Gilbert v. Bridges

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

LEROY EDWARD GILBERT, )

)

Petitioner, )

)

v. ) Case No. 20-CV-0308-GKF-JFJ

)

CARRIE BRIDGES,1 )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on Petitioner Leroy Edward Gilbert’s Petition under 28

U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“petition”) (Dkt. 1).

Having considered the petition and attachments; Respondent Carrie Bridges’s Response to Petition

for Writ of Habeas Corpus (“response”) (Dkt. 7) and attachments; the state-court record (Dkts. 8,

9); and applicable law, the Court finds that Gilbert’s claims can be resolved without an evidentiary

hearing and denies the petition.

I. Background

On the morning of July 30, 1994, Tosha Goodou, then thirteen years old, returned home

from a sleepover at her aunt’s house to find her mother, Erma Jean Goodou (“Goodou”), lying on

the kitchen floor of their Tulsa home in a pool of blood, nonresponsive and naked from the waist

1 Gilbert is incarcerated at the James Crabtree Correctional Center, in Helena, Oklahoma.

The Court therefore substitutes that facility’s warden, Carrie Bridges, in place of Tommy Sharp,

as party Respondent. Rule 2(a), Rules Governing Section 2254 Cases in the United States District

Courts. The Clerk of Court shall note this substitution on the record.

down. Dkt. 1-3, Gilbert v. State, No. F-2017-1191 (Okla. Crim. App. 2019) (unpublished)

(“OCCA Op.”), at 2-3.2

The Tulsa Police Department (“TPD”) investigated Goodou’s death as a homicide.

Detectives Roy Heim, Tim Bracken, and Gary Meek found a bent window screen in the backyard

of Goodou’s house, an open window, and a “smudged shoe print” on the exterior wall under the

window. Id. at 3-4. Based on this and other evidence found at the crime scene, the detectives

determined that an individual pried off the window screen, entered the home through the window,

and attacked Goodou in her bedroom before a struggle ensued in the kitchen where the individual

killed Goodou. Id. Detective Bracken lifted fingerprints from the window screen and one

thumbprint from a living room phone that had been disconnected from the wall. Id. at 4. The

detectives also found a man’s watch near Goodou’s bed. Dkt. 8-6, Tr. Trial vol. 2, at 252-53

[421-22]; Dkt. 8-7, Tr. Trial vol. 3, at 126 [581] 140-41 [595-96]. Goodou’s autopsy revealed

defensive wounds on her hands and arms, numerous sharp force injuries, and blunt force injuries

on her head. Dkt. 1-3, OCCA Op., at 4-5. Dr. Robert Hemphill, the Chief Medical Examiner,

determined that Goodou died from blunt force injuries to her head, the most serious of which

fractured her skull and tore the surface of her brain. Id. Because Goodou was found partially

clothed, Dr. Hemphill obtained vaginal swabs during the autopsy and turned them over to the TPD.

Id.

The investigating detectives compared fingerprints recovered from the crime scene with

known fingerprints of several individuals but developed no leads. Id. at 5; Dkt. 8-7, Tr. Trial

2 For consistency, the Court’s citations refer to the CM/ECF header pagination. However,

when citing the original record (“O.R.”) or transcripts of proceedings in state court (e.g., Tr. Trial

vol. 1), the Court also includes, in brackets, the original page numbers when the original pagination

differs from the CM/ECF header pagination.

vol. 3, at 128-37 [583-92], 29-30 [484-85]. In 2003, Dr. Valerie Fuller, a TPD forensic analyst,

sent several items collected from the crime scene to a laboratory in Texas for testing. Dkt. 8-7, at

238-42 [693-97]. That testing revealed two unknown male DNA profiles. Id. at 244-45

[699--700]. One profile was obtained from a swab of the watch found near Goodou’s bed and a

second, different profile was obtained from a vaginal swab taken during Goodou’s autopsy. Id.

Fuller entered the two unknown male DNA profiles into a national database. Id. at 248 [703]. But

Goodou’s murder remained unsolved for another decade.

In 2012, Detective Eddie Majors began working Goodou’s “cold case” and sent several

items collected from the crime scene to the Oklahoma State Bureau of Investigation (“OSBI”) for

testing. Dkt. 8-7, Tr. Trial vol. 3, at 210-13 [665-68]. The OSBI, in turn, sent the items to Bode

Laboratories in Texas. Id. at 96 [551]; Dkt. 1-3, OCCA Op., at 5. Dr. Julie Farragut, a forensic

analyst with Bode Laboratories, tested several items for DNA including Goodou’s vaginal swabs.

Dkt. 8-7, at 64-67 [519-22], 81-91 [536-46]. Dr. Farragut determined that one vaginal swab

contained a mixture of Goodou’s DNA and DNA from one unknown male contributor. Id. at 81-91

[536-46]. Wendy Duke, an OSBI forensic analyst, received and reviewed the testing results from

Bode Laboratories, entered the unknown male DNA profile Dr. Farragut developed from the

vaginal swab into the State’s DNA database, and “got a hit on [Gilbert’s] DNA profile.” Dkt. 1-3,

OCCA Op., at 5-6.

Detective Majors interviewed Gilbert in Texas and, pursuant to a warrant, obtained a buccal

swab from Gilbert. Id. at 6. Duke compared the DNA profile from Gilbert’s buccal swab with the

unknown male DNA profile obtained from Goodou’s vaginal swab and with partial DNA profiles

obtained from Goodou’s fingernails. Dkt. 8-7, Tr. Trial vol. 3, at 107 [562]. Duke determined

that Gilbert was excluded as a contributor to the partial profiles from Goodou’s fingernails and

determined that Gilbert’s known DNA profile matched the unknown male DNA profile from the

vaginal swab. Dkt. 8-7, at 107-110 [562-65]. According to Duke, the unknown male DNA profile

from Goodou’s vaginal swab was “rare” because “[t]he probability of selecting an unrelated

individual at random from the population who could contribute to [that] profile is at least one in

71.8 sextillion.” Id. at 109-10 [564-65].

