United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN UNITED STATES DISTRICT JUDGE
the Court is the 28 U.S.C. § 2254 petition for writ of
habeas corpus (Dkt. # 2) filed by Petitioner Terry Kent
Holcomb, II, a state inmate appearing through counsel.
Petitioner challenges the constitutional validity of the
judgment and sentence entered against him in the District
Court of Tulsa County, No. CF-2011-754. In that case, a jury
convicted Petitioner of five counts of child sexual abuse, in
violation of Okla. Stat. tit. 21, § 843.5(E), and fixed
punishment at five years in prison and a $500 fine for each
count. The trial court sentenced Petitioner accordingly, and
ordered the sentences to be served consecutively and followed
by a three-year term of probation. Petitioner alleges he is
entitled to federal habeas relief because (1) the trial court
violated his constitutional right to present a complete
defense by excluding critical evidence and (2) appellate
counsel violated his constitutional right to the effective
assistance of counsel by failing to raise a meritorious
double-jeopardy claim. Respondent filed a response in
opposition to the petition (Dkt. # 14), and Petitioner filed
a reply (Dkt. # 20). Both parties provided the state court
record (Dkt. ## 3, 14, 15) necessary to adjudicate
Petitioner's claims. For the reasons that follow, the Court
denies Petitioner's request for an evidentiary hearing,
denies the petition for writ of habeas corpus, and declines
to issue a certificate of appealability as to any issues
raised in the petition.
August 2010, Petitioner moved to Tulsa, Oklahoma, with his
two children, T.H. and O.H, and his ex-wife's daughter,
Tr. vol. 1, at 72, 75; Tr. vol. 3, at 399-401; Tr. vol. 6, at
1007. At the time, N.H. was 10 years old and in the fourth
grade. Tr. vol. 1, at 74-80.
in February 2011, N.H. told two of her friends, S.E. and
B.E., that she and her father “had sex.” Tr. vol.
1, at 80, 91-92, 119-21; Tr. vol. 2, at 161. S.E. told her
mother about N.H.'s disclosure. Tr. vol. 4, at 470,
473-77, 492-94. On February 23, 2011, S.E.'s mother
reported the disclosure to the Department of Human Services
(DHS) and to the counselor at N.H.'s school. Id.
at 492-94; Tr. vol. 3, at 315, 317, 342-43. The school
counselor, Bobbie Fields, separately spoke with S.E., B.E.,
and N.H. Tr. vol. 2, at 154, 163-70. N.H. confirmed that she
told S.E. and B.E. that she and her dad “had been
having sex.” Id. at 170-71. N.H. also told
Fields that she and her father “had sex sometimes about
once a week, ” that “it had only hurt the first
time, ” and that “he had told her he would have
to stop after she started getting her period anyway because
she could get pregnant.” Id. at 171, 174.
Fields asked N.H. what she meant by “sex, ” and
N.H. explained that “he put his privates in her
privates.” Id. at 174-75. Fields contacted DHS
and the school resource officer, David Cotney. Id.
at 169, 176, 182-83. Cotney, in turn, contacted the Tulsa
Police Department. Id. at 182-83.
Police Officer John West drove to N.H.'s school, took
N.H. into protective custody, and transported her to the
Justice Center in Tulsa, Oklahoma. Tr. vol. 2, at 191-94.
There, David Glanz, a forensic interviewer employed by the
Child Abuse Network, interviewed N.H. Tr. vol. 2, at 191-94,
198-204. That same day, Dr. Mike Baxter, a child abuse
pediatrician, examined N.H. and noted possible injuries to
her hymenal tissue. Id. at 242-43; Tr. vol. 3, at
266-70. On February 28, 2011, N.H. returned to the Justice
Center for a follow-up examination. Tr. vol. 2, at 270. Dr.
Nichole Wallace, a child abuse pediatrician, examined N.H.
and found “nothing abnormal.” Tr. vol. 2, at 235;
Tr. vol. 2, at 267-72.
on the forensic interview, the medical examinations and a
police investigation, the State charged Petitioner, in the
District Court of Tulsa County, No. CF-2011-754, with five
counts of child sexual abuse in violation of Okla. Stat. tit.
