Cords v. Martin

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

BRANDON J. CORDS, )

)

Petitioner, )

)

v. ) No. CIV-21-76-R

)

RICK WHITTEN, Acting Warden )

)

Respondent. )

ORDER

The matter before the Court is the 28 U.S.C. § 2254 Petition for Writ of Habeas

Corpus filed by Petitioner Brandon J. Cords, a state inmate appearing pro se. Petitioner is

currently imprisoned under a state court judgment entered against him in the District Court

of Kay County, Case No. CF-2014-654. Doc. No. 9 at 1–2. Despite being granted an

extension of time by the magistrate judge, Petitioner did not file a Reply. Doc. No. 12.

Having reviewed the Petition [Doc. No. 1], the Response [Doc. No. 9], and the relevant

state court filings and transcripts, the Court finds that Petitioner is not entitled to federal

habeas relief and therefore DENIES the petition.

Background

In the late hours of August 19, 2014, Petitioner was drinking beers with several

friends at Frank James’ and Laura Mora’s home in Ponca City, Oklahoma. Trial Tr. vol. I

at 172, 218. In addition to Mr. Cords, Ms. Mora, and Mr. James, three other people were

present: Tyler Truelove, Richard Leterle, and Ammie Widener. Id. at 171–172, 217–18.

The group discussed their financial issues and decided to commit a robbery. Id. Mr. Leterle

told his friends that he knew a disabled man, Max Gillogly, who owned many firearms and

a coin collection. Id. The group formed a plan to rob Mr. Gillogly, and they left the home

in a vehicle to execute the burglary. Id. at 218–22.

In the early morning hours of August 20, 2014, Petitioner, Mr. Truelove, and Mr.

James, wearing masks and carrying firearms, broke into the victim’s home. Id. at 173, 220.

Mr. Gillogly is not able to move around easily without the assistance of a wheelchair. Id.

at 123. He was thus bed-bound during the entirety of the robbery. Id. at 138. Petitioner,

Mr. Truelove, and Mr. James woke the victim and demanded to learn the location of his

valuables and how to access a safe in his garage. Id. at 127–128, 137–38. The two women,

Ms. Mora and Ms. Widener, remained in the vehicle, while Mr. Leterle, whose father was

Mr. Gillogly’s best friend, stayed out of the victim’s sight, fearful Mr. Gillogly might

recognize him. Id. at 220–22.

They managed to find many rare coins, firearms, and ammunition. Id. at 133, 176–

77. However, Mr. Truelove became frustrated that they could not open the garage safe and,

in an effort to learn how to access the safe, beat Mr. Gillogly with a baseball bat. Id. at 138.

After approximately forty-five minutes spent ransacking the victim’s home, the men began

moving the stolen goods to their vehicle. Id at 139. It was around this time that Mr.

Truelove fired his weapon at Mr. Gillogly, and he missed his intended target. Id. at 139.

The burglars drove the stolen goods back to the James and Mora home. Id. at 178;

Trial Tr. vol. II at 107. Mr. Truelove, Mr. Leterle, and Mr. James then left to spend some

of the stolen coins at a nearby casino. Id. at 178, 225. Additionally, Mr. Truelove liquidated

some coins at a local bank, and Ms. Widener cashed in some coins at a Walmart and

purchased a firearm cleaning kit. Trial Tr. vol. II at 24, 27.

These activities led law enforcement to Ms. Widener, who cooperated with their

investigation. Id. at 75–80. She led them to a trailer where the police found a bag full of

coins, various medications belonging to Mr. Gillogly, and a pistol. Id. Mr. James testified

at trial that the pistol was the same one used by Mr. Truelove when he shot at the victim.

Trial Tr. vol. I at 173. The weapon also matched a shell casing found in Mr. Gillogly’s

bedroom. Trial Tr. vol. II at 50–51. Police arrested Mr. Leterle in the days following the

burglary when they pulled him over and found a box full of the victim’s coins. Id. at 84–

85. Later, Petitioner and Ms. Mora took several of the stolen firearms to the home of Jesse

Epperly to sell the weapons. Id. at 112, 147–49.

Police obtained a search warrant for the James and Mora home. Id. at 43. There,

they found Petitioner and a backpack he admitted was his. Id. at 154–155. The backpack

contained a black spiderman mask, a gun cleaning kit that matched the description of the

one Ms. Widener purchased at Walmart, a holster, and 9mm ammunition. Id. at 46–49.

Police found a pistol that matched the ammunition and holster found in Mr. Cords’

backpack under the couch cushion where he was sitting. Id.

Mr. James and Mr. Leterle took plea agreements and testified against Mr. Cords and

Mr. Truelove at their trials. Trial. Tr. vol. I at 187, 227. Ms. Widener pled no contest to a

charge of knowingly concealing stolen property. See State of Oklahoma v. Ammie Michelle

Widener, CF-2016-626 (D. Kay Cty. 2014).1 Mr. Truelove was found guilty of conspiracy

in State of Oklahoma v. Tyler Leroy Truelove, CF-2014-653 (D. Kay Cty. 2014).2

As for Petitioner, a jury found him guilty of four counts: (1) conspiracy in violation

of Okla. Stat. tit. 21 § 421; (2) robbery with a dangerous weapon in violation of Okla. Stat.

tit. 21 § 801; (3) feloniously pointing a firearm in violation of Okla. Stat. tit. 21 § 1289.16;

and (4) first degree burglary in violation of Okla. Stat. tit. 21 § 1431. Doc. No. 9-1 at 1.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed his conviction and sentence

on direct appeal. Id. at 6. Petitioner, proceeding pro se, filed his Application for Post-

