Bellis v. Bryant

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

STACY GENE BELLIS, )

)

Petitioner, )

)

v. ) No. CV-17-01333-R

)

)

JASON BRYANT, )

)

Respondent.1 )

ORDER

Petitioner, a state prisoner appearing pro se, filed this action pursuant to 18 U.S.C.

§ 2254, seeking a writ of habeas corpus. Pursuant to 18 U.S.C. § 636(b)(1)(B), the matter

was referred to United States Magistrate Judge Shon T. Erwin for preliminary review. On

May 22, 2020, Judge Erwin issued a Report and Recommendation wherein he

recommended the petition be denied on the merits. Doc. No. 37. The matter is currently

before the Court on Petitioner’s objection to the Report and Recommendation, Doc. No.

42, giving rise to the Court’s obligation to conduct a de novo review of those portions of

the Report and Recommendation to which Petitioner specifically objects. The Court has

conducted this de novo review and finds as follows.

Petitioner’s conviction arose after a confrontation occurring on July 4, 2011. Trial

Tr. Vol. II 36. According to Damian Fortenberry, Petitioner’s then roommate, the two got

1 Jason Bryant, the current Warden at the James Crabtree Correctional Center where Petitioner is confined, is hereby

substituted as Respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States

District Courts and Rules 25(d) and 81(a)(4) of the Federal Rules of Civil Procedure.

into a physical altercation and Petitioner took $20.00 from him and left the home. Id. 106.

Upon Petitioner’s return, Mr. Roman Acosta (“Acosta”) confronted him about taking

money from Fortenberry. Id. 184–85. Petitioner then walked outside of the home and got

inside his truck as Acosta continued confronting him by beating his fists on the hood of

Petitioner’s truck. Id. 83–84. Acosta’s girlfriend, Kendra Woodward (“Ms. Woodward”),

stood outside and watched the altercation escalate. Id. 133. Then, a bystander named Ms.

Shelley Ketcherside (“Ms. Ketcherside”) heard the commotion, walked outside and

allegedly witnessed Petitioner “rev [ ] up his truck,” “gun [ ] it,” and drive toward Acosta

and Ms. Woodward. Id. 133–36. After closing her eyes when the engine was revved, Ms.

Ketcherside testified that she opened them to see Ms. Woodward pinned between the truck

and a tree behind her. Id. 135–36. Ms. Woodward testified that Petitioner had “thr[own]

his truck into reverse, and then […] in drive and ran [her] into a tree,” id. 185, 189,

rendering her temporarily unconscious. Id. 190.

Next, Acosta approached the vehicle and continued fighting with Petitioner through

the window. Id. 191. Kimberly Wood, Ms. Ketcherside’s sister-in-law, yelled that

Petitioner “got a knife,” and then another individual, Jason Williams, joined in the fight.

Id. 43–45, 86–87, 269. Eventually, the altercation deescalated, and the parties left the

scene. Shortly thereafter, Ms. Patricia Tanksley, a bystander near the incident, noticed

Acosta was hurt, id. 90, and before long, Acosta died of a “stab wound to his left chest.”2

2 Criminal Appeal Original Record, State’s Exhibit 95, State of Oklahoma v. Bellis, Case No. CF-2011-3858

(Oklahoma Co. Dist. Ct.).

The State charged Petitioner with i) first-degree manslaughter as to the stabbing of

Acosta; ii) assault and battery with a deadly weapon as to hitting and pinning Acosta

against a tree with his truck; iii) assault and battery with a deadly weapon as to hitting and

pinning Ms. Woodward against a tree with his truck; and iv) assault and battery with a

deadly weapon for stabbing Jason Williams in the arm. Trial Tr. Vol. IV 44–45. The jury

acquitted Petitioner of Counts One and Two but convicted Petitioner on Count Three for

assault and battery with a deadly weapon towards Ms. Woodward. Id. 138. The trial court

sustained a demurrer raised by defense counsel as to Count Four. Id. 44–45. Thus,

Petitioner’s habeas petition is limited to his conviction for Count Three.

