REPORT AND RECOMMENDATION
Petitioner Jimmy Stepney, a state prisoner appearing pro se, has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court conviction. (ECF No. 10). Respondent has filed her Response to Petition for Writ of Habeas Corpus. (ECF No. 13). For the reasons set forth below, it is recommended that the Petition be DENIED.
I. FACTUAL BACKGROUND
In mid-October of 2014, Petitioner moved into a home with Jerome Bullock; his girlfriend, Bonny Jean Stow; and his mother, Diane Range. Volume II, Transcript of Proceedings from Jury Trial Before the Honorable Glenn M. Jones, State of Oklahoma v. Jimmy Daryl Stepney, Case No. CF-2014-8031 (Okla. Co. Sept. 29, 2015) at 188-191, 196 (Trial TR. Vol. II). Approximately one month later, Mr. Bullock asked Petitioner to leave the residence after he made a comment to Ms. Stow which had made her uncomfortable. (Trial TR. Vol. II 191-195). Petitioner willingly exited the Bullock residence, but left some possessions there. (Trial TR. Vol. II 196). Approximately two days later, on November 17, 2014, Mr. Stepney returned to Mr. Bullock's home to retrieve the items he had left. (Trial TR. Vol. II 197). According to Mr. Bullock, Petitioner entered the home, put his finger in Mr. Bullock's face and said: "Let me tell you something nigger." (Trial TR. Vol. II 197-199). Mr. Bullock then attempted to escort Petitioner to leave when Mr. Stepney began punching Mr. Bullock. (Trial TR. Vol. II 199-201). The altercation continued outside to the front porch and culminated with Mr. Stepney repeatedly slashing at Mr. Bullock and cutting him with a knife. (Trial TR. Vol. II 200-208). Eventually, Mr. Bullock's girlfriend, Ms. Stow, stepped on Petitioner's hand, freeing the knife from his grip. (Trial TR. Vol. II 209-210).
At Petitioner's trial for assault and battery against Mr. Bullock, Ms. Stow testified that in response to a newsflash, Mr. Stepney had said "it was okay for [an American] to be beheaded" and that comment had made her uncomfortable. (Trial TR. Vol. II 244-246). Mr. Stepney's attorney neither objected to Ms. Stow's testimony, nor filed a Motion in Limine to exclude any reference to the comment. (Trial TR. Vol. II 246).
II. PROCEDURAL BACKGROUND AND ISSUES PRESENTED
On November 25, 2014, Mr. Stepney was charged with assault and battery with a dangerous weapon in regards to the November 17, 2014 knife attack on Mr. Bullock. Original Record, State of Oklahoma v. Jimmy Daryl Stepney, Case No. CF-2015-8031 at 1-4 (O.R.). On March 4, 2015, the charges were amended to felonious assault and battery with a deadly weapon. (O.R. 15-16). On September 30, 2015, a jury convicted Mr. Stepney of the lesser-related offense of assault and battery with a dangerous weapon, after two or more prior felony convictions. Volume III, Transcript of Proceedings from Jury Trial Before the Honorable Glenn M. Jones, State of Oklahoma v. Jimmy Daryl Stepney, Case No. CF-2014-8031 (Okla. Co. Sept. 30, 2015) at 135-136 (Trial TR. Vol. III); O.R. 97, 139. On November 13, 2015, the Court sentenced Mr. Stepney to 20 years incarceration. (O.R. 152-153). Following the conviction, Mr. Stepney filed a direct appeal. (ECF No. 20-1). There, Petitioner alleged:
1. The trial court violated the Oklahoma rules of evidence and Petitioner's Due Process rights under state and federal law by admitting statements from Ms. Stow and Mr. Bullock regarding why Petitioner was asked to leave their home; and
2. Ineffective assistance of trial counsel for failing to file a Motion in Limine or object to the statements from Ms. Stow and Mr. Bullock regarding why Petitioner was asked to leave their home.
(ECF No. 20-1).
On November 29, 2016, the Oklahoma Court of Criminal Appeals ("OCCA") addressed the merits of Petitioner's claims and affirmed his conviction. (ECF No. 20-3). On October 27, 2017, Mr. Stepney timely filed his habeas petition and on January 29, 2018, Petitioner filed an Amended Petition. (ECF Nos. 1, 10). As ground for habeas relief, Petitioner alleges the same grounds as he did on direct appeal, except he does not seek relief based on alleged errors of state law and he only challenges testimony from Ms. Stow. (ECF No. 10:3-6).
III. STANDARD OF REVIEW
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), this Court's power to grant habeas corpus relief to state prisoners is limited. Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007). Under the AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir. 2010) (citing Snow, 474 F.3d at 696). "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 state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 98 (2011).
