# Adair v. Elhabti

> District Court, W.D. Oklahoma · March 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10390091

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** March 30, 2023
- **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/10390091

## How later opinions describe it (automated extraction)

- rejecting state's argument that habeas relief was not available because there was no constitutional violation

## Opinion text

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

KINDELL ADAIR, )
)
Petitioner, )
)
v. ) CIV-22-231-R
)
ABOUTANAA EL HABTI, )
)
Respondent. )

ORDER

Petitioner filed this action pursuant to 28 U.S.C. § 2254, seeking a writ of habeas
corpus. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred to United
States Magistrate Judge Shon T. Erwin for preliminary review. On September 14, 2022,
Judge Erwin issued a Report and Recommendation wherein he recommended the Petition
be denied. The matter is currently before the Court on the timely objection of both
Petitioner and Respondent, which gives rise to an obligation to undertake a de novo review
of those portions of the Report and Recommendation to which either party makes specific
objection. Having conducted this review, the Court finds as follows.
Petitioner is serving a twenty-year sentence of incarceration following conviction
by jury on a single count of felony child abuse in the District Court of Oklahoma County.1
As set forth in the Report and Recommendation, Petitioner unsuccessfully pursued both a

1 The original information contained a scrivener’s error and charged Ms. Adair with violating Okla. Stat. tit. 21 § 843,
(Tr. Vol. V, p. 1069-1070), but upon request of the prosecution the charge was amended to § 843.5. To the extent the
Report and Recommendation references § 843 at pages 12 and 15 the Court presumes Judge Erwin intended to
reference § 843.5, as the proper elements are recited at page 12 and section 843 was renumbered as Okla. Stat. tit. 10
§ 7115 in 1995.
direct appeal and post-conviction relief and appears before the Court raising nine claims.
The conviction was the result of the death of G.C., the child of Petitioner’s live-in boyfriend
in September 2014, as addressed in the Report and Recommendation.

In Ground One Petitioner raised a claim first addressed on direct appeal, challenging
the decision of the trial court to admit evidence of a prior crime, citing state evidentiary
standards. The Report and Recommendation sets forth the evidence and the Oklahoma
Court of Criminal Appeals’ decision on direct appeal. Thereafter Judge Erwin correctly
notes the existence of a threshold issue, whether the claim raised on direct appeal was a

federal constitutional claim—the types of claims cognizable on habeas review—or whether
the claim raised only an issue of state law. In concluding that Petitioner had raised a federal
constitutional question, Judge Erwin wrote:
Although Petitioner did not expressly cite the Due Process Clause of the
Fourteenth Amendment, it is reasonable to read Ms. Adair’s claim on Direct
Appeal as alleging more than just a state-law evidentiary error. As stated,
Petitioner claims that the admission of other crimes evidence was so harmful
and prejudicial that it “deprived her of a fair trial.”. . . Given her pro se status,
the Court should conclude that this allegation is sufficient to allege a
constitutional violation of her right to Due Process.

Report and Recommendation, p. 8. Respondent objects to this conclusion, asserting that
the claim raised on direct appeal and mirrored here did not present a federal claim and is
not cognizable on habeas. The Court concurs with Respondent’s objection. See Duncan v.
Henry, 513 U.S. 364, 366 (1995) (“If a habeas petitioner wishes to claim that an evidentiary
ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal court, but in state court.”); Grant v. Royal,
886 F.3d 874, 890 (10th Cir. 2018) (explaining that in determining whether a petitioner
fairly presented a federal claim in state court, “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.” (quoting Prendergast v. Clements,

699 F.3d 1182, 1184 (10th Cir. 2012))).
In his analysis Judge Erwin misconstrued Petitioner’s pro se status, subscribing it
to her direct appeal; however, at that time she was represented by counsel. Furthermore,
the direct appeal brief does not reference the federal constitution, nor does it utilize the
phrase “due process.” Rather, the direct appeal brief, and its near-clone § 2254 motion, rely

exclusively on state cases and state law, and the passing reference to denial of a “fair trial”
is not sufficient to have given the Oklahoma Court of Criminal Appeals notice that
Petitioner was asserting a federal constitutional claim. Because the issue raised on direct
appeal and parroted in the § 2254 motion is limited to one of state law, Petitioner is not
entitled to habeas relief on Ground One.

However, even if the Court considers the claim raised as addressing Petitioner’s
federal constitutional rights, she is not entitled to relief, as noted in the Report and
Recommendation. After concluding that the Oklahoma Court of Criminal Appeals’
harmless error analysis was contrary to Supreme Court precedent, Judge Erwin conducted
a de novo review, concluding that the underlying error was harmless under Brecht v.

Abrahamson, 507 U.S. 619 (1993), which requires Petitioner to show that the error had a
substantial and injurious effect on the outcome of trial, that is actual prejudice. Id. at 637.
Respondent objects to this portion of the Report and Recommendation, arguing that the
analysis set forth therein applied harmless error analysis without first finding constitutional
error. The Court notes, however, the precedent for assuming “without deciding, that the
error[ ] [Petitioner] identifies ... [is] of constitutional magnitude.” Malone v. Carpenter,
911 F.3d 1022, 1032 n.1 (10th Cir. 2018) (rejecting state's argument that habeas relief was

not available because there was no constitutional violation); Davis v. Ayala, 576 U.S. 257
(assessing harmless error after assuming but not deciding that a federal constitutional error
occurred). Furthermore, neither Petitioner nor Respondent takes issue with the conclusion
that any error was harmless. However, the Court will nevertheless consider whether the
erroneous evidentiary ruling by the trial court, as found by the Oklahoma Court of Criminal

Appeals, resulted in constitutional error.
Habeas relief may lie for an error of state law that involves the erroneous admission
of evidence, if the evidence “was so grossly prejudicial that it fatally infected the trial and
denied the fundamental fairness that is the essence of due process.” Hooks v. Workman,
689 F.3d 1148, 1180 (10th Cir. 2012)(quoting Revilla v. Gibson, 283 F.3d 1203, 1212 (10th

Cir. 2002)). In applying the fundamental-fairness analysis, the Court considers the
erroneously admitted evidence in light of the record as a whole. Knighton v. Mullin, 293
F.3d 1165, 1171 (10th Cir. 2002). Having independently reviewed the trial transcripts and
the exhibits admitted at trial, the Court cannot say that the admission of evidence related
to Petitioner’s shooting of her domestic partner ten years before the charged offense

deprived her of a fair trial. Accordingly, having found no due process violation in the
admission of the evidence, the harmless error analysis set forth in the Report and
Recommendation is superfluous. Regardless, because neither party objects to the substance
of that conclusion, the Court finds no basis for rejection of that portion of the Report and
Recommendation.2 The Report and Recommendation is adopted as to Ground One to the
extent it is consistent with the above and supplemented hereby.
In Ground Two, again copying her direct appeal brief, Petitioner argues the trial

court erred in denying her motion for mistrial and instead giving an Allen charge, that is, a
supplemental instruction encouraging a divided jury to continue working toward a verdict.3
On direct appeal Petitioner relied solely on state cases and a state statute, and Respondent
argued before the Magistrate Judge, and again in his Objection, that the issue raised on
direct appeal was one of state law not cognizable on habeas. Ground Two raises the same

threshold issue as addressed in Ground One as to the nature of the claim, that is whether it
arises under state or federal law. Judge Erwin concluded that because Petitioner argued that
giving the Allen charge was coercive, the direct appeal raised a federal constitutional claim.
He further concluded that the Oklahoma Court of Criminal Appeals’ conclusion that the
supplemental instruction was not coercive was not contrary to nor an unreasonable

application of clearly established federal law.
Petitioner objects to the Report and Recommendation as to Ground Two, arguing
simply that she “should be granted Habeas Relief on Ground 2 because the motion for a
new trial should have been granted, because it violated my constitutional rights.” (Doc. No.

2 Petitioner’s objection to the Report and Recommendation as to Ground One simply argues that “the crimes evidence
was improperly admitted and was harmless (sic).” (Doc. No. 20, p. 1). This insufficiently developed argument does
not adequately challenge the Report and Recommendation’s conclusion that admission of the evidence was harmless.

