Hamilton v. Martin

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

PAUL OWEN HAMILTON, )

)

Petitioner, )

)

v. ) Case No. 17-CV-664-TCK-CDL

)

JIMMY MARTIN Warden, )

)

Respondent. )

OPINION AND ORDER

This matter comes before the Court on a Petition for Writ of Habeas Corpus filed pursuant

to 28 U.S.C. § 2254. Petitioner Paul Owen Hamilton (“Hamilton”) is a prisoner proceeding pro

se. He is currently in the custody of the Oklahoma Department of Corrections and confined in the

North Fork Correctional Center in Sayre, Oklahoma. He challenges his convictions for one count

of distribution of child pornography and one count of aggravated possession of child pornography

in Tulsa County District Court (Case No. CF-2014-171). For the reasons discussed below, the

petition is DENIED.

Hamilton filed the instant Petition for Writ of Habeas Corpus (Dkt. 1) on December 11,

2017, challenging his convictions and sentences as in violation of federal law on the following

grounds:

I. The evidence was insufficient to support a guilty verdict for distribution of child

pornography (Count 1 of the information);

II. The evidence was insufficient to support a guilty verdict for aggravated possession of

child pornography (Count 2 of the information);

III. The trial court misinterpreted the statute for aggravated possession in violation of

Hamilton’s constitutional rights;

IV. The trial court handed down an excessive sentence;

V. Hamilton received ineffective assistance of appellate counsel;

VI. Hamilton received ineffective assistance of trial counsel;

VII. The Prosecution failed to disclose exculpatory evidence; and

VIII. Cumulative fundamental error denied him his constitutional rights.

PROCEDURAL BACKGROUND

After the jury rendered guilty verdicts on both counts of the information, the trial court

sentenced Hamilton to ten (10) years imprisonment and a $15,000 fine on Count 1, and twenty-

five (25) years and a $10,000 fine on Count 2, the sentences to run consecutively. The trial court

suspended five years of the ten-year sentence on Count 1. Dkt. 8-8, pp. 129-36. With assistance

of counsel appointed by the Oklahoma Indigent Defense System (“OIDS”), Hamilton filed a direct

appeal to the Oklahoma Criminal Court of Appeals (Dkt. 7-1), raising the following errors:

I. The evidence was insufficient to prove beyond a reasonable doubt that Hamilton

knowingly distributed child pornography;

II. The evidence was insufficient to prove beyond a reasonable doubt that Hamilton

knowingly possessed child pornography;

III. The trial court misinterpreted Oklahoma’s aggravated possession of child

pornography statute; and

IV. The trial court handed down an excessive sentence.

The Oklahoma Criminal Court of Appeals (“OCCA”) affirmed on June 1, 2016, finding no merit

to Hamilton’s four claims. Dkt. 7-3.

On September 12, 2016, Hamilton filed a pro se application for post-conviction relief in

the Oklahoma trial court and motions seeking an evidentiary hearing, transcripts at public expense,

additional briefing time, and submission of additional evidence. Hamilton raised the following

issues in his application for post-conviction relief:

I. He received ineffective assistance of counsel in his direct appeal;

II. He received ineffective assistance of trial counsel;

III. The State failed to disclose exculpatory evidence to the defense;

IV. Fundamental error at trial denied him his constitutional rights;

V. He is entitled to transcripts at public expense; and

VI. He is entitled to an evidentiary hearing.

Dkt. 7-4, p. 3. The trial court denied Hamilton’s application for post-conviction relief on April 26,

2017, finding no merit to his claim of ineffective assistance of appellate counsel. The trial court

denied grounds II, III, and IV because Hamilton should have raised them on direct appeal. Thus,

they were procedurally barred by the doctrine of waiver. Despite the procedural bar, the trial court

discussed the exculpatory evidence claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The

trial court found no Brady violation because although defense counsel was not given a copy of the

compact disc (“CD”) with the images alleged to contain child pornography, the images were

available for counsel’s review, and thus were not “withheld” within the meaning of Brady. The

trial court further held that Hamilton made no showing that the images were exculpatory. The trial

court also denied Hamilton’s requests for additional transcripts and an evidentiary hearing. Dkt.

7-4.

Hamilton filed a pro se appeal of the trial court’s denial of the application for post-

conviction relief. Dkt. 7-5. The OCCA affirmed the denial on June 30, 2017. Dkt. 7-6. The

OCCA upheld the trial court’s determination that Hamilton had waived claims II, III, and IV by

his failure to raise them on direct appeal. The OCCA also affirmed the denial of Hamilton’s

request for transcripts, finding he had made no showing of need or raised a genuine issue of

material fact to support the free transcripts. The Court noted that Hamilton was not entitled to

transcripts in order that “he may search the record to find an issue or material fact which might

potentially serve as the basis for his claims of ineffective assistance of trial or appellate counsel.”

