Opinion
CIV-21-630-D
01-09-2023
JESSE MAUPIN, Petitioner, v. STEVEN HARPE, Director,[1] Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Jesse Maupin (“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). Respondent filed a response (Doc. 10), along with portions of the record, including the jury-trial transcripts (Tr.), exhibits (State's Ex.), the state trial court record (R.), and the state post-conviction court record (P.C. R.). (Doc. 12).Petitioner then filed a reply brief. (Doc. 13). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DENIED.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Factual Summary
In the summer of 2016, Petitioner lived with Randa King and her minor daughter, R.K. (Tr., at 268-69). Ms. King's son stayed at the house every other weekend. (Id. at 270). Petitioner and Ms. King had an on-again, off-again relationship where the two would occasionally break up. (Id. at 271-72). R.K. considered Petitioner to be her stepfather and the two spent significant time together. (Id. at 272).
Ms. King testified that on Labor Day of that year, R.K. told her that Petitioner touched her bottom. (Id. at 274). Ms. King knew that R.K. referred to her vagina as her “bottom.” (Id. at 286). R.K. told Ms. King that Petitioner laid her down, lifted her nightgown, pulled her underwear to the side, touched her, and exposed himself to her. (Id. at 274). Ms. King testified that R.K. said Petitioner “pulled his thing out, and he began to whack it in front of her.” (Id.) R.K. then showed Ms. King where Petitioner had laid her down and pulled her nightgown up. (Id. at 278, 287).
R.K., who was six years old at the time of trial, testified Petitioner “touched [her] bottom.” (Id. at 238, 244). R.K. told her mother what happened the same day. (Id. at 24445). R.K. testified after she told her mother, she went to the hospital and spoke with Ms. Baum and told her the truth. (Id. at 245). R.K. said Petitioner made her go to the living room and her lay down on her back, where he touched R.K.'s vagina, which she called her “bottom,” with his penis, which she called his “bottom.” (Id. at 249-53; State's Exs. 4, 5). R.K. testified Petitioner told her not to tell her mother. (Id. at 253). But the same day, R.K. told her mom what had happened. (Id.)
After R.K. told her mother what happened, Ms. King confronted Petitioner in the bathroom, where Petitioner was taking a bath. (Id. at 287). She told Petitioner about R.K.'s accusation, and Petitioner asserted R.K. lied. (Id.) Ms. King asked Petitioner to tell her where R.K., who was five years old, would have come up with the story and she would believe him. (Id. at 287-88). But Petitioner “kept saying over and over that [R.K.] was lying.” (Id. at 288). Then, Petitioner went back to R.K. and asked her again to say what happened, and she repeated “the exact same story.” (Id. at 289).
Ms. King told her son and R.K. to get dressed, and because Petitioner left the bathroom, Ms. King went into R.K.'s bedroom with her and shut the door. (Id. at 290). Petitioner came in the room and said, “I guess you're leaving,” to which Ms. King responded that she was. (Id.) Ms. King also told Petitioner that she believed R.K. (Id. at 290).
Ms. King first went to discuss the matter with her best friend and two others. (Id. at 293). Ms. King repeated R.K.'s story and was not sure what to do. (Id.) They advised Ms. King to tell the sheriff and go to the emergency room immediately. (Id.) Ms. King went to the emergency room in Clinton, Oklahoma. (Id. at 294). Ms. King testified that the doctor at the emergency room advised they were not equipped to look at R.K. because there was no penetration, so they made an appointment for R.K. at OU Children's Hospital the next morning. (Id. at 294-95).
The next morning, Ms. King, her brother, and R.K. went to OU Children's Hospital where they met additional family members. (Id. at 298). At the hospital, Ms. Amy Baum, who was trained in the practice of forensic interviewing, interviewed R.K. (Id. at 338-42, 349-53, 363, 377; State's Ex. 1). Dr. Mary Ellen Stockett performed a medical examination as well. (Tr., at 385). Dr. Stockett concluded that R.K. had been sexually abused based on what R.K. said in the forensic interview with Ms. Baum and during her own examination. (Id. at 387, 394).
On the way home from the hospital, Ms. King spoke with Washita County Sheriff's Deputy Russell Stewart, who arranged for her to make a police report at the Sheriff's office the next morning. (Id. at 301, 412-13). Deputy Stewart also interviewed Ms. King on September 9, 2016, as part of his investigation. (Id. at 413).