3 During its seven-plus hours of deliberations, which started at approximately 1:00 p.m., the jury sent six notes before
reaching a verdict. The second of the six notes, sent at approximately 2:52 p.m., asked what should be done in the
event the jurors could not unanimously agree. The issue of unanimity was raised in the fourth note as well, which was
not marked for time but was sent between 3:45 and 5:05 p.m. The third and final note on the issue was sent at 8:06
p.m. and at 9:00 p.m. the court gave an Allen charge. The jury returned a guilty verdict approximately an hour later.
20, p. 1). Respondent also objects, arguing that Ground Two on direct appeal was limited
to a state law issue and did not raise a federal due process claim and therefore the claim
does not provide a basis for habeas relief.

The Court has reviewed the brief filed by Adair’s counsel on direct appeal, and
concurs with Respondent’s position. Although Petitioner’s counsel referenced the “Allen”
charge, counsel did not argue that it violated Petitioner’s federal constitutional rights. The
cases cited by Petitioner in her direct appeal brief and the Oklahoma Court of Criminal
Appeals’ citations refer to state law issues. Tracing back the citations, the due process

clause does not factor into the analysis of those cases because habeas relief is not available
for issues of state law, Petitioner is not entitled to relief on Ground Two. Furthermore,
Judge Erwin’s conclusion that the Oklahoma Court of Criminal Appeals’ denial of relief
because the supplemental jury instruction was not unduly coercive is not for naught.
Under Oklahoma law, “the decision to grant a mistrial at defense
request is left to the sound discretion of the trial court.” Knighton v. State,
912 P.2d 878, 894 (Okla. Crim. App. 1996) (citations omitted), cert. denied,
519 U.S. 841 (1996). Such claims of state procedural or trial error do not
present cognizable federal questions in a habeas corpus action, Brinlee v.
Crisp, 608 F.2d 839, 843 (10th Cir. 1979), cert. denied, 444 U.S. 1047
(1980), unless the petitioner demonstrates the error “was so grossly
prejudicial that it fatally infected the trial and denied the fundamental fairness
that is the essence of due process,” Hooks. v. Workman, 689 F.3d 1148, 1180
(10th Cir. 2012) (quoting Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir.
2002)). See, e.g., Gonzales v. Tafoya, 515 F.3d 1097, 1126-27 (10th Cir.
2008) (“In conducting our inquiry, we defer to the state court's interpretations
of state law.”). See also Brown v. Patton, No. 11-CV-368-GKF-PJC, 2014
WL 4825252, at *10, (N.D. Okla. Sept. 26, 2014) (unpublished) (denying
habeas relief after determining “the trial judge's refusal to declare a mistrial
was based on state law and did not result in constitutional error”).
Gray v. Whitten, No. Civ-16-482, 2020 WL 873908, *9 (E.D. Okla. Feb. 21, 2020).
Regardless, as set forth in the Report and Recommendation, the instruction was not
coercive under the factors set forth in Lowenfield v. Phelps, 484 U.S. 231, 237 (1988).

Petitioner is not entitled to habeas relief on Ground Two even if the Court construes the
issue claimed as raising a federal constitutional question.
In Ground Three of her § 2254 motion Petitioner argues that appellate counsel was
constitutionally ineffective in failing to argue the ineffectiveness of trial counsel. Petitioner
contends appellate counsel should have challenged trial counsel’s failure to obtain an

expert witness, the failure to argue that Petitioner was actually innocent, and failure to
object when her trial was not bifurcated. The Oklahoma Court of Criminal Appeals,
applying the familiar standard under Strickland v. Washington, 466 U.S. 668 (1984),
concluded Petitioner was not entitled to relief by reviewing the merits of the omitted issues.
As to trial counsel’s failure to obtain the testimony of an expert witness, the

Oklahoma Court of Criminal Appeals concluded that Petitioner’s failure to identify any
particular expert or to disclose what such expert would have proffered precluded a finding
that she was prejudiced by the failure of trial counsel to utilize an expert witness. Because
Petitioner could not establish that trial counsel was ineffective, she could not establish that
appellate counsel was ineffective in failing to challenge trial counsel’s performance.

