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Borden v. Bryant

United States District Court, N.D. Oklahoma

March 19, 2019

JASON BRYANT, Warden, Respondent.



         Now before the Court is petitioner's amended 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 14). For the reasons below, the petition will be denied.


         This cases arises from petitioner's convictions for rape and molestation. Petitioner encountered the victims - two young girls identified as De. and Da. - while dating their mother in 2000. See Dkt. # 19-3 at 26. After the relationship ended, De. and Da. continued to visit petitioner's home. Id. De. testified that petitioner began sexually abusing her when she was six years old. Id. at 28. The abuse included inappropriate touching and oral and anal sodomy. Id. at 28-66. Da. also testified that petitioner sexually assault her when she was nine or ten years old. Id. at 95-100. The victims could not provide exact dates for the incidents, but described them in relation to the three houses that petitioner occupied during an eight year period. Id. at 28-100.

         The Tulsa Police Department initiated an investigation in January 2011. Petitioner was in Mexico when he learned about the allegations and the warrant for his arrest. See Dkt. # 19-4 at 74. He did not return on March 2, 2011, as scheduled. Id. at 140. Instead, his girlfriend joined him in Mexico so that they could get married. Id. at 87-89. Over a year later, petitioner was arrested and extradited to the United States. See Dkt. # 19-7 at 51. He was initially charged with rape by instrumentation and lewd molestation. See Dkt. # 19-7 at 29. De. and Da. testified at the preliminary hearing held June 22, 2012. See Dkt. # 19-1. Thereafter, the State amended the Information as follows: (Count 1): rape by instrumentation in violation of Okla. Stat. tit. 21, § 1114(A)(6); (Counts 2 - 4; 10-12; 14-15): lewd acts/molestation in violation of Okla. Stat. tit. 21, § 1123; (Counts 8 - 9): first degree rape of a victim under age 14 in violation of Okla. Stat. tit. 21, § 1115; and (Count 13): forcible oral sodomy of a victim under age 16 in violation of Okla. Stat. tit. 21, § 888.[1] See Dkt. # 18-11 at 1-3.

         The state court held a jury trial in 2013. Witnesses included petitioner; De.; Da.; and Bucky King, petitioner's former friend and business associate. The jury convicted petitioner of all charges except for Counts 2, 10, and 15 (citing specific instances of lewd acts and/or molestation) and recommended a punishment of life imprisonment plus 120 years. See Dkt. # 19-5 at 65-67. The state court sentenced petitioner in accordance with the jury's recommendation. See Dkt. 19-6 at 8. Petitioner perfected a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA), asserting numerous propositions of error. See Dkt. # 18-1. On October 16, 2014, the OCCA affirmed. See Dkt. # 18-3. Petitioner then filed a motion for a new trial in state court, which was denied. See Dkt. # 18-5, 18-8.

         Petitioner filed a federal § 2254 petition (Dkt. # 1) on January 14, 2016. He originally raised nine propositions of error. Id. at 3. However, by an Opinion and Order entered April 21, 2016 (Dkt. # 13), the Court determined he failed to exhaust three of his nine claims. Petitioner, therefore, amended his petition to seek relief on the following claims:

(Ground 1): Interference by the prosecutor prevented three defense witnesses from testifying;
(Ground 2): Petitioner lacked sufficient notice of the alleged illegal conduct;
(Ground 3): New evidence demonstrates that witness Bucky King lied under oath;
(Ground 4): The prosecutor committed misconduct; and
(Ground 5): Ineffective assistance of counsel.

See Dkt. # 14 at 5-6.

         Respondent filed a response (Dkt. # 18), along with copies of the state court record (Dkt. # 19). Respondent concedes, and the Court finds, that petitioner timely filed his federal habeas petition and exhausted state remedies as to the above claims. See Dkt. # 18 at 2l; see also 28 U.S.C. §§ 2244(d), 2254(b)(1)(A). Petitioner filed a reply (Dkt. # 22) on August 8, 2016, and the matter is ready for review.


         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court's review of petitioner's habeas claims. See 28 U.S.C. § 2254. Relief is only available under the AEDPA where the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). However, because the OCCA already adjudicated petitioner's claims, this Court may not grant habeas relief unless he demonstrates that the OCCA's ruling: (1) “resulted in a decision that was contrary to . . . clearly established Federal law as determined by Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1);[2] (2) “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, ” id.; or (3) “resulted in a decision that was based on an unreasonable determination of the facts” in light of the record presented to the state court, id. at § 2254(d)(2).

         “To determine whether a particular decision is ‘contrary to' then-established law, a federal court must consider whether the decision ‘applies a rule that contradicts [such] law' and how the decision ‘confronts [the] set of facts' that were before the state court.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (alterations in original) (quotations omitted). When the state court's decision “identifies the correct governing legal principle in existence at the time, a federal court must assess whether the decision ‘unreasonably applies that principle to the facts of the prisoner's case.” Id. (quotations omitted). Significantly, an “unreasonable application of” clearly established federal law under § 2254(d)(1) “must be objectively unreasonable, not merely wrong.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quotations omitted). “[E]ven clear error will not suffice.” Id. Likewise, under § 2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Court must presume the correctness of the state court's factual findings unless petitioner rebuts that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         Essentially, the standards set forth in § 2254 are designed to be “difficult to meet, ” Harrington v. Richter, 562 U.S. 86, 102 (2011), and require federal habeas courts to give state court decisions the “benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A state prisoner ultimately “must show that the state court's ruling ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

         A. An Evidentiary Hearing is Not Warranted

          As an initial matter, petitioner asks the Court to conduct on evidentiary hearing before ruling on Ground 1 (witness interference) and Ground 3 (false testimony by Bucky King). See Dkt. # 22 at 12. Because the state court record precludes habeas relief, petitioner's request is denied. See Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (“[W]hen the state-court record precludes habeas relief under the limitations of § 2254(d), a district court is not required to hold an evidentiary hearing.”) (quotations omitted).

         B. Witness ...

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