Conviction Relief with the sentencing court. Doc. No. 9-4. The OCCA found these claims

were, or could have been raised in his appeal, so it dealt only with his ineffective assistance

of appellate counsel claim. Doc. No. 9-7. The criminal appellate court found his attorney

was not constitutionally inadequate and denied post-conviction relief. Id. Mr. Cords then

timely filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Discussion

I. Legal Framework

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court’s

review of petitioner’s habeas petition. See 28 U.S.C. § 2254. Under the AEDPA, a federal

court may grant habeas relief to a state prisoner “only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United States.” Id. § 2254(a); see

1 Available at https://www.oscn.net/dockets/GetCaseInformation.aspx?db=kay&number=CF-2014-

00626&cmid=28015 (last accessed March 14, 2022).

2 Available at https://www.oscn.net/dockets/GetCaseInformation.aspx?db=kay&number=CF-2014-

00653&cmid=28042 (last accessed March 7, 2022).

Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law

that renders a State’s criminal judgment subject to collateral attack in the federal courts.”).

If the state appellate court adjudicated the claims on the merits, a federal court can

grant relief only if the petitioner first demonstrates that the OCCA’s adjudication of those

claims “resulted in a decision that” either (1) “was contrary to . . . clearly established

Federal law” (2) involved “an unreasonable application of clearly established Federal law”

or (3) “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 state-court decision is

only contrary to clearly established federal law if it ‘arrives at a conclusion opposite to that

reached by’ the Supreme Court, or ‘decides a case differently’ than the Court on a ‘set of

materially indistinguishable facts.’” Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir.

2018) (quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). “A state court’s decision

unreasonably applies federal law if it ‘identifies the correct governing legal principle’ from

the relevant Supreme Court decisions but applies those principles in an objectively

unreasonable manner.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). But “a

state court’s application of federal law is only unreasonable if ‘all fair-minded jurists would

agree the state court decision was incorrect.’” Wood, 907 F.3d at 1289 (quoting Frost v.

Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)). Lastly, “a state court decision unreasonably

determines the facts if the state court ‘plainly misapprehend[ed] or misstate[d] the record

in making [its] findings, and the misapprehension goes to a material factual issue that is

central to petitioner’s claim.’” Id. (quoting Byrd v. Workman, 645 F.3d 1159, 1170–72

(10th Cir. 2011)) (alterations in original). In considering a challenge to the state court’s

factual findings, a federal court must presume those findings are correct unless the

petitioner rebuts that presumption “by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

If the state court denied the petitioner’s federal claims on procedural grounds,

without reaching the merits, those claims are procedurally defaulted for purposes of federal

habeas review. Ordinarily, “a federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state court denied based on

an adequate and independent state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064

(2017). 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)). An anticipatory procedural default applies

“where a petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude

that the claim would be procedurally defaulted on remand.” Williams v. Trammell, 782

F.3d 1184, 1212 (10th Cir. 2015).

With this legal framework in mind, the Court turns to Petitioner’s claims.

II. Analysis

Petitioner seeks habeas relief on seven grounds:

(1) prosecutorial misconduct;

(2) lack of corroboration for perjurious testimony;

(3) violation of his right to be free from multiple punishments stemming from the

same crime;

(4) evidence of other crimes biased the jury in violation of the Fourteenth

Amendment’s due process clause;

(5) judicial misconduct;

(6) ineffective assistance of trial counsel; and

(7) denial of his right to confront witnesses.

Doc. No. 1. Respondent argues the grounds do not justify habeas relief, either because they

are not cognizable, procedurally defaulted, or they have been adjudicated on the merits by

the OCCA, and that those decisions are not contrary to or an unreasonable application of

federal law. Doc. No. 9.

a. Ground One: Prosecutorial Misconduct

In Proposition VII of his direct appeal, Petitioner argued prosecutorial misconduct

deprived him of due process. Doc. No. 9-2 at 46–49. The OCCA rejected this proposition.

Doc. No. 9-1 at 5. Petitioner argues that the prosecutor acted improperly by: (1) proffering

a personal opinion of his guilt in his opening statement; and (2) vouching and bolstering

the State’s witnesses. Doc. No. 1 at 6–7. Respondent counters that the OCCA did not act

contrary to or unreasonably apply clearly established federal law when it found on direct

appeal there was no prosecutorial misconduct during Mr. Cords’ trial. The Court agrees

with the Respondent.

Prosecutorial misconduct can cause constitutional error in two ways. Underwood v.

Royal, 894 F.3d 1154, 1167 (10th Cir. 2018). First, it can prejudice a specific constitutional

right, amounting to a denial of the right. Id. Second, “absent infringement of a specific

constitutional right, a prosecutor’s misconduct may in some instances render a . . . trial ‘so

fundamentally unfair as to deny [a defendant] due process.’” Littlejohn v. Trammell, 704

F.3d 817, 837 (10th Cir. 2013) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645

(1974)). An inquiry into fundamental fairness requires examination of the proceedings,

including the strength of the evidence against Petitioner, both as to guilt at trial and moral

culpability at sentencing. See Donnelly, 416 U.S. at 643; Fero v. Kerby, 39 F.3d 1462, 1474

(10th Cir. 1994). Under the AEDPA, Mr. Cords must show the OCCA’s rejection of his

prosecutorial misconduct claim “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Parker v. Matthews, 567 U.S. 37, 47 (2012) (internal quotation marks and

citation omitted).