When a state court has adjudicated the merits of a petitioner's claims, they are governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Pursuant to the AEDPA, this Court may grant habeas relief only if the state court's adjudication "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 "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2244(d)(1) and (2).
A state-court decision is "contrary to clearly established federal law" under 28 U.S.C. § 2254(d)(1) if it "applies a rule that contradicts the governing law set forth in Supreme Court cases or confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from that precedent." Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016) (internal quotation marks omitted). "A state-court decision is an 'unreasonable application' of Supreme Court precedent if the decision 'correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.'" Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015) (quoting Williams v. Taylor, 529 U.S. 362, 407-08 (2000)).
The focus of Section 2254(d) is on the reasonableness of the state court's decision. "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
"Review of a state court's factual findings under § 2254(d)(2) is similarly narrow." Smith v. Duckworth, 824 F.3d 1233, 1241 (2016). Factual findings will not be unreasonable merely because on habeas review the court "would have reached a different conclusion in the first instance." Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (citation omitted). Indeed, a state court's factual findings are presumed correct, and the petitioner bears the burden of rebutting that presumption by 'clear and convincing evidence.'" Smith, 824 F.3d at 1241 (citing 28 U.S.C. § 2254(e)(1)).
In evaluating the reasonableness of a state court's decision, "a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Richter, 562 U.S. at 102. Relief is warranted only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. (emphasis added). The deference embodied in "Section 2254(d) 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." Id. at 102- 03 (citation omitted). When reviewing a claim under Section 2254(d), review "is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 563 U.S. at 181. IV. GROUND ONE—ADMISSION OF STATEMENTS MADE BY MS. STOW
In Ground One, Petitioner alleges the trial court violated his Due Process rights by admitting testimony from Ms. Stow regarding Petitioner's prior bad acts, which Mr. Stepney deemed "highly prejudicial." (ECF No. 10:3).
In Ground One, Petitioner also alleges that his trial attorney was ineffective. (ECF No. 10:3-4). But Mr. Stepney reiterates these same allegations in Ground Two, titled "Ineffective Assistance of Counsel" and the undersigned will address the allegations as a separate point of error.
At trial, Ms. Stow testified that in response to a newsflash about the beheading of an American citizen, that Mr. Stepney had said "it was okay for them to be beheaded." (Trial TR. Vol. II 244-246). Mr. Bullock had previously testified that the story about the beheading "was an ISIS situation." (Trial TR. Vol. II 192). On direct appeal, Mr. Stepney argued that Ms. Stow's testimony had prejudiced the jury against Petitioner in violation of his Due Process rights because it had implied that he believed that "it was okay for ISIS to behead the man." (ECF No. 20-1:9-13).
The OCCA rejected Petitioner's argument, stating:
Appellant must show a deviation from a legal rule which is plain and obvious, and which affected the outcome of the proceeding. Evidence that Appellant returned a few days after being asked to move out, and unjustifiably attacked the victim with a knife was overwhelming. The jury found him guilty of a lesser related offense. Despite the fact that Appellant had eight felony convictions, the jury recommended the minimum sentence allowable after two or more felony convictions. Even if Appellant could show that admission of the offensive comment was improper, he clearly fails to show any prejudice. Proposition I is denied.
(ECF No. 20-3:2) (internal citations omitted). In denying Petitioner's claim, the OCCA utilized a "plain error" standard under Oklahoma law, which "is virtually identical to the constitutional test for due process." Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015). Accordingly, when the OCCA rejected Petitioner's claim under the plain-error standard, the decision "effectively disallowed the possibility of a due process violation." Id. This Court must then defer to the OCCA's ruling unless it "unreasonably applied" the Due Process test. Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (internal brackets and citation omitted). On habeas review, to establish a Due Process violation related to the allegedly improper admission of evidence, a petitioner must show "the alleged error was so grossly prejudicial [that it] fatally infected the trial and denied the fundamental fairness that is the essence of due process." Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002) (citation omitted).
(ECF No. 20-3:2).
Here, the OCCA rejected Mr. Stepney's challenge to Ms. Stow's testimony in light of the overwhelming evidence of guilt, including evidence that Appellant had returned a few days after being asked to move out, and unjustifiably attacked the victim with a knife. (ECF No. 20-3:2). Testimony from Mr. Bullock, Ms. Stow, and Ms. Range confirmed the attack and further proof of Petitioner's guilt could be gleaned from:
• pictures of Mr. Bullock which were taken the night of the attack and depicted his injuries as he had described them and
• testimony from Officer Kaylen Washborne who apprehended Petitioner approximately one block from the crime scene with "very fresh" "bright red" blood on his jacket.