Detective Majors also submitted Gilbert’s known finger and palm prints to Jason Reeves,

a TPD forensic analyst. Dkt. 8-7, Tr. Trial vol. 3, at 3 [458], 26 [481]. Reeves compared Gilbert’s

known prints with ten unknown prints collected from the crime scene. Id. at 26 [481]. Reeves

determined that eight unknown prints from the window screen removed from Goodou’s window

matched Gilbert’s known prints, one unknown print from Goodou’s living room phone matched

Gilbert’s known print, and one unknown print from the window screen did not match Gilbert’s

known prints. Id. at 32-50 [487-505]. Reeves compared the unknown print from the window

screen that did not match Gilbert’s prints with known prints from three other individuals—James

Toby, Rashine Gains, and Juan Williams—and Reeves could not rule out the possibility that one

of these three individuals left the unknown print on the window screen. Id. at 47-48 [502-03],

54-57 [509-12].

In 2015, the State of Oklahoma charged Gilbert, in Tulsa County District Court Case No.

CF-2015-2579, with first-degree felony murder and, in the alternative, with first-degree murder

with malice aforethought. Dkt. 8-10, O.R., at 20 [15]. Following a four-day trial in September

2017, a jury found Gilbert guilty of first-degree murder with malice aforethought and

recommended a sentence of life without the possibility of parole. Id. at 180 [175]; Dkt. 8-8, Tr.

Trial vol. 4, at 123 [882]. The trial court sentenced Gilbert accordingly. Dkt. 8-9, Tr. Sentencing

Hr’g, at 8.

Represented by counsel, Gilbert filed a direct appeal in the Oklahoma Court of Criminal

Appeals (“OCCA”), asserting three claims. Dkt. 7-1, at 2. The OCCA affirmed Gilbert’s judgment

and sentence. Dkt. 1-3, OCCA Op., at 8-17. Gilbert did not seek further review by filing a petition

for writ of certiorari in the United States Supreme Court. Dkt. 1, at 2. Proceeding pro se, Gilbert

filed an application for postconviction relief in Tulsa County District Court, asserting thirteen

claims. Dkt. 7-3. The state district court denied the application, Gilbert filed a postconviction

appeal, and the OCCA affirmed the denial of postconviction relief. Dkts. 1-1, 1-2, 7-5, 7-6.

II. Discussion

Gilbert now seeks federal habeas relief, claiming he is in custody in violation of the United

States Constitution because he was deprived of his Sixth Amendment right to counsel at trial and

on direct appeal, the cumulative effect of trial errors deprived him of his Fourteenth Amendment

right to due process, the State’s failure to disclose exculpatory evidence deprived him of his Sixth

and Fourteenth Amendment rights to due process and a fair trial, and he is actually innocent. Dkt.

1, at 5-21.

A. Limits on habeas review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and Supreme

Court habeas jurisprudence limit a federal court’s authority to grant federal habeas relief to a

prisoner in custody pursuant to a state-court judgment. First, a federal court may grant habeas

relief “only on the ground that [the prisoner] is in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a). This means that a federal court cannot grant

relief if a trial error is based on a violation of state law. See, e.g., Wilson v. Corcoran, 562 U.S. 1,

5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment

susceptible to collateral attack in the federal courts.”).

Second, a federal court may grant habeas relief only if the prisoner has either (1) exhausted

available state-court remedies by presenting his federal claim to the state’s highest court through

available appellate procedures, 28 U.S.C. § 2254(b)(1)(A), or (2) demonstrated that there is a

complete absence of available state remedies or an absence of effective state remedies, id.

§ 2254(b)(1)(B).

Third, as a corollary to the exhaustion requirement, the procedural default doctrine

provides that if a state prisoner presents a federal claim in state court and the state court denies

relief “based on an adequate and independent procedural rule,”3 without reaching the substantive

merits of the federal claim, a federal court may grant habeas relief only if the prisoner first

demonstrates either cause for the procedural default and resulting prejudice or that failure to review

the claim will result in a fundamental miscarriage of justice. Davila v. Davis, 582 U.S. 521, 527-28

(2017); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Fourth, when a state court has adjudicated a federal claim on the merits, a federal court

may grant habeas relief only if the prisoner first shows that the state court’s adjudication of the

claim resulted in a decision (1) “that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States,” 28

U.S.C. § 2254(d)(1),4 or (2) “that was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” id. § 2254(d)(2). Section 2254(d)’s

3 A state procedural rule “is independent if it is separate and distinct from federal law” and

“is adequate if it is ‘strictly or regularly followed’ and applied ‘evenhandedly to all similar

claims.’” Duvall v. Reynolds, 139 F.3d 768, 796-97 (10th Cir. 1998) (quoting Hathorn v. Lovorn,

457 U.S. 255, 263 (1982)).

4 As used in § 2254(d)(1), the phrase “clearly established Federal law” means “the

governing legal principle or principles” stated by “the holdings” of the Supreme Court’s “decisions

as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003)

(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

standards are demanding. When the state court “‘identifies the correct governing legal principle’

in existence at the time” of its decision, the only question under § 2254(d)(1) is “whether the

decision ‘unreasonably applies that principle to the facts of the prisoner’s case.’” Cullen v.

Pinholster, 563 U.S. 170, 182 (2011) (quoting Williams, 529 U.S. at 413). To establish that the

state court’s decision unreasonably applied the law, a petitioner “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.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, “a petitioner must

persuade a federal court that no fairminded juris[t] could reach the state court’s conclusion under

[the Supreme] Court’s precedents.” Brown v. Davenport, 142 S. Ct. 1510, 1525 (2022) (internal

quotation marks omitted). Under § 2254(d)(2), a petitioner must show that the state court decision

rests on an unreasonable determination of the facts. But the reasonableness of a state court’s

factual determination also is measured by Richter’s fairminded-disagreement standard. Dunn v.

Madison, 138 S. Ct. 9, 12 (2017). And, “if [Richter’s] rule means anything, it is that a federal

court must carefully consider all the reasons and evidence supporting the state court’s decision”

and that the federal court may not disturb the state court’s decision “without identifying—let alone

rebutting—all of the justifications” that may support that decision.5 Mays v. Hines, 141 S. Ct.

1145, 1149 (2021) (per curiam).

Fifth and finally, a federal habeas court may not grant habeas relief unless the prisoner (1)

makes any showings necessary to overcome any bars to relief imposed by the AEDPA and related

5 In addition, when § 2254(d) applies, the federal court’s review is limited to the same

record that was presented in state court. Pinholster, 563 U.S. at 185. And a federal court must

presume the correctness of the state court’s factual findings unless the petitioner rebuts that

presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Supreme Court jurisprudence, and (2) demonstrates that any constitutional errors found by the

federal court had a “substantial and injurious effect or influence” on the outcome of the state court

proceeding. Davenport, 142 S. Ct. at 1523-24 (2022) (quoting Brecht v. Abrahamson, 507 U.S.

