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Miller v. Allbaugh

United States District Court, N.D. Oklahoma

March 29, 2019

VICTOR CORNELL MILLER, Petitioner,
v.
JOE ALLBAUGH, [1]Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner Victor Cornell Miller, a state inmate appearing pro se, filed a 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1) to challenge the judgment and sentence entered against him in the District Court of Tulsa County, Case No. CF-1999-4583. Respondent filed a response in opposition to the petition (Doc. 18) and provided the state court record (Docs. 18, 19)[2] necessary to adjudicate Petitioner's claims. Petitioner filed a reply (Docs. 25, 26) to the response. For the reasons that follow, the Court denies the habeas petition.

         BACKGROUND

         In September 1999, Petitioner and John Fitzgerald Hanson were jointly charged with two counts of first-degree malice murder, in violation of Okla. Stat. tit. 21, § 701.7(A) (1998 Supp.), or alternatively, first-degree felony murder, in violation of Okla. Stat. tit. 21, § 701.7(B) (1998 Supp.), in the District Court of Tulsa County, Case No. CF-1999-4583, for the murders of Mary Agnes Bowles (Count I) and Jerald Thurman (Count II). Miller v. State, 313 P.3d 934, 941 (Okla. Crim. App. 2013) (Miller II).

         Petitioner and Hanson were tried separately.[3] Id. Petitioner's case proceeded to a jury trial in April 2002, and the State sought the death penalty for both murders. Id. At the end of the guilt phase of the trial, the jury found Petitioner guilty as charged. Id. At the end of the penalty phase, the jury found the existence of four aggravating circumstances as to both murders. Id. at 941-42. The jury recommended a sentence of life without the possibility of parole for the murder of Bowles, thereby acquitting Petitioner of the death penalty on Count I, and recommended a death sentence for the murder of Thurman. Id. at 942 & n.2. The trial court adopted the jury's recommendations and sentenced Petitioner accordingly. Id. at 941.

         Represented by counsel, Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA). In a published opinion filed September 17, 2004, in Case No. D-2002-782, the OCCA found that the State violated Petitioner's constitutional rights to confront and cross-examine the witnesses against him by (1) allowing Rashad Barnes to testify regarding statements Hanson made to Barnes that implicated both Hanson and Petitioner in the double-homicide and (2) limiting Petitioner's cross-examination of Barnes. Miller v. State, 98 P.3d 738, 743, 748 (Okla. Crim. App. 2004) (Miller I). The OCCA determined that these errors were not harmless beyond a reasonable doubt, reversed Petitioner's convictions and sentences, and remanded his case for a new trial. Id. at 749.

         Petitioner was retried on both counts of first-degree murder in November 2008. Miller II, 313 P.3d at 942. On retrial, the State again sought the death penalty for both murders. Id. The OCCA summarized the evidence presented at Petitioner's 2008 trial as follows:[4]

