United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
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 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 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.
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.
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.
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.
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.
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.
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.
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.
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) ...