II. Procedural History
The State charged Petitioner in Washita County, Case No. CF-2017-10, with lewd or indecent acts to a child under 16. (P.C. R., at 1). At the conclusion of the two-day trial, the jury found Petitioner guilty. (Id. at 9). The trial judge sentenced Petitioner to life imprisonment. (Doc. 10, at Ex. 1). On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitioner's conviction and sentence. (Id. at Ex. 4).
Petitioner filed an Application for Post-Conviction Relief and Request for an Evidentiary Hearing in Washita County District Court. (Id. at Ex. 5). The court denied the application. (Id. at Ex. 7). On appeal, the OCCA affirmed the decision to deny Petitioner's application. (Id. at Ex. 9). Petitioner then filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1). The Petition is at issue.
III. Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep't of Corrs., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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). “It is the petitioner's burden to make this showing and it is a burden intentionally designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (internal quotation marks omitted). This standard “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be diametrically different and mutually opposed to the Supreme Court decision itself.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was objectively unreasonable.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
This court “must accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)). This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
IV. Petitioner Raises Four Grounds Alleging Ineffective Assistance of Appellate Counsel.
Petitioner raises four grounds for relief, each alleging ineffective assistance of appellate counsel. (Doc. 1, at 10-22). Specifically, he contends his appellate counsel should have raised the following claims in his direct appeal: a challenge to Ms. Baum's qualifications as an expert witness (Ground One); the trial court erred by admitting the first sixteen minutes of R.K.'s forensic interview (Ground Two); the prosecution improperly withheld a report prepared by Ms. Baum (Ground Three); and an ineffective-assistance-of-trial-counsel claim asserting that his trial counsel should not have waived the preliminary hearing (Ground Four).
Because Petitioner is represented by counsel, his “filings are not entitled to ‘the mandated liberal construction afforded to pro se pleadings.'” Rawle v. Wyo. Dep't of Corr. State Penitentiary Warden, 390 Fed.Appx. 769, 773 n.4 (10th Cir. 2010) (quoting Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999)). But “in any civil case, the Court must construe the [petition] so as to do justice.” Huey v. Kunzweiler, 847 Fed.Appx. 530, 533 n.3 (10th Cir. 2021). The undersigned balances these two principles in addressing the Petition.
For the reasons stated below, each of Petitioner's claims should be denied on the merits.
A. Strickland v. Washington is the Clearly Established Law on Ineffective Assistance of Counsel.
To succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy the standards of Strickland v. Washington and show that his attorney's performance was both deficient and prejudicial. 466 U.S. 668, 687 (1984). An attorney's performance is “deficient” when it falls “outside the wide range of professionally competent assistance.” Id. at 690. The performance is prejudicial when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Appellate counsel's failure to raise a claim lacking merit does not amount to constitutionally ineffective assistance under Strickland. See Cargle v. Mullin, 317 F.3d 1196, 1202-03 (10th Cir. 2003) (“[I]f the issue is meritless, its omission will not constitute deficient performance.”).
However, on habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable,” not “whether . . . counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. Thus, the court must use a “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted).
B. The OCCA's Decision on Petitioner's Claims
Addressing Petitioner's claims of ineffective assistance of appellate counsel, the OCCA held:
Claims of ineffective assistance of appellate counsel may be raised for the first time on post-conviction, because it is usually a petitioner's first
opportunity to allege and argue the issue. Logan v. State, 2013 OK CR 2 at ¶ 5, 293 P.3d at 973. In order to establish such a claim, Petitioner must show both (1) deficient performance, by demonstrating that his appellate counsel's conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that, but for appellate counsel's unprofessional error, the result of his appeal would have been different. Logan v. State, 2013 OK CR 2, ¶ 5, 293 P.3d 969, 973 (citing Strickland v. Washington, 466 U.S. 668 (1984)). If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Strickland, 466 U.S. at 697.
First, Petitioner offers nothing in this appeal which establishes the forensic interviewer was inadequately trained. Petitioner has also offered nothing in this appeal that establishes any deviations from standard protocol that occurred in this case were material or that they would have altered the accuracy and reliability of the interview. In support of the third argument, Petitioner offers nothing to show any suppression of a report was material to the proceedings. Finally, Petitioner offers nothing to show that waiver of the preliminary hearing was material to the proceedings. Petitioner has failed to establish that the District Court erred or abused its discretion, or that his appellate counsel was ineffective.(Doc. 10, at Ex. 9, at 3-4). Thus, the OCCA denied Petitioner's claims on the merits because Petitioner did not establish prejudice.