On August 31, 1999, Mary Bowles, who was 77 years old, worked her regular volunteer shift at St. Francis Hospital in Tulsa. She clocked out at 3:51 p.m. Lucille Neville, a pharmacy technician at the hospital and longtime friend of Bowles, testified that Bowles' car-a 1993 tannish/gold-colored Buick LeSabre-was in front of her car that afternoon, going north on Yale Avenue. Bowles honked and waved at Neville while they both waited at a light, just before turning left onto the Skelly Bypass merge. The women parted ways when Bowles stayed on the service road, apparently going home. Bowles was scheduled to be back at the hospital at 9:30 a.m. the next morning. She never returned.
That same afternoon James Lavendusky and his father, Ken Lavendusky, were winterizing James' boat at his Tulsa home at 6802 North Mingo Road. The Lavendusky home and pecan farm were across the road from a dirt pit owned by Jerald Thurman. James testified that around 5:45-6:00 p.m., he heard three or four gunshots coming from the area toward the dirt pit. After a few seconds, he heard three or four more shots. When James looked up, he noticed Thurman's dump truck parked between Mingo Road and the entrance gate into the dirt pit area. Shortly thereafter, Ken went to talk to Thurman about getting some gravel.
James testified that he continued working on his boat until his dad started yelling and waving for him to come over. When James arrived he found Thurman's dump truck still running. Ken told James that Thurman had been shot and handed James a cell phone to talk to a 911 operator. James then saw Thurman on his back on the ground near the gate. James testified that before going over to the dirt pit, he noticed a car leaving the area, headed south on Mingo. James described the car as a silver or grayish-colored four-door sedan. He noticed a driver and something “dark” in the back seat.
Jim Moseby, Thurman's nephew, was driving a dump truck for Thurman that day. Moseby testified that he received a call from his uncle around 5:50 p.m. Thurman told Moseby that there was a car in the dirt pit that had been lingering there, that he was concerned about it, and that if the car was still there when Thurman was ready to leave, he was going to lock the gate on his way out.
When Moseby arrived at the dirt pit a short time later, he was met by the Lavenduskys, who told him that Thurman had been shot. Moseby, who was also a certified EMT (emergency medical technician), testified that he found his uncle lying outside the gate, with his head at the base of the tree where the gate was attached. Thurman was breathing with difficulty, but was unconscious and bleeding from the right side of his head, as well as from his chest and hand. Thurman's cell phone was on the ground next to him. Moseby noted that the phone had a hole in part of it, apparently from a bullet going through it.
Jerald Thurman, who was 44 years old, never recovered consciousness and died from his injuries on September 14, 1999, at Hillcrest Hospital. The medical examiner determined that he had four gunshot wounds: one through the back part of his head (going from right to left and passing through his brain), one entering his back at the base of his neck, one that entered his upper left arm, and one through his right hand. The medical examiner concluded that the cause of Thurman's death was the gunshot wound to his head.
Sundeep Patel testified that on August 31, 1999, he was a student and worked as a desk clerk at the Oasis Motel, which was owned by his parents. Patel testified that he was watching Home Improvement that evening, which aired between 6:00 and 6:30 p.m., when John Hanson came into the motel, asked about the price of a room, and then walked back out. Hanson returned a short time later and stated that his car wasn't starting, so he was going to need a room. Patel testified that Hanson then rented a room, using his actual name. After Hanson paid for the room, Patel gave him the key to Room 118, but to the best of Patel's knowledge, no one stayed in that room that night. Hanson also asked for tools to work on his car, and Patel loaned him some pliers and screwdrivers.
Patel testified that there was another man with Hanson that day, but acknowledged at trial that he had never been able to identify anyone as being that second man. Patel testified that both men were black, but that he was focused on Hanson, who was the one he dealt with and whose identity Patel confirmed with his driver's license. Patel testified that he “wasn't worried about the other person” and never interacted with him. Patel testified that the other man came in with Hanson when Hanson first inquired about a room, but did not come back inside. When Patel looked out to see what the men were doing with his tools, both men were outside the car doing something under the hood. Patel testified that the two men arrived in and were working on a “champagne-colored” Buick LeSabre and that the car remained parked in the Oasis Motel parking lot for more than a week, until it was towed off by Tulsa police.
Patel was cross-examined extensively about whether there was anything in the lobby that blocked his view of the second man and the fact that he originally described the second man as weighing about 250 pounds. (Victor Miller weighed approximately 180 pounds at the time.) . . . Patel's testimony and pictures of the Oasis Motel lobby in 1999 establish that Patel would have been behind a plexiglass window, which had some papers hanging on it about hotel policies, but that Patel would have been able to see anyone in the hotel's tiny lobby-if he had wanted to and was paying attention.
On September 2, 1999, Police were notified regarding the disappearance of Mary Bowles. Her body was discovered on September 7, 1999, in a ditch alongside 66th Street North in Tulsa, not far from North Mingo and Thurman's dirt pit. Bowles' body was significantly decomposed and skeletonized and had been subject to animal scavenger activity, to the point that it was not readily identifiable. However, investigating officers found an address book beneath the body with Mary Bowles' name on it, and her body was later conclusively identified through dental records. The medical examiner who examined Bowles' body concluded that she died as a result of multiple gunshot wounds.
On the morning of September 9, 1999, Bowles' car was spotted in the Oasis Motel parking lot by a Tulsa police officer and was towed off for processing.A thorough search of the car revealed two bloodstains on opposite sides of the rear seat bench and a bloodstain in the middle of the rear area carpet, all of which were consistent with the DNA of Bowles. In addition, a fingerprint was found on the latch portion of the driver's seatbelt buckle, which was later determined to be from John Hanson's right thumb, and another fingerprint was found on the latch portion of the seatbelt buckle for the front passenger's seat, which was later determined to be from Victor Miller's right thumb.