In the Report and Recommendation, Judge Erwin outlined the subsequent

procedural posture as follows:

Following a direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)

affirmed the conviction. (ECF No. 1-1). On June 15, 2015, Petitioner filed

an Application for Post-Conviction Relief in the Oklahoma County District

Court. (ECF No. 29-8). The district court denied relief and on January 16,

2018, the OCCA declined jurisdiction and dismissed Petitioner’s

postconviction appeal as untimely. (ECF Nos. 29-13 & 29-17:2). On

February 5, 2018, Petitioner filed an Application for Post-Conviction Relief

in the Oklahoma County District Court, seeking an appeal-out-of-time. (ECF

No. 29-18). The Oklahoma County District Court denied the request and on

June 5, 2019, the OCCA affirmed the denial. (ECF Nos. 29-25 & 14-1). On

August 7, 2019, Mr. Bellis filed an amended habeas Petition, alleging […]

twelve grounds of error.

Doc. No. 37, p. 4.

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

this Court’s power to grant habeas corpus relief. For claims adjudicated on the merits, “this

[C]ourt may grant … habeas [relief] only if the [OCCA’s] decision ‘was contrary to, or

involved an unreasonable application of clearly established Federal law, as determined by

the Supreme Court of the United States’ or ‘resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.’” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015) (citation omitted).

The deference embodied in § 2254(d) “reflects the view that habeas corpus is a ‘guard

against extreme malfunctions in the state criminal justice systems,’ not a substitute for

ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03

(2011) (citation omitted).

When this Court reviews a state court’s decision, it is precluded from issuing the

writ simply because it concludes in its independent judgment that the state court applied

the law erroneously or incorrectly. Rather, the Court must be convinced that the state

court’s application was also objectively unreasonable. McLuckie v. Abbot, 337 F.3d 1193,

1197 (10th Cir. 2003) (citing Williams, 529 U.S. at 412). “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington, 562 U.S. at 101

(quoting Yarborough v. Alvarado, 541 U.S. 652, 654 (2004)).

Petitioner raises twelve grounds for relief, each of which was addressed by Judge

Erwin in the Report and Recommendation. Doc. No. 37. Petitioner objects to the Report

and Recommendations’ conclusion in Grounds One through Ten. He does not object to the

Report and Recommendations’ conclusion in Grounds Eleven and Twelve. The Court

addresses each in turn.

I. Ground One – Oklahoma Stand Your Ground Law

Petitioner alleges that driving his vehicle into Ms. Woodward was excused by

Oklahoma’s Stand Your Ground Law, Okla. Stat. tit. 21 § 1289.25, and that he was

therefore immune from prosecution. Doc. No. 22, p. 7–8.

In state court, the OCCA rejected his claim, explaining that Petitioner waived the

issue by failing to assert it prior to his direct appeal. Doc. No. 1–1, p. 2–3. Notwithstanding

the waiver, the Court explained that Petitioner’s scope of immunity under § 1289.25 did

not immunize him in Count Three because Ms. Woodward was a bystander against whom

deadly force was not immunized. Doc. No. 1–1, p. 2–3. Therefore, he could not prevail on

the merits, and his claim was rejected.

In the Report and Recommendation, Judge Erwin explains that Petitioner’s

argument that the OCCA’s finding of waiver was “arbitrary and violates Due Process” does

not justify habeas relief for two reasons. Doc. No. 37, p. 10. First, because Petitioner only

challenged the OCCA’s finding of waiver and second, because a state court’s interpretation

of state law binds a federal court sitting in habeas corpus.” Id. (quoting Bradshaw v. Richey,

546 U.S. 74, 76 (2005)).

In his objection, Petitioner argues that his claim for immunity in Count Two was

confused with his claim for immunity in Count Three. Doc. No. 42, p. 9. Specifically,

Petitioner argues that he is attempting to claim immunity based on his altercation with

Acosta, which justified the actions he was convicted of in Count Three against Ms.

Woodward. Id. He argues that “[a] person acting in justified self-defense could not be held

liable (criminally) for resulting harm to a bystandard,” citing Cook v. Hunt, 178 Okla. 477

(Okla. 1936). Id.