619, 637 (1993)).

With these standards in mind, the Court turns to Gilbert’s claims.6

B. Ineffective assistance of trial counsel (claims one and two)

In claims one and two, Gilbert contends he was deprived of his Sixth Amendment right to

the effective assistance of trial counsel. Dkt. 1, at 5-14. A defendant alleging a violation of his or

her Sixth Amendment right to counsel must show deficient performance and resulting prejudice.

Strickland v. Washington, 466 U.S. 668, 692 (1984). “The proper measure of attorney

performance remains simply reasonableness under prevailing professional norms.” Id. at 688.

And “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. To

establish prejudice the defendant “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

Gilbert alleges, as he did on direct appeal, that trial counsel performed deficiently and

prejudicially (1) by failing to object when the trial court erroneously gave an instruction regarding

a state law that requires individuals convicted of certain crimes to serve 85% of any sentence

imposed before becoming eligible for parole consideration (“the 85% Rule”), and (2) by failing to

object when the prosecutor misstated the law regarding the 85% Rule. Dkt. 1, at 5-14.

6 Because Gilbert appears without counsel, the Court liberally construes the petition. Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Effective July 1, 1999, the 85% Rule provides that:

A person committing a felony offense listed in [Okla. Stat. tit. 21, § 13.1] on or

after March 1, 2000, and convicted of the offense shall serve not less than eighty-

five percent (85%) of the sentence of imprisonment imposed within the Department

of Corrections. Such person shall not be eligible for parole consideration prior to

serving eighty-five percent (85%) of the sentence imposed and such person shall

not be eligible for earned credits or any other type of credits which have the effect

of reducing the length of the sentence to less than eighty-five percent (85%) of the

sentence imposed.

Okla. Stat. tit. 21, § 12.1 (2023).7 When Gilbert was tried in 2017, Okla. Stat. tit. 21, § 13.1 listed

first-degree murder as a felony offense subject to the 85% Rule. Okla. Stat. tit. 21, § 13.1 (2017).

At trial, without objection, the trial court gave Instruction Number 33, advising the jury that:

A person convicted of [first-degree murder] shall be required to serve not less than

eighty-five percent (85%) of the sentence imposed before becoming eligible for

consideration for parole and shall not be eligible for any credits that will reduce the

length of imprisonment to less than eighty-five percent (85%) of the sentence

imposed.

If a person is sentenced to life imprisonment, the calculation of eligibility for parole

is based upon a term of forty-five (45) years, so that a person would be eligible for

consideration for parole after thirty eight (38) years and three (3) months.

Dkt. 8-10, O.R., at 178. During closing argument, the prosecutor urged the jury to find Gilbert

guilty of first-degree murder with malice aforethought then explained the jury had “two options”

for sentencing, “[l]ife or life without the possibility of parole.” Dkt. 8-8, Tr. Trial vol. 4, at 109

[868]. The prosecutor stated, “you have your instructions on what that means. Life is defined

ineligible for parole – I’m sorry, 45 years, parole with good time credit at 38 and some change.

Life without parole means you die in prison.” Dkt. 8-8, at 109. Trial counsel did not object to the

prosecutor’s statements. Id.

7 The current version of this law uses the same language as the law in effect in 2017, when

Gilbert’s case was tried to a jury. Okla. Stat. tit. 21, § 12.1 (2017).

Based on these facts, Gilbert argued on direct appeal that (1) the trial court plainly erred

by instructing the jury regarding the 85% Rule because that rule did not apply to a murder

committed in 1994, (2) the prosecutor committed reversible misconduct by misstating the law

regarding the 85% Rule when he suggested that Gilbert would be paroled “at 38 and some change”

if given a life sentence, and (3) trial counsel provided ineffective assistance by failing to object to

the jury instruction and the prosecutor’s misstatement. Dkt. 7-1, at 8-14.

The State conceded, and the OCCA concluded, that the trial court erred by giving

Instruction Number 33 because the 85% Rule does not apply to crimes committed before March

1, 2000, and Gilbert was charged with committing a 1994 murder. Dkt. 1-3, OCCA Op., at 9. But,

applying plain-error review, the OCCA concluded that this error did not affect Gilbert’s substantial

rights and, further, that even if plain error occurred, reversal was not required because the error

was harmless. Id. at 9-12. Before determining the error was harmless, the OCCA rejected

Gilbert’s position that the jury-instruction error implicated the federal constitutional prohibition

against ex post facto punishment, declined to apply the constitutional harmless error standard from

Chapman v. California, 386 U.S. 18 (1967),8 and instead applied the “state standard for harmless

analysis” which, like Brecht, asks whether “the error had a substantial influence on the outcome

of the case or leaves the Court in grave doubt as to whether it has such an effect.” Id. at 11-12.

Applying this standard, the OCCA reasoned the jury-instruction error was harmless because “[t]he

jury was informed that [Gilbert] would have to serve 85% of his sentence before he could be

8 Under Chapman, “before a federal constitutional error can be held harmless, the court

must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24.

considered for parole when, in-fact, he will be eligible for parole consideration much earlier.” Dkt.

1-3, OCCA Op., at 12.9

Next, the OCCA concluded that the prosecutor’s challenged statements “constituted a flat

misstatement of the law concerning the 85% Rule” because “[c]omments which mischaracterize

the 85% Rule as some form of automatic release are improper.” Id. at 15. But, applying plain-

error review, the OCCA determined that this error did not affect Gilbert’s substantial rights. Id. at

15-16. The OCCA reasoned that because the 85% Rule did not apply to Gilbert’s crime, committed

in 1994, Gilbert was not required to serve 85% of any sentence imposed, that “he could have been

eligible for parole consideration on a life sentence much earlier than 38 and 1/3rd years,” and that

the jury ultimately decided to recommend a sentence of life without the possibility of parole. Id.

at 15.