Also on September 9, 1999, Hanson and Miller were arrested at the Muskogee EconoLodge Motel, after an anonymous tip was called in to Tulsa police by Miller's wife, Phyllis Miller. Two loaded guns were found in the tank of the toilet in their motel room: a silver Taurus .38-caliber Special revolver (“the silver .38” or “the silver revolver”) and a Starfire black 9-mm Luger semi-automatic pistol (“the black 9-mm”). The silver .38 (State's Exhibit 52) was later matched to the two bullets recovered from Thurman's body, while the black 9-mm (State's Exhibit 53) was later matched to the bullet recovered from Bowles' body, as well as to two spent 9-mm cartridges found near her body and a spent 9-mm bullet found buried in the dirt underneath her body.
The State put on evidence at trial regarding certain armed robberies committed by Miller and Hanson around the time of August 31, 1999, in order to establish that the silver .38 was customarily used and carried by Miller, while the black 9-mm was customarily used and carried by Hanson. The trial court limited the breadth and content of this “other crimes” evidence, however, and repeatedly admonished the jury, before the evidence was presented, that the evidence regarding these other robberies was to be considered “solely on the issue of the defendant's alleged identity.”
This evidence established that on August 23, 1999, Hanson and Miller robbed the Apache Junction Liquor Store, and Miller acquired the silver .38 during this robbery. The clerk at the time testified that Miller held a gun to her chest while he demanded the store's cash and that Miller later discovered the silver .38 under the counter and took it. In addition, the transcript testimony of unavailable witness Bettye Brimmer, a former clerk at a Tulsa Dreamland Video Store, was presented at Miller's retrial to establish that on September 3, 1999, during a robbery of the video store by Miller and Hanson, Miller held Brimmer at gunpoint with a silver revolver, while forcing her to put the store's money into a bag. The State also established that on September 7, 1999, Miller used a silver revolver (that looked like State's Exhibit 52) to help Hanson rob a Signature Loan Service and then used duct tape to constrain the hands and feet of two employees there. Finally, the State established that on September 8, 1999, Hanson used a black 9-mm and Miller used a silver .38 to rob the Tulsa Federal Employees Credit Union. Miller and Hanson robbed two separate tellers at the same time that day, but the teller robbed by Hanson was able to slip a dye pack into the manila envelope of money that she gave to Hanson.
Phyllis Miller, Victor Miller's estranged wife, testified at his retrial regarding the events of the summer of 1999. Phyllis listed the various places she and her husband lived that summer and testified that by the end of August, they were staying at a Motel 6 in west Tulsa. Phyllis testified that during that time period, Hanson carried a black semi-automatic 9-mm, and she identified State's Exhibit 53 as Hanson's gun. Phyllis likewise testified that just before they moved into the Motel 6, Miller began carrying a silver revolver, and she identified State's Exhibit 52 as Miller's gun. Phyllis testified that Miller got this gun by taking it from the Apache Junction Liquor Store and that he always kept this gun with him during the time that they were living at the Motel 6. She also testified that both men carried their guns by putting them in the side waistband of their pants.
Phyllis testified that around 3:00 p.m. on August 31, 1999, she and Miller got into a loud argument in the Motel 6 parking lot about who was going to use their car that day. She testified that Miller wanted to take their car, which was an Oldsmobile, but that she needed it to pick up her sons from school, who got out around 3:15 or 3:30 p.m. Phyllis testified that Miller ultimately got so mad he “pulled my wires out of my car, ” so it wouldn't start, and that she had to call the school and ask that her sons be instructed to take a city bus home. Phyllis testified that around this same time, John Hanson arrived on a city bus. Phyllis testified that when she returned to the parking lot, after going inside to call the school, Miller and Hanson were gone, as was a van owned by Sherry Carter. Carter was Miller's friend and was also living at the Motel 6 at the time. Phyllis testified that Miller had the silver revolver with him that day.
Phyllis testified that it was after midnight when Miller and Hanson finally returned to the motel. Phyllis testified that Miller still had the silver revolver and was acting “[r]eal nervous, looking out the window, thinking somebody's out there, pacing the floor.” Phyllis testified that Hanson got a different room at the motel, but that Miller stayed with her and put the silver revolver under his pillow. Phyllis testified that the next morning, Miller put the wires back on their car and asked her to take him to the Oasis Motel. When they got there, Miller took a blue rag and walked over to a beige-gold-looking car that was parked in the motel parking lot. Phyllis testified that Miller got in the car through the driver's door, began moving around and wiping things down with the blue rag, and then got back out a few minutes later using the same door. When Miller returned, he was carrying the blue rag and some cassette tapes and told her to “take off.” Phyllis testified that they then returned to the Motel 6 and that she and Miller went their separate ways.
Phyllis also testified about a later occasion, when she was recruited to help Miller and Hanson rob a bank by buying them a pack of manila envelopes and then acting as the getaway driver. She described the area where she was told to park (near the Tulsa Federal Employees Credit Union) and that after a while, the men came running back, got in the car, and told her to take off. Phyllis testified that she heard a “pop, ” which was a red dye pack going off in Hanson's bulging manila envelope of cash, and that Miller chided Hanson for “letting the lady put a pack in there.” Miller then instructed her to take them to Muskogee, and they went to the home of some of his relatives, where Miller talked about the robbery. Phyllis testified that she and Miller then got into another big fight, because he wanted to take their car and leave her there, which made her mad, and that Miller then disabled their car, “tore everything up in it, ” and left with Hanson.
Phyllis testified that she got a tow truck to take her and the car back to Tulsa and that she made note of two Muskogee motels nearby, an EconoLodge and a Holiday Inn. Phyllis testified that she knew Miller and Hanson were headed to a motel and had already decided that she was going to call the police and turn them in, which she did. Phyllis called the Tulsa police late that same night. She called [a]gain the next morning, which was September 9, 1999, after seeing a picture of the car that Miller had wiped down at th e Oasis Motel on the news, in connection with a report about a missing elderly woman.