See Trial TR. Vol. II 197-210, 246-255; Trial TR. Vol. III 8-19, 39-44; State's Exhibits 4-7, State of Oklahoma v. Jimmy Daryl Stepney, Case No. CF-2014-8031 (Okla. Co.). Based on the overwhelming evidence of guilt, the Court should find that the OCCA's determination on Ground One was reasonable and Mr. Stepney is not entitled to habeas relief. See Lott v. Trammell, 705 F.3d 1167, 1193-94 (10th Cir. 2013) (finding that habeas petitioner's trial "was not rendered fundamentally unfair by the admission of the [potentially prejudicial] evidence" in part because "the prosecution's evidence of [defendant]'s guilt . . . was overwhelming."); Smallwood v. Gibson, 191 F.3d 1257, 1277 (10th Cir. 1999) (rejecting habeas claim that evidence of prior bad acts had rendered the trial fundamentally unfair in light of other, overwhelming evidence concerning petitioner's guilt). V. GROUND TWO—INEFFECTIVE ASSISTANCE OF COUNSEL
In Ground Two, Mr. Stepney alleges ineffective assistance of his trial attorney with regard to counsel's failure to object to Ms. Stow's testimony or file a Motion in Limine to exclude the evidence. (ECF No. 10:5-6). Specifically, Petitioner argues three instances of how he was allegedly prejudiced by his attorney's inaction:
1. the appeal record was not adequately preserved;
2. if counsel had objected, the trial court could have issued a curative instruction to the jury or declared a mistrial; and
3. a belief that he will be prejudiced if he chooses to file an application for post-conviction relief.
(ECF No. 10:5-6).
To prevail on a claim of ineffective assistance of counsel, the accused must prove deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, the accused must overcome the strong presumption that counsel's conduct fell outside of the wide range of professional conduct, including trial strategy. Id. at 689. To prove prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. But on habeas review, the Court does not examine whether the elements of Strickland have been met. Harrington v. Richter, 562 U.S. 86, 101 (2011). Instead, the pivotal question is whether the state court's application of Strickland was reasonable. Id.
Citing Strickland, the OCCA rejected Mr. Stepney's ineffective assistance of counsel claim stating:
To obtain relief, [Petitioner] must demonstrate both deficient performance and resulting prejudice. When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. As we observed in Proposition I, there is no reasonable probability that the comment in question contributed to the jury's verdict or sentence. Trial counsel was not ineffective, and Proposition II is denied.
(ECF No. 20-3:2-3).
Based on the OCCA's ruling that the statements did not violate Mr. Stepney's Due Process rights, the OCCA likewise found no error in counsel's failure to object or otherwise seek to exclude the evidence. (ECF No. 20-3:2-3). As stated, the Court should conclude that no error existed in the OCCA's determination regarding the admission of Ms. Stow's testimony. See supra. Because no underlying errors existed regarding the substantive claim, no prejudice ensued from counsel's failure to object in these instances. See Hanson v. Sherrod, 797 F.3d 810, 837 (10th Cir. 2015) (denying petitioner's claim of ineffective of counsel which was premised on a failure to object when the underlying claim was without merit); United States v. Batton, 527 F. App'x 686, 689 (10th Cir. 2013) (no ineffective assistance of counsel for counsel's failure to object to a misstatement of facts in the absence of evidence that the misstatement itself constituted misconduct or influenced the jury's verdict); Maynard v. Allbaugh, No. 14-CV-266-GKF-FHM, 2017 WL 1395496, at *8 (N.D. Okla. Apr. 17, 2017) (denying habeas relief based on petitioner's allegations that trial counsel failed to object to allegedly improper comments, finding: "[b]ecause the statements were not improper, Petitioner cannot show that counsel's failure to object to the statements constituted deficient performance."). Accordingly, the Court should conclude that the OCCA's determination was a proper application of Supreme Court precedent and as such, Petitioner is not entitled to habeas relief.
Regarding Mr. Stepney's specific allegations of prejudice, the undersigned also notes: (1) Petitioner's statement regarding the lack of a properly preserved appeal record is inherently flawed, as is evidenced by the fact that the OCCA addressed the underlying claim regarding Ms. Stow's testimony on appeal and (2) the remaining allegations of prejudice are purely speculative. See Ryan v. Marshall, 397 F. App'x 494, 501 (10th Cir. 2010) (affirming denial of habeas relief for ineffective assistance of counsel, which state court had rejected, in part, because petitioner's claims of prejudice were based on speculation). --------
It is recommended that Mr. Stepney's Petition for Writ of Habeas Corpus be DENIED.
VII. NOTICE OF RIGHT TO OBJECT
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by August 17, 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on July 31, 2018.
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE