# Payton v. Crow

> District Court, W.D. Oklahoma · July 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10389769

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** July 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10389769

## How later opinions describe it (automated extraction)

- applying Brecht in a habeas case involving an ex parte conversation between a judge and a juror

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

DONTE LEMAR PAYTON, )
)
Petitioner, )
)
v. ) Case No. CIV-19-700-SLP
)
SCOTT CROW, )
)
Respondent. )

O R D E R

Petitioner, Donte Lemar Payton, a state prisoner appearing pro se, filed this action
pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. He challenges the
constitutionality of his state court conviction and sentence for Manslaughter in the First
Degree in Case No. CF-2014-7586, District Court of Oklahoma County, State of
Oklahoma.1 The state district court sentenced Petitioner to life imprisonment with the
possibility of parole.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), this matter was referred for initial
proceedings to United States Magistrate Judge Suzanne Mitchell who issued a Report and
Recommendation [Doc. No. 22] (R&R) denying habeas relief. Petitioner timely filed an
Objection [Doc. No. 23] to the R&R. Thus, the Court must make a de novo determination
of the portions of the R&R to which a specific objection is made, and may accept, reject,

1 Petitioner was originally charged with Murder in the First Degree. The jury, however, convicted
him of the lesser included offense of Manslaughter in the First Degree.
or modify the recommended decision, in whole or in part. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b)(3).

I. Petitioner’s Grounds for Habeas Relief / Objections to R&R
Petitioner has raised the following grounds for habeas relief:
• Ground One: Trial court violated the no contact rule with the jury
during deliberations;

• Ground Two: Improper communication with jury – invited the
avoidance of duty to assess punishment, passing to trial court;

• Ground Three: Ineffective assistance of counsel based on (1) failure
to object to the trial court’s decision to take the case from the jury; (2) failure
to offer statements on Petitioner’s behalf at sentencing; and (3) failure to
object to other crimes evidence at sentencing;

• Ground Four: Life sentence is excess;
• Ground Five: Right to jury’s determination – self-defense
instruction; and

• Ground Six: Cumulative error.
See Petition [Doc. No. 1]. Petitioner raised these same claims on direct appeal of his
conviction to the Oklahoma Court of Criminal Appeals (OCCA) and the OCCA affirmed
Petitioner’s conviction. See OCCA Summary Opinion [Doc. No. 1-9].2
II. Petitioner’s Objections
The Court construes Petitioner’s Objection as challenging the Magistrate Judge’s
findings with respect to the claims raised in Grounds One and Two of the Petition, and that

2 In support of each of his grounds for habeas relief, Petitioner includes, as part of his Petition,
excerpts of his briefing submissions before the OCCA.
part of his ineffective assistance of counsel claim raised in Ground Three relating to the
trial court’s decision to take the case from the jury. Review of all other issues addressed

by the Magistrate Judge, therefore, is waived. See Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991); see also United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th
Cir. 1996).
Petitioner argues that “clear and direct evidence . . . requires this court to Reverse
and Remand the matter of sentencing back to the trial court.” Obj. at 1. In support, he
contends that a “clear violation of procedure of the criminal code occurred . . . .” Id.

Petitioner argues that the state court judge had several “unauthorized communications”
with the foreman of the jury who, in turn, “announce[d] that communication to other
jurors.” Id. at 2. Petitioner references notes the jury sent to the court. Petitioner further
references communications the bailiff initiated with the jury. Petitioner contends “[t]he
judge announced he would take over the case, through his bailiff, and then took over the

case and then sentenced petitioner what he saw fit, contrary to the Fourteenth Amendment
to the United States Constitutions [sic] Due Process of law protection.” Id. Petitioner
claims this is a “structural error or plain error.” Id. at 2-3. Petitioner further argues his
counsel was deficient for failing to raise these issues “on direct appeal.” Id. at 3 (emphasis
added).3 Alternatively, he contends, “the combined effect of these errors should result in

the modification of petitioner’s sentence.” Id.

3 Although Petitioner frames his objection as based on counsel’s failure to raise this issue on direct
appeal, Petitioner’s appellate counsel did raise these issues on direct appeal. As discussed infra,
out of an abundance of caution, the Court has considered Petitioner’s objection to be based on trial
III. Governing Standard
Habeas relief is warranted only if the state court’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 “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). “Clearly established law is determined by the United States Supreme Court,
and refers to the Court’s holdings, as opposed to the dicta.” Washington v. Roberts, 846
F.3d 1283, 1286–87 (10th Cir. 2017). If the state court comes to a conclusion “opposite to

that reached by the Supreme Court on a question of law” or “decides a case differently than
the Court has . . . on materially indistinguishable facts,” such a decision is “contrary to”
clearly established law. Id. at 1287. And if “the state court identifies the correct governing
legal principle . . . but unreasonably applies that principle to the facts of the prisoner’s
case,” the state court’s decision is an “unreasonable application” of Supreme Court law.

Id. (alteration in original).
A state court’s factual findings are not unreasonable merely because on federal
habeas review the court “would have reached a different result in the first instance.”
Johnson v. Martin, 3 F.4th 1210, 1218 (10th Cir. 2021) (citation omitted). Instead, the
court defers to the state court’s factual determinations “so long as reasonable minds

reviewing the record might disagree about the finding in question.” Id. (citation omitted).

counsel’s failure to raise an objection at trial – a claim incorporated in his ineffective assistance of
counsel claim raised in Ground Three of the Petition.
The resolution of a claim brought pursuant to § 2254 “is highly dependent on the
standard of review required by AEDPA.” Wellmon v. Colo. Dep’t of Corrs., 952 F.3d

1242, 1245 (10th Cir. 2020). “To determine whether Petitioner is entitled to relief, [the
court] must analyze what occurred at trial and on appeal, determine what standard the [state
court] applied, analyze whether that standard conflicted with clearly established United
States Supreme Court precedent, and finally decide whether the [state] court unreasonably
applied that standard.” Id.

IV. Discussion
A. Ground One – Improper Contact with Jurors
The state court record reflects that during deliberations, the jury submitted five
separate notes to the trial court. As relevant to Petitioner’s claim raised in Ground One,
the last three notes concerned Petitioner’s sentence. Those notes and the trial court’s
responses follow:

• Juror Question Three: WHO DETERMINES THE LENGTH
AND SENTENCE FOR A MANSLAUGHTER VERDICT?

Trial Court’s Response: THE JURY.
(Court’s Ex. 4)
• Juror Question Four: WE HAVE A VERDICT, BUT
CANNOT ARRIVE AT A CONSENSUS ON LENGTH OF
SENTENCE. NEED ADVICE?

Trial Court’s Response: YOU HAVE ALL THE LAW &
EVIDENCE WHICH IS PROPER FOR YOU TO
CONSIDER.

(Court’s Ex. 5)
• Juror Question Five: WE HAVE A VERDICT, BUT ONLY
IF ONE JUROR CAN CHOOSE A SHORTER SENTENCE
WHICH THE OTHERS DO NOT AGREE WITH. ANY
ADVICE?

Trial Court’s Response: KEEP DELIBERATING & TRY
TO COME TO A CONSENSUS.

(Court’s Ex. 6)

See OCCA Order Remanding for Evidentiary Hearing [Doc. No. 1-7] at 3 (quoting Court’s
Exhibits 4, 5 and 6, respectively).
In the course of his direct appeal before the state courts, Petitioner requested an
evidentiary hearing based on an additional communication alleged to have been made to
the jury during their deliberations after the fifth and final written question contained in the
record had been answered. Petitioner claimed that the trial judge communicated to the jury
through the bailiff and told the jurors that the trial judge could sentence Petitioner if the
jurors could not agree on punishment. The OCCA determined an evidentiary hearing on
this issue was warranted and directed the trial court to hold the evidentiary hearing. See
id.
At the evidentiary hearing, four members of the jury testified. Additionally, the
bailiff, Kalina Webb; the prosecutors, John Salmon and Kelly Collins; and defense counsel,
Stacy Smith testified. See State Court Record [Doc. No. 20 – conventionally filed],
Supplemental Hearing Transcripts of Proceedings, August 1, 2017 (Tr. Vol. I at ___) and
August 2, 2017 (Tr. Vol. II at ___).
The foreman, M.R., testified first. M.R. testified that it took the jury approximately
one hour to determine guilt. Tr. Vol. I at 15-16.4 But, the jury could not come to a

consensus with respect to the number of years for the sentence to be imposed. The jury
was considering, on the high end, a sentence of twenty-five years and on the low end, a
sentence of five years. Id. at 9-10. This lack of consensus resulted in the jury submitting
to the trial court the notes referenced above. M.R. testified that after the trial court’s final
response the jury continued to deliberate for another thirty minutes or so and then the bailiff
came into the deliberation room and said that if the jurors could not reach a decision on the

length of the sentence, the judge could do that for them. Id. at 13-15; see also id. at 25-26.
M.R. said that following the bailiff’s communication, the jury deliberated for another
twenty or thirty minutes before telling the judge that they wanted him to make the
sentencing decision. Id. at 15; see also id. at 26-28. M.R. testified that the jury was
“deadlocked” on the issue of sentencing and advised the trial court of the same when

brought to the courtroom. Id. at 28-29. M.R. testified one juror in particular was a hold
out and that juror wanted “such a short sentence that the others didn’t feel like it was a fair,
a fair decision.” Id. at 30-31.5 But M.R. testified that the jury was unanimous in wanting
the trial judge to determine the sentence. Id. at 31-32.

4 M.R. testified that at the time the jury submitted Question Four (Court’s Ex. 5), the jury had
unanimously decided that Petitioner was guilty. Id. at 19-21.

5 According to M.R., the juror wanted a sentence between six months and five years. Id. at 33-
34.
The next juror to testify was C.J. She initially wanted to impose a sentence of five
years, but agreed to come up to ten years during the course of deliberations. Id. at 38-40.

C.J. testified that the bailiff had told the foreman that the judge could determine the
sentencing and the foreman relayed that to the rest of the jurors. Id. at 42.
According to C.J., the jury unanimously agreed that the judge should “intervene”
but she thought the judge was going to join the jury in their deliberations. Id. at 43. Even
after the jury entered the courtroom and the judge explained that he would determine the
sentence, C.J. continued to think that the jury would be involved in the sentencing and that

the jurors “still had a voice” in the matter. Id. at 44-45. C.J. understood the sentencing
range to be five years to twenty-five years; she did not understand a life sentence was
possible. Id. at 45-46.6 C.J. would have wanted to continue deliberations if she had
understood the judge could sentence Petitioner up to life imprisonment. Id. at 47-48.
C.J. agreed that the jury had reached a consensus that Petitioner was guilty of

manslaughter. Id. at 49-50. C.J. testified that other jurors did not agree with the sentence
she wanted to impose (no greater than 15 years). Id. at 55-57.7 She reiterated that the
maximum sentence being considered by the jurors was twenty-five years. Id. at 60-62; see
also id. at 65-66.

6 C.J. gave contradictory testimony in this regard. C.J. testified elsewhere that she understood the
sentencing range was five years to life. Id. at 52-53.

7 The record reflects the jury was instructed that the crime of Manslaughter in the First Degree is
“punishable by imprisonment for not less than four (4) years.” See State Court Record [Doc. No.
20 – Conventionally Filed], Criminal Appeal Original Record, Vol. II at 174-175, Instruction No.
18. The jury instruction is a correct statement of Oklahoma law as to punishment. See Okla. Stat.
tit. 21, § 715 (2015); see id., § 13.1. Instruction No. 18 further advised the jury as to how eligibility
for parole is calculated “[i]f a person is sentenced to life imprisonment.” Id.
Another juror, K.L., similarly testified that the bailiff communicated to the foreman
that if the jury could not reach a consensus on sentencing, the judge could “take the case

for sentencing.” Id. at 126. She testified the jury unanimously agreed on the manslaughter
conviction and did so approximately thirty minutes into deliberations. Id.; see also id. at
131.
K. L. thought, like C.J., that in sentencing Petitioner the judge would be bound by
the range discussed by the jury. Id. at 127. She testified that had she known the judge
could have sentenced Petitioner to life, she would have “stayed longer” to deliberate. Id.

at 128. K.L. thought that a sentence of life without parole was “off the table” and that the
sentence “could go to . . . 33 or 38 years.” Id. at 133.
According to K.L., C.J. was the “holdout on the verdict” as to the sentencing issue.
Id. at 131-32. K.L. testified that C.J. was “adamant” about a five-year sentence but
“gradually “went up.” Id. at 131. K.L. testified that if the jurors had more time, they

“probably would have come to an agreement” as to sentencing. Id. at 139.
The next, and final, juror to testify was K.H. She recalled the range of punishment
being considered by the jury was between five and twenty-five years. Id. at 144. K.H. said
the bailiff told the foreman the judge would determine the sentence and the jurors were
brought back into court. Id. at 144-45. K.H. did not have any understanding as to what

sentence the judge could impose. Id. at 145-46. But she thought the jury’s
recommendations would be taken into account. Id. at 146; see also id. at 156-57. K.H.
testified the highest sentence any juror wanted was twenty-five years. Id. at 159.
K.H. testified that further deliberations might have been helpful. Id. at 149. She
also testified that she would have been willing to drop her sentencing recommendation. Id.

at 157. But she agreed that the foreman accurately advised the judge that the jury could
not reach a unanimous decision as to sentencing. Id. at 151; cf. id. at 159-60.
Kalina Webb also testified at the evidentiary hearing. She served as the bailiff
during Petitioner’s trial. Ms. Webb did not remember whether she communicated to the
jury that the judge would sentence Petitioner. Id. at 177-78.
The prosecutors, John Salmon and Kelly Collins also provided testimony. Mr.

Salmon testified about the five written questions sent by the jury and responded to by the
trial judge. He did not recall any other communication between the judge and the jury. Id.
at 102-103. He testified that the jury was subsequently brought into the courtroom and the
judge polled the jury as to whether they had reached a verdict as to guilt and whether they
had reached a sentence. Id. Mr. Salmon remembers a discussion in the judge’s chambers

with all counsel present about a statutory provision which would allow the judge to take
the sentencing from the jury. Id. at 105-106. He testified that the judge advised the parties
that if the jury were deadlocked as to sentencing, he would exercise that power. Id. at 107.
Mr. Salmon believed this conversation with the judge took place at the time discussions
were being had about a response to the last question from the jury. Id. at 108. He

understood the judge was going to proceed in this manner and was not surprised when the
judge brought the jury into court and made the announcement that he would be invoking
the statute and imposing the sentence. Id. at 110. Mr. Salmon was not aware of any
communication by the judge to the jury other than the written responses to the jury’s
questions. Id. at 111.

Ms. Collins likewise testified that that she understood the judge was going to
confirm the jury was deadlocked and then was going to invoke the statute and impose the
sentence. Id. at 120. Like Mr. Salmon, Ms. Collins was not aware of any communications
the judge had with the jury other than the written notes and responses to those notes. Id. at
121. And, like Mr. Salmon, Ms. Collins testified that all counsel were present during the
communications with the judge about responding to the jury’s questions. Id. at 122.

Petitioner’s trial counsel, Stacy Smith, was the last witness to testify. Mr. Smith
testified that after all parties had agreed upon the response to Question Number 5 (Court’s
Exhibit 6), the trial judge communicated to counsel in chambers that he had the authority
to “take the case from the jury if they could reach a verdict but could not reach a
punishment.” Tr., Vol. 2 at 3-4, 10-13.8 Mr. Smith testified he did not know whether the

trial judge communicated with the jury about the matter. Id. at 4-5. According to Mr.
Smith, briefly after the in-chambers discussion with the trial judge, and before he could
fully discuss the matter with Petitioner, the trial judge had brought the jury to the
courtroom. Id. at 5-7, 26.

8 At the evidentiary hearing, the parties’ reference to Question Number 5 is, in fact, a reference to
the fourth jury question identified in the OCCA’s remand order (Court’s Ex. 5). Similarly, the
parties’ reference to Question Number 6 is, in fact, a reference to the fifth and final question
identified in the OCCA’s remand order (Court’s Ex. 6). See, e.g., Tr. Vol. II at 9-10 (reading into
the record “Jury Question Number 5”).
The OCCA “incorporated and discussed” the evidence presented at the evidentiary
hearing in its Summary Opinion affirming Petitioner’s conviction. The OCCA found as

follows:
The record shows the jury was told by the bailiff during deliberations that the
trial judge would impose sentence if the jury was unable to agree on
punishment. This communication occurred after the jury found Appellant
guilty of the lesser included offense of first degree manslaughter. At the
time, the jury was unable to agree on punishment despite several hours of
deliberations. The jury’s deadlock on sentencing was evident from the last
two jury questions sent to the trial judge during deliberations. The jury
foreman then confirmed for the trial judge on the record that further
deliberations would not assist the jury in reaching a unanimous decision as
to punishment.

OCCA Summary Opinion [Doc. No. 1-8] at 3-4 & n. 4. For purposes of habeas review,
these factual findings of the OCCA are presumed to be correct and Petitioner must rebut
the presumption of correctness by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1).
As the OCCA explained, Oklahoma law provides that if a jury cannot agree on
punishment, the judge may impose punishment:
When a trial judge is faced with a jury that has retired to deliberate
and reached a verdict of guilty, and despite ‘diligent and sincere efforts, they
are unable to agree upon the punishment and so report to the trial judge’ then
Section 927.1 becomes applicable. The court at that point ‘shall require the
jury to deliberate further after giving the additional instruction that if they
then fail to agree they may so state in their verdict and leave punishment to
be assessed by the court.’

OCCA Summary Opinion at 5 (citations omitted).9 The OCCA determined the trial judge
handled the matter in a manner consistent with the statutory directive. Id. Although the

9 Section 927.1 provides:
OCCA found the bailiff’s communication to the jury was presumptively prejudicial, the
OCCA found the State had overcome the presumption of prejudice because the record

“show[ed] plainly” that the jury was “hopelessly deadlocked on punishment at the time of
the bailiff’s unauthorized communication” but the jury had “already unanimously found
Appellant guilty of first degree manslaughter.” Id. at 5-6.
Petitioner premises his first ground for relief on his constitutional right to be present
at all critical stages of a trial under the Sixth and Fourteenth Amendments to the United
States Constitution. Petitioner challenges as improper the bailiff’s ex parte communication

to the jury that if they could not reach a verdict as to the sentence to be imposed, the trial
judge would sentence Petitioner.10

Where the jury finds a verdict of guilty, and fails to agree on the punishment to be
inflicted, or does not declare such punishment by their verdict, the court shall assess
and declare the punishment and render the judgment accordingly.

Okla. Stat. tit. 22, § 927.1.

10 To the extent Petitioner premises his claim on a violation of 22 Okla. Stat. § 894, any such
violation does not entitle him to federal habeas relief. Section 894 provides:

After the jury have retired for deliberation, if there be a disagreement between
them as to any part of the testimony or if they desire to be informed on a point of
law arising in the cause, they must require the officer to conduct them into court.
Upon their being brought into court, the information required must be given in the
presence of, or after notice to the district attorney and the defendant or his
counsel, or after they have been called.

Okla. Stat. tit. 22, § 894. A violation of section 894, alone, would not constitute grounds for federal
habeas relief, as the violation would involve purely a matter of state law. See, e.g., Hawes v.
Pacheco, 7 F.4th 1252, 1264 (10th Cir. 2021) (on habeas review, federal court does not re-examine
state-court determinations on state-law questions and any argument that the state court erroneously
interpreted and applied state law does not warrant habeas relief) (citations omitted).
Respondent does not contest that the bailiff’s communication with the jury during
their deliberations was improper and violated Petitioner’s right to be present during a

critical stage of trial. Resp. at 20 (“[T]he bailiff’s behavior in this case is no doubt
troubling. Petitioner had the right to be present when the court instructed the jury. The
bailiff’s actions violated that right.”) (citing United States v. Gomez, 67 F.3d 1515, 1527-
28 (10th Cir. 1995)). But Respondent contends that “the OCCA applied the same review
for prejudice as federal courts use, placing the burden on the prosecution to establish that
the contact with the jury was harmless.” Id. at 20. Respondent further argues “[t]he

OCCA’s factual conclusion on the additional record, that the bailiff’s instruction did not
change the jury’s verdict, is entirely reasonable.” Id. Respondent concludes that “[u]nder
AEDPA deference, reviewing the OCCA’s handling of this record developed in state court,
this court cannot find the OCCA’s determination of no prejudice on this record was
unreasonable. The OCCA correctly applied governing law, and the record reasonably

supports its conclusion.” Id. at 21-22.
As a threshold matter, the Court must identify the clearly established federal law
governing Petitioner’s claim that his Sixth and Fourteenth Amendment rights have been
violated. Petitioner does not cite any controlling Supreme Court authority in his Petition,
Brief in Support, or Objection.11 And Respondent cites only to a Tenth Circuit case, United

11 Petitioner attached to his Petition relevant portions of his state court briefing in support of each
ground for habeas relief. Petitioner did not raise additional arguments. Because he relies solely
on briefing submitted as part of his direct appeal, he necessarily did not identify reasons why the
OCCA decision was contrary to, or involved an unreasonable application of clearly established
federal law, nor did he address how the OCCA decision was based on an unreasonable
determination of the facts in light of the evidence presented. Similarly in his objection, Petitioner
States v. Gomez, 67 F.3d 1515, 1527 (10th Cir. 1995). Resp. at 20.12 In addressing
Petitioner’s claim, the Magistrate Judge did not identify any clearly established federal law,

but summarily concluded that “[t]he decision of the OCCA is neither contrary to, nor an
unreasonable application of the law to the facts.” R&R at 16.
1. Clearly established federal law under § 2254(d)(1)
The Confrontation Clause of the Sixth Amendment and the Due Process Clause of
the Fifth Amendment (made obligatory upon the states through the Fourteenth
Amendment), require a defendant’s presence at every critical stage of a criminal

proceeding. United States v. Gagnon, 470 U.S. 522, 526 (1985) (recognizing that the “right
to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment,
but [the Court] ha[s] recognized that this right is protected by the Due Process clause in
some situations where the defendant is not actually confronting witnesses or evidence
against him.”); see also Illinois v. Allen, 397 U.S. 337, 338 (1970).

A defendant’s right to personal presence at all critical stages of trial is a fundamental
right. Rushen v. Spain, 464 U.S. 114, 117 (1983). “[A] defendant is guaranteed the right

fails to address the governing standards under § 2254(d)(1) and (2). He argues, without citation
to any authority, that a “structural error” has occurred giving him an automatic right to habeas
relief. See Obj. at 2-3.

12 Gomez relies on Kentucky v. Stincer, 482 U.S. 730, 745 (1987) for the general proposition that
“‘a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is
critical to its outcome if his presence would contribute to the fairness of the procedure.’” Gomez,
67 F.3d at 1527-28 (quoting Stincer). In Gomez, on direct appeal of a conviction, the Tenth Circuit
found the defendant’s constitutional rights were violated when the district court answered a
question from the jury without the presence of either the defendant or his counsel. The Tenth
Circuit further determined, however, that any violation of the defendant’s rights was harmless
under Chapman v. California, 386 U.S. 18, (1966). Id. at 1528. As noted, Gomez arose in the
context of a direct appeal, not on habeas review.
to be present at any stage of the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure.” Stincer, supra, 482 U.S. at

745.
The Supreme Court has not specifically recognized mid-deliberation
communication with a jury as a critical stage of criminal proceedings. See, e.g., Smith v.
Trammell, No. CIV-09-293-D, 2014 WL 4627225 at *33-35 (W.D. Okla. Sept. 16, 2014)
(analyzing issue of trial court’s communications with the jury without consulting with
counsel and finding, for purposes of applying AEDPA deference, the “absence of Supreme

Court authority that jury deliberations constitute a critical stage”); see also Davis v.
McCollum, No. CIV-16-1347-R, 2018 WL 587238 at *5 (W.D. Okla. Jan. 29, 2018)
(“[T]he Sixth Amendment does not grant Petitioner a clearly established right to counsel
at the jury deliberations stage.”). And the Supreme Court has cautioned the lower courts
about framing its cases at “a high level of generality.” Nevada v. Jackson, 569 U.S. 505,

512 (2013) (per curiam). Instead, a Supreme Court case must address “the specific
question presented by [the habeas petitioner’s] case.” Lopez v. Smith, 574 U.S. 1, 6 (2014);
see also House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) (“Supreme Court holdings
– the exclusive touchstone for clearly established federal law – must be construed narrowly
and consist only of something akin to on-point holdings.” (citing Carey v. Musladin, 549

U.S. 70 (2006)).
It appears that Petitioner’s argument fails on this basis alone – i.e., a lack of clearly
established Supreme Court precedent governing Petitioner’s claim. See House, 527 F.3d
at 1017 (“The threshold determination that there is no clearly established federal law is
analytically dispositive in the § 2254(d)(1) analysis. That is, without clearly established
federal law, a federal habeas court need not assess whether a state court’s decision was

“contrary to” or involved an “unreasonable application” of such law.”). But assuming,
arguendo, that clearly established federal law exists, Petitioner is still not entitled to relief.
As set forth, Respondent assumes a presumption of prejudice applies, citing Remmer
v. United States, 347 U.S. 227, 451 (1954). Resp. at 20. In Remmer, the Supreme Court
addressed, on direct appeal of a criminal conviction, the presumption of prejudice that
attaches to an improper communication with the jury. The Court held:

In a criminal case, any private communication, contact, or tampering directly
or indirectly, with a juror during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively prejudicial, if not made
in pursuance of known rules of the court and the instructions and directions
of the court made during trial, with full knowledge of the parties. The
presumption is not conclusive, but the burden rests heavily upon the
Government to establish, after notice to and hearing of the defendant, that
such contact with juror was harmless to the defendant.

Id., 347 U.S. at 229. As set forth, the OCCA applied a presumption of prejudice but
concluded, after development of the factual record through an evidentiary hearing, that any
such presumption was overcome.
The Tenth Circuit has held that on habeas review (as opposed to direct appeal), there
is no rebuttable presumption of prejudice. Stouffer v. Trammell, 738 F.3d 1205, 1214 n. 5
(10th Cir. 2013) (“The Remmer presumption of prejudice does not apply, however, in a
collateral review when the state court held an evidentiary hearing and the state’s highest
court reviewed the claim on its merits and made factual findings.”); Malicoat v. Mullin,
426 F.3d 1241, 1250 (accord); see also Perry v. Att’y Gen. of New Mexico, No. 17-CV-
00643-JAP/KK, 2019 WL 1173021 at *15 (D.N.M. Mar. 13, 2019) (“The Tenth Circuit
has specifically declined to apply Remmer to § 2254 proceedings, holding that the Remmer
rule is a rule of federal criminal procedure, not a rule of federal constitutional law.”).13

Instead, a federal court may grant habeas relief only if the constitutional error had a
“substantial and injurious effect or influence in determining the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993); Crease v. McKune, 189 F.3d 1188, 1192 (10th
Cir. 1999) (applying Brecht in a habeas case involving an ex parte conversation between a
judge and a juror); see also Malicoat, 426 F.3d at 1250 (applying Brecht standard and

listing factors the court may consider to determine whether jury’s exposure to extraneous
information substantially influenced the jury’s verdict); Betts v. McKune, No. 11-3907-
SAC, 2013 WL 3328747 at *17 (D. Kan. July 2, 2013) (assuming habeas petitioner’s right
to be present was violated, Brecht’s harmless error standard applied).
Petitioner fails to identify any error that had a substantial and injurious effect or

influence in determining the jury’s verdict. The bailiff’s contact, though improper, was a

13 To this end, Petitioner’s argument that the bailiff’s improper communication is a structural error
that requires an automatic grant of the writ is erroneous. In United States v. Cronic, 466 U.S. 648,
659 (1984), the Court stated that “[t]he presumption that counsel’s assistance is essential requires
us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.”
Id. at 659. However, Cronic does not identify ex parte communications between a judge and jury
as a critical stage of trial. And, as set forth, no clearly established federal law supports Petitioner’s
position that the ex parte communication between the bailiff and the jury occurred at a critical
stage of the trial. Moreover, in Rushen, the Court acknowledged that the absence of defense
counsel during an ex parte communication between a judge and a juror is not a structural error that
would require automatic reversal. Id., 464 U.S. at 118-119. The Court noted that in such
circumstances, instead of automatic reversal, the court should hold a post-trial hearing to determine
the effect of the communication and whether the court can mitigate any constitutional error. Id. at
119-20. That is precisely what occurred here.
correct recitation of Oklahoma law. And the factual findings of the OCCA, which
Petitioner has not rebutted by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1),

establish that at the time of the bailiff’s communication, the jury had reached a verdict as
to guilt, but was deadlocked as to punishment. Oklahoma law authorizes the trial judge to
take the issue of punishment from the jury under these circumstances.
On review, the Court concludes that no clearly established Supreme Court precedent
governs Petitioner’s claim under 28 U.S.C. § 2254(d)(1). Alternatively, assuming more
general Supreme Court pronouncements govern, Petitioner has not shown, under Brecht,

that he is entitled to habeas relief.14
2. Unreasonable determination of the facts under § 2254(d)(2)
The Court further finds Petitioner has failed to demonstrate that the OCCA’s
decision is based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2). Petitioner has not

shown, by clear and convincing evidence, that the state court erred in determining that any
error arising from the bailiff’s improper communication or the trial judge’s decision to