However, Cook v. Hunt is a civil suit addressing whether an injured bystander could

hold the party provoking the violence liable for her injuries. Id. It does not interpret §

1289.25. Further, “it is not the province of a federal habeas court to reexamine state-court

determinations on state law questions. In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the

United States.” Estelle v. McGuire, 502 U.S. 62, 67– 68 (U.S. 1991). Here, the Court cannot

second guess the state court’s interpretation of § 1289.25.

Thus, the Petitioner is not entitled to habeas relief on Ground One and therefore, the

Court adopts Judge Erwin’s recommendation.

II. Ground Two – Failure to Instruct the Jury on Self-Defense

Petitioner objected to the trial court’s failure to instruct the jury on self-defense as

to Count Three. Doc. No. 22, p. 10–11. The OCCA denied the claim because the

“instruction was not warranted by the evidence.” Doc. No. 1–1, p. 3. Judge Erwin

concluded that the OCCA’s determination was reasonable, and petitioner countered by

arguing that from the Appellant’s Reply Brief (OCCA F-2012-1024), “it clearly shows

were talking about Roman Acosta.” Doc. No. 42, p. 13. Petitioner argues that his self-

defense from the attack by Acosta justified the actions for which he was charged in Count

Three. 3 Id.

3 The Court notes the Petitioner’s inadequate briefing. In his objection to the Report and Recommendation, rather

than addressing the Magistrate Judge’s findings, Petitioner provided the court with portions of his state court post-

conviction reply, interlineated and edited with new paper. This manner of briefing misconstrues the nature of habeas

As Judge Erwin states in the Report and Recommendation, however, “as a general

rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas

corpus proceedings, unless they are so fundamentally unfair as to deprive petitioner of a

fair trial and to due process of law.” Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005)

(internal citation omitted). Additionally,

because Petitioner neither raised such issue on direct appeal nor in his habeas

petition, the Court need not consider Petitioner’s secondary theory involving

Ms. Woodward, stemming from the same. See Duncan v. Henry, 513 U.S.

364, 366 (1995) (“If […] petitioner wishes to claim that an evidentiary ruling

[…] denied him the due process of law […], he must say so, not only in

federal court, but in state court.”).

Doc. No. 37, p. 15.

As stated in Ground One, the Court lacks authority to second guess state court

determinations, which applies to state evidentiary rules, absent a showing of a “violat[ion

of] the Constitution, laws or treaties of the United States.” Estelle, 502 U.S. at 67–68.

Petitioner fails to make such a showing. Again, Petitioner’s alternative theory alleging

justified self-defense based on his defense from Acosta resulting in harm to Ms. Woodward

is inapplicable because he failed to raise the issue in his habeas petition or on direct appeal.

Doc. No. 37, p. 15; Duncan, 513 U.S. at 366. Therefore, Petitioner is not entitled to habeas

relief on Ground Two.

relief, especially considering the level of deference afforded by the AEDPA. It is also a confusing way of presenting

an argument.

III. Ground Three – Failure to Define “Deadly Weapon” when Instructing the

Jury on Count Three

In Ground Three, Petitioner alleges the trial court’s failure to define “deadly

weapon” to the jury with regard to Count Three violated his due process rights. Doc. No.

36, p. 2. The OCCA concluded that the error was harmless under Neder v. United States,

527 U.S. 1 (1999). Judge Erwin agreed that the Court evaluates the trial court’s failure to

define “deadly weapon” under Neder, assessing “whether it appear[ed] beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.”

Id. at 15.

Petitioner counters that “any deviation of any constitutional rights is irreparable

harm,” citing Free the Nipple v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019). Doc.

No. 42, p. 19. However, City of Fort Collins addressed “irreparable injury” in its evaluation

of the legal standard governing preliminary injunctions, id., and such standard is

inapplicable in a habeas petition.