Id. at 4-5. The OCCA rejected Hamilton’s argument that he should have been entitled to file a

reply brief as there was no statutory or other authority supporting that claim. The OCCA also

found no merit to Hamilton’s ineffective assistance of appellate counsel claim. Relying on the

two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984), the OCCA found that

Hamilton had made no showing of either deficient performance or resulting prejudice. The OCCA

determined that Hamilton’s claims were “conclusory, unprovable, or unspecific claims of

ineffective assistance of appellate counsel” that were insufficient to demonstrate ineffective

assistance. Id. at 6. The OCCA thus affirmed the trial court’s denial of Hamilton’s application for

post-conviction relief in its entirety. Id.

FACTUAL BACKGROUND1

A preliminary hearing was held on May 30, 2014, at which it was determined that probable

cause existed to hold a trial on the information charging Hamilton with one count of distribution

of child pornography (OKLA. STAT. tit. 21, § 1021.2 (2007)) and one count of aggravated

possession of child pornography (OKLA. STAT. tit. 21 § 1040.12a (2009)). Dkt. 8-1. A pre-trial

motion hearing was held on April 10, 2015. Dkt. 8-2. The trial judge heard argument regarding

(1) Oklahoma’s aggravated possession of child pornography statute, (2) testimony from the expert,

Dr. Sarah Passmore, as to whether the photographs that would be introduced at trial did indeed

1These facts are summarized from the parts of the transcript submitted with the State of

Oklahoma’s brief in opposition to the petition for writ of habeas corpus. (Dkt. 8.) Additional

relevant facts will be discussed infra in the analysis and discussion of the enumerated claims.

depict underage girls, and (3) testimony whether Hamilton was “in custody” during his interview

with Sergeant Williams in an unmarked police vehicle. On the morning of trial, the trial judge

ruled that the charge of aggravated possession was correct under Oklahoma law, and that Hamilton

was not “in custody” for the interview; he was free to leave. As a result, the audio recording of

the interview was admissible.

At trial, Detective Robert McCoy of the Tulsa Police Department (“TPD”) testified at

length regarding the procedures by which he discovered the images of child pornography at issue

in this case and determined that they had come from Hamilton’s computer. The TPD runs a law

enforcement version BitTorrent, a peer-to-peer file-sharing software program, that monitors

downloads of known child pornography. The software identifies the IP address from which the

files are shared. On September 8, 2013, the TPD received downloads to its law enforcement

version of BitTorrent with known images of child pornography. Detective McCoy confirmed the

images were known child pornography (a cache of photos known as the Lolita series). Using the

software, Detective McCoy determined the IP address from which the images were downloaded.

With that information, McCoy was able to trace the IP address to that of a Cox Communications

subscriber. In answer to a subsequent subpoena, Cox Communications identified the subscriber

as Paul Hamilton. From that information, officers obtained Hamilton’s physical address and

prepared a search warrant.

Both Detective McCoy and Sergeant Malcolm Williams of the TPD cyber crimes unit

executed the search warrant on October 30, 2013. They seized a desktop computer and several

other data storage devices. Sergeant Williams testified that he interviewed Hamilton inside his

unmarked police car. The interview was recorded. Hamilton stated that he was the only one to

use his computer.

Detective McCoy later performed a forensic examination on the desktop computer seized

from Hamilton’s apartment and identified 241 images of child pornography stored in “unallocated”

space on the hard drive. Detective McCoy testified that finding the images in unallocated space

demonstrated that the images had been downloaded and deleted, a common practice among users

of child pornography. In addition to the images, Detective McCoy found the following search

terms: “teen solo,” “cute little teen,” and “pedo site.” He also found BitTorrent file fragments

with file names of “best six YO preteen showing pussy” and “underage teen models.” On cross-

examination, Detective McCoy testified that at the execution of the search warrant he determined

that Hamilton’s wireless router was password protected and thus not available for use by anyone

who did not have the password. Dr. Sarah Passmore, a specialist in pediatric abuse and neglect,

testified as to the ages of the girls depicted in the images on Hamilton’s computer. She testified

that she viewed 146 images that she determined were under age 18, and therefore child porn. The

case was submitted to the jury after the close of the State’s case. Hamilton did not testify at trial.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254, federal district courts have jurisdiction to hear claims from state

prisoners that their convictions were obtained in violation of the United States Constitution. A

petition for writ of habeas corpus will be granted only if the state court’s adjudication of the 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).