14 In Brown v. Davenport, -- U.S. --, 142 S.Ct. 1510 (2022), the Supreme Court recently held that
where, as here, a state court determines that an error at trial did not prejudice a criminal defendant,
“a federal court cannot grant relief without first applying both the test th[e] [Supreme] Court
outlined in Brecht and the one Congress prescribed in the AEDPA.” Id., 142 S.Ct. at 1517. The
Court made clear the two standards are distinct and both must be met. Id. at 1520 (“[S]atisfying
Brecht is only a necessary, not a sufficient condition to relief. AEDPA too must be satisfied.”).
Because the Court finds Petitioner has not met the Brecht standard, the Court need not inquire
further as to whether Petitioner has satisfied AEDPA. Id. at 1524 (“[A] federal court must deny
relief to a state habeas petitioner who fails to satisfy either this Court’s equitable precents or
AEDPA.”); see also id. at 1527 (“[I]f a federal court determines that a habeas petition fails because
of Brecht, there is no need to prolong the matter by formally applying AEDPA as well.” (cleaned
up)).
sentence Petitioner was harmless. Petitioner points to no “plain and material” misstatement
of the record. See Smith v. Duckworth, 824 F.3d 1233, 1250 (10th Cir. 2016) (“[A] state

court’s determination of the facts is [not] unreasonable unless the court plainly and
materially misstated the record or the petitioner shows that reasonable minds could not
disagree that the finding was in error.”). As set forth, the OCCA found that the bailiff’s
communication to the jury was a proper statement of Oklahoma law. And a review of the
record comports with that finding. The OCCA further found that prior to taking the issue
of sentencing from the jury, the trial judge confirmed that the jury had reached a verdict as

to guilt and that the jury was deadlocked on the issue of sentencing. Again, this Court’s
review of the record comports with that finding and Petitioner fails to demonstrate, with
any evidence, much less clear and convincing evidence as required by § 2254(e)(1), that
factual error occurred.
B. Ground Two – Constitutional Right to be Sentenced by a Jury/Allen
Charge

Petitioner further objects to the Magistrate Judge’s findings concerning the issue of
the trial judge “taking away” the case from the jury. The Magistrate addressed the OCCA’s
findings as to this issue and determined that the OCCA’s decision was “neither contrary
to, nor an unreasonable application of the law to the facts.” R&R at 16.
The OCCA concluded that Petitioner failed to show “error, plain or otherwise, based
upon his unpreserved claims that the trial court took the case from the jury too soon after
answering the last question and that the trial court should have instructed with the Allen

charge.” OCCA Summary Opinion at 6 (citing Allen v. United States, 164 U.S. 492
(1896)).15 The OCCA found that “[t]he time for deliberations was not unreasonable and
there was no abuse of discretion in this regard.” Id. The OCCA further found that

Petitioner failed to show “that the jury was distracted in its sentencing deliberations either
from the trial court’s failure to give an Allen charge or in the Court’s decision to take the
case from the jury after confirming on the record that the jury was deadlocked as to
punishment.” Id. at 6-7.
State law determines the extent of a petitioner’s constitutional right to be sentenced
by a jury. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); see also Drennon v. Hess,

642 F.2d 1204, 1205 (10th Cir. 1981) (“[T]he extent of [an] appellant's constitutional right
to be sentenced by a jury turns on the extent to which the Oklahoma state legislature has
created such a right.”). Oklahoma law generally provides for sentencing by a jury. Okla.
Stat. tit. 22, § 926.1. As set forth, however, Oklahoma law further provides for sentencing
by a judge “[w]here the jury finds a verdict of guilty, and fails to agree on the punishment

to be inflicted[.]” Okla. Stat. tit. 22, § 927.1. Here, as the OCCA found, the trial court
took the case from the jury, pursuant to § 927.1, upon determining the jury had reached a
verdict as to guilt but was deadlocked as to punishment. The OCCA found the trial judge
did not abuse his discretion in doing so. See OCCA Summary Op. at 7-8. Because the

15 “An Allen instruction is, in effect, a charge given by a trial court that encourages the jury to
reach a unanimous verdict so as to avoid a mistrial.” United States v. McElhiney, 275 F.3d 928,
935 (10th Cir. 2001).
OCCA determined the trial judge complied with state law, Petitioner fails to demonstrate
a violation of his constitutional rights.16