Petitioner’s first argument is that the prosecutor provided the jury with his own

opinion regarding the existence of the conspiracy when he stated, “I believe after you hear

the evidence . . . you’ll find that . . . there is direct and circumstantial evidence to show that

[Petitioner] . . . was indeed a co-conspirator.” Trial Tr. vol. I at 116. Because no objections

were made at trial, the OCCA evaluated Mr. Cords’ claim based on the plain error standard.

The Tenth Circuit Court of Appeals has found “no practical distinction” between the

formulations of plain error used by the OCCA and the federal due process test, requiring

reversal only when an error ‘“so infused the trial with unfairness as to deny due process of

law.”’ Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (quoting Estelle v.

McGuire, 502 U.S. 62, 75 (1991)). Because the OCCA applied the same test federal courts

use when making a due process determination, this Court defers to its ruling unless it

“unreasonably appli[ed]” that test. Thornburg, 422 F.3d at 1125 (citing 28 U.S.C. §

2254(d)).

Here, the OCCA found the prosecutor’s statement regarding the existence of the

conspiracy was not an improper opinion when it evaluated this claim on direct appeal. Doc.

No. 9-1 at 5. Petitioner has not provided the Court with any argument as to how the OCCA

misapplied its plain error doctrine when coming to that conclusion. The undersigned has

further closely examined the record and found the OCCA reasonably applied its plain error

standard when it held the prosecutor’s statements did not deny Petitioner a fundamentally

fair trial. Consequently, the Court denies habeas relief on Mr. Cords’ first prosecutorial

misconduct claim.

Petitioner next argues that the prosecutor improperly vouched for the state’s

witnesses. In his closing statement, the prosecutor argued that Petitioner’s co-conspirators

were reliable witnesses by stating:

[T]heir deal was to tell the truth. . . . So do they have an interest of lying on

the stand? You have to consider that. But I’d submit to you that the evidence

is that they had no . . . interest other than telling the truth.

Trial Tr. vol. II at 174. It is improper for a prosecutor to engage in “vouching,” or “an

assurance by the prosecuting attorney of the credibility of a government witness through

personal knowledge or by other information outside of the testimony before the jury.”

Littlejohn, 704 F.3d at 837. “Argument or evidence is impermissible vouching only if the

jury could reasonably believe that the prosecutor is indicating a personal belief in the

witness’ credibility, either through explicit personal assurances of the witness’ veracity or

by implicitly indicating that information not presented to the jury supports the witness’

testimony.” United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).

Petitioner alleges the prosecutor improperly vouched for the credibility of his

witnesses by mentioning their plea deals with the alleged goal of rehabilitating witnesses

who were known liars. The OCCA disagreed, finding the state’s conduct was proper. Doc.

No. 9-1 at 5. The prosecution referenced only direct witness testimony in which the

witnesses informed the jury about their plea agreements and their prior fraudulent

testimony. Trial Tr. vol. I at 177, 180–82, 183–88, 227–28, 236–39, 248, 250. The OCCA

held that the prosecutor had made no plain or obvious error by proffering these arguments.

Doc. No. 9-1 at 5. It further found that there were no prosecutorial errors that rendered

Petitioner’s trial fundamentally unfair. Id. Having examined the record, the Court agrees.

The jury was aware of the criminal histories of, and prior false statements made by, the

state’s witnesses and credited them regardless. The prosecutor did nothing more than

elaborate on facts in the record during his opening and closing arguments. Highlighting

issues of credibility, in short, is not tantamount to vouching. Hanson v. Sherrod, 797 F.3d

810, 838 (10th Cir. 2015). Therefore, the Court denies habeas relief based on Petitioner’s

improper vouching claim. Additionally, because Petitioner’s argument fails on both of his

prosecutorial misconduct claims, the Court denies § 2254 relief on Ground One.

b. Ground Two: Insufficient Corroborating Evidence of the Conspiracy

Petitioner argues that his participation in the conspiracy lacked corroborating

evidence. He claims his conviction was based solely on the testimony of known liars and

no physical evidence tied him to the crimes. Doc. No. 1 at 9. Respondent asserts the state

law corroboration requirement for co-conspirator testimony is not a cognizable ground for

habeas relief. The Court agrees with Respondent.

Oklahoma law requires corroboration of co-conspirator testimony. Okla. Stat. tit.

22, § 742. Petitioner has not identified a Supreme Court decision establishing a

constitutional requirement that the testimony of a co-conspirator be corroborated, and the

Tenth Circuit Court of Appeals has held there is no such requirement. Cummings v.

Sirmons, 506 F.3d 1211, 1237 (10th Cir. 2007); Foster v. Ward, 182 F.3d 1177, 1193 (10th

Cir. 1999). See also Harrington v. Nix, 983 F.2d 872, 874 (8th Cir. 1993) (“[S]tate laws

requiring corroboration do not implicate constitutional concerns that can be addressed on

habeas review.”). Because federal law does not require independent corroboration of

testimony by co-conspirators, the OCCA’s rejection of this claim is consistent with

established federal law. Ground Two of the petition fails.

c. Ground Three: Multiple Punishments for the Same Offense

In his third claim, Petitioner asserts that he has been unlawfully punished twice for

the same offense in violation of Okla. Stat. tit. 21 § 11. Doc. No. 1 at 10. Specifically, Mr.

Cords argues that count one, Robbery with a Dangerous Weapon, and count two, Felonious

Pointing of a Firearm, are the same offense. Id. The OCCA rejected this claim on the merits

during Mr. Cords’ direct appeal. Doc. No. 9-1 at 3–4. It found Petitioner’s sentence did not

violate Oklahoma law or the Double Jeopardy Clause of the Fifth Amendment. Id.

