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Wright v. Dowling

United States District Court, N.D. Oklahoma

April 19, 2019

VANCE D. WRIGHT, Petitioner,
v.
JANET DOWLING, Warden, Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.

         Petitioner Vance Wright, a state inmate appearing pro se, commenced this action on December 28, 2017, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. 1). Respondent moved to dismiss the petition on exhaustion grounds on March 5, 2018 (Dkt. 18), and Petitioner filed a timely response (Dkt. 20). By Order filed September 10, 2018 (Dkt. 22) the Court directed Petitioner to file an amended petition, presenting only exhausted claims, and denied as moot Respondent's motion to dismiss. As directed by the Court, Petitioner filed an amended petition (Dkt. 23) on September 14, 2018.[1]Before the Court is Respondent's motion to dismiss the amended petition for failure to exhaust necessary state remedies (Dkt. 27), filed November 15, 2018. Respondent filed a brief in support of the motion (Dkt. 28). Petitioner did not file a response.[2] For the reasons that follow, the Court denies the habeas petition and dismisses as moot Respondent's motion to dismiss the amended petition.

         I. Background

         Petitioner challenges the constitutional validity of the judgment and sentence entered against him in the District Court of Rogers County, No. CF-2012-536. Dkt. 23, at 1. In that case, a jury convicted Petitioner of first-degree murder and, consistent with the jury's recommendation, the trial court imposed a sentence of life with the possibility of parole. Id.; Dkt. 28-2, at l.[3]

         Represented by counsel, Petitioner filed a timely direct appeal claiming (1) the trial court failed to properly instruct the jury, in violation of his Fourteenth Amendment right to due process, (2) trial counsel was ineffective, in violation of his Sixth Amendment right to the effective assistance of counsel, (3) the trial court erroneously admitted inculpatory statements Petitioner made to a jailhouse informant, in violation of his rights under the Sixth and Fourteenth Amendments, (4) the State's evidence was insufficient to support his conviction, in violation of his Fourteenth Amendment right to due process, (5) the trial court erroneously admitted Petitioner's statement to police, in violation of his Fifth and Fourteenth Amendment rights, (6) the trial court erroneously admitted prejudicial photographs, in violation of Petitioner's constitutional right to a fair trial, and (7) the cumulative effect of trial errors deprived Petitioner of his constitutional right to a fair trial. Dkt. 28-1, at 2-3. In an unpublished summary opinion filed May 4, 2016, in No. F- 2014-1051, the Oklahoma Court of Criminal Appeals (OCCA) rejected each of Petitioner's claims on the merits and affirmed the judgment and sentence against him. Dkt. 28-2.

         Petitioner filed a pro se application for post-conviction relief in state district court on April 19, 2017. Dkt. 28-3, at 1. In that application, Petitioner claimed appellate counsel provided constitutionally ineffective assistance by (1) omitting a claim of prosecutorial misconduct based on the prosecutor's failure to disclose exculpatory evidence, in violation of Petitioner's Fourteenth Amendment rights to due process, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963); (2) omitting a claim that trial counsel was ineffective for failing (a) to hire or consult an expert witness, (b) conduct an adequate pretrial investigation, (c) interview or call defense witnesses, and (d) request discovery or interview State witnesses before trial; and (3) omitting a claim that the State failed to prove every element of the charged offense, in violation of the Fifth Amendment. Dkt. 28-3, at 2-9.

         The state district court denied Petitioner's application for post-conviction relief on September 19, 2017. Dkt. 23, at 33-34. In its order denying relief, the state district court construed the application as asserting two issues: prosecutorial misconduct and ineffective assistance of trial and appellate counsel. Id. As to the first issue, the court found that "[n]o information was withheld from [Petitioner]," and that "[t]here was no failure to disclose exculpatory evidence and no prosecutorial misconduct." Id. at 33. As to the second issue, the court concluded (1) that any additional claims regarding trial counsel's ineffectiveness that were not raised on direct appeal were "waived" and "barred from consideration," and (2) that Petitioner failed to establish either that appellate counsel performed deficiently or that Petitioner suffered resulting prejudice. Id. at 33-34.

         Petitioner filed a timely post-conviction appeal. Dkt. 28-5, at 1. In his brief-in-support of his post-conviction appeal, Petitioner claimed the state district court erred in rejecting his ineffective assistance of appellate counsel claim. Dkt. 28-4, at 5. In support, he argued appellate counsel was ineffective for failing to assert five claims on direct appeal: (1) that Petitioner was denied his presumption of innocence and his rights to due process and equal protection, in violation of the Fourteenth Amendment, because his murder conviction is based on an undetermined cause of death, (2) "that a computer simulation of [the victim's] fall off the bridge" should have been conducted, (3) that false evidence, specifically, testimony from Jay Long, was used in the preliminary hearing to establish probable cause to bind Petitioner over for trial, (4) that the presiding judge was biased and operated under a conflict of interest, and (5) that trial counsel was ineffective for (a) failing to consult or hire an expert witness and (b) failing to interview or call defense witnesses. Dkt. 28-4, at 6-12. In an unpublished order filed March 27, 2018, in No. PC-2017-1025, the OCCA affirmed the state district court's order denying post-conviction relief. Dkt. 28-5.

         Petitioner commenced this federal habeas action on December 28, 2017, while his state post-conviction proceeding was pending. Dkt. 1, at 1. The Court detailed the procedural history of this action in its September 10, 2018 Order, see Dkt. 22, at 1-5, and finds it unnecessary to repeat that history here. In that same Order, the Court directed Petitioner to file an amended petition and denied as moot Respondent's motion to dismiss the original petition. Dkt. 22, at 9.