C. Ground One: Petitioner's Counsel Was Not Ineffective for Failing to Bring a Claim Challenging Ms. Baum's Credentials.
In Ground One, Petitioner contends his appellate counsel should have raised a claim on direct appeal challenging Ms. Baum's training and qualifications. (Doc. 1, at 15-20). For the reasons stated below, this claim should be denied.
Oklahoma law provides an expert can be qualified “by knowledge, skill, experience, training or education.” Okla Stat., tit. 12, § 2702; see also Harris v. State, 84 P.3d 731, 747 (Okla. Crim. App. 2004) (“Any combination of education, training, and experience may qualify a person as an ‘expert' on a particular subject.”); Salazar v. State, 919 P.2d 1120, 1129 (Okla. Crim. App. 1996) (“[A]n ‘expert witness' [is a witness] who is possessed of scientific knowledge acquired by study or practice, or both.”). The record clearly demonstrates Ms. Baum's education, training, and experience in the field of forensic interviews. Ms. Baum testified regarding her training - and subsequent teaching - in forensic interviewing generally and in cases of child sexual abuse. (Tr., at 338-42, 349-51, 363, 377). Ms. Baum also testified about the experience she has conducting forensic interviews. (Id. at 342-43). Additionally, Ms. Baum testified regarding the research she studies in the field of forensic interviewing. (Id. at 344). Thus, Petitioner qualifies as an expert under Oklahoma law.
Petitioner's arguments to the contrary are unavailing. He asserts Ms. Baum was not qualified because she lacks a degree in psychiatry or psychology, because some of her training involved shaken baby syndrome, and because there is no national criteria regarding forensic interviews.(Doc. 1, at 10-11). Petitioner also generally attacks portions of Ms. Baum's testimony that were given during voir dire. These arguments are addressed in turn.
These contentions were not raised in Petitioner's Brief in Support of Post-Conviction Appeal. (Doc. 10, at Ex. 8, at 10-12). Thus, it would appear this portion of Petitioner's claim is unexhausted because it was not fairly presented to the OCCA in his postconviction action. See Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015) (stating that fair presentation “requires that the petitioner raise in state court the substance of his federal claims . . . includ[ing] not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief”) (internal quotations and citations omitted); Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (“The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.”). But here, Respondent has waived exhaustion. (Doc. 10, at 2) (“Petitioner has exhausted his state court remedies as to the claims included in his Petition; they were presented to the OCCA in Petitioner's post-conviction appeal.”). Where a respondent waives exhaustion on a claim that is unexhausted, the court “shall proceed to review de novo the merits of [a petitioner's] claim.” DeRosa v. Workman, 679 F.3d 1196, 1208 (10th Cir. 2012). Thus, the undersigned's review as to the portions of Claim One related to these contentions is de novo. The undersigned, however, gives deference to the OCCA's determination on the remaining, exhausted portions of Claim One.
Petitioner's challenge to Ms. Baum's qualifications on the basis that she does not have a degree in psychiatry or psychology is without merit. (Doc. 1, at 16). Ms. Baum testified she earned a Master of Social Work degree. (Tr., at 202, 337, 363). Under Oklahoma law, “social workers certainly may qualify as expert witnesses.” Salazar, 919 P.2d at 1129; see also Lockett v. State, 53 P.3d 418, 429 (Okla. Crim. App. 2002) (“This Court has held that social workers may qualify as expert witnesses and when they do they should be permitted to render relevant expert opinions within their field of expertise.”). Thus, this argument would have been unsuccessful had Petitioner's appellate counsel brought it on direct appeal.
Petitioner also contends: “Knowing the studies on Shaken Baby Syndrome and the unreliability, [Ms.] Baum improperly bolstered her reliability with training predicated upon junk science.” (Doc. 1, at 16). During a voir dire examination outside the presence of the jury, Ms. Baum testified that as part of her ongoing training, she attended national conferences which were sometimes about forensic interviewing and other times “about Shaken Baby Syndrome, but a lot of them include information about forensic interviewing.” (Id. at 203). But during the trial, Ms. Baum's expert testimony related to forensic interviewing, and she did not address shaken baby syndrome. Thus, Petitioner's unsupported statement regarding the legitimacy of shaken baby syndrome is misplaced and would not have been a successful argument on direct appeal.
Petitioner continues:
The National Academy of Sciences recommends standardization of forensic sciences to ensure quality. An NAS report points to diagnostic medicine as an example of an area where standards exist and ensure quality. NAS Report at 25. But where such standards do not exist, i.e., where there are no well-defined, scientifically supported diagnostic criteria, there are no standards to determine if the diagnosis is correct. Research suggests that experts are more likely to err when contextual influences exist, emotions are heightened, and subjectivity is part of the process.(Doc. 1, at 16-17). Although it is unclear, Petitioner may be referring to Ms. Baum's testimony that there is no national criteria or certification for forensic interviewers. (Tr., at 363-64). But Petitioner has not cited any authority suggesting an expert may only give testimony in an area that has national standards, and Oklahoma's statute regarding expert witness testimony does not include any such limitation. See Okla Stat., tit. 12, § 2702. Thus, the undersigned finds this argument would not have been successful on direct appeal.
The remainder of Petitioner's argument appears to attack Ms. Baum's testimony, given outside the presence of the jury during voir dire, that she had no reason to think that R.K was fabricating her story. (Doc. 1, at 17-18). First, she contends Ms. Baum's statement that she never had testified a child was not being truthful “demonstrates a cognitive bias.” (Doc. 1, at 17). She also asserts that the testimony was “predictable because [Ms. Baum] had admitted that she had never testified that a child was not being truthful” and that she thought only a small percentage of interviews were fabricated. (Id. at 18). Additionally, Petitioner addresses portions of Ms. Baum's testimony, including:
Petitioner also argues it was improper for Ms. Baum to wait sixteen minutes into the forensic interview before telling R.K. to tell the truth. (Doc. 1, at 18, 20). This argument is addressed in the analysis of Claim Two, infra.
• R.K. “told her something about Petitioner being mean;”
• R.K. was very active in the interview room;
• R.K. said Petitioner did the act behind her mother's back, which Ms. Baum believed was something R.K. had overheard somebody say; and
• R.K. alleged the offense occurred on Christmas, but the State alleged the offense occurred on September 4, 2016, which Petitioner argues shows R.K. “had an active imagination.”(Id. at 17-18). Petitioner does not explain how these portions of Ms. Baum's testimony relate to her qualifications, and it is not otherwise apparent to the undersigned. This portion of the claim was exhausted and, the OCCA reasonably determined that appellate counsel's failure to bring these arguments lacked prejudice because “Petitioner offer[ed] nothing in this appeal which establishes the forensic interviewer was inadequately trained.” (Doc. 10, at Ex. 9, at 4).
Because Petitioner's argument that Ms. Baum was not qualified as an expert witness has no merit, Claim One should be denied because Petitioner did not establish prejudice resulting from appellate counsel's failure to raise the argument. See Cargle, 317 F.3d at 1202-03.
D. Ground Two: Petitioner's Appellate Counsel Was Not Ineffective for Failing To Challenge the Trial Court's Decision Not To Suppress the First Sixteen Minutes of R.K.'s Recorded Interview.
Petitioner contends his appellate counsel should have raised a claim regarding the trial court's decision not to suppress the first sixteen minutes of R.K.'s forensic interview. (Doc. 1, at 21-22). Petitioner argues the admission of the entire interview amounted to the denial of a fundamentally fair trial. (Id. at 22).
During voir dire, Ms. Baum testified that during the twenty-four-minute recorded interview with R.K., she did not tell R.K. to tell the truth until sixteen minutes into the interview. (Tr., at 206). Ms. Baum stated that she typically tells her interview subjects to tell the truth at the beginning of the interview, but in this instance she “had just forgotten and brought it up when it seemed appropriate.” (Id.) Ms. Baum also testified that according to the ChildFirst protocol, it is not necessary to discuss telling the truth with an interview subject. (Id. at 224-25). After the voir dire of Ms. Baum, Petitioner's trial counsel objected to the admission of the first sixteen minutes of the recorded interview. (Id. at 228). The trial court overruled the objection and admitted the entire interview. (Id.)
Under Oklahoma law “a statement made by a child who has not attained thirteen (13) years of age . . . which describes . . . any act of sexual contact performed with or on the child . . . is admissible in criminal . . . proceedings” if certain criteria are met. Okla. Stat. tit. 12, § 2803.1(A). Relevant to Petitioner's underlying claim of trial court error, the trial court must find “in a hearing conducted outside the presence of the jury, that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability so as to render it inherently trustworthy.” Id. § 2803.1(A)(1). The trial court “may consider, among other things, the following factors: the spontaneity and consistent repetition of the statement, the mental state of the declarant, whether the terminology used is unexpected of a child of similar age or of an incapacitated person, and whether a lack of motive to fabricate exists.” Id. The Tenth Circuit recently summarized the similar factors considered under federal law to determine whether an evidentiary issue rendered the trial fundamentally unfair:
The Supreme Court has identified several factors relevant in determining whether a child victim's interview is sufficiently reliable. Idaho v. Wright, 497 U.S. 805, 821-22 (identifying “spontaneity and consistent repetition,” “mental state of the declarant,” “use of terminology unexpected of a child of similar age,” and “lack of motive to fabricate”) abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 68-69 (2004).Hamburger v. Allbaugh, 679 Fed. App'x 665, 667 (10th Cir. 2017).
In Hamburger, the petitioner made similar arguments as Petitioner does in this claim. The petitioner complained “the interviewer did not specifically discuss the difference between truth and lies with the victim,” but the interviewer testified “that although some jurisdictions prefer such a discussion, it is not required by protocol.” Id. The Tenth Circuit noted that the petitioner did “not direct [the court] to any clearly established federal law indicating that this factor alone renders a statement unreliable” and denied the claim. Id. Likewise, Petitioner in this matter has not directed the Court to any authority - under federal or state law - suggesting that a portion of an interview is inadmissible until the interviewer admonishes a victim to tell the truth.
Petitioner's fundamental-fairness argument is foreclosed by the similar analysis in Hamburger. And given the similarity between the factors considered under state and federal law, the Court finds the OCCA reasonably determined that the underlying claim would fail because “Petitioner has . . . offered nothing in this appeal that establishes any deviations from standard protocol that occurred in this case were material or that they would have altered the accuracy or reliability of the interview.”(Doc. 10, at Ex. 9, at 4). Thus, because the underlying claim is without merit, Petitioner's appellate counsel was not constitutionally ineffective for failing to raise the claim on direct appeal. See Cargle, 317 F.3d at 1202-03.
In Ground One, Petitioner argues the OCCA “made an unreasonable determination of the facts” because Ms. Baum “agreed that [it] was not her standard protocol” to wait sixteen minutes to admonish R.K. to tell the truth. (Doc. 1, at 20). But the OCCA did not find Ms. Baum did not deviate from her standard protocol. Instead, it found any deviation from standard protocol was not material in that it did not affect the reliability or accuracy of the interview. (Doc. 10, at Ex. 9, at 4).
E. Ground Three: Petitioner's Appellate Counsel Was Not Ineffective for Failing to Bring a Brady Claim.
Petitioner contends that his appellate counsel should have made a claim that the State withheld a report regarding R.K's forensic interview in violation of Brady v. Maryland, 373 U.S. 83 (1963). (Doc. 1, at 23-26). Petitioner argues that “failing to disclose the report infringed upon the Petitioner's right to the effective assistance of Counsel.” (Id. at 25). The undersigned finds the OCCA reasonably found a lack of prejudice because the underlying Brady claim is without merit.
After her interview with R.K., Ms. Baum testified “two separate reports” were prepared - one was a report she prepared for herself and the other was prepared for the Child Protection Team meeting. (Tr., at 223). At trial, Ms. Baum stated the second report differed from the first only in that she took out identifying information and added medical information she received from the physician assistant. (Id. at 378). She made the second report to discuss the information at a Child Protection Team meeting. (Id.) Defense counsel became aware of the second report before trial during Ms. Baum's voir dire. (Id. at 223-24). Counsel asked for and obtained time to review the document before proceeding with the voir dire. (Id. at 224). Later, in questioning before the jury, defense counsel referenced that neither he nor the State had seen the report with the medical information added into it. (Id. at 367-68).
In Brady, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. “[T]o establish a Brady violation, a habeas petitioner must show that (1) the prosecutor suppressed evidence; (2) the evidence was favorable to the defendant as exculpatory or impeachment evidence; and (3) the evidence was material.” Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir. 2002) (internal quotation marks omitted). Where “defense counsel discovered the prosecution's failure to disclose Brady material at the beginning of trial,” the question is “whether there is a reasonable probability that the outcome of [the trial] would have been different had the State disclosed this information earlier.” Id. at 1172-73.