Respondent argues that Petitioner’s state law claim is not a cognizable claim for habeas

relief, and that the OCCA’s ruling regarding the Double Jeopardy clause is not contrary to

or an unreasonable application of clearly established Constitutional law. Doc. No. 9 at 21–

22. The Court agrees with Respondent.

Pursuant to Oklahoma law, an Okla. Stat. tit. 21 § 11 multiple punishments analysis

is “a separate matter, not involving double jeopardy issues.” Davis v. State, 993 P.2d 124,

125 (Okla. Crim. App. 1999). Because this analysis solely involves a matter of state law,

it does not provide grounds for federal habeas relief. See Estelle, 502 U.S. at 67–68. See

also El Mansouri v. Jones, 235 F. App’x 713, 717 (10th Cir. May 24, 2007) (habeas

petitioner’s claim that convictions violated Oklahoma’s statutory prohibition against

double punishment involved purely matter of state law and could not serve as grounds for

federal habeas relief); Howell v. Kaiser, 36 F. App’x 925, 927 (10th Cir. 2002) (“As to Mr.

Howell’s claim that his conviction for both possessing and pointing a firearm after former

conviction of a felony violates Oklahoma law against double punishment, we agree with

the magistrate judge and the district court that this issue is a matter of state law which is

not cognizable in a federal habeas action.”), Thus, Petitioner’s Okla. Stat. tit. 21 § 11 claim

is not cognizable in a federal habeas proceeding.

Petitioner also argues an interrelated double jeopardy claim. The double jeopardy

clause of the Fifth Amendment prohibits “multiple punishments for the same offense.”

Brown v. State of Ohio, 432 U.S. 161 (1977) (citations omitted). “[W]here the same act or

transaction constitutes a violation of two statutory provisions, the test to be applied to

determine whether there are two offenses or only one is whether each provision requires

proof of an additional fact which the other does not.” Blockburger v. United States, 284

U.S. 299, 304 (1932). Okla. Stat. tit. 21 § 801 has eight elements: (1) wrongful; (2) taking;

(3) carrying away; (4) personal property; (5) of another; (6) from the person or the

immediate presence of another; (7) by force or fear; (8) through the use of a firearm or

other dangerous weapon. See OUJI-CR No. 4-144.3 The elements of Okla. Stat. tit. 21

§ 1289.16 are: (1) willfully; (2) pointing a loaded shotgun, pistol, or deadly weapon,

whether loaded or unloaded; (3) at any person; (4) without lawful cause; (5) for the purpose

of threatening or with the intention of discharging the firearm. See OUJI-CR 6-42.4 These

elements for the crimes are distinct, requiring different factual circumstances for the state

to prove beyond a reasonable doubt. See Blockburger, 284 U.S. at 304. Okla. Stat. tit. 21

§ 1289.16 requires the prosecutor to prove Petitioner pointed his weapon at a person,

whereas Okla. Stat. tit. 21 § 801 does not requires the pointing of a firearm. Additionally,

Okla. Stat. tit. 21 § 1289.16 does not require the carrying away of personal property,

whereas Okla. Stat. tit. 21 § 801 does. Consequently, the OCCA’s determination that

Petitioner’s sentence did not violate the double jeopardy clause of the constitution was not

an unreasonable interpretation or application of federal law. Therefore, the Court denies

habeas relief on Ground Three.

d. Ground Four: Evidence of Other Criminal Acts

In his fourth ground, Petitioner argues that he was deprived of a fair trial and due

process of law. Mr. Cords’ complaint focuses on the admission at trial of evidence

regarding the testimony of co-conspirators that mentioned other robberies conducted by

the group. Doc. 1 at 11–12. The State contends Petitioner did not present his due process

3 Available at http://okcca.net/ouji-cr/4-144/ (last accessed March 14, 2022).

4 Available at http://okcca.net/ouji-cr/6-42/ (last accessed March 14, 2022).

claim to the OCCA, and that because Petitioner has failed to allow the OCCA the

opportunity to review his claims, he should be anticipatorily barred from arguing this claim

in federal court. Doc. No. 9 at 27–28. However, the Court disagrees with the Respondent

and finds Mr. Cords properly exhausted this claim on direct appeal. See Doc. No. 9-2 at

46. The OCCA reviewed Petitioner’s alleged improper evidence of other crimes claim

utilizing the Oklahoma plain error test. It found that there was no plain error and denied

relief. Id.

Habeas corpus review of state claims regarding the admission of evidence is limited

to the determination of whether the OCCA’s resolution of the claim rendered Petitioner’s

trial so fundamentally unfair as to constitute a deprivation of constitutional rights. The

OCCA’s plain error review is equivalent to the federal due process test. Thornburg, 422

F.3d at 1125. Pursuant to Oklahoma law, reversal for plain error is only required when

error “so infused the trial with unfairness as to deny due process of law.” Habeas review

of claims of improperly admitted evidence of other crimes requires the Petitioner to

demonstrate the existence of a state law evidentiary error that was so unduly prejudicial

that it rendered the trial fundamentally unfair. See Hooks v. Workman, 689 F.3d 1148, 1180

(10th Cir. 2012) (holding the petitioner was “entitled to relief only if an alleged state-law

error was so grossly prejudicial that it fatally infected the trial and denied the fundamental

fairness that is the essence of due process”) (internal quotation marks and citation omitted).