A habeas court will first analyze whether federal law “was clearly established by the

Supreme Court at the time of the state court judgment.” Byrd v. Workman, 645 F.3d 1159, 1165

(10th Cir. 2011). A state court’s judgment is “contrary to” federal law where “the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if

the state court decides a case differently than the Court has on a set of materially indistinguishable

facts.” Id. (citing Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004)). An unreasonable

application of federal law occurs where the state court identifies the proper controlling legal

principle but “unreasonably applies” the law to the facts of the defendant’s case. Id.

Exhaustion is a threshold issue in a habeas case. Under the federal statute, a habeas

petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State

. . . if he has the right under the law of the State to raise, by any available procedure, the question

presented.” 28 U.S.C. § 2254(c). The doctrine serves to avoid a federal court’s involvement in

overturning a state court conviction before the state has an opportunity to address and correct a

constitutional violation. See Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). A habeas petitioner

must “give state courts a fair opportunity to act on their claims.” O’Sullivan v. Boerckel, 526 U.S.

838, 844 (1999) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). This requires that a prisoner

give the state court “a full opportunity to resolve constitutional issues by invoking one complete

round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845. A prisoner

must “fairly present” each claim raised in a petition for writ of habeas corpus to the courts in the

state of conviction. State courts are first granted the opportunity to “correct alleged violations” of

constitutional magnitude before those claims may be heard in federal court. Duncan v. Henry, 513

U.S. 364, 365-366 (1995) (per curiam). The purpose of habeas review is to “guard against extreme

malfunctions in the state criminal justice systems” not as “a substitute for ordinary error

correction” through appeal in state court. Harrington v. Richter, 562 U.S. 86, 102 (2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)).

PROCEDURAL DEFAULT

The doctrine of procedural default is an “important corollary” to the doctrine of exhaustion.

Davila, 137 S.Ct. at 2064. Both doctrines serve to advance the interests of comity, finality, and

federalism. Id.

“Just as in those cases in which a state prisoner fails to exhaust state remedies, a

habeas petitioner who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an opportunity to

address” the merits of “those claims in the first instance.”

Id. (quoting Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).

Federal courts sitting in habeas will not review federal claims decided by a state court on

procedural grounds “if the decision of that court rests on a state law ground that is independent of

the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729. In

application, the “independent and adequate state law ground” doctrine bars a federal court from

addressing a prisoner’s federal claims on the merits when “the prisoner has failed to meet a state

procedural requirement.” Id. at 730. A state procedural default is “independent” when it relies on

state, not federal law. Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) (citing English v.

Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). A state procedural default is “adequate” if it is

“firmly established and regularly followed.” Smith, 550 F.3d at 1274 (citing Clayton v. Gibson,

199 F.3d 1162, 1171 (10th Cir. 1999)).

A. Habeas Grounds VI, VII, and VIII of Hamilton’s Petition for Writ of Habeas Corpus

are Procedurally Defaulted.

Hamilton did not raise Grounds VI (ineffective assistance of trial counsel), VII

(prosecutorial failure to turn over exculpatory evidence), or VIII (cumulative fundamental trial

error) on direct appeal. In denying Hamilton’s application for post-conviction relief, the trial court

denied each of the three claims because Hamilton did not raise them on direct appeal and under

Oklahoma law they were thus “waived.” On appeal of the denial of post-conviction relief, the

OCCA affirmed that Hamilton had waived the claims.

A court sitting in habeas will not address claims that were procedurally defaulted in state

court on an “independent and adequate” state procedural ground unless the habeas petitioner can

demonstrate cause and resulting prejudice for the default or a fundamental miscarriage of justice.

Harmon, 936 F.3d at 1060 (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). In

Smith v. Workman, the Tenth Circuit determined that a habeas petitioner’s waiver of claims not

raised on direct appeal is an “independent and adequate” basis for a habeas court to bar review of

any claim except ineffective assistance of trial counsel. 550 F.3d at 1274 (emphasis added); see

also Cannon v. Gibson, 259 F.3d 1253, 1267-69 (10th Cir. 2001). Thus Grounds VII (Brady

violation) and VIII (cumulative fundamental error) are procedurally defaulted and this Court will

not address them on their merits.

