United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN DISTRICT JUDGE.
before the Court is respondent's motion to dismiss (Dkt.
# 8) petitioner's 28 U.S.C. § 2254 habeas corpus
petition (Dkt. #1). For the reasons below, the motion will be
case arises from a robbery incident in 2013. See
Dkt. # 1 at 6. The petition reflects that on March 30, 2013,
Tony Arnold and Eric Wilbert were playing tennis in a park
when two men approached them with a gun. Id. The men
forced Arnold and Wilbert to drive to a nearby ATM and
withdraw cash. Id. Arnold and Wilbert reported the
crime, but no arrests were made until a year later when
Arnold saw petitioner at a Wal-Mart and identified him as one
of the perpetrators. Id.
was charged with the following crimes in the Tulsa County
District Court, No. CF-14-2236: (a) Count I: robbery with a
firearm in violation of Okla. Stat. tit. 21 § 801; (b)
Count II: kidnaping in violation of Okla. Stat. tit. 21
§ 741; and (c) Count III: unauthorized use of a motor
vehicle in violation of Okla. Stat. tit. 47 § 4-102. See
Dkt. # 1 at 1; see also Dkt. # 9-2 at 1. During trial, the
state court admitted evidence that Arnold and Wilbert each
independently identified petitioner from a photo lineup.
See Dkt. # 1 at 9-11; see also Dkt. # 9-4
at 6. The jury convicted petitioner of the above charges on
October 16, 2014. See Dkt. # 1 at 1; see
also Dkt. # 9-2 at 1.
filed a direct appeal with the Oklahoma Court of Criminal
Appeals (OCCA). See Dkt. # 9-1. He asserted that the
trial court improperly denied his application for an
eyewitness identification expert. Id. at 2. By a
summary opinion entered February 23, 2016, the OCCA affirmed.
See Dkt. # 9-2. Petitioner then filed an application
for post-conviction relief in state court, which was denied.
See Dkt. # 9-3 and 9-4. He did not appeal that
filed the instant federal § 2254 petition (Dkt. # 1) on
October 10, 2017. The petition raises one ground for relief,
namely that the state court improperly denied his application
to retain an expert on eyewitness testimony. Id. at
3, 7. Respondent filed a motion to dismiss the petition (Dkt.
# 8) along with relevant copies of the state court record
(Dkt. # 9). Respondent argues that petitioner failed to
exhaust his state remedies as required by 28 U.S.C. §
2254(b)(1)(A). Petitioner did not file a reply.
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
this Court's review of petitioner's habeas claims.
See 28 U.S.C. § 2254. Pursuant to 28 U.S.C. §
2254(b)(1), an application for a writ of habeas corpus may
not be granted unless the applicant has exhausted state
remedies or demonstrated that no adequate state remedies are
available or effective to protect the applicant's rights.
See O'Sullivan v. Boerckel 526 U.S. 838 (1999);
Dever v. Kansas State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994). "The exhaustion requirement is
satisfied if the federal issue has been properly presented to
the highest state court, either by direct review of the
conviction or in a postconviction attack."
Dever, 36 F.3d at 1534. "Fair presentation, in
turn, requires that the petitioner raise in state court the
'substance' of his federal claims." Williams
v. Trammel!, 782F.3d 1184, 1210 (10th Cir. 2015).
"This includes not only the [federal] constitutional
guarantee at issue, but also the underlying facts that
entitle a petitioner to relief." Id. See
also Fairchild v. Workman. 579 F.3d 1134, 1149 (10th
Cir. 2009) ("A claim is more than a mere theory on which
a court could grant relief; a claim must have a factual
basis, and an adjudication of that claim requires an
evaluation of that factual basis.") (quotations
argues that petitioner failed to comply with § 2254(b)
because his federal claim is based on new facts that were not
presented to the OCCA. See Dkt. # 9 at 5-7. After
reviewing the record, the Court agrees. Petitioner's sole
ground for appeal was that the trial court should have
appointed an expert on eyewitness identification.
See Dkt. #9-1 at 2. He wished to show that Arnold
and Wilbert's testimony was inaccurate because it
involved stress, a weapon, cross-racial identification, and
identification after a long delay. Id. at 11-14. The
OCCA rejected petitioner's arguments, noting the
witnesses observed petitioner for 15-30 minutes in close
proximity, and that the effective cross-examination of the
victims served as an able substitute for expert testimony.
See Dkt. #9-2 at 3.
federal petition raises the same legal issue as the appeal.
See Dkt. # 1 at 7-9. However, petitioner now argues
the testimony was unreliable because Arnold and Wilbert
stated that he had no identifying scars on his body, but
petitioner has a visible and unmistakable horseshoe-shaped
scar on his head. Id. at 10. Petitioner attaches a
picture of the scar, which was not part of the OCCA record,
see Dkt. # 1 at 15, and concludes: "An eyewitness
identification expert was necessary . . . because of this
issue." Id. at 10 (underlining in
new facts do not merely "add color" to the claims
presented on appeal. See Gardner v. Galetka, 568
F.3d 862, 881, 882 (10th Cir. 2009) (exhaustion requirement
was met where new evidence"would likely only have added
color" to the state claim). The facts
"significantly alter" petitioner's eyewitness
expert claim, "placing it in a much stronger posture
than in the state court proceedings."
Fairchild. 579 F.3d at 1150 (quoting Demarest v.
Price. 130 F.3d 922, 933 (10th Cir. 1997)). The Court
therefore finds that petitioner failed to exhaust his (sole)
Court could require petitioner to return to state court to
raise his unexhausted claim through an untimely appeal in his
state habeas proceeding, as respondent suggests. See
Dkt. # 9 at 10. However, even if an untimely appeal were
permitted, the OCCA routinely applies a procedural bar to
such claims unless the petitioner provides "sufficient
reason" for his failure to raise the claim in an earlier
proceeding. See Okla. Stat. tit. 22, § 1086; Moore
v. State. 889 P.2d 1253, 1255-56 (Okla. Crim. App.
1995). Accordingly, the Court finds that it would be futile
to require petitioner to return to state court to exhaust his
federal claim. See Duckworth v. Serrano, 454 U.S. 1,
3 (1981) (the futility exception is a narrow one, and is
supportable "only if there is no opportunity to obtain
redress in state court or if the corrective process is so
clearly deficient as to render futile any effort to obtain
relief); see also Coleman v. Thompson. 501 U.S. 722
(1991); Steele v. Young. 11 F.3d 1518, 1524 (10th
Cir. 1993). In the absence of available state corrective
process, see 28 U.S.C. § 2254(b)(1)(B), petitioner's
federal claim is not barred by the exhaustion requirement.
Respondent's motion to dismiss shall be denied.
result of petitioner's procedural default, however, an
anticipatory procedural bar will be applied to the federal
claim unless petitioner shows "cause and prejudice"
or a "fundamental miscarriage of justice" to excuse
the default. Coleman, 501 U.S. at 750; Maes v.
Thomas, 46 F.3d 979, 985 (10th Cir. 1995). The cause
standard requires a petitioner to "show that some
objective factor external to the defense impeded . . .
efforts to comply with the State's procedural rule."
Murray v. Carrier, 477 U.S. 478, 488 (1986).
Examples include the discovery of new evidence, a change in
the law, and interference by state officials. Id. A
petitioner is also required to show "actual prejudice
resulting from the errors of which he complains."
United States v. Frady, 456 U.S. 152, 168 (1982)
(quotations omitted). The alternative is ...