# Black v. Rankins

> District Court, W.D. Oklahoma · February 4, 2025

URL: https://www.frixlaw.com/law-library/cases/10793643

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** February 4, 2025
- **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/10793643

## How later opinions describe it (automated extraction)

- explaining a proper objection is one “that is sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute”
- finding a claim regarding ineffective assistance of counsel in a § 2254 action “was presented for the first time in [the] objection to the magistrate judge’s report and recommendation” and was therefore “too late, creating a waiver.”
- finding the petitioner was barred from asserting “ineffective assistance as cause to excuse his procedural default” because he “did not present a separate and independent claim of ineffective assistance of direct-appeal counsel to the state courts.”

## Opinion text

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

CURWIN D. BLACK, )
)
Petitioner, )
)
v. ) Case No. CIV-22-63-SLP
)
WILLIAM “CHRIS” RANKINS, )
Warden,1 )
)
Respondent. )

O R D E R

Petitioner, Curwin D. Black, a state prisoner appearing pro se, filed this action
pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. He challenges his state court
conviction and sentence for three counts of child sexual abuse after former conviction of
two or more felonies in Case No. CF-2016-1128, District Court of Oklahoma County, State
of Oklahoma. 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 (R&R) [Doc. No. 31] recommending that the Court deny
habeas relief.
Petitioner timely filed an Objection [Doc. No. 32] to the R&R, and Respondent filed
a Response to Petitioner’s Objection [Doc. No. 34]. 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

1 William Rankins is the acting Warden of the Oklahoma State Reformatory, where Petitioner is
housed, and has been substituted as the named Respondent. See Rule 2(a), Rules Governing
Section 2254 Proceedings in United States District Courts.
accept, reject, 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).2
I. Issues Raised for the First Time in the Objection

A. Argument Regarding Petitioner’s State Court Pretrial Judge
In a footnote on the first page his Objection, and for the first time in this action,
Petitioner asserts he discovered a “love triangle” between Oklahoma District Judge
Timothy Henderson and an unnamed “prosecuting attorney” after he filed his Petition. See
[Doc. No. 32] at 1 n. 1. Petitioner states that Judge Henderson decided pretrial matters in

his case, including a ruling on a motion to suppress DNA evidence. Id. He asserts that the
Court should “conduct a de novo review of this allegation and attach as a claim of new
evidence of Fourteenth Amendment ‘due process’ violation(s) in which prejudiced [him]
of a fundamentally fair trial.” Id.
The only relief Petitioner requests—“de novo review of this allegation”—is

procedurally improper and unavailable because “[i]ssues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261 F.3d

2 Petitioner also filed a Motion to Strike [Doc. No. 35], asking the Court to strike Respondent’s
original Response to the Petition for Habeas Corpus [Doc. No. 22] and its Response to his
Objection [Doc. No. 34]. He asserts these filings should be stricken for violating Federal Rule of
Appellate Procedure 32.1 and Rule 3.5 of the Rules for the Oklahoma Court of Criminal Appeals
because they reference unpublished “case(s)” he is unable to access, and which were not attached
or provided with those filings. [Doc. No. 35] at 2-4. He also asks the Court to sanction counsel
for Respondent $10,000 “for every unpublished citing.” The Motion is DENIED. Petitioner has
not identified any case he has been unable to access, and he has represented in another filing he
was able to conduct “a comprehensive review of westlaw.” [Doc. No. 33] at 2. Westlaw provides
access to a vast number of unpublished cases, and Petitioner has not shown he was unable to access
any authority cited by Respondent.
1030, 1031 (10th Cir. 2001) (“[T]heories raised for the first time in objections to the
magistrate judge’s report are deemed waived.”); Lowe v. Allbaugh, 689 F. App’x 882, 884
(10th Cir. 2017) (finding a claim regarding ineffective assistance of counsel in a § 2254

action “was presented for the first time in [the] objection to the magistrate judge’s report
and recommendation” and was therefore “too late, creating a waiver.”). Accordingly, this
issue is not properly before the Court, and Petitioner has waived it for failure to raise it
prior to his Objection.3
B. Ninth Amendment Claims and Arguments

At the conclusion of his Objection, and at other points throughout, Petitioner asserts
various claims and arguments based on the Ninth Amendment to the United States
Constitution. See [Doc. No. 32] at 30-32, 44-46. In that final section, Petitioner includes
an “explanation of rights under the Ninth (9th) Amendment” with fifteen numbered
contentions regarding the Ninth Amendment. [Doc. No. 32] at 44-46. Elsewhere in his