Lastly, applying Strickland, the OCCA rejected Gilbert’s ineffective-assistance-of-trial-

counsel claim. Id. at 16-17. The OCCA specifically found no prejudice, reasoning,

We have determined in [Gilbert’s first two claims] that [Gilbert] had not shown that

plain and reversible error had occurred. The complained errors did not affect the

outcome of the case. As such we find that [Gilbert] has not shown a reasonable

probability that the outcome of the trial would have been different but for counsel’s

failure to object to the prosecutor’s comment and the erroneous instruction.

Id.

9 In 1994, Oklahoma law provided that the parole board must consider most prisoners for

parole after service of one-third of any sentences imposed. Okla. Stat. tit. 57, § 332.7 (1994);

Mayes v. State, 887 P.2d 1288, 1317 (Okla. Crim. App. 1994). This appears to be the source of

the OCCA’s statement that Gilbert “will be eligible for parole consideration much earlier.” Dkt.

1-3, at 12. However, to the extent the OCCA’s statement suggests Gilbert “will be” eligible for

parole consideration at any time, that is a misstatement of fact because he was sentenced to life

without the possibility of parole. Regardless, considering the OCCA’s statement in context of its

entire decision, the Court understands the OCCA’s statement to mean that the jury was erroneously

instructed that if the jury recommended a life sentence Gilbert would be eligible for parole

consideration after serving 85% of his sentence when, in fact, the jury should have been instructed

that he would have been eligible for parole consideration after serving only 33% of his sentence.

Because the OCCA applied Strickland, § 2254(d) bars relief unless Gilbert shows either

(1) that the OCCA unreasonably applied Strickland to the facts of his case or (2) that the OCCA

unreasonably determined the facts. 28 U.S.C. § 2254(d); Madison, 138 S. Ct. at 12. Gilbert

appears to argue that it was unreasonable for the OCCA to determine that the instructional error

and prosecutor’s misstatement of the law did not affect his substantial rights, thus making it

unreasonable for the OCCA to determine that no prejudice resulted from trial counsel’s failure to

object to those errors. Id. But the OCCA’s decision that Gilbert did not establish Strickland

prejudice is objectively reasonable under the facts of this case. It is undisputed that the trial court

erroneously instructed the jury on the 85% Rule, that the prosecutor misstated the law, and that

trial counsel did not object in either instance. But, as the OCCA reasoned, had the jury been

correctly instructed on the law that applied in Gilbert’s case, the trial court (and the prosecutor)

would have advised the jury that if the jury recommended a life sentence, Gilbert would be eligible

for parole consideration after only 15 years, not 38 years and 3 months. See supra n. 7. Because

the jury was faced with the option of recommending either a life sentence with parole consideration

at 38 years or a life sentence with no possibility of parole and the jury chose the latter option, it

was objectively reasonable for the OCCA to conclude that there was no reasonable probability that

the outcome of the proceeding would have been different but for counsel’s failure to object to the

instruction and the prosecutor’s misstatement of law. Thus, to the extent claims one and two

reassert the ineffective-assistance-of-trial-counsel claim Gilbert presented to the OCCA on direct

appeal, § 2254(d) bars relief and the Court denies the petition as to that claim.

To the extent claims one and two could be construed as also reasserting the jury-instruction

and prosecutorial-misconduct claims Gilbert presented to the OCCA on direct appeal, the Court

likewise concludes that § 2254(d) bars relief because the OCCA’s rejection of those claims is

objectively reasonable. The OCCA evaluated both claims under its plain-error standard which is

no different than the due process standard that federal courts apply to review habeas claims

asserting instructional error and general allegations of prosecutorial misconduct. See Donnelly v.

DeChristoforo, 416 U.S. 637, 639 (1974) (explaining that federal courts evaluate general

allegations of prosecutorial misconduct by considering whether, on examination of the entire

proceedings, the prosecutor’s allegedly improper questions or remarks, “so infected the trial with

unfairness as to make the resulting conviction a denial of due process”); Thornburg v. Mullin, 422

F.3d 1113, 1125 (10th Cir. 2005) (finding “no practical distinction” between the OCCA’s

plain-error test and “the federal due-process test, which requires reversal when error “so infused

the trial with unfairness as to deny due process of law”); Maes v. Thomas, 46 F.3d 979, 984 (10th

Cir. 1995) (“A state conviction may only be set aside in a habeas proceeding on the basis of

erroneous jury instructions when the errors had the effect of rendering the trial so fundamentally

unfair as to cause a denial of a fair trial.”). The OCCA’s decision thoroughly and reasonably

explains why the errors arising from the instruction and the prosecutor’s misstatement regarding

the 85% Rule, in context of the entire trial, did not deprive Gilbert of due process or a

fundamentally fair trial. While the trial court should not have given Instruction No. 33, the

instruction itself accurately stated the law in effect at the time of Gilbert’s trial regarding parole

eligibility, thus mitigating any negative impact from the prosecutor’s improper statement

suggesting Gilbert would be automatically paroled after about 38 years. See Bland v. Sirmons,

459 F.3d 999, 1015 (10th Cir. 2006) (“The jury is presumed to follow its instructions, even when

there has been misleading argument.” (internal citation omitted)). And, as previously discussed,

the jury instruction advised the jury that if it recommended a life sentence, then Gilbert could be

considered for parole in 38 years and 3 months when, under the law in effect at the time of his

crime, he could have been considered for parole after only 15 years. It was therefore reasonable

for the OCCA to determine that the prosecutor’s misstatement did not affect Gilbert’s substantial

rights and to determine that the jury-instruction error did not substantially influence the outcome

of the criminal proceeding. Thus, to the extent Gilbert’s claims one and two could be construed

as reasserting the jury-instruction claim and the prosecutorial-misconduct claim that Gilbert raised

on direct appeal, § 2254(d) bars relief, and the Court denies the petition as to those claims.

