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Pacheco v. El Habti

United States District Court, E.D. Oklahoma

January 16, 2020

DELILA PACHECO, Petitioner,
v.
ABOUTANAA EL HABTI, Warden, Respondent.

          OPINION AND ORDER

          THE HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.

         Now before the court is Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 [Doc. 1]. Petitioner, a pro se prisoner in the custody of the Oklahoma Department of Corrections, is currently incarcerated at the Mabel Bassett Correctional Center in McLoud, Oklahoma. Following a jury trial, she was convicted of one count of first-degree child-abuse murder (Okla. Stat. tit. 21, § 701.7(C)) in Cherokee County District Court No. CF-2013-535 and was sentenced to life imprisonment with the possibility of parole. She is attacking her conviction and sets forth the following grounds for relief:

I. The State's evidence was insufficient to prove all of the essential elements of first-degree child-abuse murder and therefore, Petitioner was convicted and sentenced in violation of her rights to due process under the Fifth and Fourteenth Amendments.
II. Petitioner was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because counsel failed to provide a qualified interpreter and failed to object to improper comments made by the State.

         Respondent concedes the petition is timely and that Petitioner has exhausted her state court remedies for the purpose of federal habeas corpus review. [Doc. 9 at 2].[1] The grounds for relief asserted by Petitioner herein were presented to the Oklahoma Court of Criminal Appeals (OCCA). The following have also been submitted to the court for consideration in this matter:

A. Petitioner's direct appeal brief.
B. Notice of extra-record evidence and application for evidentiary hearing.
C. State's brief in Petitioner's direct appeal.
D. Petitioner's appellate reply brief.
E. Summary Opinion affirming Petitioner's judgment and sentence.
F. State court record.
G. Transcripts. H. Trial exhibits.

         Standard of Review

         Under the Antiterrorism 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).

         Factual Background

         In December of 2013, two young foster children, A.H. and H.H., were living with Petitioner, Petitioner's husband (“Mr. Pacheco”), and the couple's teenage children (“F.P.”, “Fl.P., ” and “J.P.”) in Cherokee County, Oklahoma. [Doc. 10-2 at 58, 109-112, 191-93, 202-03, 218-21; Doc. 10-3 at 8-11]. Petitioner was the main caregiver and disciplinarian for A.H., a two- year-old, and H.H., a three-year-old, since Mr. Pacheco was usually at work. [Doc. 10-2 at 221, 223-24, 226; Doc. 10-3 at 11]. The foster children were Petitioner's relatives. [Doc. 10-2 at 58].

         On December 7, 2013, the day before A.H.'s death, Petitioner, Mr. Pacheco, F.P., and J.P. went to Vinita, Oklahoma, to purchase a new vehicle for F.P. [Doc. 10-2 at 148-49, 194, 204, 229; Doc. 10-3 at 13]. A.H. and H.H. stayed home with Fl.P. [Doc. 10-2 at 204, 228; Doc. 10-3 at 13]. When Petitioner and her family members left for Vinita, A.H. appeared normal, there were no bruises on her, and she did not appear to be hurting. [Doc. 10-2 at 228; Doc. 10-3 at 25]. Because A.H. was potty training, Fl.P. took A.H. to the bathroom every twenty to thirty minutes, and never noticed any bumps, bruises, or cuts. [Doc. 10-2 at 205].

         The family returned home from Vinita around 7:00 or 8:00 p.m. [Doc. 10-2 at 150, 230; Doc. 10-3 at 14]. By that time, A.H. was lying in the place where she slept, on a pallet on the floor of Petitioner's bedroom, next to the side of the bed where Petitioner slept. [Doc. 10-2 at 148-51, 155, 193-95, 230, 232; Doc. 10-3 at 14-18]. Petitioner told Investigator Casey Baker of the Cherokee County Sheriff's Department that when they arrived home from Vinita, A.H. was crying, so she changed her diaper, but she did not observe any bruises on her. [Doc. 10-2 at 150]. Mr. Pacheco and Petitioner then left the residence to pick up hamburgers for dinner from a nearby casino. [Doc. 10-2 at 150-51, 205-06; Doc. 10-3 at 14-15]. Petitioner and Mr. Pacheco were gone for about an hour, and when they came home there was nothing wrong with A.H. and she had no bruises. [Doc. 10-2 at 206-08, 230-31; Doc. 10-3 at 14-15].

         Mr. Pacheco went to bed around 11:00 or 11:30 p.m., and A.H. was on her pallet but still awake and talking to herself. [Doc. 10-3 at 18-19]. Petitioner told Deputies Dexter Scott and Charlie Dreadfulwater that A.H. did not want to go to sleep and was awake for much of the night, gagging herself in an effort to stay awake. [Doc. 10-2 at 58, 87-88]. This resulted in Petitioner being awake for much of the night as well. [Doc. 10-2 at 157-58; Doc. 10-3 at 22]. Petitioner told Investigator Baker that A.H. woke up approximately every hour gagging herself, and except for when the noise woke up F.P. and Mr. Pacheco around 4:00 a.m., Petitioner was the only individual awake with A.H. [Doc. 10-2 at 157-59].