3 Petitioner says, as an aside, that this issue “is grounds for an abeyance or a second or successive
habeas petition,” but he does not actually request either one, see id., nor would such a request be
proper at this juncture. Petitioner does not request leave to amend to add such a claim, nor did he
do so at any point in this action. Even if his statement may be construed as requesting leave to
amend, it appears that would be futile because, as Respondent contends, his claim would be
untimely under 28 U.S.C. § 2244(d)(1)(A), or § 2244(d)(1)(D), and it does not relate back to any
of his existing claims. See Resp. to Obj. [Doc. No. 34] at 3-9; see also Rodriguez v. Harding, No.
CIV-23-107-D, 2023 WL 6066149, at *6 (W.D. Okla. Aug. 21, 2023), report and recommendation
adopted, No. CIV-23-107-D, 2023 WL 6066116 (W.D. Okla. Sept. 18, 2023) (“The allegations of
the relationship were made publicly known on March 26, 2021, due to an administrative order
filed in Oklahoma County District Court suspending Judge Henderson and a local news article
published the same day.”); Pacheco v. Habti, 62 F.4th 1233, 1240 (10th Cir. 2023), cert. denied,
143 S. Ct. 2672 (2023) (“A court therefore should not grant a habeas applicant leave to amend to
assert new claims outside AEDPA’s limitations period unless there exists ‘a common core of
operative facts uniting the original and newly asserted claims.’” (quoting Mayle v. Felix, 545 U.S.
644, 659 (2005))).
Objection, Petitioner asserts that the OCCA or the Magistrate Judge “failed to conduct any
review under the Ninth (9th) Amendment. . .” See, e.g., [Doc. No. 32] at 30-32.
Petitioner did not raise any Ninth Amendment claim or issue at any point prior to

the R&R, see [Doc. Nos. 1, 22-2, 27], and he has therefore waived the issue. See Chater,
75 F.3d at 1426; see also Garfinkle, 261 F.3d at 1031. Accordingly, the Court may not
consider Petitioner’s arguments regarding the Ninth Amendment.
II. Request for Recusal of the Magistrate Judge
Throughout Petitioner’s Objection, he asserts the Magistrate Judge who issued the

R&R is biased against him, advocated on behalf of Respondent, and that she participated
in ex parte communications with Respondent—though he attaches no evidence in support
of those assertions. See Obj. [Doc. No. 32] at 2-10, 15-17, 25, 34, 44. Petitioner claims
the Magistrate Judge is biased because she formerly served in the United States Attorneys’
Office, and that she was a board member on a non-profit organization called “SafeKids

Oklahoma.” Id. at 2-4. Petitioner asserts the Magistrate Judge should have recused, that
the R&R should be vacated, and that the case should be reassigned to a different Magistrate
Judge. Id. at 10.
Petitioner cites no authority in support of his argument, but recusal of a judge is
generally governed by 28 U.S.C. § 455. That statute provides: “[a]ny justice, judge, or

magistrate judge of the United States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.” Id. at § 455(a) (emphasis added).4 It is

4 Section 455 also lists specific scenarios in which a judge shall “disqualify himself.” Id. at §
455(b).
well understood that the phrase “disqualify himself” means a question of recusal must be
decided by the judge to whom the motion is directed—not another judge. See In re
Bernard, 31 F.3d 842, 843 (9th Cir. 1994) (A recusal “motion is addressed to, and must be

decided by, the very judge whose impartiality is being questioned.”); United States v. Sibla,
624 F.2d 864, 868 (9th Cir. 1980) (“[S]ection 455 includes no provision for referral of the
question of recusal to another judge”); United States v. Osborn, No. 2:15-CR-107-WPJ,
2015 WL 6750902, at *1 (D. Utah Nov. 4, 2015) (“Federal law is clear that a motion for
recusal must be decided by the judge whose recusal is requested.”); Rose v. Utah State Bar,

No. 2:10-CV-1001-WPJ, 2011 WL 322635, at *1 (D. Utah Feb. 2, 2011) (collecting Circuit
cases discussing the same rule).5
Accordingly, Petitioner’s motion for recusal is not properly before the Court. The
Magistrate Judge already considered and denied Petitioner’s motion to recuse, [Doc. No.
29] at 5, and this Court is without authority to address Petitioner’s argument.6 The Court

is tasked with de novo review of portions of the R&R to which specific objections have
been made, and it therefore proceeds to address each issue in turn.

5 Another statute, 28 U.S.C. § 144, provides for recusal where the party seeking recusal submits a
“timely and sufficient affidavit” showing the judge has a personal bias or prejudice. But Petitioner
submitted no affidavit in support of his argument, and any such filing would be untimely, so this
statute has no application here.