In its summary opinion regarding Petitioner’s direct appeal the OCCA found on the

merits that the introduction of evidence of other crimes did not violate the Oklahoma plain

error standard. Doc. No. 9-1 at 4-5. Petitioner has failed to put forth any argument or cite

any authority as to why the admission of the evidence fatally infected his trial with

prejudice. Additionally, it is not the Court’s role to evaluate whether the evidence was

properly submitted to the jury pursuant to state law, only to ensure that such a submission

was not contrary to or a violation of federal law. Thornburg, 422 F.3d at 1124. The Court

has closely examined the trial record and found that the testimony at issue—tangential

references to a gun that came from a different robbery [Trial Tr. vol. II at 140–141]—did

not render Mr. Cords’ trial fundamentally unfair. Therefore, the OCCA did not

unreasonably apply the federal due process test. For that reason, the Court denies § 2254

habeas relief on Ground Four.

e. Ground Five: Judicial Misconduct

In Ground Five, Petitioner argues that judicial misconduct deprived him of a fair

trial. This ground seems to be taken from several arguments made to the OCCA in previous

proceedings and centers on claims that the trial court: (1) allowed biased jurors to serve;

(2) allowed jurors to determine the relevancy of evidence; (3) allowed the state to explain

the jury instructions; and (4) failed to respond to Petitioner’s letters. Doc. 1 at 15. Claims

(1) and (2) are defaulted in habeas proceedings due to an anticipatory procedural bar

because they have not been, and now cannot be, properly raised before the OCCA. In the

alternative, claim (2) has been adjudicated by the OCCA on the merits pursuant to state

law and its decision does not violate the essence of due process. Petitioner raised claims

(3) and (4) for the first time during post-conviction proceedings, and they are procedurally

defaulted for the purposes of a federal habeas review. Davila, 137 S. Ct. at 2064.

1. Claims (1) and (2) are Subject to an Anticipatory Procedural Bar. In

the Alternative, the OCCA Decided Claim (2) on State Law Grounds

and Did Not Violate the Essence of Due Process.

“[A] state prisoner must exhaust available state remedies before presenting his claim

to a federal habeas court.” Davila, 137 S. Ct. at 2064. “The exhaustion requirement is

satisfied if the federal issue has been properly presented to the highest state court, either by

direct review of the conviction or in a postconviction attack.” Dever v. Kan. State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “Exhaustion requires that the claim be

‘fairly presented’ to the state court, which ‘means that the petitioner has raised the

“substance” of the federal claim in state court.’” Fairchild v. Workman, 579 F.3d 1134,

1151 (10th Cir. 2009) (quoting Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006)).

“[A] federal habeas petitioner [must] provide the state courts with a ‘fair opportunity’ to

apply controlling legal principles to the facts bearing upon his constitutional claim.”

Anderson v. Harless, 459 U.S. 4, 6 (1982); see also Williams, 782 F.3d at 1210 (stating

that fair presentation “requires that the petitioner raise in state court the substance of his

federal claims . . . includ[ing] not only the constitutional guarantee at issue, but also the

underlying facts that entitle a petitioner to relief”) (internal quotation marks and citation

omitted).

If a claim is unexhausted, a federal court generally dismisses it without prejudice

“so that the petitioner can pursue available state-court remedies.” Grant v. Royal, 886 F.3d

874, 892 (10th Cir. 2018) (internal quotation marks and citation omitted). But “dismissal

without prejudice for failure to exhaust state remedies is not appropriate if the state court

would now find the claims procedurally barred on independent and adequate state

procedural grounds.” Id. (internal quotation marks and citation omitted). “Oklahoma

requires a post-conviction relief applicant to raise all grounds for relief which he actually

knows or should have known through the exercise of due diligence in his original

application for relief.” Williams, 782 F.3d at 1212 (citing Okla. Stat. tit. 22, § 1086 (“All

grounds for relief available to an applicant . . . must be raised in his original, supplemental

or amended application. Any ground finally adjudicated or not so raised . . . may not be the

basis for a subsequent application . . . .”)). Where a petitioner would be required to present

his claims to the OCCA “in order to meet the exhaustion requirement” and the OCCA

would find those claims procedurally barred, “there is a procedural default for purposes of

federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), holding modified

on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012); see also Williams, 782 F.3d at

1212 (explaining that anticipatory procedural default applies “where a petitioner fails to

exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be

procedurally defaulted on remand”).

A prisoner cannot overcome the procedural bar unless he “can demonstrate cause

for the default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750. “Cause for a procedural default exists where something

external to the petitioner, something that cannot fairly be attributed to him[,] . . . impeded

[his] efforts to comply with the State’s procedural rule.” Maples v. Thomas, 565 U.S. 266,

280 (2012) (internal quotation marks and citation omitted). Petitioner must show

“prejudice arising from the errors that form the basis of [his] substantive claims” in order

to establish the prejudice prong. Smith v. Allbaugh, 921 F.3d 1261, 1271 (10th Cir. 2019)

(internal quotation marks omitted). The fundamental miscarriage of justice exception to

procedural default “is a markedly narrow one, implicated only in extraordinary case[s]

where a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (internal quotation

marks omitted). Mr. Cords has not asserted that he is actually innocent in his habeas

petition, therefore the Court will not engage in an actual innocence analysis.

The first of Petitioner’s arguments alleges the trial court erred by allowing biased

jurors to serve. Doc. No. 1 at 15. The Respondent counters that this argument is

unexhausted as it was never properly raised before the OCCA. Doc. No. 9 at 36–38. Mr.