Petitioner additionally argues that Apprendi governs his claim under Ground Three,

rather than Neder. Doc No. 42, p. 19. However, as Judge Erwin explained, the Supreme

Court noted that the same treatment was given to both “elements [of a crime]”—governed

by Neder—and “sentencing factors”—governed by Apprendi—for Sixth Amendment

purposes. Washington v. Recueno, 548 U.S. 212, 220 (2006). Thus, the Neder standard

applies. Further, the Supreme Court defined the Neder standard in Brecht, stating that the

proper inquiry is “whether the error ‘had substantial and injurious effect or influence in

determining the jury’s verdict.’” 507 U.S. 619, 637 (1993).

The Tenth Circuit denied a habeas petitioner’s claim in Ledford v. Jones, 299 F.

App’x 797, 801 (10th Cir. 2008), stating “[t]here is no doubt a car can be a deadly weapon”

when it interpreted Oklahoma law and its definition of an automobile as a “dangerous

weapon.” Doc. No. 37, p. 19. Similarly, failing to define “deadly weapon” in the jury

instructions did not have a substantial and injurious effect on the jury’s verdict because the

jury could undoubtedly find that a vehicle could be deadly. For these reasons, Petitioner

has not established that the OCCA’s decision was contrary to, or involved an unreasonable

application of federal law, and is not entitled to relief on Ground Three.

IV. Ground Four – Improper Exclusion of Mr. Williams Testimony Violating

Right to Complete Defense

In Ground Four, Petitioner argues that the trial court erred when it excluded

testimony from Jason Williams for allegedly violating the Rule of Sequestration, thereby

violating Petitioner’s right to present a complete defense. Doc. No. 42, p. 24. The OCCA

rejected Petitioner’s theory, concluding that the trial court did not abuse its discretion in

excluding the testimony because of William’s violation. Doc. No. 1–1, p. 4.

In the Report and Recommendation, Judge Erwin explained that “Mr. Bellis may

only obtain habeas relief for an improper state evidentiary ruling ‘if the alleged error was

so grossly prejudicial [that it] fatally infected the trial and denied the fundamental fairness

that is the essence of due process.’” Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.

2002). Petitioner argues that the exclusion justifies habeas relief because “[t]here could not

have been a more central witness to establish Mr. Bellis case.” Doc. No. 42, p. 27.

Specifically, he argues that Mr. Williams saying “[o]h my God, Im going to Prison because

[…] [w]e killed Stacy…” illustrates the importance of his testimony to Petitioner’s claim

of self-defense. Id.

While the “Constitution guarantees criminal defendants a meaningful opportunity

to present a complete defense,” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (citation

omitted), “[s]tate and federal rulemakers have broad latitude under the Constitution to

establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547

U.S. 319, 324 (2006) (citation omitted). As stated in the Report and Recommendation, to

establish a violation of his right to present a complete defense, Petitioner must make a two-

part showing. Doc. No. 37, pp. 23–24. He must show the material would have been

“material and favorable” and that the “trial court’s exclusion of the evidence was arbitrary

or disproportionate to the evidentiary purpose advanced by the exclusion.” Doc. No. 37, p.

24 (citing United States v. Valenzuela–Bernal, 458 U.S. 858, 867, 874 (1982) and United

States v. Scheffer, 523 U.S. 303, 308 (1998)).

Mr. Bellis cannot make the two-part showing because, as Judge Erwin explained

in the Report and Recommendation, “Mr. Williams did not provide any testimony which

would have bolstered a claim of self-defense as to the assault and battery on Ms.

Woodward.” Doc. No. 37, p. 23. Further, as Judge Erwin concluded, the exclusion of the

evidence was not arbitrary or irrational because “the decision to exclude testimony based

on a violation of the Rule […] would not ordinarily justify habeas relief.” Id. p. 21. Thus,

Petitioner’s invocation of his right to present a complete defense does not justify habeas

relief.

V. Ground Five – Cumulative Error

Petitioner alleges cumulative error based on the errors raised in Grounds One

through Four. Doc. No. 22, p. 17. “Cumulative error analysis applies when the

constitutional errors committed in the state court trial so fatally infected the trial that they

violated the trial’s fundamental fairness.” Littlejohn v. Trammell, 704 F.3d 817, 868 (10th

Cir. 2013) (citation omitted).

