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Bowens v. Allbaugh

United States District Court, W.D. Oklahoma

February 26, 2019

TRISTIAN DON BOWENS, Petitioner,
v.
JOE ALLBAUGH, Director, Respondent.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

         Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254 regarding his conviction in the District Court of Grady County in Case No. CF-2011-213. See Doc. 1, at 1. Petitioner was tried by jury, convicted of one count of lewd molestation after two or more prior felony convictions, and sentenced to twenty-five years in prison. Id.; Doc. 33, at 1-2. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to then-United States Magistrate Judge Charles B. Goodwin[1] for preliminary review. On July 11, 2018, Judge Goodwin issued a Report and Recommendation (“R&R”), wherein he recommended the Petition be denied. See Doc. 33. The matter is currently before the Court on Petitioner's timely objection[2] to the R&R, see Docs. 34, 36, which gives rise to the Court's obligation to undertake a de novo review of those portions of the R&R to which Petitioner makes specific objection. Having conducted this de novo review, the Court ADOPTS Judge Goodwin's R&R and DENIES Petitioner habeas relief.

         I. Background

         Judge Goodwin's R&R recites relevant factual background for this case; the Court need not repeat that background here. However, the Court will summarize this case's procedural history, given Petitioner's numerous state court filings. Petitioner was convicted in District Court of Grady County on November 1, 2013; he was sentenced to twenty-five years imprisonment on January 10, 2014. Doc. 1, at 1. Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed Petitioner's conviction and denied him relief on March 23, 2015. See Doc. 2-2.[3]

         Petitioner filed an application for postconviction relief on October 19, 2015, asserting a litany of evidentiary and procedural errors, purported violations of his due process and confrontation rights, and ineffective assistance of trial and appellate counsel. See Docs. 2-3-2-4. The state district court denied Petitioner's application on August 30, 2016, and the OCCA affirmed this denial on December 1, 2016. See Docs. 2-7, 2-9.

         Before the OCCA affirmed the state court's denial of his first postconviction application, Petitioner filed a “Motion to Vacate Judgment and Sentence” on October 24, 2016. See Doc. 2-10. In this motion Petitioner argued that his due process rights were violated when (1) the state presented hearsay testimony from his minor victim, K.L., without proper notice under Oklahoma state law and (2) the state court judge remanded for a second preliminary hearing after sustaining Petitioner's motion to quash. Id. at 1-5. Construing Petitioner's motion as a second application for postconviction relief, the state court adopted the state's response to the motion and denied the application. See Docs. 2-12-2-13. The OCCA affirmed the state court's disposition on February 10, 2017, finding any claims raised by Petitioner in his second application either waived or procedurally barred. See Doc. 13-13.[4]

         Now petitioning for a writ of habeas corpus, Petitioner raises the following grounds for relief:

Ground 1: the state court abused its discretion by remanding Petitioner's case for a new preliminary hearing after granting his motion to quash;
Grounds 2-A and 2-B: the state court violated Petitioner's constitutional rights under the Due Process and Confrontation Clauses by admitting testimonial hearsay evidence;
Ground 2-C: the state court erred by allowing the victim's mother, Kassie Shaw, to testify at trial about statements the victim made to her;
Ground 3: the State committed prosecutorial misconduct;
Ground 4: Petitioner was deprived of his right to present a complete defense when child-victim hearsay evidence was admitted without notice, as required by state law;
Ground 5: the state court violated Petitioner's due process rights by allowing the victim's mother to testify about telephone conversation between herself and Petitioner; and
Ground 6: the State offered insufficient evidence to establish probable cause at Petitioner's second preliminary hearing.

See Docs. 1, 2, 16, 19.[5]

         II. Analysis

         As stated, the Court shall review de novo those portions of the R&R to which Petitioner makes specific objection. See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court . . . .”). As Petitioner is pro se, the Court liberally construes his habeas petition and objection to the R&R. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, even liberally construing his objection, Petitioner fails to object to Judge Goodwin's disposition of Ground 4 for habeas relief. Accordingly, Petitioner waives de novo review, and the Court adopts the R&R as to Ground 4.

         Petitioner objects to Judge Goodwin's disposition of the remaining grounds for habeas relief. But Petitioner offers no basis upon which to question Judge Goodwin's thorough analysis of the issues. Accordingly, the Court adopts Judge Goodwin's R&R and denies Petitioner habeas relief on each of the following grounds.

         (A) Ground 1

         Judge Goodwin held that Petitioner's Ground 1 for habeas relief is procedurally barred and that Petitioner has failed to show the cause and prejudice or potential for a miscarriage of justice necessary to overcome this bar. See Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007) (“[W]e do not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” (internal quotation marks and citation omitted)). Petitioner first raised Ground 1 in his second application for postconviction relief. See Doc. 33, at 6; see also Docs. 2-3, 2-10. The OCCA declined to address the merits of Petitioner's claim, finding that Petitioner waived consideration of the claim by failing to raise it on direct appeal. See Docs. 2-9, 13-13.

         “Before a federal court may grant habeas relief to a state prisoner . . . . [he] must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(1)(A). “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule”-like Oklahoma's bar on raising claims for postconviction relief that could have been raised on direct appeal-“federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Smith v. Workman, 550 F.3d 1258, 1267 (10th Cir. 2008) ...


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