Further, to the extent claims one and two could be construed as reasserting Gilbert’s claim

that giving an instruction on the 85% Rule violated the Constitutional prohibition against ex post

facto punishment, the Court concludes that the OCCA’s rejection of that claim is objectively

reasonable under the law and facts of this case. See Dkt. 1, at 14 (suggesting the trial court

“sentenced him under” the 85% Rule, without “jurisdiction” and in violation of “the Constitutional

principles prohibiting ex post facto punishment”). As a matter of law, the 85% Rule did not apply

to Gilbert because the law creating the rule was not effective when Gilbert committed first-degree

murder in 1994. But, as a matter of fact, the trial court did not apply the 85% Rule to inflict greater

punishment against Gilbert when it imposed his sentence. See United States v. Womack, 833 F.3d

1237, 1241 (10th Cir. 2016) (explaining that the Ex Post Facto Clause “prohibits application of

laws that ‘inflict a greater punishment for the crime than was in . . . place at the time the crime was

committed’”). At sentencing, the trial court imposed the sentence recommended by the jury—life

without the possibility of parole. Dkt. 8-9, Tr. Sentencing Hr’g, at 8. Admittedly, the trial court

referred to the 85% Rule, stating: “I advise you by law this is an 85-percent crime in the State of

Oklahoma, although I don’t know that that’s particularly applicable to your situation. But the law

defines murder in the first degree as such.” Id. First-degree murder is an 85% crime but, as the

trial court seemed to acknowledge, the rule did not apply in Gilbert’s situation. This is true for

two reasons. First, as discussed, the 85% Rule was adopted after Gilbert committed murder in

1994. Second, Gilbert was sentenced to life without the possibility of parole. Critically, the 85%

Rule applies only when a defendant’s sentence includes the possibility of parole. Under Oklahoma

law, Gilbert will not be eligible for parole consideration at any time, much less after he serves any

percentage of his sentence. Thus, as the OCCA reasoned, Gilbert fails to show any ex post facto

violation. Dkt. 1-3, OCCA Op., at 11. To the extent claims one and two could be construed as

reasserting the ex-post-facto claim Gilbert presented to the OCCA on direct appeal, § 2254(d) bars

relief and the Court denies the petition as to that claim.

C. Cumulative error (claim three)

In claim three, Gilbert contends the cumulative effect of the errors he identified on direct

appeal deprived him of due process. Dkt. 1, at 15-17. Habeas “petitioners are entitled to ‘relief

under [the] cumulative error doctrine only when the constitutional errors committed in the state

court trial so fatally infected the trial that they violated the trial’s fundamental fairness.’” Andrew

v. White, 62 F.4th 1299, 1351 (10th Cir. 2023) (quoting Littlejohn v. Trammell, 704 F.3d 817, 868

(10th Cir. 2013)). To analyze a cumulative-error claim, a reviewing court “aggregates all errors

found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is

such that collectively they can no longer be determined to be harmless.” Simpson v. Carpenter,

912 F.3d 542, 602 (10th Cir. 2018) (quoting United States v. Toles, 297 F.3d 959, 972 (10th Cir.

2002)). But “[o]nly actual constitutional errors are considered when reviewing a case for

cumulative error.” Id.

Respondent contends Gilbert procedurally defaulted the cumulative-error claim because he

first raised it in his application for postconviction relief and the OCCA agreed with the state district

court’s conclusion that Gilbert waived any claims that could have been, but were not, raised on

direct appeal. Dkt. 7, at 25-29; Dkt. 1-2, at 2; Dkt. 7-3, at 24. The Court agrees. The OCCA

routinely applies its waiver rule to procedurally bar claims that could have been, but were not,

raised on direct appeal. See Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008) (“[T]his

court has found Oklahoma’s bar of claims not raised on direct appeal to be independent and

adequate.”).

Respondent further contends Gilbert cannot overcome the procedural default of claim three

through his assertion of actual innocence (further discussed in claim four), and that he likewise

cannot establish cause and prejudice because his ineffective-assistance-of-appellate-counsel claim

(also discussed in claim four) lacks merit. Id. The Court finds it unnecessary to decide whether

Gilbert could overcome his procedural default of claim three because it is more efficient to deny

this claim on the merits. See Smith v. Duckworth, 824 F.3d 1233, 1242 (10th Cir. 2016) (“[W]here

‘the claim may be disposed of in a straightforward fashion on substantive grounds,’ [a federal

court] retains discretion to bypass the procedural bar and reject the claim on the merits.” (quoting

Revilla v. Gibson, 283 F.3d 1203, 1210-11 (10th Cir. 2002))). Gilbert argues that even if the errors

he identified in claims one and two—the erroneously given jury instruction regarding the 85%

Rule, the prosecutor’s misstatement of the law regarding the 85% Rule, and trial counsel’s errors

in failing to object to the instruction and misstatement—are individually harmless, their cumulative

effect deprived him of a fundamentally fair trial. Dkt. 1, at 15-17. The Court disagrees. The jury

instruction and the prosecutor’s challenged statements both misstated Oklahoma law as applied to

Gilbert’s case, but neither of these errors violated due process. Similarly, while the OCCA and

this Court presumed without deciding that trial counsel committed errors by failing to object to the

instruction and challenged statement, without a showing of prejudice, Gilbert has not shown a

violation of his Sixth Amendment right to counsel. Simply stated, this Court found no “actual

constitutional errors” that could be considered in a cumulative-error analysis. Simpson, 912 F.3d

at 602. The Court therefore denies the petition as to claim three.

D. Ineffective assistance of counsel/Brady claim/actual innocence (claim four)

In claim four, Gilbert identifies multiple claims. First, he alleges that both trial and

appellate counsel provided ineffective assistance, in violation of his Sixth Amendment right to

counsel, by failing to challenge the sufficiency of the evidence and by failing to argue that Gilbert

is “actually innocent.” Dkt. 1, at 19-21. Second, he alleges he is actually innocent. Id. Third, he

alleges “the State withheld exculpatory evidence and failed to conduct forensic DNA test[s] on

other items recovered from the crime scene which pointed to someone other than Petitioner

Gilbert” and “the specific scientific evidence is available and remains to be tested if the State

wanted to” test it. Id. at 21.

1. Ineffective assistance of counsel

Gilbert contends trial counsel and appellate counsel should have argued that the evidence

was not sufficient to convict him of murder. Dkt. 1, at 19-22. As previously discussed, to establish

a Sixth Amendment violation, a defendant must show trial counsel performed deficiently and, but

for counsel’s deficient performance, there is a reasonable probability that the outcome of the trial

would have been different. Strickland, 466 U.S. 692. Strickland’s two-part inquiry also applies

to claims alleging ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259,

285-89 (2000). In this context, the inquiry focuses on whether the appellant has shown “that a

particular nonfrivolous issue” appellate counsel omitted from the appeal “was clearly stronger than

issues that counsel did present.” Id. at 288. Nonetheless, an “appellate counsel who files a merits

brief need not (and should not) raise every nonfrivolous claim, but rather may select from among

them in order to maximize the likelihood of success on appeal.” Id. (citing Jones v. Barnes, 463

U.S. 745 (1983)). And, even if an appellant establishes that appellate counsel performed

deficiently, the appellant must show resulting prejudice, i.e., “a reasonable probability that,” but

for appellate counsel’s deficient performance, the appellant “would have prevailed on his appeal.”