To the extent Petitioner seeks habeas relief based on the trial judge’s failure to give
an Allen charge he has “not cited any case where a court has held that the failure to give an
Allen charge is a constitutional error.” White v. Medina, 464 Fed.Appx. 715, 719 (10th Cir.
2012) (recognizing that giving an Allen charge may, in some circumstances be
unconstitutionally coercive but noting the lack of any authority to support that failing to
give an Allen charge gives rise to constitutional error). Moreover, for the reasons

previously set forth, Petitioner has failed to establish the OCCA’s determination that the
trial judge’s decision to impose sentencing was not prejudicial constitutes an unreasonable
determination of the facts in light of the evidence presented. This ground for relief,
therefore, is denied.17

16 Moreover, although the parties cite Hicks in addressing this claim, it appears that Hicks does not
serve as clearly established federal law under § 2254(d)(1). Cf. Mitchell v. Sharp, 798 F. App’x
183, 197-198 (10th Cir. 2019) (recognizing that even though Hicks and the case before it “both
involved due process challenges to jury sentencing proceedings” the cases were “materially
different” and because “[g]eneral principles” do not provide “clearly established law under the
AEDPA” the claim failed under the “threshold inquiry” and ended the court’s analysis under
§ 2254(d)(1)).

17 To the extent Petitioner seeks, as alternative relief, a modification of his sentence, such relief is
not available on habeas review. Petitioner’s sentence is not constitutionally excessive – an issue
raised by Petitioner and rejected by the OCCA and an issue addressed by the Magistrate Judge and
found to be without merit. See R&R at 19-20. Petitioner did not raise any objection to the R&R
regarding the findings that his sentence is not constitutionally excessive. Moreover, as set forth,
Petitioner’s sentence was within the sentencing range provided by state law. See Dennis v. Poppel,
222 F.3d 1245, 1258 (10th Cir. 2000) (noting that sentencing claims “are not generally
constitutionally cognizable, unless it is shown the sentence imposed is outside the statutory limits
or unauthorized by law”).
C. Ground Three (In Part) Ineffective Assistance of Counsel
In his Objection, Petitioner argues that his counsel was ineffective for failing to

challenge “on direct appeal” the bailiff’s improper communication and the trial court’s
action in taking the case from the jury for sentencing. But Petitioner’s appellate counsel
not only raised these issues in the course of Petitioner’s direct appeal, but successfully
obtained an evidentiary hearing with respect to these issues. Thus, Petitioner fails to state
any valid grounds for an ineffective assistance of counsel claim in his Objection and
Petitioner has otherwise waived any challenge to the Magistrate Judge’s findings with

respect to the ineffective assistance of counsel claims he did raise.
Nonetheless, out of an abundance of caution, the Court considers the Magistrate
Judge’s findings with respect to ineffective assistance of trial counsel on this issue. The
Magistrate Judge found the OCCA “identif[ied] the correct standard for reviewing
Petitioner’s ineffective-assistance-of-counsel claims” and “gave them short shrift:

‘Appellant fails to show that trial counsel was ineffective for the claims of ineffectiveness
that are based on the existing record.’” R&R at 17 (citing OCCA Summary Opinion at 9).
The Magistrate Judge concluded that the OCCA’s finding that Petitioner could not show
prejudice by counsel’s failure to object is neither contrary to nor an unreasonable
application of Strickland. Id. at 18.

Strickland v. Washington, 466 U.S. 668 (1984), is the clearly established federal law
governing Petitioner’s ineffective assistance of counsel claim. As the Magistrate Judge
found, the OCCA applied Strickland in rejecting Petitioner’s claim on direct appeal. See
OCCA Summary Opinion at 8. Strickland requires a two-part showing: (1) counsel’s
performance was deficient; and (2) prejudice, i.e., “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id., 466 U.S. at 694. “When a habeas petitioner alleges ineffective assistance
of counsel, deference exists both in the underlying constitutional test (Strickland) and the
AEDPA’s standard for habeas relief, creating a ‘doubly deferential judicial review.’”
Harris v. Sharp, 941 F.3d 962, 973-74 (10th Cir. 2019) (quoting Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)).
As set forth, Petitioner has failed to demonstrate prejudice arising from the trial

judge’s decision to sentence Petitioner, after determining the jury was deadlocked. Thus,
Petitioner has failed to show that had counsel objected, a reasonable probability exists that
the result of the proceedings would have been different. Accordingly, Petitioner fails to
show that the OCCA’s decision is contrary to or an unreasonable application of Strickland.
V. Conclusion

For the reasons set forth, upon de novo review of the matters to which an objection
has been made, the Court finds Petitioner is not entitled to habeas relief under 28 U.S.C.
§ 2254. Further, the Report and Recommendation is ADOPTED as to those matters to
which no objection is made. The Petition, therefore, is DENIED. A separate judgment
shall be entered.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). “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.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon consideration, the Court finds the requisite standard is not met in this case. Therefore,
a COA is DENIED.
IT IS SO ORDERED this 7" day of July, 2022.
Luz bop
SCOTT L. PALK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389769. Public record. Not legal advice.