         Mr. Pacheco testified that he woke up at some point around 3:30 a.m., when Petitioner turned on the television and told A.H. to go to sleep. [Doc. 10-3 at 20, 32]. Mr. Pacheco was lying on his back, but then turned on his side toward the closet, so he did not see A.H. or Petitioner. Id. at 32-33. During the night, Mr. Pacheco heard Petitioner spank A.H. two or three times and heard A.H. say “[o]wie.” Id. at 20-21. Mr. Pacheco believed that A.H. said “owie” in conjunction with Petitioner spanking her. Id. at 36.

         Petitioner told Deputy Scott and Investigator Baker that the last time she was awakened by A.H. was around 5:00 or 5:30 a.m., when A.H. was talking and still not wanting to go to sleep. [Doc. 10-2 at 58-60, 158-59]. Petitioner and Mr. Pacheco both stated that Mr. Pacheco was still asleep at the time. Id. at 159. Investigator Baker specifically asked if it was possible that anyone else was in the room during the night, and Petitioner responded with a “no.” Id. at 168. The only people in the bedroom were A.H., Mr. Pacheco, and Petitioner. Id.

         Petitioner reportedly woke up at approximately 10:00 a.m. on December 8, 2013, and went outside to smoke a cigarette. Id. at 160. When Petitioner went back inside the house, she found A.H. lying lifeless on the floor and she thought, “Oh, my God. What did I do?” Id.

         A call came in to the 911 office at 10:54 a.m., and emergency personnel arrived at the residence at 11:05 a.m. Id. at 46. Paramedic Kyle Murphy noticed that A.H.'s body was pale and cold, she was not breathing, and she did not have a pulse. Id. at 22. Resuscitation efforts were terminated when emergency personnel determined rigor had set in and A.H. was pronounced dead at 11:10 a.m. Id. at 23-24, 26, 46, 49-50. The paramedic noticed bruising on the face, mouth, back, leg, and buttocks of A.H.'s body. Id. at 33-36. Others at the scene, including the investigator, two deputies, and a child welfare worker, also testified about the extent of the bruising. Id. at 78, 82-83, 111, 146-47.

         Dr. Andrea Wiens, from the Office of the Chief Medical Examiner, performed an autopsy on A.H. [Doc. 10-3 at 75, 79-80]. In her external examination of A.H., Dr. Wiens observed forty individual bruises or abrasions related to blunt force injury on A.H.'s body, including nineteen bruises on her torso, seven on her arms and legs, four on her right cheek, three on her scalp, two on her forehead, two scrapes on her chin and two abrasions on her tongue. Id. at 82-88. Though Dr. Wiens admitted A.H. could have caused some of the bruises herself by being a normal stumbling toddler, the bruises on the soft part of the body, such as on the buttocks, were indicative of inflicted injuries. [Doc. 10-3 at 89-90; Doc. 10-5 at 3-8].

         Dr. Wiens also performed the internal examination on the child, and she found blood in A.H.'s belly cavity. Id. at 92. A.H.'s liver had a large laceration, which the doctor described as “a tearing of the tissue due to the amount of force that sort of rips it apart, ” causing a collection of blood underneath the liver capsule. Id. at 92-93, 95. Approximately forty percent (40%) of the blood in A.H.'s entire body, about 240 milliliters, was in her abdominal cavity. Id. at 95-96. This amount of internal bleeding results in cardiovascular shock and death. Id. at 96.

         A liver laceration, according to Dr. Wiens, “occurs with a hard, fast impact.” Id. For example, the doctor explained that a liver laceration might result from a high speed, motor vehicle crash where a driver impacts the steering wheel. Id. In the case at hand, the location of the tear to A.H.'s liver was on the back side of the liver, which indicated that the impact came from A.H.'s front, causing her liver to hit the spine, fold around the spine, and then be ripped by the spine. Id. at 96-97. The injury on the back of the child's liver indicated that, at the time of the impact, A.H. was in a position in which her back was supported and the spine did not move. Id. at 104-05. A.H.'s injury was consistent with a stomping, kicking or punching to her abdominal area. Id. at 105-06. The doctor further opined that the injury was “not likely” caused by a person simply stepping on the child, explaining that “[t]here probably would not be enough force generated in a quick enough time frame to cause an injury like this.” Id. at 106. When asked if she believed the injury could have been caused by a four-year-old, the doctor testified “no, ” and that it was “not likely.” Id. at 108-09, 122.