Hamilton’s ineffective assistance of trial counsel claim, however, requires a more exacting

scrutiny to determine whether the state court’s finding of procedural default on this claim is based

on an “independent and adequate” basis. In Oklahoma, a criminal defendant is required to raise

ineffective assistance of counsel claims on direct appeal. If the defendant fails to do so, the claims

are waived. Harmon v. Sharp, 936 F.3d 1044, 1060 (10th Cir. 2019) (citing Sporn v. Oklahoma,

139 P.3d 953, 953-54 (Okla. Crim. App. 2006)). Federal courts are required to undertake a more

thorough “adequacy” analysis when the claim involves ineffective assistance of counsel because

of the potential that dismissal of a procedurally defaulted claim could infringe on a defendant’s

Sixth Amendment right to counsel. See Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008);

Fairchild v. Workman, 579 F.3d 1134, 1142 (10th Cir. 2009) (quoting Kimmelman v. Morrison,

477 U.S. 365, 378 (1986) (“Because collateral review will frequently be the only means through

which an accused can effectuate the right to counsel, restricting the litigation of some Sixth

Amendment Claims to trial and direct review would seriously interfere with an accused right to

effective representation.”). Thus, claims of ineffective assistance of trial counsel not raised on

direct appeal are waived only when (1) trial counsel and appellate counsel are different, and (2)

“the ineffectiveness claim can be resolved upon the trial record alone.” English v. Cody, 146 F.3d

, 1257, 1264 (10th Cir. 1998). See also Harmon, 936 F.3d at 1061 (citing Cuesta-Rodriguez v.

Carpenter, 916 F.3d 885, 901 (10th Cir. 2019) (other citations omitted)).

Here, Hamilton retained private defense counsel for trial. His appellate attorney was

appointed by the OIDS. Thus, trial and appellate counsel were separate, meeting the first

requirement of the adequacy analysis. As to the second requirement, this Court finds that the

issues raised can be dealt with on the trial record alone without any additional fact finding. The

Court takes each of the sub-claims in turn.

Hamilton contends, first, that trial counsel encouraged him not to testify on his own behalf

without a sufficient strategic basis. Under the Fifth Amendment a criminal defendant cannot be

compelled to testify against himself. The converse is also true. “Every criminal defendant has the

constitutional right to testify at trial and the ultimate decision of whether or not to testify belongs

solely to the defendant.” Cannon v. Trammel, 796 F.3d 1256, 1270 (10th Cir. 2015) (citing Jones

v. Barnes, 463 U.S. 745, 751 (1983)). At the close of the state’s case the trial court made a record

of Hamilton’s waiver of his right to testify:

Court: You are Paul Owen Hamilton, right?

Hamilton: Yes.

Court: And you are the defendant in this case that we’ve been trying?

Hamilton: Yes.

Court: Okay. And you have a right, a constitutional right to testify in your own

behalf.

Hamilton: Yes.

Court: But you’re not required to.

Hamilton: I understand.

Court: Have you discussed this with Mr. Henson?

Hamilton: Yes.

Court: And we haven’t announced yet whether or not you intend to present

evidence, and if you did, it would probably be mostly your testimony if you

were going to, right? Have you all made a decision not to have you testify?

Hamilton: I defer to –

Counsel: Your Honor, I spoke with Mr. Hamilton before we went on the record in

this matter and we discussed his taking the stand. And I told him it is my

professional advice that he not take the stand in this matter. And I explained

to him that he had the right to take the stand, he had the right not to take the

stand, but ultimately that decision was his.

Court: Right.

Counsel: And subject to the advice that I’ve given him he’s elected to not take the

stand in his defense.

Court: Okay. Is that correct?

Hamilton: Correct.

Court: Okay. All right. Now I think we’ve covered that issue. Thank you, Mr.

Hamilton.

Hamilton: Thank you.

Dkt. 8-5, pp. 109-10. Hamilton stated on the record that his attorney had explained to him his

rights, he understood his rights, and chose not to testify. This demonstrates a knowing and

voluntary waiver of his rights. Hamilton’s own statements on the record belie any post-conviction

assertion that his waiver was not knowing or voluntary. Thus, the Court finds that the trial record

is sufficient to resolve the issue.

Hamilton further contends that his trial counsel was ineffective in failing to raise a Brady

claim on the basis that the prosecution did not give trial counsel a CD containing the images of

child pornography downloaded from Hamilton’s computer. This too was addressed appropriately

in the trial court and we can rely on the trial court record in resolving it. The parties raised this

issue before trial and during the jury instruction conference. Hamilton’s counsel was allowed to

and did raise objections to each photo produced by the prosecution. Counsel did not object at trial

to the unavailability of the CD, nor did counsel make any argument that the images were not shared

by the prosecution. Again, there is no need to hold an evidentiary hearing on the question whether

outside evidence is required to resolve the Brady claim. The trial record is sufficient to

demonstrate that no evidence was improperly withheld from the defense.