Victor Miller testified in his own defense at trial. He began his direct testimony by acknowledging that he had “suffered felony convictions on many occasions.” He admitted having felony convictions in five different state cases and also to 16 federal felony convictions, as a result of the series of armed robberies that he committed with John Hanson during the summer of 1999. Miller testified that he was serving a total sentence of Life plus 157 years for these federal convictions.
Miller acknowledged Phyllis Miller as his wife and admitted the truth of the overwhelming majority of her testimony about him, including her testimony about the places they had lived, their relationship, and Phyllis' participation in some (but not all) of the armed robberies that he had committed. Miller testified that he and Hanson robbed the Apache Liquor Store on August 23, 1999, and volunteered that he had robbed that same liquor store, without Hanson's help, back in January of 1999. Miller testified that the silver .38 revolver was obtained during the August robbery of Apache Liquor, but maintained that it was Hanson who stole this gun-and that the cashier was “mistaken” when she said it was [Miller]. He admitted that the silver .38 ended up in his Oldsmobile on the day it was stolen and that Phyllis saw it in their car that day, when it slid up from underneath his seat, after he picked her up. Miller emphasized, however, that Hanson normally kept the silver .38, since Hanson would keep the guns used for their robberies and bring them in a brown paper sack when they were needed.
Miller acknowledged the loud argument that he had with Phyllis in the Motel 6 parking lot, but he described the date of this argument as “just about three days before I got arrested, ” which would have been September 6, 1999. Miller testified that Phyllis had been gone for much of the day, returning around 1:00 p.m., and that he was very angry with her because he wanted to use their car to “go plan some illegal activities” with Hanson, i.e., plan some bank robberies. Miller testified that the disagreement started inside, went on for a long time, got intense and loud, and eventually moved outside. Miller admitted that he ultimately pulled the spark plug wires out of their car, so Phyllis would not be able to drive it, and that he and Hanson left in Sherry Carter's van.
Although Miller maintained that his loud argument with Phyllis occurred on approximately September 6, 1999, i.e., well after the day of the murders on August 31, he also testified about where he was between the time he left that afternoon and the time he returned late that night. He described stopping at a liquor store to get malt liquor and beer to drink and then getting dropped off with Hanson at the home of Rashad Barnes in North Tulsa. Miller testified that they went out back and that he sat down “under the shade tree and started drinking my beer and thinking.” Later, though Miller had no idea when, he and Hanson took a bus to downtown Tulsa and then he (but not Hanson) transferred to a different bus that took him back to the Motel 6. Miller testified that he arrived back at the Motel 6 while it was still daylight, but that he didn't want Phyllis to “make a scene, ” so he went to a store, bought some cold beer, and then spent hours alone outside the motel- “just sitting out there drinking and smoking cigarettes and thinking.” He testified that Hanson arrived at the motel in a cab around sunset and that he and Hanson then went to Sherry Carter's room, where he drank more beer and got high on cocaine. Thus Miller's defense was essentially that if the argument with Phyllis was on August 31, he was busy “drinking and thinking” at the time of the murders.
Miller, like Phyllis, testified that the day after their big fight, he put the spark plug wires back on their car, and Phyllis drove him to the Oasis Motel, where the Buick LeSabre was parked. Miller testified that Hanson had called that morning and asked him to try to start that particular car and that Phyllis drove him to Barnes' place in North Tulsa, in order to get the car keys from Hanson. Miller testified that he had experience working on cars, described himself as “a shade-tree mechanic's apprentice, ” and noted that Hanson was aware of his experience with cars-and that Hanson himself did not have any “skills” in this area. Miller acknowledged that as he approached the Buick, he was carrying a blue rag, although his task was to try to get the car started.
Miller testified that the car wouldn't start with the key and that he then tried looking for a “kill switch, ” which could be preventing the car from starting. He testified that he tried pushing the signal lever forward, tried the gearshift, tried the parking brake and regular brake, and then even tried buckling the seatbelts. Miller testified that when all of these attempts failed, he gave up and began using the blue rag to wipe down everything he had touched, because he knew Hanson did not own a car, and he did not want to be “connected” to this one. Miller testified that Phyllis then drove him to return the keys to Hanson. On cross-examination, Miller specifically conceded that it was his fingerprint that was found on the latch of the passenger-side seatbelt buckle of Bowles' car.
Miller's testimony about the events leading up to his arrest was largely consistent with the testimony of State witnesses. Miller acknowledged his participation in the September 8, 1999 armed robbery of the Federal Employees Credit Union and did not seriously contest any of the State's evidence in this regard-except that he insisted that the dye pack in Hanson's envelope exploded just after they exited the credit union, rather than back in the car with Phyllis. Miller testified that they drove to his cousin's house in Muskogee afterward, that they divided up the money among the three of them, that he and Phyllis “got into quite a fuss” there, and that he and Hanson left her at the house in Muskogee, intending to buy a new car, because Miller saw someone writing down the license plate of the Oldsmobile just after the Credit Union robbery.
Regarding the murders of Jerald Thurman and Mary Bowles, however, Miller adamantly denied being involved or present and also denied having any knowledge, at the time, regarding what had happened. On cross examination, Miller admitted that the State had “proven” that the silver .38 revolver found at the EconoLodge was the gun that killed Thurman. He also acknowledged that “numerous witnesses” had testified to seeing him using this gun and even that he would carry the silver .38 “[w]hen we went to go do a robbery.” Miller likewise testified that he “believed” the State's evidence establishing that the black 9-mm found at the EconoLodge was the gun that killed Bowles and that this same gun was “the gun that John Hanson carried on a regular basis.” Miller also acknowledged that these two guns, i.e., the murder weapons, were found in the toilet tank of the EconoLodge room that he shared with Hanson (and no one else). Nevertheless, Miller denied any involvement in the murders and denied ever having the silver .38 with him on the day he fought with Phyllis at the Motel 6. Miller also denied having any knowledge about whether Hanson was involved.