To the extent Petitioner’s argument was premised on a failure to argue actual
innocence, citing an Oklahoma statute, the Oklahoma Court of Criminal Appeals
concluded that Petitioner was not entitled to relief because she had not presented new
evidence to establish her innocence. Furthermore, in the absence of new evidence the
Oklahoma Court of Criminal Appeals concluded that the challenge was intended to
challenge the sufficiency of the evidence, an issue not raised on direct appeal. Because the
issue was not raised on direct appeal the Oklahoma Court of Criminal Appeals concluded

it was waived but it did not consider whether the failure to raise the issue on direct appeal
was the result of the ineffective assistance of appellate counsel.
As to the issue of bifurcation, the Oklahoma Court of Criminal Appeals ruled that
because Petitioner testified at trial bifurcation was not necessary as she admitted to her
prior criminal convictions. Accordingly, counsel was not ineffective in failing to object

and appellate counsel was not ineffective in failing to address the issue on a direct appeal.
Judge Erwin concluded that the Oklahoma Court of Criminal Appeals’ decision was
not contrary to nor an unreasonable application of clearly established federal law. Petitioner
objects to the Report and Recommendation arguing that she has shown ineffective
assistance of counsel. As with her arguments as to Grounds One and Two, the argument in

the objection is not sufficiently reasoned. Rather, Petitioner cites to various cases and does
not attempt to tie those cases to her criminal conviction. Respondent does not object to the
Report and Recommendation as to Ground Three. Upon completion of de novo review of
this portion of the Report and Recommendation the Court concludes, for the reasons set
forth therein, that Petitioner is not entitled to relief on Ground Three.

In Grounds Four, Six, and Seven Petitioner addresses issues first raised during state
post-conviction proceedings. As to each of the claims, the District Court of Oklahoma
County concluded that the claims were subject to the procedural bar. On appeal from the
denial of post-conviction relief, the Oklahoma Court of Criminal Appeals concluded that
the trial court did not abuse its discretion in not addressing the merits. In the Report and
Recommendation Judge Erwin acknowledges application of the procedural bar by the
Oklahoma Court of Criminal Appeals but concludes that the Court should exercise its

discretion and address the merits of all three grounds under Smith v. Duckworth, 824 F.3d
1233, 1242 (10th Cir. 2016) (a court may bypass the procedural bar and reject a claim on
the merits if it may be disposed of in a straightforward manner). Respondent objects to this
recommendation and argues strenuously that the Court should find the claims in Grounds
Four, Six, and Seven barred and further that Petitioner has not established cause and

prejudice to overcome the procedural bar. The Court concurs with Judge Erwin’s
conclusion that because the claims may be denied on the merits in straightforward manner,
that the Court need not engage in the procedural wrangling necessary to address the
procedural bar and whether Petitioner may avoid application thereof.
In Ground Four Petitioner argues that trial counsel was constitutionally ineffective

because he failed to present evidence that Petitioner could not have caused the lethal
injuries. Petitioner seemingly acknowledges that the issue was defaulted but asserts actual
innocence as a basis for avoiding the procedural bar. She argues that trial counsel should
have investigated head trauma and the scientific principles behind such injuries. Judge
Erwin concluded Petitioner was not entitled to § 2254 relief because her allegations

regarding an expert and the timing of the death of G.C. are vague and conclusory and that
her factual allegations do not support the necessary finding of prejudice under Strickland.
The Court notes that during post-conviction proceedings the Oklahoma Court of
Criminal Appeals, in addressing Petitioner’s ineffective assistance of appellate counsel
claim, addressed, in part, the same issues because Petitioner alleged that it was ineffective
of appellate counsel not to challenge trial counsel’s performance. Specifically, as to expert
witnesses the Oklahoma Court of Criminal Appeals concluded the claim failed because

Petitioner could not establish prejudice as she failed to identify any particular expert or
disclose the anticipated testimony of such person. As set forth above, the Court has
reviewed the trial transcript and the state court record in this case and finds no basis from
which it could conclude that Petitioner is entitled to relief on Ground Four.
The same is true with regard to Ground Six of the instant motion, addressing the

failure to bifurcate her trial. The Oklahoma Court of Criminal Appeals addressed the merits
of the claim during post-conviction proceedings in the context of assessing whether direct
appeal counsel was ineffective for failing to argue trial counsel’s ineffectiveness. The
Oklahoma Court of Criminal Appeals concluded that because Petitioner testified and was
properly examined about her prior felony convictions, trial counsel was not ineffective in

failing to object. Ergo, appellate counsel was not ineffective in failing to raise the issue on
direct appeal. Furthermore, generally habeas relief does not lie for state law errors, and as
noted in the Report and Recommendation, the Supreme Court has held that there is no
federal constitutional right to a bifurcated trial. Additionally, Petitioner does not argue that
the failure to bifurcate violated her due process rights. Accordingly, Petitioner is not

entitled to habeas relief on Ground Six.
In Ground Seven of the Petition Ms. Adair argues that the trial court erred in not
instructing the jury on the 85% rule. Petitioner first raised this issue during post-conviction
proceedings and the Oklahoma Court of Criminal Appeals affirmed the conclusion of the
District Court of Oklahoma County that the claim was barred because it had not been raised
on direct appeal. Without regard to the procedural bar and whether Petitioner can overcome
it, and without consideration of the analysis set forth in the Report and Recommendation,

the Court finds that Petitioner is not entitled to habeas relief, because as noted by
Respondent in her objection, the jury was in fact instructed that Ms. Adair would be
required to served 85% of any sentenced imposed by the jury before becoming eligible for
parole consideration. (Jury instruction number 30, Volume II of the Criminal Appeal
Original Record, p. 278). Ground Seven provides no factual basis for consideration of

whether Petitioner is entitled to habeas relief.
In Ground Five Petitioner alleges she is actually innocent of the crime for which she
was convicted. During post-conviction proceedings the Oklahoma Court of Criminal
Appeals concluded that Petitioner was not raising an actual innocence claim because she
did not present “new reliable evidence.” (Doc. No. 16-9). The Oklahoma Court of Criminal

Appeals instead concluded that the challenge was to the sufficiency of the evidence, a claim
that should have been pursued on direct appeal, and because it was not it was waived. Id.
p. 4. Judge Erwin addressed the claim as one alleging factual innocence and concluded
relief was not warranted. Respondent does not object to the Report and Recommendation
as to Ground Five. Petitioner’s objection provides no basis for altering the conclusion set

forth in the Report and Recommendation as to Ground Five.
In Ground Eight Petitioner advances an argument first presented during post-
conviction proceedings: that the State lacked jurisdiction over her crime because it was
allegedly committed on unappropriated land. The Oklahoma Court of Criminal Appeals
construed the claim as arising solely under Oklahoma law, specifically Article I Section 3
of the Oklahoma Constitution. Respondent makes no objection to Judge Erwin’s
conclusion that Ground Eight raised only an issue of state law not cognizable on habeas

review. Although Petitioner’s objection addresses Ground Eight, she does not address the
Report and Recommendation’s conclusion that the issue is one purely of state law.4 The
Report and Recommendation is adopted as to Ground Eight.
In Ground Nine Petitioner asserts that the State of Oklahoma lacked jurisdiction
over her criminal case, citing McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The issue was

raised for the first time on appeal from the denial of post-conviction relief. The Oklahoma
Court of Criminal Appeals concluded that, because Petitioner’s conviction was final before
McGirt was decided and because McGirt is not retroactively applicable on collateral
review, Petitioner was not entitled to relief. In the Report and Recommendation Judge
Erwin notes that the Oklahoma Court of Criminal Appeals erred, because Petitioner’s direct

appeal was pending when the Supreme Court issued its decision in McGirt, and therefore,
her conviction was not yet final, making retroactivity irrelevant. As a result, he
recommends the Court review Ground Nine de novo and further that it should deny relief
because Petitioner merely alleges she is an “an Indian” without specifying that she is
recognized as Indian by a tribe or by the federal government. Respondent makes no

objection to Judge Erwin’s recommendation as to Ground Nine. Petitioner’s Objection fails
to remedy the defects identified by the Report and Recommendation and therefore provides

4 Petitioner addresses Grounds Eight and Nine together in her objection. Although related the arguments are not
identical and the Oklahoma Court of Criminal Appeals’ decision on post-conviction addressed the claims separately.
no basis for concluding that the State of Oklahoma lacked jurisdiction over her case.
Accordingly, the Report and Recommendation is adopted as to Ground Nine.
Rule 11 of the Rules Governing Section 2254 Proceedings requires that the Court
“issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” “A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court's resolution of [her] 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). Upon consideration, the Court finds the
requisite standard is not met in this case. Therefore, a Certificate of Appealability is denied.
For the reasons set forth herein, the Petition is DENIED. The Report and
Recommendation is adopted to the extent it is consistent with and supplemented by this
Order.
IT IS SO ORDERED this 30" day of March 2023.

UNITED STATES DISTRICT JUDGE

13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390091. Public record. Not legal advice.