Cords believes this claim was properly exhausted on direct appeal. Doc. No. 1 at 15. The

Court has examined the record and finds that Petitioner has not exhausted his claim. He is

consequently subject to an anticipatory procedural bar.

On direct appeal, Petitioner made a cursory comment in his brief that the trial court

had erred in allowing two jurors to serve who allegedly had conflicts of interest. He stated,

“the trial court erred in forcing the defense to use a peremptory challenge [on these jurors]

. . . .” See Doc. No. 9-2 at 53. However, this comment was made on direct appeal in an

ineffective assistance of trial counsel proposition. See Id. at 50–57. To fairly present a

claim, “a federal habeas petitioner must provide the state courts with a fair opportunity to

apply controlling legal principles to the facts bearing upon his constitutional claim.” Grant,

886 F.3d at 890 (10th Cir. 2018) (quotation marks, citation and brackets omitted). “The

crucial inquiry is whether the substance of the petitioner’s claim has been presented to the

state courts in a manner sufficient to put the courts on notice of the federal constitutional

claim.” Id. (quotation marks and citation omitted).

When appealing to the OCCA, a party must ensure:

Each proposition of error shall be set out separately in the brief. Merely

mentioning a possible issue in an argument or citation to authority does not

constitute the raising of a proposition of error on appeal. Failure to list an

issue pursuant to these requirements constitutes waiver of the alleged error.

OCCA Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.

18, App. (Supp. 2019).

Petitioner’s cursory reference to a judicial error, made in a direct appeal proposition

addressing ineffective assistance of counsel, does not comport with Rule 3.5(A)(5). Indeed,

the OCCA did not address the judicial claim, discussing only Mr. Cords’ ineffective

assistance of counsel proposition in its summary opinion. See. Doc. No. 9-1 at 5. Claims

that have not been addressed on direct appeal by the OCCA are deemed waived in

applications for post-conviction relief. See Cole v. Trammell, 755 F.3d 1142, 1176 (10th

Cir. 2014) (holding that a habeas ground that was only mentioned in a footnote on direct

appeal was not exhausted and thus procedurally defaulted for the purposes of federal

habeas review); see also Maines v. State, 597 P.2d 774, 775-76 (Okla. Crim. App. 1979);

see also Fox v. State, 880 P.2d 383, 384 (Okla. Crim. App. 1994). The OCCA also “strictly

[and] regularly follow[s] and applie[s] [this rule] evenhandedly to all similar claims.”

Duvall, 139 F.3d at 796–97 (internal quotation marks and citation omitted). Because the

claim was not made on direct appeal, and the OCCA would deem as waived any further

attempt to bring this argument before it, Petitioner’s biased jury judicial misconduct

allegation is subject to an anticipatory procedural bar. Mr. Cords does not acknowledge the

anticipatory procedural bar in his petition, nor can he overcome it by arguing cause and

prejudice during his appellate review. Accordingly, the Court finds Petitioner has defaulted

on his claim for habeas relief that biased jurors allegedly served on his panel.

In his second judicial misconduct contention, Mr. Cords argues that the trial court

erred by allowing the jury to determine the relevance of evidence during deliberation.

Petitioner seems to be referring to an allegation in proposition five of his direct appeal in

which he argued the trial court improperly allowed the jury to consider the contents of his

backpack. Doc. No. 9-2 at 41-44. The issue stemmed from a jury question asking whether

they were “to consider the contents of the backpack as evidence even though the bulk of

[the contents] were not presented/discussed in court.” Doc. 9-9 at 2. Mr. Cords on appeal

argued the contents were not relevant, and that it was not the jury’s role to decide their

relevance. Doc. No. 9-2 at 41-44. The OCCA treated this claim as an admission of evidence

issue and denied it on the merits. Doc. No. 9-1 at 4.

If Petitioner is raising a discrete claim that the trial court acted improperly by

responding to the jury question, this claim has not been exhausted and is subject to an

anticipatory procedural bar. Petitioner merely mentions this theory in one sentence during

his direct appeal. Doc. No. 9-2 at 42–43. Indeed, the OCCA ruled only on the admissibility

of the backpack and its contents based on state evidentiary law, never acknowledging that

Mr. Cords had raised a constitutional claim. Doc. No. 9-1 at 4. As fully quoted above,

OCCA Rule 3.5(A)(5) requires that Petitioner lay out his claims separately or he

permanently waives those claims. Consequently, Mr. Cords’ constitutional argument

would be deemed waived by the OCCA in post-conviction proceedings. See Maines, 597

P.2d at 775–76; see also Fox, 880 P.2d at 384. This rule is strictly and regularly applied

evenhandedly in all similar claims. Duvall, 139 F.3d at 796–97. Therefore, unless

Petitioner can demonstrate cause and prejudice, he is subject to an anticipatory procedural

bar and he defaults on this habeas claim. Coleman, 501 U.S. at 750.

Here, Petitioner does not acknowledge the anticipatory procedural bar, nor does he

allege cause or prejudice. Further, the Court has carefully reviewed the record and finds

that Petitioner had the opportunity both at trial and on direct appeal to raise this issue, but

he did not. Consequently, the application of an anticipatory procedural bar is appropriate,

and Petitioner has defaulted on this claim. The Court, therefore, denies habeas relief on the

argument that the trial court erred by instructing the jury to determine the relevance of Mr.

Cords’ backpack in his case.