First, there is a question as to whether the evidence was suppressed at all. Here, the document was provided to defense counsel after jury selection, but before opening statements. The Tenth Circuit recently held a document provided before opening statements was not suppressed. United States v. Herrera, 51 F.4th 1226, 1251 (10th Cir. 2022) (“The questionnaire was not suppressed. It was disclosed the day before opening statements. Because the Defendants received the questionnaire before opening statements, they could have used the questionnaire at trial.”). Although the evidence in this matter was provided on the day of opening statements, not the day before, the undersigned finds Herrera persuasive. As noted above, defense counsel was able to review the short, six-page document when he learned of it. Further, he had the opportunity to use the document in all phases of the trial. Indeed, defense counsel referenced the existence of the document in his cross-examination of Ms. Baum. (Tr., at 367-68).
Second, there is no indication that the evidence was favorable to Defendant as exculpatory or impeachment evidence. The only description of the report Petitioner provides is through Ms. Baum's testimony. Ms. Baum's testimony does not supply any support for an argument that the contents of the report were exculpatory or valuable for impeachment. Indeed, Ms. Baum testified that the second report was largely the same as the report that had already been produced to defense counsel. (Tr., at 223).
Third, Petitioner did not demonstrate the evidence was material, because there was not a reasonable probability that the outcome of the trial would have been different had the State disclosed the second report earlier. The trial court granted Petitioner's counsel time to review the document prior to trial, and counsel was able to question Ms. Baum about the document during voir dire. The document was short and similar in content to a report that had already been provided to defense counsel. So although counsel only reviewed the document a short time, there is no reason to believe that an earlier disclosure would have changed the outcome.
Because the underlying Brady claim was without merit, the OCCA was reasonable in denying Petitioner's ineffective-assistance-of-counsel claim based on the failure to raise the Brady claim. See Cargle, 317 F.3d at 1202-03.
F. Ground Four: Petitioner's Appellate Counsel Was Not Ineffective for Failing to Challenge Trial Counsel's Waiver of the Preliminary Hearing.
Petitioner asserts his appellate counsel should have raised an ineffective-assistance-of-trial-counsel claim related to trial counsel's waiver of his preliminary hearing. (Doc. 1, at 26-29). Petitioner contends “he waived his right to a preliminary hearing, at the advice of counsel.” (Id. at 27) (citing R., at 33-35). He argues his trial counsel's “waiver for the preliminary hearing was inconsistent with due process because Petitioner lacked the understanding of judicial proceedings to know what a preliminary hearing was used to determine.” (Doc. 1, at 27). Petitioner also contends the decision to waive the preliminary hearing was not knowing, voluntary, or intelligent because he “maintained his innocence throughout the proceedings.” (Id.) He asserts that “waiving a preliminary hearing to determine if probable cause existed is equal to Counsel conceding he believed his client was guilty over his client's objection.” (Id. at 28). Thus, he argues that “a stipulation of probable cause” amounted to “abandonment of Counsel at a critical stage.” (Id.) The undersigned finds the OCCA's merits-based rejection of Petitioner's claim was reasonable.
There is no direct “federal constitutional right to a preliminary hearing.” Snow v. Oklahoma, 489 F.2d 278, 279 (10th Cir. 1973); see also Alston v. Harvanek, No. CIV-16534-D, 2017 WL 9477749, at *3 (W.D. Okla. Mar. 21, 2017) (“[T]he Constitution does not guarantee state prisoners a right to a preliminary hearing.”), report and recommendation adopted, 2017 WL 1610889 (W.D. Okla. May 1, 2017).
1. Petitioner's Alleged Error Is Not Structural Error.
First, the undersigned addresses Petitioner's contention that his trial counsel's “concession to probable cause was not merely harmless error but structural error.” (Doc. 1, at 29). “[T]he defining feature of a structural error is that it affect[s] the framework within which the trial proceeds, rather than being simply an error in the trial process itself.” Weaver v. Massachusetts, 137 S.Ct. 1899, 1907 (2017) (internal quotation marks omitted). Examples include violation of the defendant's right to conduct his own defense or to select his own attorney; if the “indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction;” and “violation of the right to a public trial.” Id. at 1907-08. Typically, a criminal defendant is entitled to “automatic reversal without any inquiry into prejudice” where structural error lies. Id. at 1905.
