United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE.
the Court is Andre Darnell Thomas' 28 U.S.C. § 2254
habeas corpus petition (Doc. 1). Thomas challenges his
first-degree murder conviction in Tulsa County District
Court, No. CF-2013-2712. For the reasons below, the Court
will deny the petition.
case stems from a fatal shooting at the River Glen Apartments
in south Tulsa. (Doc. 8-2 at 1-2). On the evening of May 24,
2013, Thomas and several young men went out to a nightclub.
(Id.; see also Doc. 9-6 at 81-82). The
group included Cortellieus Lee, Rolando Stevenson, and victim
Ronald Harris. (Id.). According to Lee, Thomas
stated he was “fixing to kill” Harris. (Doc. 9-6
at 86). Lee purportedly urged Thomas to just fight Harris,
but Thomas replied “No.” (Id.). After
the nightclub closed, the group congregated in the River Glen
Apartments' courtyard. (Doc. 8-2 at 1; see also
Doc. 9-6 at 90, 93). Stevenson, who also testified at trial,
noticed Thomas pulling people to the side and whispering
about something. (Doc. 9-6 at 28). Later that night,
Stevenson purportedly witnessed Thomas shoot Harris in the
back of the head. (Id. at 30-33). Lee also testified
he heard the gunshot, saw “fire” from a gun in
Thomas' hand, and observed Thomas running away.
(Id. at 95-96). Stevenson and Lee initially refused
to cooperate with police, but they later named Thomas as the
gunman. (Doc. 8-2 at 1). Thomas was arrested and interviewed,
but he denied any involvement in Harris' death.
(Id. at 2).
State charged Thomas with first-degree murder (Count 1).
(Doc. 9-10 at 21). His jury trial commenced on June 9, 2014.
(Doc. 9-4). The State theorized that Thomas shot Harris in
retaliation for some earlier disagreement, but the precise
motive was never clear. (Doc. 8-2 at 2). After a four-day
trial, the jury convicted Thomas of the murder charge and
recommended a sentence of life imprisonment without the
possibility of parole. (Doc. 9-7 at 206). The state court
sentenced him accordingly. (Doc. 9-9 at 4).
perfected a direct appeal to the Oklahoma Court of Criminal
Appeals (OCCA). By a summary opinion entered August 19, 2015,
the OCCA affirmed the conviction and sentence. (Doc. 8-2).
Thomas filed the instant § 2254 petition (Doc. 1) on May
25, 2016. He identifies three grounds of error, which are
taken from his OCCA brief:
(Ground 1): Various instances of prosecutorial misconduct
undermined Thomas' due process rights.
(Ground 2): The state court erred by admitting a gruesome
photo of the deceased victim.
(Ground 3): Thomas' post-arrest statements to law
enforcement were involuntary.
(Doc. 1 at 4, 7, 8; see also Doc. 8-1 at 2-3).
filed an answer (Doc. 8), along with relevant portions of the
state court record (Doc. 9), on August 1, 2016. Respondent
concedes, and the Court finds, that the Petition is timely
and Thomas exhausted his state remedies. See 28
U.S.C. §§ 2244(d)(1); 2254(b)(1)(A). However,
Respondent argues the claims fail on the merits. The matter
is fully briefed and ready for review.
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). Further,
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) “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
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
OCCA's factual findings unless petitioner rebuts that
presumption “by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1).
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.
Prosecutorial Misconduct (Ground 1)
first contends the prosecutor's remarks during voir dire,
redirect-examination, and closing argument deprived him of a
fair trial. (Doc. 1 at 4; see also Doc. 8-1 at 2-3).
The prosecutor stated that motive is not an element of the
crime; analogized motive to a missing puzzle piece; inquired
about whether defense counsel sought DNA testing; garnered
sympathy for an eyewitness; and described a defense verdict
as an injustice. (Doc. 8-1 at 3). The OCCA concluded
“none of the prosecutor's comments … denied
[Thomas] a fair trial.” (Doc. 8-2 at 9).
misconduct implicates the Due Process Clause of the
Fourteenth Amendment. However, “inappropriate
prosecutorial comments, standing alone, ” are not
sufficient to vacate “a criminal conviction obtained in
an otherwise fair proceeding.'” Matthews v.
Workman, 577 F.3d 1175, 1186 (10th Cir. 2009) (quoting
United States v. Young, 470 U.S. 1, 11 (1985)).
“The errant remarks must have so infected the trial
with unfairness as to make the resulting conviction a denial
of due process.” Cuesta-Rodriguez v.
Carpenter, 916 F.3d 885 (10th Cir. 2019) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). To determine whether the challenged remarks deprived
the petitioner of a fair trial, courts must consider
“all the surrounding circumstances, including the
strength of the state's case” and any cautionary
instructions to the jury. Hamilton v. Mullin, 436
F.3d 1181, 1187 (10th Cir. 2006). Applying this standard, the
Court will analyze each challenged remark below.
Comments During Voir Dire
voir dire, the prosecutor explained to a juror: “the
elements of the crime of Murder … don't include
motive, ” and motive is “not something the State
of Oklahoma has to prove beyond a reasonable doubt.”
