United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne, United States District Judge Eastern District of
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
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.
has submitted the following records for consideration in this
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 Aug. 8, 2014) (unpublished).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,
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,
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.
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;
(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).
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).
I, II, and IV
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).
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)).
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