagueness challenge, and upon de
novo review, the Court finds no basis for rejecting
Judge Purcell's conclusion.
objects to the Report and Recommendation with regard to his
ineffective assistance of trial counsel claim, asserting his
belief that “trial counsel had no right to instruct him
not to testify.” Doc. No. 25, p. 12. The Report and
Recommendation correctly quotes the Petitioner's
statements on the record to the trial court that he was
advised of his right to testify and that he made the decision
to fore go doing so. “I have made a decision, I'm
not going to testify, your Honor.” Tr. 139. His
attorney stated, “we talked about what I call pros and
cons of testifying, ” to which Petitioner replied,
“right.” Tr. 140. Counsel asked, “at that
time, you elected, based upon our conversations, that you
would not testify; is that correct?” Petitioner
responded “Right.” Id. As noted by Judge
Purcell, Petitioner cannot prevail on his ineffective
assistance of counsel claims where his statements on the
record undercut his theory that counsel made the decision
that he should not testify.
regard to appellate counsel, Petitioner contends that because
he was represented by the same counsel at trial and on direct
appeal, prejudice should be presumed because appellate
counsel will not challenge the effectiveness of his own
performance on direct appeal. Judge Purcell thoroughly
addressed this issue and properly rejected the claim.
Accordingly, the Report and Recommendation is adopted with
regard to Petitioner's ineffective assistance of counsel
Petitioner seeks relief under a theory that he is factually
innocent, which Judge Purcell correctly concluded is not a
proper freestanding habeas claim, unconnected to an