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Wyatt v. Crow

United States District Court, E.D. Oklahoma

July 2, 2019

SCOTT CROW, DOC Interim Director, Respondent.


          James H. Payne, United States District Judge Eastern District of Oklahoma

         This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma. He is attacking his conviction in McCurtain County District Court No. CF-2012-442 for Lewd or Indecent Acts to a Child (Count 1) and Child Abuse (Count 3), raising the following grounds for relief:

I. The trial court erred by admitting evidence that was more prejudicial than probative.
II. The mention of Petitioner's prison time during the first stage of trial deprived him of due process, equal protection, and a fair trial.
III. The evidence was insufficient to support the charge of Child Abuse (Count 3).
IV. The trial court erred by failing to give an instruction on domestic assault and battery as to Count 1.
V. Prosecutorial misconduct denied Petitioner a fair trial.
VI. Cumulative error deprived Petitioner of a fair trial.
VII. Ineffective assistance of appellate counsel on direct appeal.
VIII. Trial counsel was ineffective in his failure to develop a working relationship with Petitioner or investigate the case or Petitioner's potential testimony.
IX. Trial counsel was ineffective in failing to question State's Witness Sierra Boyd about Ms. Boyd's not wanting to testify.
X. Trial counsel was ineffective in failing to request a mistrial when two members of the jury admitted they knew one of the State's witnesses.
XI. Trial counsel was ineffective in advising Petitioner not to testify in his own defense.
XII. Trial counsel was ineffective in failing to subpoena Petitioner's son as a defense witness.

         Respondent has submitted the following records for consideration in this matter:

A. Petitioner's direct appeal brief.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's Judgment and Sentence. Wyatt v. State, No. F-2013-870 (Okla. Crim. App. Aug. 8, 2014) (unpublished).
D. Petitioner's application for post-conviction relief.
E. Order Denying Post-Conviction Relief, entered on July 27, 2015.
F. Order Granting Post-Conviction Appeal Out of Time. Wyatt v. State, No. PC-2016-698 (Okla. Crim. App. Sept. 16, 2016).
G. Order Declining Jurisdiction. Wyatt v. State, No. PC-2016-984 (Okla. Crim. App. Nov. 10, 2016).
H. Trial Court's Findings and Denial of Recommendation for Third Request to Appeal Out of Time, entered on Feb. 23, 2017.
I. Order Denying Application for Post-Conviction Appeal Out of Time. Wyatt v. State, No. PC-2017-252 (Okla. Crim. App. June 9, 2017).
J. Transcripts and Original Record.

         Standard of Review

         Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.

28 U.S.C. § 2254(d).


         Respondent sets forth the following facts of the case:

On May 8, 2012, E.W. was fourteen years old (Tr. 150). On that day, Petitioner, E.W.'s father, drove E.W. and her friend, P.S., to school in his truck, but only P.S. went to school that day. Petitioner told E.W. she was going to work with him and he drove to Wright City in search of scrap metal. The area was rural and like a “jungle” (Tr. 151-52). E.W. told Petitioner she had a headache and Petitioner gave her two “crystal rocks” and told her to take them. Petitioner told E.W. the rocks were “like Xanax” and would help her headache (Tr. 153). The rocks made E.W. feel “hyped up” and then after about twenty minutes, she began vomiting (Tr. 154). It was later determined the “rocks” E.W. ingested were methamphetamine (Tr. 155).
E.W. thought she saw a needle and then Petitioner walked away from the truck into the woods. When Petitioner came out of the woods, he was stumbling. The needle looked like the ones used in the hospital for IVs. E.W. described the needle as being orange and white and it was sitting on the truck bed (Tr. 156-57). When E.W. asked Petitioner about the needle, Petitioner picked it up and put it away. E.W. left the truck to go urinate. When she returned to the truck, Petitioner told her he was watching her and “he wanted to lay [her] down and fuck [her].” Petitioner also told E.W. her breasts were “bigger” and “better” than most of the older women in town (Tr. 158-59). Petitioner began rubbing E.W.'s legs and back, then he put his hand inside the back of her shirt and tried to unfasten her bra. Petitioner massaged E.W.'s neck and put his hands in her hair and kissed her forehead. Petitioner told E.W., “[Y]ou know how that dope gets me; it gets me all sexual and stuff” (Tr. 159-60). During this time, when E.W. was vomiting, she noticed Petitioner about two feet away from her with his back toward her and she believed he was masturbating. Petitioner was moaning and E.W. saw his arm moving up and down (Tr. 161-62). When Petitioner turned around, E.W. saw his pants were unzipped and she did not believe they were unzipped prior to that incident (Tr. 163). Petitioner asked E.W. if she was going to “use this” against him (Tr. 164).

(Dkt. 9 at 5-6).

         Grounds I, II, and IV

         Respondent alleges Petitioner's claims raised in Grounds I, II, and IV are matters of state law that are not cognizable on habeas review. Grounds I and II concern evidentiary issues, and Ground IV involves the trial court's failure to give an instruction on a lesser-included offense.

. . . The habeas statute “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). “We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.'” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).

Swarthout v. Cooke, 562 U.S. 216, 219 (2011).

         Nonetheless, this Court may review Petitioner's claims concerning evidentiary rulings and jury instructions to determine whether they rendered his trial so fundamentally unfair as to deprive him of his federal constitutional rights. See Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005) (errors in jury instructions in a state criminal trial are not cognizable on habeas review, unless they are so fundamentally unfair that they deprive petitioner due process and a fundamentally fair trial). See also Maes v. Thomas, 46 F.3d 979, 987 (10th Cir.1995) (holding that to challenge an evidentiary ruling on due process principles, the petitioner must show that “because of the court's actions, his trial, as a whole, was rendered fundamentally unfair.” (quotations omitted)).

         A habeas court must “approach the fundamental fairness analysis with considerable self-restraint.” Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir. 1998) (citation omitted). A proceeding is fundamentally unfair under the Due Process Clause only if it is shocking to the ...

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