To the extent that Petitioner seems to be re-raising proposition five of his direct

appeal, the OCCA, utilizing its plain error standard, found that the backpack and its

contents were properly admissible and relevant under state law. Doc. No. 9-2 at 4. “[I]t is

not the province of a federal habeas court to reexamine state-court determinations on state-

law . . . a federal court is limited to deciding whether a conviction violated the Constitution,

laws, or treaties of the United States.” Estelle, 52 U.S. at 67-68. The Court, therefore, must

defer to the state court’s decisions on matters of state law. See Gonzales v. Tafoya, 515

F.3d 1097, 1126–27 (10th Cir. 2008). Accordingly, Petitioner must show that “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) (quotation marks and citation omitted). Here, Mr. Cords has not shown that the

trial court’s decision infected his trial with any form of prejudice, much less prejudice that

denied him a fundamentally fair trial. The backpack contained a spiderman mask, which

may have been used in the robbery, a pistol holster, ammunition, a gun cleaning kit, and

drug paraphernalia. Trial Tr. vol. II at 44–48. The OCCA therefore reasonably concluded

that this evidence was properly admitted.

2. Claims (3) and (4) are Procedurally Barred.

“It is well established that federal courts will not review questions of federal law

presented in a habeas petition when the state court’s decision rests upon a state-law ground

that ‘is independent of the federal question and adequate to support the judgment.’” Cone

v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). “The doctrine

applies to bar federal habeas [relief] when a state court declined to address a prisoner’s

federal claims because the prisoner had failed to meet a state procedural requirement.”

Coleman, 501 U.S. at 729–30; see also Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir.

2012) (“When a state court dismisses a federal claim on the basis of noncompliance with

adequate and independent state procedural rules, federal courts ordinarily consider such

claims procedurally barred and refuse to consider them”). Petitioner may overcome a

procedural bar if he can “demonstrate cause for the default and actual prejudice”. Coleman,

501 U.S. at 750. To show “cause”, Mr. Cords’ must demonstrate that an “objective factor

external to the defense” prevented him from complying with the state procedural rule.

Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994) (quoting Murray v. Carrier, 477

U.S. 478, 488 (1986)).

Petitioner argues in claim (3) that the trial court erred by allowing the prosecutor to

discuss the jury instructions in his closing argument. Doc. No. 1 at 15. In claim (4), Mr.

Cords argues the judge committed misconduct by not responding to his letters. Id.

Petitioner raised these claims for the first time during post-conviction proceedings. Doc.

No. 9-6 at 14, 15–16. The OCCA barred both of these claims on state law grounds for

failing to comply with Oklahoma’s requirement pursuant to Fowler v. State, 896 P.2d 566,

569 (Okla. Crim. App. 1995) (citing Okla. Stat. tit. 22 § 1086) that all claims that could

have been raised on direct appeal, but were not, are deemed waived during post-conviction

proceedings.

Here, Mr. Cords has not acknowledged the procedural bar to either of his claims,

and he has not shown any cause or prejudice that hindered him from bringing these claims

on direct appeal. Accordingly, the Court denies Petitioner habeas relief on claims (3) and

(4) of Ground Five. The Court furthermore denies § 2254 relief on Ground Five of the

petition because Mr. Cords is anticipatorily or procedurally barred from raising his claims

in these proceedings.

f. Ground Six: Ineffective Assistance of Trial Counsel

In Ground Six of his petition, although Mr. Cords titles his various complaints

“Ineffective Assistance of Counsel”, he argues only that his trial counsel was ineffective.

He fails to allege ineffective assistance of appellate counsel anywhere in his petition.5

Consequently, the Court only examines Petitioner’s claims that his trial counsel:

5 Petitioner did raise ineffective assistance of appellate counsel in his post-conviction proceedings, however, has not

raised such allegations on habeas review. See Doc. No. 9-4 at 6.

(1) failed to challenge biased jurors6;

(2) failed to enforce his own motion in limine regarding other crimes evidence;

(3) denied Petitioner access to discovery;

(4) failed to communicate adequately with Petitioner about his case;

(5) failed to object to Detective Tom Burg’s presence in the courtroom while other

witnesses testified and failed to properly cross examine Detective Burg;

(6) failed to inform the jury that Mr. Truelove’s case had been dismissed when the

prosecutor introduced evidence of his involvement in the conspiracy;

(7) failed to present a defense by failing to call Mr. Cords’ mother to testify, failing

to call undefined other witnesses, failing to present a receipt allegedly confirming

Petitioner was in another town after the robbery, failing to argue the possibility that

another group of criminals committed the crime, and failing to introduce

inconclusive DNA and forensic evidence;

(8) failed to cap the sheriff’s transportation and incarceration fees at two years.

Doc. No. 1 at 15. Mr. Cords’ claims in Ground Six can be grouped by when they were

addressed by the OCCA. The OCCA addressed claim (1) on the merits during direct appeal.

Doc. No. 9-1. Claims (2)–(8) were raised in Petitioner’s post-conviction proceedings [Doc.

No. 9-6 at 15–19], and the OCCA denied relief by finding Petitioner had waived these

arguments when he failed to raise them on direct appeal. Doc. No. 9-7 at 3–4.

6 Petitioner reraises his prosecutorial misconduct claim, evidence challenges, witness testimony challenges, and double

jeopardy argument under the theory that they are also form the basis for habeas relief umbrellaed under an ineffective

assistance of counsel claim. The Court has already adjudicated these underlying arguments for relief in its earlier

analysis and found the OCCA acted in accordance with federal law. The Court, therefore, will not readdress these

claims here.