Miller II, 313 P.3d at 943-49 (footnotes and paragraph numbers omitted).

         At the conclusion of the guilt phase of Petitioner's 2008 trial, the jury found Petitioner guilty on both counts of first-degree murder, under both alternative theories (malice and felony murder). Miller II, 313 P.3d at 942. At the conclusion of the penalty phase, the jury found the existence of four aggravating circumstances as to both convictions: (1) Petitioner was previously convicted of a felony involving the use or threat of violence, (2) Petitioner knowingly created a great risk of death to more than one person, (3) the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution, and (4) there is a probability Petitioner would commit criminal acts of violence that would constitute a continuing threat to society. Id. at 942 & n.6; see Okla. Stat. tit. 21, § 701.12(1), (2), (5), and (7). The jury recommended a death sentence for both murders, and the trial court sentenced Petitioner accordingly. Id. at 942.

         Following his 2008 trial, Petitioner filed a direct appeal with the OCCA. Id. Through counsel, Petitioner asserted 23 propositions of error. Doc. 18-1, Pet'r App. Br., at 2-9.[5] Petitioner also filed a pro se supplemental brief asserting three propositions of error. Doc. 18-3, Pro Se App. Br., at 2-3. In a published opinion filed September 6, 2013, in Case No. D-2008-1206, the OCCA found two constitutional errors occurred during the guilt phase, determined those errors-considered individually and collectively-were harmless beyond a reasonable doubt, and affirmed Petitioner's murder convictions. Miller II, 313 P.3d at 986. The State conceded, and the OCCA found, that the State's decision to seek the death penalty for the murder of Bowles (Count I) at Petitioner's second trial violated Petitioner's right to be free from double jeopardy because Petitioner had been acquitted of the death penalty on Count I during his first trial.[6] Miller II, 313 P.3d at 949-50. Based on the double jeopardy violation, the OCCA reversed Petitioner's Count I death sentence, and modified it to a sentence of life without the possibility of parole. Id. at 950. The OCCA found “multiple examples of serious error and also prosecutorial misconduct potentially impacting [Petitioner's death sentence on Count II (for the murder of Thurman)” and found that the cumulative effect of those errors could not be deemed harmless beyond a reasonable doubt, reversed the Count II death sentence, and remanded for resentencing on Count II. Id. at 999-1000.