Robbins, 528 U.S. at 285-86.

Gilbert’s claims that trial and appellate counsel provided constitutionally ineffective

assistance rest on his assertions that he is innocent and that the evidence presented at trial is not

sufficient to support his murder conviction. The Fourteenth Amendment’s Due Process Clause

guarantees “that no person shall be made to suffer the onus of a criminal conviction except upon

sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable

doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316

(1979). When a defendant challenges the sufficiency of the evidence on direct review, the

“reviewing court may set aside the jury’s verdict . . . only if no rational trier of fact could have

agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (citing Jackson).

Gilbert appears to argue that it should have been clear to trial counsel and appellate counsel that

the State did not present sufficient evidence at trial to prove his guilt and that, but for his attorneys’

failures to challenge the sufficiency of the evidence, there is a reasonable probability that the

outcome of his trial and his appeal would have been different. Dkt. 1, at 19-21. To support his

position, Gilbert specifically asserts “[t]here was exculpatory evidence pointing to several other

possible assailants”; “[t]here was a man’s black watch recovered at the crime scene that did not

belong to Mr. Gilbert,” that was never tested for DNA evidence, and that “contained none of his

DNA”; “DNA evidence does not place Mr. Gilbert inside the victim’s house at or during the

murder”; and “[f]ingerprint evidence also indicates numerous other assailants.” Id. at 19-20.

Gilbert further asserts he and Goodou were “high school sweethearts,” that, around the time she

was murdered, he and Goodou “dated,” and he worked for Goodou’s property owner and

performed home improvement projects at her house. Dkt. 1, at 20. He also asserts that the State

tested many items from Goodou’s home that did not contain evidence of his DNA, and that

investigating detectives “lifted several other prints off of storm screen windows surrounding and

around the house” but “[n]one belonged to Mr. Gilbert at that time according to Detective Eddie

Majors.” Id.

Gilbert first alleged trial counsel was ineffective for failing to challenge the sufficiency of

the evidence when he filed his application for postconviction relief. Dkt. 7-3, at 6-8, 26. The state

district court concluded Gilbert waived this claim because did not raise it on direct appeal, and the

OCCA agreed that Gilbert waived this claim. Dkt. 1-1, at 2-3; Dkt. 1-2, at 2. Respondent therefore

urges this Court to treat this claim as procedurally defaulted. Dkt. 7, at 31-34. Respondent then

liberally construes the petition as alleging that Gilbert can establish cause for the procedural default

through his allegation that appellate counsel provided constitutionally ineffective assistance but

urges the Court to conclude that the ineffective-assistance-of-appellate-counsel claim lacks merit

and thus does not excuse the default. Id. at 35-39; see Edwards v. Carpenter, 529 U.S. 446, 451

(2000) (discussing “what constitutes ‘cause’ to excuse a procedural default” and noting that “in

certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review

in state court will suffice”). The Court finds that Gilbert procedurally defaulted his claim that trial

counsel deficiently and prejudicially failed to challenge the sufficiency of the evidence. However,

the Court declines to consider whether appellate counsel’s alleged ineffectiveness might excuse

the procedural default because the state district court effectively considered the merits of the

defaulted claim—and the merits of his underlying sufficiency-of-the-evidence claim—in

determining whether appellate counsel provided ineffective assistance by failing to raise those

claims on direct appeal. Dkt. 1-1, at 4-13. Applying Strickland and Robbins, the state district

court rejected Gilbert’s claim that appellate counsel provided constitutionally ineffective

assistance by omitting the claims Gilbert first identified in his application for postconviction relief.

Id. Specific to his sufficiency-of-the-evidence claim, the state district court applied the Jackson

standard and concluded that “the record more than reasonably supports a finding of guilt beyond

a reasonable doubt” and that “[n]o reasonable appellate counsel would be expected to raise [a

sufficiency-of-the-evidence claim] on direct review.” Dkt. 1-1, at 12-13. The OCCA agreed with

the state district court’s conclusions (1) that Gilbert waived all claims that he could have, but did

not, raise on direct appeal and (2) that Gilbert did not demonstrate that appellate counsel provided

constitutionally ineffective assistance. Dkt. 1-2, at 2-3. Applying Strickland to consider the

ineffective-assistance-of-appellate-counsel claim, the OCCA effectively rejected Gilbert’s

underlying sufficiency-of-the-evidence claim as without merit, reasoning,

[Gilbert’s] jury found him guilty beyond a reasonable doubt after hearing

significant evidence that he was present at the crime scene, and after having the

opportunity to consider the defenses he tries to present in this matter. [Gilbert] has

not established that his appellate counsel’s conduct was objectively unreasonable

or that the result of his appeal should have been different.

Id. at 3.

In his petition, Gilbert primarily reasserts the arguments he presented in state

postconviction proceedings regarding his view that trial and appellate counsel performed

deficiently and prejudicially by failing to challenge the sufficiency of the evidence. Dkt. 1, at

19-21. Because the OCCA rejected Gilbert’s ineffective-assistance-of-appellate-counsel claim on

the merits—thereby concluding that the omitted sufficiency-of-the-evidence and ineffective-

assistance-of-trial-counsel claims alleged in claim four of the petition also lacked merit—§2254(d)

bars relief as to each of these claims unless Gilbert first shows that the OCCA’s adjudication of

the ineffective-assistance-of-appellate-counsel claim was based on an unreasonable application of

Strickland or an unreasonable determination of the facts. Madison, 138 S. Ct. at 12. Gilbert does

not make this showing on the record presented. Having independently reviewed the trial

transcripts, this Court cannot say that the OCCA’s decision is factually or legally unreasonable.

See supra section I (discussing underlying facts established at trial). “Jackson says that evidence

is sufficient to support a conviction so long as ‘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.’ It also unambiguously instructs that a reviewing court

‘faced with a record of historical facts that supports conflicting inferences must presume—even if

it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution.’” Smith, 565 U.S. at 7 (internal citation

omitted) (quoting Jackson, 443 U.S. at 319, 326).