21, § 843.5(E). Dkt. # 15-1, O.R. vol. 1, at 39-42. In
each count, the State alleged:
[Petitioner] on or about between 7/1/2010 and 2/23/2011, in
Tulsa County, State of Oklahoma and within the jurisdiction
of this Court, did commit the crime of CHILD SEXUAL
ABUSE, a Felony, by unlawfully, feloniously,
willfully, maliciously and intentionally, sexually abusing
one N.H., a child under the age of 18, to-wit: 10 years of
age, and did then and there sexually abuse said child by
inserting his penis in her vagina. This incident occurred at
10620 E. 66th St. #167, Tulsa, Tulsa County, Oklahoma, while
the child was under the care and custody of the defendant,
who was N.H.'s step-father residing in the same home with
her and therefore a person responsible for her care.
Id. At the conclusion of a five-day trial, the jury
found Petitioner guilty as charged. Tr. vol. 7, at 1136. On
February 19, 2013, the trial court sentenced Petitioner, in
accordance with the jury's recommendations, to five years
imprisonment and a $500 fine for each conviction. App.
D713-D15. The trial court ordered the sentences to be served
consecutively and to be followed by a three-year term of
probation. Id. at D714.
by counsel, Petitioner filed a timely direct appeal raising
four propositions of error:
I. The trial court erred by allowing other “bad
acts” evidence to be admitted.
II. The trial court erred by not allowing defense to present
evidence supporting his defense.
III. The [Petitioner] was prejudiced [by] the State's
failure to disclose evidence in violation of Allen v.
District Ct. of Washington Co. and the Discovery Code.
IV. The trial court erred by omitting an instruction to the
jury regarding inconsistent statements by N.H.
App. D41. By unpublished summary opinion filed May 22, 2014,
in No. F-2013-197, the Oklahoma Court of Criminal Appeals
(OCCA) affirmed Petitioner's convictions and sentences.
App. D41-D48. Petitioner did not file a petition for writ of
certiorari with the United States Supreme Court. Dkt. # 2, at
filed a pro se application for postconviction relief in state
district court on February 9, 2015, raising nine propositions
1) “The trial court impermissibly allowed evidence of
2) “Prosecutorial misconduct in closing argument
deprived the Petitioner of a fair trial;”
3) “Prosecutorial misconduct in offering perjured
testimony from several witnesses deprived Petitioner of a
4) “Prosecutorial misconduct in improper communications
with a defense witness and ex parte communications with the
trial court deprived Petitioner of a fair trial;”
5) “The trial court erred in allowing perjured
testimony to be offered from several witnesses which deprived
the Petitioner of a fair trial;”
6) “Jury instruction regarding punishment did not
comply with the statute;”
7) “The trial court did not have jurisdiction over
8) “Ineffective assistance of appellate counsel;”
9) “Cumulative error.”
App. D71; see also App. D49-D66 (Petitioner's
application for postconviction relief). The state district
court denied relief by order filed June 1, 2015. App.
D67-D76. On September 30, 2015, the OCCA affirmed the denial
of postconviction relief. App. D77.
filed the instant federal habeas petition on March 23, 2016.
Dkt. # 2.
seeks federal habeas relief on two grounds. He claims (1) the
trial court violated his rights, under the Sixth and
Fourteenth Amendments, to present a complete defense and (2)
appellate counsel's failure to raise a meritorious
double-jeopardy claim violated his Sixth Amendment right to
the effective assistance of counsel. Dkt. # 2, at 41, 54.
Claim One: Right to present a complete defense
claims that the State violated his Sixth and Fourteenth
Amendment rights to due process, to present witnesses, and to
confront the witnesses against him. Dkt. # 2, at 41-58. He
specifically alleges that
the trial court literally shut down [his] defense by refusing
to allow him to put on four key pieces of evidence: (1) that
he did not fit a sex offender profile, (2) that N.[H.]'s
forensic interview was inconsistent with a child that has
been sexually traumatized, (3) that N.[H.]'s physical
exam was not consistent with studies of similar prepubescent
children subjected to vaginal penetration for a prolonged
period of ...