         On December 8, 2015, the trial court called the matter for resentencing. Doc. 19-23, Tr. Sent. Hr'g, at 1-2. The State notified the court that it had dismissed the bill seeking the death penalty for Count II, that the bill would “not ever be reinstated, ” and that the parties had agreed to waive their rights to a jury trial for resentencing. Id. at 2-4. Petitioner confirmed his decision to waive his right to a jury trial. Id. at 4. After hearing statements from three members of Thurman's family, a statement from Petitioner, and the State's sentencing recommendation, the trial court imposed a sentence of life without the possibility of parole for Count II and ordered it to be served consecutively to the sentence imposed in Count I. Id. at 5-15. Petitioner advised the trial court that he would waive his right to appeal from the resentencing. Id. at 17.

         Petitioner filed the instant petition for writ of habeas corpus (Doc. 1) on December 10, 2015.

         DISCUSSION

         Petitioner claims he is being held in violation of the United States Constitution and federal law because (1) the trial court refused to instruct the jury on the lesser included offense of accessory after the fact to first-degree murder, (2) trial counsel was ineffective, (3) the prosecutor knowingly used false and perjured testimony, (4) “pervasive prosecutorial misconduct” deprived him of a fair trial, (5) the State violated his right to be free from double jeopardy by subjecting him to double punishment, (6) the trial court erroneously admitted prejudicial “other crimes” evidence, and (7) the trial court lacked jurisdiction because the State violated the Interstate Agreement on Detainers Act. Doc. 1, at 4-25.