As the OCCA reasoned, viewing the evidence in the State’s favor, the State presented

“significant evidence” of Gilbert’s guilt, and the jury had “the opportunity to consider” Gilbert’s

defenses. Dkt. 1-2, at 3. The State presented evidence that the unknown male DNA profile

obtained from Goodou’s vaginal swab matched the DNA profile obtained from Gilbert’s buccal

swab, that Gilbert’s finger and palm prints matched eight of the unknown prints lifted from the

bent window screen that was removed from Goodou’s window, and that Gilbert’s thumbprint

matched the thumbprint on Goodou’s living room phone. Dkt. 1-3, OCCA Op., at 6-7. The State

also presented to the jury Gilbert’s videotaped interview with Detective Majors. During the

interview, Gilbert denied having known or dated any woman named “Erma” and denied familiarity

with the neighborhood where Goodou lived. Id. at 6-8; Dkt. 8-7, at 224 [679]; Dkt. 9 (State’s

Exhibit 99). In contrast, Gilbert testified at trial that he attended high school with Goodou, that he

knew her as “Jean,” rather than “Erma,” that he and Goodou had a secret relationship after high

school, that he and Goodou had intercourse a few days or a few weeks before she was killed, that

he helped Goodou around the house and “got some screens one time” from Goodou’s next door

neighbor, and that he used her phone while he was at Goodou’s house. Dkt. 1-3, OCCA Op., at

7-8; Dkt. 8-7, Tr. Trial vol. 4, at 267-69 [722-24]. Gilbert denied raping and killing Goodou. Dkt.

8-7, at 269 [724]. Trial counsel also trained the jury’s attention on other evidence that could create

reasonable doubt as to Gilbert’s guilt, including evidence: that Gilbert’s DNA was not found under

Goodou’s fingernails; that Gilbert’s DNA profile did not match the unknown male profile obtained

from the watch found near Goodou’s bed; that Goodou had “safety concerns” about an ex-husband

or ex-boyfriend; that investigating detectives initially investigated Sammy Clark because he was

seen near Goodou’s home on the night of the murder with spots of blood on his shirt; that three

other men could not be eliminated as the source of one unknown fingerprint on the window screen;

and that seminal fluid could remain in a female’s vaginal cavity “[f]ive to seven days” after sexual

contact. Dkt. 8-7, at 54 [509], 107-08 [562-63], 134-37 [589-92], 140 [595], 230-31 [685-86] 244-

45 [699-700]; Dkt. 8-8, Tr. Trial vol. 4, at 65-76 [825-35].

On this record, this Court finds it was objectively reasonable for the OCCA to conclude

that appellate counsel was not constitutionally ineffective either (1) for failing to argue that trial

counsel was ineffective for failing to challenge the sufficiency of the evidence or (2) for omitting

a sufficiency-of-the-evidence claim from Gilbert’s direct appeal. Thus, to the extent Gilbert

reasserts the ineffective-assistance-of-appellate-counsel claim he raised in his application for

postconviction relief, § 2254(d) bars relief and the Court denies the petition as to that claim.

Further, because appellate counsel was not constitutionally ineffective, Gilbert cannot rely on

appellate counsel’s alleged deficiencies as “cause” to overcome the procedural default of any of

his other constitutional claims. See Carpenter, 529 U.S. at 451 (noting that to constitute “cause”

to overcome a procedural default appellate counsel’s “assistance must have been so ineffective as

to violate the Federal Constitution”). And, even if Gilbert could overcome the procedural default

of his claims that the State failed to present sufficient evidence and trial counsel provided

constitutionally ineffective assistance for failing to challenge the sufficiency of the evidence, the

Court would reject both claims on the merits for the reasons just discussed. Thus, to the extent

claim four could be construed as reasserting the ineffective-assistance-of-trial-counsel claim

alleging a failure to challenge the sufficiency of the evidence and the sufficiency-of-the-evidence

claim Gilbert first raised in state postconviction proceedings, the Court also denies the petition as

to those claims.

2. Brady claim

Next, Gilbert contends in claim four “that the State withheld exculpatory evidence and

failed to conduct forensic DNA test on other items recovered from the crime scene which pointed

to someone other than Petitioner Gilbert” and that “the specific scientific evidence is available and

remains to be tested if the State wanted to” test that evidence. Dkt. 1, at 21. “[T]he suppression

by the prosecution of evidence favorable to an accused upon request violates due process where

the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of

the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). “[T]o establish a Brady violation,

a habeas petitioner must show that: (1) the prosecution suppressed evidence; (2) the evidence was

favorable to the accused; and (3) the evidence was material to the defense.” Banks v. Reynolds,

54 F.3d 1508, 1516 (10th Cir. 1995).

Respondent contends, and the record shows, that Gilbert waived this Brady claim by not

raising it on direct appeal. Dkt. 7, at 39-40. Gilbert first presented this claim to the state district

court in his application for postconviction relief, but it does not appear that the state district court

construed the application as asserting a Brady claim. Dkt. 1-1.10 Thus, to the extent the state

district court considered the Brady claim at all, it did so implicitly by denying Gilbert’s broad

claim that appellate counsel was ineffective for failing to raise “obvious issues” he identified in

his postconviction application. Id. More importantly, in affirming the denial of postconviction

relief, the OCCA reiterated that Gilbert waived any claims he could have, but did not, raise on

direct appeal, and adopted the state district court’s conclusion that Gilbert failed to show that

appellate counsel provided constitutionally ineffective assistance by omitting the waived claims.

Dkt. 1-2, at 2-3. The Court thus finds that Gilbert procedurally defaulted his Brady claim.

But the Court chooses to overlook the procedural default and reject this claim on the merits.