         Dr. Wiens testified that A.H. would have suffered abdominal pain before her death, and that her ability to verbalize that pain would depend on how long she was conscious after the injury. Id. at 107. Dr. Wiens opined that, depending on how fast A.H. was bleeding from the liver, the child could have been conscious from just a few minutes to maybe two to three hours at the most. Id. at 107-08, 120. The doctor acknowledged that the time of injury is unknown, but also opined that the time of death “would have been within minutes to hours prior to EMS arriving at the scene, based on the fact that [A.H.] had rigor mortis changes when emergency medical services were there, ” noting “[r]igor mortis takes time to develop, thirty minutes, an hour, and it stays strong for several hours.” Id. at 120-21.

         Mr. Pacheco, F.P., Fl.P., and J.P. told investigators and testified during the trial that they did not inflict the injuries to A.H. [Doc. 10-2 at 195-97, 208-09, 242-43; Doc. 10-3 at 22-23, 25-26]. In addition, Petitioner told the investigator that the injuries to A.H. were not caused by Mr. Pacheco, or a stranger, and that Petitioner and Mr. Pacheco were the only ones in the room with A.H. during the night. [Doc. 10-2 at 167-68]. Petitioner maintained that she did not injure the child. When asked if it was possible that Petitioner hit or kicked A.H., Petitioner said she didn't think so, and that she did not know, but that “it's possible” since she was a “wild sleeper.” Id. at 160, 167.

         Ground I: The State's evidence was insufficient to prove all of the essential elements of first-degree child-abuse murder and therefore, Petitioner was convicted and sentenced in violation of her rights to due process under the Fifth and Fourteenth Amendments.

         Petitioner relies heavily upon Dr. Wien's testimony regarding the child's estimated time of death, insisting that she was asleep when the child was injured. [Doc. 1 at 5-6]. Petitioner identifies the first two elements of Oklahoma's first-degree child-abuse murder, acknowledging that the “defense did not contest that the victim was under the age of eighteen or that the death resulted from the willful or malicious using of unreasonable force.” Id. at 6. Nevertheless, Petitioner “contests the third element, ” claiming the State did not prove the child's death was caused by Petitioner. Id. Unlike prior statements made during the investigation, Petitioner now points the finger at Mr. Pacheco and others present in the home during the time of A.H.'s injury, contending that the “only conclusive factor is that someone is responsible for the death of the child.” Id. Petitioner argues that “anyone in the home could have been responsible for the death of the victim, ” and that she “is the only one excluded by the evidence.” Id. at 7. Ultimately, she concludes that “[t]he evidence was insufficient to support the death was caused by the [Petitioner] and does not support a finding of guilt in this case[, ] requiring a reversal.” Id.

         In response, Respondent argues that the OCCA's determination was not contrary to, or an unreasonable application of, federal law as determined by the Supreme Court, and that Petitioner is not entitled to relief. [Doc. 9 at 7]. In short, Respondent contends that the OCCA reviewed Petitioner's claim on the merits and applied the correct standard in deciding the sufficiency claim on direct review, which according to Respondent, is “identical” to the standard in Jackson v. Virginia, 443 U.S. 307 (1979). Id. at 15 n. 1. Respondent also sets forth the following argument for denying Petitioner's claim:

The Tenth Circuit recognizes the Jackson standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Valdez v. Bravo, 373 F.3d 1093, 1096-1097 (10th Cir. 2004). As this Court is reviewing this case on collateral review, it is not “allowed to ‘weigh conflicting evidence or consider the credibility of witnesses.'” Matthews, 577 F.3d at 1184 (quoting Valdez, 373 F.3d at 1097). “Rather, when ‘faced with a record of historical facts that supports conflicting inferences [the court] must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution.'” Matthews, 577 F.3d at 1184 (quoting Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996)). As shown, the Oklahoma Court of Criminal Appeals' decision in this case was reasonable and thus, this Court may not “weigh conflicting evidence or consider the credibility of witnesses, but must accept the jury's resolution of the evidence.” Valdez, 373 F.3d at 1097.

Id. at 15-16.

         The OCCA addressed Petitioner's claim as follows:

In Proposition I, Appellant complains because there was no direct evidence that she inflicted the victim's fatal injury, willfully or otherwise. Jurors are entitled to make reasonable inferences from the attendant facts. Given the nature of the fatal injury, the considerable external bruising, and the undisputed fact that the child was in Appellant's care during the night, a rational juror could conclude, beyond any reasonable doubt, that Appellant inflicted the injuries and that they were not accidental in nature. Day v. State, 2013 OK CR 8, ¶ 13, 303 P.3d 291, 298; Drew v. State, 1989 OK CR 1, ¶¶ 2-9, 771 P.2d 224, 226-27. The evidence, while largely circumstantial, is sufficient to support Appellant's conviction. Proposition I is therefore denied.

Pacheco v. State, No. F-2014-1029, slip op. at 2-3 (Okla. Crim. App. Apr. 15, 2016) (unpublished) (footnote omitted). [Doc. 9-5]. The OCCA also made the following observation: “The autopsy showed that the victim's liver was lacerated by being pressed against the spine. The Medical Examiner testified that this fatal injury was consistent with having been firmly punched, kicked, ...


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