Hamilton’s last defaulted claim was that his trial was fundamentally unfair. He does not

specify any acts of counsel that were potentially deficient. As a result, there is nothing on which

to seek additional evidence. Particularly because the trial record demonstrates that Hamilton’s

counsel properly cross-examined witnesses, made appropriate objections, and valid arguments to

the jury. There is no basis for gathering any additional evidence to resolve this vague claim.

Having determined that the procedures afforded to Hamilton in the trial court do not require

additional fact finding, the “adequacy” requirement is met. Accordingly, the state court’s

procedural bar of Hamilton’s ineffective assistance of counsel claim is both independent and

adequate to support this Court’s finding of procedural default. Thus, Hamilton’s habeas grounds

VI, VII, and VIII are procedurally defaulted and will not be considered on the merits.

B. Hamilton cannot overcome the procedural bar.

Having determined that the Oklahoma “waiver” of claims not addressed on direct appeal

is both independent and adequate, there is only one other narrow avenue available to Hamilton to

pursue review of the merits of his defaulted claims. To overcome the procedural default Hamilton

must demonstrate “cause for the default and actual prejudice as a result,” Coleman, 501 U.S. at

750, or demonstrate that a failure to consider his claims “will result in a fundamental miscarriage

of justice.” To demonstrate cause, a petitioner must show “an objective factor external to the

defense” prevented compliance with the state’s procedural rule. This occurs when the failure to

comply “cannot fairly be attributed” to the prisoner. Davila, 137 S.Ct. at 2065. Cause alone is

insufficient, however. A petitioner must also demonstrate prejudice resulting from the default.

See House v. Bell, 547 U.S. 518, 536 (2006); Murray v. Carrier, 477 U.S. 478, 485 (1986).

The fundamental miscarriage of justice exception requires a showing of “actual innocence”

which the high court defines as a showing “that it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298,

327-28 (1995). This showing requires “new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 324). A

showing of “actual innocence” is exceedingly rare and “permits review only in the ‘extraordinary’

case.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). The high court has held that

actual innocence “means factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623-24 (1998).

Hamilton has put forward no specific factual allegations as cause for the default. Thus,

Hamilton has not demonstrated cause for the procedural default or any resulting prejudice, nor has

he met the high bar of proving factual innocence required to show a fundamental miscarriage of

justice. Accordingly, the Court finds Grounds VI, VII, and VIII are procedurally defaulted. The

Court will not address them on their merits.

DISCUSSION AND ANALYSIS OF THE MERITS OF HAMILTON’S HABEAS CLAIMS

A. Habeas Grounds I and II: Hamilton’s convictions for distribution and aggravated

possession of child pornography were supported by sufficient evidence.

Hamilton argues that his conviction for distribution of child pornography was not

supported by sufficient evidence because (1) the jury was confused regarding the technology

behind IP addresses, wireless routers, and BitTorrent software, (2) the State did not prove that

another user in his apartment building could not have accessed his wireless internet, (3) Hamilton

assisted police in their investigation, and (4) he was “factually innocent.” Dkt. 1, pp. 12-13.

Regarding aggravated possession of child pornography, Hamilton argues that the State did not

prove that he “knowingly” possessed child pornography on his desktop computer because he did

not have access or control over the images.

Both of these claims were fully exhausted within the meaning of § 2254 because Hamilton

raised them in his direct appeal. The OCCA determined that there was sufficient evidence to

support the convictions, emphasizing the detectives with experience in computer and internet

crimes who testified about the receipt and distribution of child pornography from Hamilton’s

computer. The detectives determined that Hamilton’s wireless internet was password-protected,

and thus unavailable to anyone without the password. The detectives found internet searches on

Hamilton’s desktop computer that indicated previous searches for child pornography. And

Hamilton’s statements to the police admitting searching for and downloading pornography. The

OCCA found this evidence sufficient for “a rational juror” to “conclude, beyond a reasonable

doubt, that [Hamilton] knowingly possessed the obscene material and willfully made it available

online.” Dkt. 7-3, p. 3.

Under Oklahoma law, a person may be convicted of distribution of child pornography if

the State can prove beyond a reasonable doubt that the defendant knowingly distributed any type

of child pornography. Dkt. 8-8, p. 81 (jury instruction 17). A person may be convicted of

aggravated possession of child pornography if the State can prove beyond a reasonable doubt that

the defendant knowingly possessed one hundred (100) or more separate materials of child

pornography. Dkt. 8-8, p. 84 (jury instruction 20).