Smith, 824 F.3d at 1242; Revilla, 283 F.3d at 1210-11. Gilbert’s Brady claim fails at the first step

because there is no factual support for his apparent assertion that the State withheld exculpatory

evidence. Liberally construing his arguments, Gilbert appears to primarily contend the State

withheld exculpatory evidence by failing to identify a suspect using the unknown male DNA

profile obtained from a swab of the man’s watch that was found near Goodou’s bed. Dkt. 1, at 19-

21. But trial counsel elicited testimony at trial establishing that the watch was found, that the TPD

developed an unknown male DNA profile from a swab of the watch, and, most importantly, that

the unknown male DNA profile from the watch did not match Gilbert’s DNA profile. Dkt. 8-7,

Tr. Trial vol. 3, at 230-31 [685-86], 244-45 [699-700]. And trial counsel emphasized the

possibility of other assailants, including the unknown owner of the watch, during closing

argument. Dkt. 8-8, Tr. Trial vol. 4, at 65-76 [824-35]. Assuming the unknown male DNA profile

10 As he does in his habeas petition, Gilbert buried the Brady claim asserted in the

application for postconviction relief within his claim that he was denied effective assistance of

trial and appellate counsel based on their alleged failures to challenge the sufficiency of the

evidence and his assertion that he is “actually innocent.” Dkt. 7-3, at 26.

obtained from the man’s watch is the “specific scientific evidence” Gilbert relies on to support his

Brady claim, he cannot show that the State suppressed favorable evidence because trial counsel

both knew of and presented to the jury this allegedly exculpatory evidence. Presumably, the jury

found the absence of Gilbert’s DNA on the man’s watch less compelling than the presence of his

DNA in Goodou’s vaginal swab and the presence of his fingerprints on the window screen that he

removed from Goodou’s window before entering Goodou’s house and killing her. To the extent

Gilbert claims the State withheld other exculpatory scientific evidence, Gilbert fails to clearly

identify what evidence the State allegedly withheld or how it was material to his defense. For

these reasons, the Court denies the petition as to the Brady claim asserted in claim four.

3. Actual innocence

Finally, in claim four, Gilbert asserts he is “actually innocent” because he did not murder

Goodou. Dkt. 1, at 19-21. Aside from discussing evidence presented at trial that he asserts pointed

to “other assailants,” Gilbert states that he could not have killed Goodou because he “was

presumably in Tulsa County jail” when she was killed. Dkt. 1, at 20. Even liberally construing

the petition, and Gilbert’s pro se application for postconviction relief, it is difficult to discern

whether he claims he is factually innocent or whether he is instead claims he is legally innocent

because, in his view, the evidence is not sufficient to support his murder conviction. Dkt. 1, at 19-

21; Dkt. 7-3, at 26. To the extent Gilbert claims he is factually innocent, he fails to state a

cognizable habeas claim. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not

resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual

innocence.”). Thus, to the extent claim four could be construed as asserting a freestanding actual-

innocence claim the Court denies the petition as to that claim.

Moreover, while Respondent argues that some claims are procedurally barred, the Court

declines to consider whether Gilbert’s assertion of actual innocence permits review of any

procedural defaulted claims. See Perkins, 569 U.S. at 392 (“[A] credible showing of actual

innocence may allow a prisoner to pursue his constitutional claims . . . on the merits

notwithstanding the existence of a procedural bar to relief.”). As previously discussed, each of the

procedurally defaulted claims lack merit.

In any event, Gilbert does not present a credible claim of actual innocence that would

excuse the procedural default of his claims. “[P]risoners asserting innocence as a gateway to

defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Fontenot v.

Crow, 4 F.4th 982, 1030 (10th Cir. 2021) (alteration in original) (quoting House v. Bell, 547 U.S.

518, 537-38 (2006))), cert. denied, 142 S. Ct. 2777 (2022). The only arguably “new” evidence

Gilbert alludes to is his equivocal assertion that he might have been in jail when Goodou was

murdered. The evidence presented at trial established that Goodou was killed between the evening

of July 29, 1994, and the morning of July 30, 1994. See supra section I. The State elicited

testimony at trial from Gilbert establishing that he had a prior felony conviction for larceny from

a house and that an arrest warrant was issued in that case on June 22, 1994. Dkt. 8-7, Tr. Trial vol.

3, 272-73 [727-28]. But Gilbert denied that he committed the alleged larceny in that case on July

31, 1994, and the State did not ask him if or when he had been arrested on the outstanding warrant.

Id. In a letter Gilbert submitted to this Court on July 12, 2021, Gilbert asserts he was arrested on

July 31, 1994. Dkt. 10, at 3. In addition, the Court takes judicial notice of records available to the

public through the Oklahoma State Courts Network showing that the State charged Gilbert with

committing larceny from a house in an information filed June 22, 1994, that an arrest warrant was

issued that same day, and that Gilbert was in state custody on August 1, 1994. State v. Gilbert,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-1994-

3016&cmid=219203, last visited April 28, 2023.11 To the extent Gilbert contends evidence that

he was arrested on July 31, 1994, is new and should have been presented to the jury, this is not

credible evidence of his actual innocence because it shows only that he was arrested after Goodou

was killed. Thus, even if this Court did address Gilbert’s assertion of actual innocence as a

gateway-innocence claim, the Court would not find his claim sufficiently credible to permit review

of any procedurally defaulted claims. See Fontenot, 4 F.4th at 1031 (“To be credible, a claim of

actual innocence requires a petitioner to present ‘new reliable evidence—whether it be exculpatory

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

presented at trial.’” (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995))).

III. Conclusion

Gilbert has not shown that this Court should exercise its equitable discretion to grant

federal habeas relief as to any claims he raises in the petition. See Davenport, 142 S. Ct. at 1524

(discussing federal courts’ discretion to grant habeas relief, as limited by the AEDPA, and stating

that “a federal court must deny relief to a state habeas petitioner who fails to satisfy either [the

Supreme] Court’s equitable precedents or AEDPA.”). The Court therefore denies the petition.

Further, because reasonable jurists would not debate this Court’s assessment of Gilbert’s

constitutional claims, the Court declines to issue a certificate of appealability. See 28 U.S.C.

§ 2253(c)(2) (providing that a district court may issue a certificate of appealability “only if the

11 “[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other

courts, both within and without the federal judicial system, if those proceedings have a direct

relation to matters at issue.” St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th

Cir. 1979).

[petitioner] has made a substantial showing of the denial of a constitutional right”); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003) (“A petitioner satisfies this standard by demonstrating that

jurists of reason could disagree with the district court’s resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

further.”).

IT IS THEREFORE ORDERED that the Petition under 28 U.S.C. § 2254 for Writ of

Habeas Corpus by a Person in State Custody (“petition”) (Dkt. 1) is denied, and a certificate of

appealability is denied. A separate judgment shall be entered herewith.

IT IS FURTHER ORDERED that the Clerk of Court shall note on the record the

substitution of Carrie Bridges in place of Tommy Sharp as party Respondent.

DATED this 3rd day of May, 2023.