Multiple errors must have been committed in order to invoke the cumulative error

doctrine. Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). The OCCA denied

Petitioner’s claim, stating that “[t]here are no errors, considered individually or

cumulatively, that merit relief in this case.” Doc. No. 1–1, p. 4.

Here, as Judge Erwin states in the Report and Recommendation, there are not

multiple errors to combine, and thus, Petitioner cannot show that even in the aggregate, he

received a fundamentally unfair trial, much less that errors “so fatally infected the trial that

they violated the trial’s fundamental fairness.” Littlejohn, 704 F.3d at 868. Therefore,

Petitioner is not entitled to relief on Ground Five.

VI. Grounds Six Through Ten – Procedural Bar

Grounds Six through Ten were not addressed by the OCCA because Petitioner failed

to timely file his petition in error, after the District Court of Oklahoma County denied his

application for post-conviction relief. Doc. No. 22, p. 29. In the Report and

Recommendation, Judge Erwin explains that Grounds Six through Ten are procedurally

barred pursuant to Petitioner’s lack of timeliness. Doc. No. 37, p. 26.

Petitioner objects by stating that his late filing of his post-conviction appeal brief

should have been equitably tolled, that the OCCA “completely ignored the motion for

extension of time,” and that he should be given retroactive application of the updated

timeline governing the filing of habeas petitions, pursuant to OCCA Rule 5.2(A). Doc. No.

42, pp. 33–35.

“A habeas claim is generally subject to procedural bar when the OCCA declines to

consider a claim’s merits based on a state procedural rule that is independent and

adequate.” Id. (citing Coleman v. Thomson, 501 U.S. 722, 750 (1991)). ‘To be independent,

the procedural ground must be based solely on state law […] To be adequate, the procedural

ground must be strictly or regularly followed and applied evenhandedly to all similar

claims…” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (citation omitted). If

the rule is independent and adequate, a petitioner must show either cause and prejudice, or

a fundamental miscarriage of justice, to overcome the default. Id. at 1159 (citation omitted).

The Tenth Circuit has recognized that the OCCA’s dismissal on timeliness is

“independent and adequate.” Johnson v. Champion, 288 F.3d 1215, 1226–27 n.3 (10th Cir.

2002). Thus, the only issue is whether Petitioner can show cause and prejudice or a

fundamental miscarriage of justice. As Judge Erwin explains in the Report and

Recommendation, Petitioner failed to explain why the rule was the result of cause or

prejudice when he “[did] not further elaborate” in his petition. Doc. No. 37, p. 28.

Further, a fundamental miscarriage of justice did not occur. In Hackett v. Farris,

2014 WL 4825263, at *16 (N.D. Okla. Sept. 25, 2014), the Northern District of Oklahoma

noted that ineffective assistance of a prison law clerk and “unfamiliarity with the legal

system” were insufficient to excuse a procedural default. To show that a fundamental

miscarriage of justice occurred, Petitioner must make a “‘credible’ showing of actual

innocence.” Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014). Petitioner introduces no

new exculpatory evidence indicating that such a fundamental miscarriage of justice

occurred.4 Thus, the Court adopts the Report and Recommendation’s conclusion that

Grounds Six through Ten are procedurally barred.

VII. Grounds Eleven and Twelve – No Objections

Petitioner does not object to Judge Erwin’s recommendation in Grounds Eleven and

Twelve. The Court thus adopts Judge Erwin’s findings in Grounds Eleven and Twelve.

VIII. Conclusion

Finally, Rule 11 of the Rules Governing Section 2254 Cases requires a district court

to issue or deny a Certificate of Appealability upon entering a final adverse order. A

Certificate of Appealability may be issued only if the petitioner made a substantial showing

of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), and he shows “that reasonable

jurists could debate whether … the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (Internal quotation marks omitted). Petitioner

has failed to make either showing and accordingly, the Court declines to issue a Certificate

of Appealability.

4 Allegations of Ms. Kendra Woodward lying are not independently sufficient to create a credible showing of actual

innocence.

For the reasons set forth herein, the Report and Recommendation is ADOPTED IN

ITS ENTIRETY and the Petition is DENIED. Judgment shall be entered accordingly.

IT IS SO ORDERED this 7th day of October 2020.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

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