On habeas review, a petitioner is entitled to relief for insufficient evidence if “upon the

record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). A habeas court should not

make its determination based on its own evaluation of the evidence, but whether, “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id. at 319. This inquiry is

an objective one, meaning a federal court sitting in habeas may overturn a state court decision

rejecting a challenge to the sufficiency of the evidence only where the state court decision was

“objectively unreasonable,” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (quoting Renico v. Lett, 559

U.S. 766, 773 (2010)), or “so insupportable as to fall below the threshold of bare rationality,”

Coleman v. Johnson, 566 U.S. 650, 656 (2012).

The Jackson standard “respects the jury’s responsibility to weigh the evidence and to draw

reasonable inferences from the testimony presented at trial.” Dockins v. Hines, 374 F.3d 935, 939

(10th Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Much deference is given

to the finder(s) of fact “to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. In addition to

the deference due the trier of fact, the high court notes that the “nature” of a constitutional

sufficiency review by a habeas court is “sharply limited.” Wright v. West, 505 U.S. 277, 296

(1992). A habeas petitioner claiming insufficient evidence “faces a high hurdle” under the Jackson

standard. Patton v. Mullin, 425 F.3d 788, 796 (10th Cir. 2005). “Where a habeas petitioner’s

sufficiency of the evidence challenge has already been decided in state court, [the habeas court]

employ[s] a more limited review.” Valdez v. Ward, 219 F.3d 1222, 1237 (10th Cir. 2000).

Evidence was presented at trial that Detective McCoy found child pornography (the Lolita

series) had been uploaded from an IP address using Cox Communications. He subpoenaed Cox,

and it was determined that the pornography had come from Hamilton’s computer IP address. A

search warrant was issued and executed on October 30, 2013. Tulsa police seized Hamilton’s

computer and various storage devices. A forensic search of the computer revealed images of child

pornography on the “unallocated” space of Hamilton’s hard drive and history of internet searches

for child pornography. Evidence was also presented that Hamilton’s wireless internet access was

password-protected. Finally, Hamilton admitted to Sergeant Williams that he was the only person

to use his computer.

In a habeas action, this Court does not evaluate the evidence as a juror would, but

determines whether any rational trier of fact could have found proof of guilt beyond a reasonable

doubt. In light of the evidence presented to the jury which supported each element of the offense,

it was not contrary to Supreme Court law for the OCCA to find the jury’s verdict was objectively

reasonable. Accordingly, Grounds I and II of Hamilton’s petition for writ of habeas corpus are

DENIED.

B. Ground III: The trial court properly interpreted the statutory language regarding

aggravated possession of child pornography.

Hamilton argues in Ground III that the images collected from his computer and loaded onto

a CD which was presented as evidence at his trial was only one “material” for purposes of the

statute. As such, he urges that one CD could not rise to the level of “aggravated possession” of

child pornography, which requires one hundred (100) or more images. Hamilton urges that the

legislative history of the aggravated possession statute shows that the legislature intended one CD

to mean one “material,” which would constitute only simple, not aggravated possession of child

pornography.

This issue was raised in state court in a pre-trial motion hearing and again during the jury

instruction conference. The trial judge ruled that the legislature clearly intended each image to be

one material for purposes of the aggravated-possession statute. The OCCA on direct appeal agreed

with the trial court finding that the legislature intended “material” to include not only storage

mediums, but “images, pictures, or depictions” on those mediums. In footnote 2 of the summary

opinion, the OCCA stated:

Appellant’s reliance on Brown v. State, 2008 OK CR 3, 177 P.3d 577, is misplaced.

Brown was charged with 100 counts of simple possession of child pornography

based on images found on several storage devices. There was no crime of

“aggravated possession” at the time. Based on statutory language relevant to the

particular charge (21 O.S. 2001, § 1024.1), we held that the allowable unit of

prosecution was each storage medium (e.g. CD or computer drive), rather than each

image thereon. Brown, 2008 OK CR 3, ¶ 5, 177 P.3d at 579. As the parties and

the district court observed below, the Legislature appears to have enacted the

Aggravated Possession statute in direct response to Brown. In any event, the

language of § 1040.12a is quite clear on the subject.

Dkt. 7-3, p. 4, n. 2.

It is also significant the OCCA’s holding was based exclusively on Oklahoma law, because

“[f]ederal habeas 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)). In reviewing a federal habeas petition,

the Court is “limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.” McGuire, 502 U.S. at 68; see also Montez v. McKinna, 208 F.3d 862, 865

(10th Cir. 2000) (“claims of state law violations are not cognizable in a federal habeas action.”).

Habeas relief for claims of state-law error are available only when the error “was so grossly

prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence

of due process.” Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012) (quoting Revilla v.

Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (other citations omitted); see also Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) (per curiam) (“a state court’s interpretation of state law . . . binds

a federal court sitting in habeas corpus”).

Hamilton has made no showing that the proper post-Brown interpretation of the aggravated

possession statute “fatally infected” the trial and denied Hamilton the “fundamental fairness that

is the essence of due process.” It is apparent that Hamilton disagreed with the OCCA’s

determination that each image found on his computer was a separate “material” under Oklahoma

law. But as the OCCA explained, that interpretation by the trial court was entirely fitting given

the addition of the aggravated possession statute adopted by the legislature after the ambiguity in

Brown. A habeas court does not question a state’s interpretation of its own law. “[I]t is not the

province of a federal habeas court to reexamine state-court determination on state-law questions.”

Estelle, 502 U.S. at 67-68. Having shown no error of constitutional magnitude, that is the end of

the matter for a habeas court. Accordingly, Hamilton’s Ground III is DENIED.

C. Ground IV: Hamilton’s sentence was not excessive.

Hamilton argues in Ground IV that his sentence was excessive for two reasons. First, he

had no criminal history, was a productive tax paying citizen, and cooperated with police in their

investigation of his misconduct. Second, he claims that his sentence on Count II for aggravated

possession of child pornography was excessive given the trial court’s misinterpretation of the

statute. Hamilton concedes that the sentences were within the statutory range for the offenses, but

he argues that they were disproportionate under the circumstances of his case. Dkt. 1, at 19-20.

The Supreme Court recognizes the longstanding tradition of allowing state legislatures to

make and implement policy decisions in sentencing. See Ewing v. California, 538 U.S. 11, 25

(2003) (“Selecting the sentencing rationales is generally a policy choice to be made by state

legislatures, not federal courts.”). This deference to legislative policy choices “finds a corollary

in the principal that the Constitution ‘does not mandate adoption of any one penological theory.’”

Id. (quoting Harmelin v. Michigan, 501 U.S. 957, 999 (1991)). The Supreme Court holds the

Eighth Amendment does not require strict proportionality between crime and sentence. “Rather,

it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing, 538

U.S. at 23 (quoting Harmelin, 501 U.S. at 1001). In interpreting the Supreme Court jurisprudence,

the Tenth Circuit has accorded “wide discretion” to state trial courts in sentencing matters, finding

generally such challenges are not cognizable on habeas review unless a sentence is imposed

“outside the statutory limits” or otherwise “unauthorized by law.” Dennis v. Poppel, 222 F.3d

1245, 1258 (10th Cir. 2000); see also United States v. Gillespie, 452 F.3d 1183, 1190 (10th Cir.

2006) (“Generally, a sentence within the limits imposed by statute is neither excessive nor cruel

and unusual under the Eighth Amendment.”). Furthermore, it is a long-standing principle of

habeas corpus jurisprudence that relief is not available for errors of state law. See Estelle, 502

U.S. at 67 (“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state law questions.”)

Hamilton raises the issue that he should have received a lesser sentence based upon his

lack of criminal history and his cooperation with police. The Supreme Court has not determined,

outside of capital cases, that a defendant is entitled to “individualized sentencing,” or “required

mitigation” in sentencing (in which the sentencing court considers the aggravating and mitigating

factors in formulating a sentence). The high court has specifically refused to extend that doctrine

beyond death penalty cases. See Harmelin, 501 U.S. at 995. Because Hamilton’s sentence was

for a term of years, he was not entitled to individual sentencing which would have taken those

factors into consideration. Accordingly, the OCCA’s decision is neither contrary to nor an

unreasonable application of Supreme Court law. Hamilton’s Ground IV is DENIED.

D. Ground V: Hamilton received effective assistance of appellate counsel.

Hamilton claims that his appellate counsel was ineffective to the point of a constitutional

violation. He alleges specifically that appellate counsel did not raise “viable substantive claims”

including, ineffective assistance of trial counsel and the prosecution’s failure to disclose

exculpatory evidence, ultimately denying him his constitutional rights. Dkt. 1, pp. 21-22.