         Respondent contends Petitioner is not entitled to federal habeas relief because 28 U.S.C. § 2254(d) bars relief on claims one through five and Petitioner fails to present cognizable habeas claims in claims six and seven. Doc. 18, at 26-97.

         I. Timeliness and exhaustion

         In most cases, a state prisoner must file a federal habeas petition within one year of the date on which his state judgment became final. 28 U.S.C. § 2244(d)(1)(A). In addition, before seeking federal habeas relief, a state prisoner must exhaust available state-court remedies, id. § 2254(b)(1)(A), by “fairly present[ing] the substance of his federal habeas claim[s] to state courts, ” Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002).

         Following review of the record and the parties' briefs, the Court finds that the petition is timely and that Petitioner exhausted available state remedies as to each claim asserted in his petition by presenting claims one through six to the OCCA through his direct appeal, in Case No. D-2008-1206, and by presenting claim seven through his petition for extraordinary relief, in Case No. PR-2007-0637.

         II. Standard of review

         Because the OCCA adjudicated the merits of Petitioner's federal claims, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), guides this Court's review of those claims. Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). When a state court adjudicates the merits of a state prisoner's federal claim, a federal court may grant habeas relief only if the prisoner first demonstrates that the state court's adjudication of the claim either “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, ” 28 U.S.C. § 2254(d)(1), [7] or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” id. § 2254(d)(2); see also Kernan v. Hinojosa, 136 S.Ct. 1603, 1604 (2016) (per curiam) (reiterating that “[i]f the state courts adjudicate the prisoner's federal claim ‘on the merits,' § 2254(d), then AEDPA mandates deferential, rather than de novo, review, prohibiting federal courts from granting habeas relief” unless the prisoner makes the requisite showings under 2254(d)).

         If a state prisoner's federal claim is subject to review under § 2254(d)(1), the federal court's first task is to identify the Supreme Court precedent governing that claim. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” Id. However, if clearly established federal law exists, the federal court must “ask whether the state court decision is either contrary to or an unreasonable application of such law.” Id.

         “A state-court decision is contrary to clearly established federal law . . . if it ‘applies a rule that contradicts the governing law set forth in Supreme Court cases or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent.'” Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (quoting Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)). “The word ‘contrary' is commonly understood to mean ‘diametrically different,' ‘opposite in character or nature,' or ‘mutually opposed.'” Terry Williams, 529 U.S. at 405 (citing Webster's Third New International Dictionary 495 (1976)). Significantly, in adjudicating a federal claim the state court need not cite, or even be aware of, controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Harrington v. Richter, 562 U.S. 86, 100 (2011) (explaining that AEDPA deference applies even if a state court summarily denies a federal claim because “§ 2254(d) does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits'”).

         A state-court decision involves an unreasonable application of clearly established federal law “if the decision ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.'” Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015) (quoting Terry Williams, 529 U.S. at 407-08). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). An unreasonable application of clearly established federal law may also arise “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Terry Williams, 529 U.S. at 407. In either case, an unreasonable application must be “objectively unreasonable”, id. at 409, “not merely wrong, ” White v. Woodall, 572 U.S. 415, 419 (2014).

         Unlike the inquiry under § 2254(d)(1), which focuses on the state court's legal analysis, the inquiry under § 2254(d)(2) focuses on the state court court's “determination of the facts.” See House, 527 F.3d at 1015 (“Subsection (d)(1) governs claims of legal error while subsection (d)(2) governs claims of factual error.”). “[W]hen a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, ” the federal court must determine whether the state-court decision rests on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Burt v. Titlow, 571 U.S. 12, 18 (2013); 28 U.S.C. § 2254(d)(2). 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). A federal court must also presume the correctness of a state court's factual findings unless the petitioner rebuts the presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).[8]

         Ultimately, the AEDPA mandates that federal habeas courts give state court decisions the “benefit of the doubt, ” Woodford v. Visciotti, 537 U.S. 19, 24 (2002), with respect to federal claims “already rejected in state proceedings, ” Richter, 562 U.S. at 102. Thus, when a federal claim is subject to review under § 2254(d), “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that ...


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