1. The OCCA’s Holding on Claim (1) Was Not Contrary to or an

Unreasonable Application of Federal Law

The burden on a habeas petitioner when pursuing an ineffective assistance of trial

counsel claim is “particularly difficult.” Johnson v. Carpenter, 918 F.3d 895, 900 (10th

Cir. 2019). Utilizing deference under the AEDPA, a habeas petitioner is not entitled to

relief on his claim of ineffective assistance of trial counsel unless he demonstrates that the

OCCA’s adjudication was contrary to, or an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984). “‘[T]he standards created by Strickland and § 2254(d)

are both highly deferential, and when the two apply in tandem, review is doubly so.’”

Johnson, 918 F.3d at 900, (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). The

Court’s only task is to determine “whether reasonable jurists could agree with the OCCA

that [the attorney] acted reasonably.” Id.

The Court will sustain an ineffective assistance of counsel claim only when: (1)

“counsel made errors so serious that counsel was not functioning as the ‘counsel[;]’” and

(2) “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. A

defendant can establish the first prong by showing that counsel performed below the level

expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at

687–88. There is a “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Id. at 689. In making this determination, the Court

must “judge . . . counsel’s challenged conduct on the facts of the particular case, viewed as

of the time of counsel’s conduct.” Id. at 690. Moreover, review of counsel’s performance

must be highly deferential. “[I]t is all too easy for a court, examining counsel’s defense

after it has proved unsuccessful, to conclude that a particular act or omission of counsel

was unreasonable.” Id. at 689.

To establish the second prong, Petitioner must show that his counsel’s deficient

performance prejudiced the defense to the extent that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Id. The likelihood of a different result “must be substantial,

not just conceivable.” Richter, 562 U.S. at 112. If Petitioner is unable to show either

“deficient performance” or “sufficient prejudice,” his claim of ineffective assistance fails.

Strickland, 466 U.S. at 700. Thus, it is not always necessary to address both Strickland

prongs.

On direct appeal, Petitioner argued that several jurors were biased against him

because one juror was related to law enforcement officers and two jurors worked for RCB

Bank, as did one of the state’s witnesses. Doc. No. 9-2 at 50-52. The OCCA rejected this

claim. Doc. No. 9-1 at 5. The first juror, who had family in law enforcement, stated on the

record that she could impartially fulfill her role as a juror despite her family connections.

Trial Tr. vol. I at 29. The two jurors who worked for the same bank as a government witness

felt they could properly and impartially fulfill the role of jurors. Id. at 66–67. Petitioner

points to no case law that finds an attorney who fails to remove jurors who claim they can

uphold the standards of a fair and impartial jury is ineffective. Therefore, the OCCA did

not act contrary to or misapply federal law when it decided Mr. Cords’ attorney was not

constitutionally ineffective based on his actions during jury selection. Strickland, 466 U.S.

at 687. The Court accordingly denies habeas relief on claim (1) of Ground Six.

2. Claims (2)-(8) are Procedurally Barred

Petitioner first raised his other claims before the OCCA during post-conviction

proceedings. Doc. No. 9-6 at 15–19. The OCCA deemed these claims waived because Mr.

Cords had not raised them during his direct appeal. Doc. No. 9-7 at 3–4. The denial was

additionally based on an independent and adequate state procedural rule. Therefore, unless

Petitioner can show cause and prejudice, his claims will be subject to a procedural bar and

deemed defaulted in his habeas proceeding. Coleman, 501 U.S. at 735, 750, n.1. Mr. Cords

could overcome such a bar in by demonstrating cause and prejudice, however he has failed

to do so. One potential cause Petitioner could have raised would have been ineffective

assistance of appellate counsel on direct appeal. However, despite having the opportunity

to reply in these proceedings, Mr. Cords has not raised this argument. Additionally, the

Court has scrutinized the petition and found that it never mentions ineffective assistance of

appellate counsel. Thus, Petitioner has procedurally defaulted on claims (2)-(8).

Furthermore, because Mr. Cords has defaulted on all his ineffective assistance of trial

counsel claims, the Court denies habeas relief on Ground Six.

g. Ground Seven: Right to Confront Witnesses

Petitioner, in his final ground, argues that he was denied the right to confront

witnesses, namely the potentially hearsay statements made by Mr. Truelove, Ms. Widener,

and Markie Burgess. He raised this claim for the first time on post-conviction review, and

the OCCA refused to consider relief because he waived this claim by failing to include it

in his direct appeal. Doc. No. 9-7 at 2–4. This denial was based on an independent and

adequate state procedural rule as discussed above. Therefore, unless Petitioner can show

cause and prejudice, his claims will be subject to a procedural bar and deemed defaulted in

his habeas proceeding. Coleman, 501 U.S. at 735 n.1, 750. Mr. Cords, again, fails to argue

that there was a cause or prejudice that would enable him to overcome the procedural bar.

Consequently, the Court denies habeas relief on Ground Seven.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires “[t]he district court

[to] . . . issue or deny a certificate of appealability when it enters a final order adverse to

the applicant.” A court may issue a certificate of appealability only “if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

When the district court rejects the merits of petitioner’s constitutional claims, he must make

this showing by “demonstrat[ing] that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). For the reasons discussed above, Petitioner has not made the requisite

showing on any of his claims. The Court therefore denies a certificate of appealability.

Conclusion

For the reasons stated above, the Court DENIES the Petition for Writ of Habeas

Corpus [Doc. No. 1] and declines to issue a Certificate of Appealability. Judgment shall be

entered accordingly.

IT IS SO ORDERED on this 21“ day of March 2022.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

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