Hamilton properly raised the ineffective assistance of counsel claim for the first time in his

application for post-conviction relief and raised the trial court’s denial of his claim in his appeal

to the OCCA. Accordingly, Hamilton fully exhausted the claim, and this Court will address it on

its merits.

The trial court characterized Hamilton’s claim as “his appellate attorney failed to fully

investigate the facts of his case and had a predetermination that he was guilty instead of innocent.”

Dkt. 7-4, p. 8. In denying his claim, the trial court relied on Strickland v. Washington, and found

that Hamilton’s claims were “merely conclusory, unprovable, or unspecific claims of ineffective

assistance of appellate counsel” and “it is not the job of this Court to comb through the record or

the law looking for support for Petitioner’s claims.” The trial court found further that Hamilton

had not presented proof of his assertions, but only “bald allegations against his appellate attorney.”

Because Hamilton had not presented any proof, the trial court denied his claim. Dkt. 7-4, pp. 8-9.

On appeal, the OCCA affirmed the trial court’s denial of Hamilton’s ineffective assistance of

appellate counsel claim, finding no merit under Strickland. The OCCA held that Hamilton had

failed to demonstrate deficient performance by his appellate counsel and no resulting prejudice.

Dkt. 7-6, p. 6.

Ineffective assistance of appellate counsel claims are reviewed under Strickland v.

Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 285 (2000) (holding that

proper standard for evaluating claims of ineffective assistance of appellate counsel is that

announced in Strickland). To succeed on a claim that appellate counsel was unconstitutionally

ineffective, a defendant must demonstrate his attorney “unreasonably failed to discover

nonfrivolous issues and to file a merits brief raising them.” Robbins, 528 U.S. at 285. In addition

to demonstrating appellate counsel’s objective failure, a defendant must also show that he was

prejudiced by counsel’s errors, meaning he must demonstrate that had counsel not erred, he “would

have prevailed on appeal.” Id. at 285-86. See also Milton v. Miller, 744 F.3d 660, 669 (10th Cir.

2014). “[A]n ineffective assistance of appellate counsel claim lacks merit if the petitioner argues

that appellate counsel should have asserted meritless ineffective assistance of trial counsel claims.”

Harmon v. Sharp, 936 F.3d 1044, 1063 (10th Cir. 2019) (citing Ryder ex rel. Ryder v. Warrior, 810

F.3d 724, 746-47 (10th Cir. 2016)).

As determined, supra, in the context of procedural default, Hamilton’s claims that his

appellate counsel should have raised the ineffectiveness of trial counsel is meritless. Hamilton

urges that his trial counsel was ineffective for failing to prepare for trial by not investigating the

facts of the case and the evidence. The Court has reviewed the entire trial transcript and finds

Hamilton’s trial counsel objectively did not err. He raised appropriate objections, filed pre-trial

motions, and effectively cross-examined the state’s witnesses. Hamilton also claims that his trial

attorney advised him not to testify without a sufficient basis. Again, as discussed in the procedural

default analysis section of this order, the trial record belies Hamilton’s claim. After the submission

of the State’s case, Hamilton’s counsel indicated that he would not bring witnesses to testify on

behalf of the defendant. The trial court then brought Hamilton to the stand to make a record of his

knowing and voluntary waiver of his right to testify.

Hamilton also claims that his appellate counsel should have raised a Brady claim because

the prosecution did not turn over the images alleged to be child pornography. The OCCA

determined that there was no Brady violation in the prosecutor’s actions. Thus, the Brady claim

is also meritless.

Accordingly, Hamilton has failed to demonstrate objective errors made by his appellate

counsel. Nor has he demonstrated that had those errors been raised the outcome of his appeal

would have been different. The OCCA identified the correct Supreme Court standard of Strickland

v. Washington, and determined there was no merit to Hamilton’s ineffective assistance of appellate

counsel claim. Therefore, the OCCA’s ruling was neither contrary to or an unreasonable

application of controlling Supreme Court precedent. As such, Hamilton’s Ground V is DENIED.

CONCLUSION

In summary, Petitioner has not shown that he is in custody in violation of the Constitution.

The Court therefore denies the petition for writ of habeas corpus. Further, because petitioner has

not shown that reasonable jurists would debate this Court’s assessment of his constitutional claims

or its determination that some of his claims are procedurally barred, the Court DENIES a certificate

of appealability.

ACCORDINGLY, IT IS HEREBY ORDERED that:

1. The petition for writ of habeas corpus (Dkt. 1) is DENIED.

2. A certificate of appealability is DENIED.

3. A separate judgment shall be entered in this matter.

DATED this 3rd day of March 2021.