The undersigned finds the waiver of a preliminary hearing by counsel does not amount to structural error. Indeed, the Supreme Court has held that the absence of counsel at a preliminary hearing is subject to the harmless-error standard. Coleman v. Alabama, 399 U.S. 1, 11 (1970) (holding that “the test to be applied is whether the denial of counsel at the preliminary hearing was harmless error”). So, it follows that ineffective assistance of counsel at the preliminary hearing stage would also not be structural error.
2. Petitioner's Trial Counsel Was Not Constitutionally Ineffective.
As to the merits of Petitioner's claim, nothing in the record suggests his waiver of a preliminary hearing was involuntary as he suggests. Instead, the record reflects Petitioner signed a Waiver of Preliminary Hearing on March 22, 2017, in which Petitioner stated he:
• Wanted to waive a preliminary hearing;
• Understood that “by waiving a preliminary hearing [he was] giving up an important right [he had] under the law” and that he would be ordered to stand trial on the charge;
• Had not been abused, mistreated, threatened, coerced, or promised anything by anyone to waive the preliminary hearing;
• Did not have any questions concerning his rights or any questions about the proceeding;
• He fully understood the questions that were asked and gave his answers freely and voluntarily.(P.C. R, at 5-6). In a similar case on habeas review, a convicted prisoner argued that “[n]o reasonable trial lawyer would try a case by waiving [the] preliminary [hearing] . . . with a client that has claims of innocence and set-up.” Van Dusen v. Mullin, No. CIV-06-295-M, 2006 WL 3693368, at *3 (W.D. Okla. Dec. 14, 2006). There, the habeas petitioner and his attorney waived the right to a preliminary hearing, and the habeas petitioner there gave similar testimony to the statements included in Petitioner's Waiver of Preliminary Hearing in this matter. Id. at *4 (noting that the prisoner testified he was satisfied with his attorney's services, they had discussed the advantages and disadvantages of the waiver, his attorney had not forced or told him to waive the hearing, and the decision to waive was made by the habeas petitioner). The court found trial counsel's “conduct was not constitutionally deficient, and [the prisoner] has not alleged any prejudice from the hearing,” and thus Petitioner had not established ineffective assistance of counsel due to the waiver. Id.
Additionally, Petitioner does not cite any authority suggesting that counsel may not waive a preliminary hearing or that waiver of a preliminary hearing is tantamount to an admission of guilt. Despite his waiver of a preliminary hearing, Petitioner maintained his innocence throughout the proceeding, including entering a plea of not guilty on April 20, 2017. (P.C. R., at 8).
Finally, Petitioner does not assert that the waiver of a preliminary hearing would have altered the result of his criminal proceeding. He does not argue that the State would have been unable to establish probable cause at the preliminary hearing. He also does not argue that information would have come to light at the preliminary hearing that would have altered the result of his trial. In other words, any decision made by trial counsel with respect to the preliminary hearing was not prejudicial. See Bryant v. Dowling, 2022 WL 2064677, at *8 (10th Cir. June 8, 2022) (rejecting Petitioner's argument “that appellate counsel failed to challenge trial counsel's advice that [he] waive his right to a preliminary hearing” because it amounted to a strategic decision and “a competent attorney could reasonably have decided that a preliminary hearing was unlikely to produce a favorable result and would not provide helpful discovery or material for impeachment of witnesses at trial”); Williamson v. Parker, No. CIV-13-899-D, 2015 WL 1061131, at *19-20 (W.D. Okla. Mar. 10, 2015) (recommending denial of habeas relief on claim the petitioner's attorney “was ineffective for waiving preliminary hearing” because he did not show the trial result would have been different but for the waiver), report and recommendation adopted, 2016 WL 6599918 (W.D. Okla. Nov. 8, 2016).
Because the underlying claim of ineffective assistance of trial counsel is without merit, so is Petitioner's claim of ineffective assistance of appellate counsel, as the OCCA reasonably determined. See Cargle, 317 F.3d at 1202-03.
V. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the court recommends that the Petition for habeas relief (Doc. 1) be DENIED on all grounds.
The court advises the parties of their right to object to this Report and Recommendation by January 30, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The Court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.