         In his amended petition, filed September 14, 2018, Petitioner identifies two grounds for relief: (1) prosecutorial misconduct, and (2) insufficiency of the evidence. Dkt. 23, at 5, 7. Respondent moves to dismiss the amended petition, asserting that Petitioner failed to exhaust available state remedies as to either of his habeas claims, as required under 28 U.S.C. § 2254(b)(1)(A). Dkts. 27, 28.

         II. Analysis

         Before seeking federal habeas relief, a state prisoner must exhaust available state remedies. 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement is not jurisdictional. Cranberry v. Greer, 481 U.S. 129, 131 (1987). Rather, it is "a rule of comity" that "is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To satisfy the exhaustion requirement, "a federal habeas petitioner must have first fairly presented the substance of his federal habeas claim to state courts." Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). The substance of a federal claim "includes not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief." Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015). In other words, the "presentation of a 'somewhat similar' claim is insufficient to 'fairly present' a federal claim before the state courts." Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006). Proper exhaustion requires that the claim presented in state court "must be the 'substantial equivalent' of its federal habeas counterpart." Grant v. Royal, 886 F.3d 874, 891 (10th Cir. 2018) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)), cert, denied sub nom. Grant v. Carpenter, 139 S.Ct. 925 (2019); see also Bland, 459 F.3d at 1011 (explaining that a habeas "petitioner cannot assert entirely different arguments from those raised before the state court"). In addition, proper exhaustion requires that the federal claim be "properly presented to the highest state court, either by direct review or in a postconviction attack." Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994); see also Baldwin v. Reese, 541 U.S. 27, 32 (2004) (holding that "ordinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so").

         As further discussed below, the Court agrees with Respondent that Petitioner failed to exhaust available state remedies as to the prosecutorial misconduct claim alleged in claim one of the amended petition. The Court finds, however, that Petitioner fairly presented the sufficiency-of-the-evidence claim alleged in claim two of the amended petition by presenting it to the OCCA on direct appeal.[4] Notwithstanding Petitioner's failure to exhaust claim one, the Court finds that both claims should be denied on the merits. See Cranberry, 481 U.S. at 131 (noting that "there are some cases in which it is appropriate for an appellate court to address the merits of a habeas corpus petition notwithstanding the lack of complete exhaustion"); Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) (explaining that "a district court faced with a habeas petition containing unexhausted claims may either (1) dismiss the entire petition without prejudice in order to permit exhaustion of state remedies, or (2) deny the entire petition on the merits"); 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.")

         A. Prosecutorial misconduct (claim one)

         In his amended petition, Petitioner alleges that the prosecutor committed misconduct (1) by knowingly presenting perjured testimony from two witnesses, Dr. Joshua Lanter and Angela Berg, both of whom work for the state medical examiner's office, and (2) by failing to disclose evidence that "a large tissue sample was taken" during the autopsy of the victim and testing of that sample "revealed large quantities of numerous drugs." Id. at 15, 18-19.

         Petitioner first alleged prosecutorial misconduct in his application for postconviction relief, filed April 19, 2017. Dkt. 23, at 6; Dkt. 28-3, at 2. There, Petitioner asserted that appellate counsel was ineffective, in part, for omitting a prosecutorial misconduct claim on direct appeal. Dkt. 28-3, at 2. More specifically, he asserted that appellate counsel should have raised a Brady claim based on the prosecutor's alleged "fail[ure] to disclose exculpatory evidence regarding the toxicology report." Id. at 2-3. In its order denying post-conviction relief, the state district court addressed the merits of the Brady claim and found no factual support for that claim. Dkt. 23, at 33.

         Critically, as Respondent points out, Petitioner did not seek further review of the state district court's findings and conclusions with respect to the Brady claim-either as an independent substantive claim or as an underlying claim asserted to support his ineffective- assistance-of-appellate-counsel claim-when he filed his post-conviction appeal. Dkt. 28, at 6; Dkt. 28-4, at 5-12. Instead, Petitioner alleged in his post-conviction appellate brief only that the state district court erred in determining appellate counsel was ineffective for omitting five claims-none of which was the Brady claim he presented to the state district court. Dkt. 28-4, at 5-12. In one portion of his post-conviction appellate brief, Petitioner did argue that appellate counsel was ineffective for failing to raise a claim that the prosecutor presented false testimony at the preliminary hearing. Id. at 8-9. But there, Petitioner alleged that Jay Long, a federal prisoner, provided false testimony at the preliminary hearing, and cited one case for the proposition that a prosecutor violates due process by knowingly using false testimony. Id. at 9. Even liberally construed, Petitioner's claim that the prosecutor knowingly presented Long's false testimony at the preliminary hearing bears no relation to either (1) the Brady claim Petitioner presented to the state district court or (2) the prosecutorial misconduct claim Petitioner presents in his amended petition.

         Based on the foregoing, the Court agrees with Respondent that Petitioner failed to exhaust the prosecutorial misconduct claim he presents in claim one of the amended petition. Nonetheless, the Court finds that, notwithstanding the lack of exhaustion, claim one should be denied on the merits.

         Liberally construed, Petitioner's prosecutorial misconduct claim involves two subclaims: (1) the Brady claim he presented to the state district court relating to the prosecutor's alleged failure to disclose favorable results from a toxicology report; and (2) a Napue[5] claim based on the prosecutor's alleged ...


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