(Doc. 9-5 at 76). The juror responded: “I think motive
probably has some play in it. But … if you prove to me
it was [murder], my verdict will be guilty regardless of what
the reason is.” (Id. at 76-78). The prosecutor
went on to ask the next prospective juror about the motive
issue; the juror initially responded that the State should
have to prove motive. (Id. at 78). However, the
juror then agreed to “follow his oath” if the
State proved its case without establishing a motive.
(Id. at 79). Later, when speaking with two other
jurors, the prosecutor compared motive to a missing piece in
a jigsaw puzzle. (Id. at 92, 120). He asked:
“Now when we're putting together the puzzle,
… if you don't have a couple pieces in that puzzle
[i.e., motive], sometimes if there's enough
pieces, are you able to see what happened?”
(Id. at 92). One juror agreed he could,
“depending on the gravity of those missing
pieces.” (Id. at 93). Another juror stated she
“should have all the pieces, ” but conceded she
could convict a defendant if the State proves each element of
the crime. (Id. at 121-122).
argues the questions about motive violated Okla. Dist. Ct. R.
6, which prohibits hypothetical stake-out questions about how
jurors would decide the law or facts. He also argues the
jigsaw puzzle analogy diluted the reasonable doubt standard.
The OCCA disagreed, finding: “Rule 6 is not violated
when counsel merely points out that as a matter of law,
certain factors generally require a certain result.”
(Doc. 8-2 at 7). The OCCA further found the prosecutor did
not prohibit jurors from considering motive, but
“merely made sure the[y] … understand that a
conviction could be had without any particular motive being
identified.” (Id.). As to the puzzle analogy,
the OCCA found it did not conflict with the various reminders
and instructions regarding the State's burden of proof.
ruling is consistent with the record and federal law.
“Voir dire examination serves the dual purposes of
enabling the court to select an impartial jury and assisting
counsel in exercising peremptory challenges.”
Gardner v. Galectka, 568 F.3d 862, 890 (10th Cir.
2009) (quotations omitted). “Potential jurors, however,
are not expected to be totally ignorant of the facts
surrounding the case.” Goss v. Nelson, 439
F.3d 621, 627, 634 (10th Cir. 2006). Constitutional standards
are met if the jury “can lay aside any preconceived
opinions regarding the outcome of the case and render a
verdict based on the evidence presented in court.”
Id. The verdict here is clearly based on the
evidence, notwithstanding any voir dire questions about
motive. Two eyewitnesses saw Thomas shoot the victim, and one
testified Thomas promised to kill the victim earlier that
night. (Doc. 9-6 at 31-32; 86; 96). There is also no
indication that the prosecutor's remarks caused any juror
to overcome their doubts based on apparent the lack of
motive. The state court explained the burden of proof
multiple times, and the jury received detailed instructions
on the standard of proof. (Doc. 9-10 at 152). Therefore, the
prosecutor's comments during voir dire did not render the
trial fundamentally unfair.
Questions Regarding Evidence
also alleges the prosecutor attempted to shift the burden of
proof during trial. After defense counsel confirmed a police
witness did not test DNA evidence on cigarette butts near the
victim's body, the prosecutor asked the detective:
“Who can request these items to be tested?” (Doc.
9-7 at 52, 68). The detective indicated any party can request
DNA testing, including “the attorneys representing the
defendant.” (Id. at 69). The state court
struck the comment and explained:
Strike it and tell the jury to disregard the comments, the
answer and the question. The reason I tell you that is
because, as I've told you already … the burden of
proof is on the State of Oklahoma. … The burden of
proof never shifts to the Defense, and it never places upon
the Defense any burden to investigate or take upon themselves
the obligation to demonstrate proof in this case.
(Id.). Based on this admonition, the OCCA found no
constitutional defects. (Doc. 8-2 at 8). The OCCA noted that
“comments on the defendant's equal access to
physical evidence are permissible, ” and “in any
event, the … admonition cured even the remotest
potential for error.” (Id.).
reviewed the transcripts, the Court agrees. Like Oklahoma,
federal law generally allows prosecutors to comment on the
“defendant's failure to call certain witnesses or
present certain testimony.” Battenfield v.
Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001); see
also United States v. Simpson, 7 F.3d 186, 190
(10th Cir. 1993). The exchange was also fairly innocuous
compared to the evidence of guilt, and the admonition
regarding the burden of proof was very thorough.
Consequently, the question regarding DNA evidence did not
render the trial unfair.
Comments During Closing Argument
Thomas challenges various comments by the prosecutor during
closing argument. The challenged comments are listed, in
context, as follows:
(i) Defense counsel remarked that “every time she opens
the newspaper there's a murder.” The prosecutor
responded: “victims have equal rights, too …
There's a lot of people out there just like [the
victim]… that doesn't mean that we let the murders
go.” (Doc. 9-7 at 154).
(ii) Defense counsel argued Lee, an eyewitness, lied about
being afraid to testify, asking:
“If you're scared, why do you keep offering up this
information?” The prosecutor then suggested Lee was
“terrified” and likely developed ...