6 Petitioner also separately filed a “Memorandum” requesting a judicial investigation into the
Magistrate Judge based on the same allegations. See [Doc. No. 33]. That filing is not properly
before this Court. See 28 U.S.C. § 351(a); see also Guide to Judiciary Policy, Vol. 2E, Ch. 3,
Rules for Judicial Conduct and Judicial Disability Proceedings, § 320, Rule 7(a)(1).
III. Objections to the Report and Recommendation
A. Ground I: Jury Instructions
Petitioner raises various objections to the Magistrate Judge’s discussion of his first

claim for failure to correctly instruct the jury on the elements of the offense. See Obj. [Doc.
No. 32] at 4-10, 22-28. This claim is premised on the state trial court’s failure to instruct
the jury on the elements of the underlying crime, 21 Okla. Stat. § 1123(A), as was required
at the time to convict an individual pursuant to the charged offense, 21 Okla. Stat.
§ 843.5(E).7

As fully set forth in the R&R, the Oklahoma Court of Criminal Appeals (OCCA)
applied Supreme Court decisions Chapman v. California, 386 U.S. 18 (1967) and Neder v.
United States, 527 U.S. 1 (1999) and held that the instructional error was harmless where
Petitioner did not object to the instructions at trial, and it was clear beyond a reasonable
doubt that a rational jury would have found Petitioner guilty absent the error. R&R [Doc.

No. 31] at 10-14. The Magistrate Judge ultimately found the OCCA’s harmless error
determination was not an unreasonable application of the Neder/Chapman test, and

7 Although the statute has since changed, when Petitioner was convicted, Oklahoma defined “child
sexual abuse” as “willful or malicious sexual abuse, which includes but is not limited to rape,
incest, and lewd or indecent acts or proposals, of a child under eighteen (18) years of age by
another.” 21 Okla. Stat. § 843.5(E) (2014). The underlying offense of “lewd or indecent acts” was
set forth in another statute, 21 Okla. Stat. § 1123(A) (2018). There is no dispute the trial court did
instruct the jury on child sexual abuse under § 843.5(E). See R&R [Doc. No. 31] at 13. And there
is no dispute the trial court defined the terms “willful,” “malicious,” “lewd,” and “lascivious” for
the jury. Id. As the OCCA and the Magistrate Judge explained, the trial court’s error lies in its
failure to also instruct on the underlying elements of lewd or indecent acts with a child, found in §
1123(A). Id. at 13-14; see also OCCA Opinion [Doc. No. 22-1] at 3-4; A.O. v. State, 447 P.3d
1179, 1182 (Okla. Crim. App. 2019) (holding the State was required to “prove each element of the
underlying crime, [§ 1123], in addition to the elements of [§ 843.5].”).
Petitioner had not shown the OCCA made an unreasonable determination of the facts nor
rebutted its factual findings by clear and convincing evidence. Id. at 16-17.
Petitioner’s primary objection is that the Magistrate Judge was biased against him,

that she advocated for Respondent, and that she created a “novel idea” to rule against him.
Obj. [Doc. No. 32] at 4-10. As explained above, Petitioner’s recusal request is improper
and may not be decided by this Court. As it pertains to de novo review of the R&R,
however, the Court finds no indication whatsoever that the Magistrate Judge advocated on
behalf of either party. The record reflects careful consideration of all issues raised by

Petitioner, and that the Magistrate Judge liberally construed his pleadings as the law
requires. See, e.g., R&R [Doc. No. 31] at 9 n. 2, 9-12, 40-41.
Petitioner’s only specific objection as it pertains to his first claim is that the
Magistrate Judge applied the wrong legal analysis. See Obj. [Doc. No. 32] at 4, 22-28. He
appears to contend that the OCCA and the Magistrate Judge should have considered the

jury instruction issue as one of plain error rather than harmless error.8 See id. at 4, 22.

8 Petitioner states “the utilization of jury instruction(s) to supplement an undefined [and
unconstitutional] statute which has no element(s) [was] PLAIN ERROR. . .” Id. at 22. He also
discusses publication of Oklahoma Uniform Jury Instructions and, liberally construing his
argument, contends those instructions impermissibly define the elements of the charged offense
where the statutes themselves fail to do so. See id. at 23-24. He also appears to object to
submission of jury instructions by attorneys. See id. at 24-28. None of this, however, is part of
the argument he made on direct appeal regarding the jury instruction issue, which he relied on in
his Petition. See [Doc. No. 1] at 21; see also [Doc. No. 22-2]. As such, Petitioner has waived
these issues by raising them in connection with this claim for the first time in his Objection. See
Chater, 75 F.3d at 1426; Garfinkle, 261 F.3d at 1031. In any event, this argument is more likely
geared toward the merits of his void for vagueness challenge, which is unexhausted and subject to
an anticipatory procedural bar. Despite this, the Court will liberally construe Petitioner’s argument
as one that the OCCA should have considered the jury instruction issue as plain error rather than
harmless error.
Petitioner’s contentions are without merit. The very case he quotes, United States
v. Kahn, expressly acknowledges that harmless error applies where the trial court “fails to
include an element of the crime in the instruction” or where an instruction was given

incorrectly. See 58 F.4th 1308, 1317-18 (10th Cir. 2023); see also Obj. [Doc. No. 32] at
22-23. He also cites United States v. Gibbs, No. 22-5020, 2022 WL 11512798, at *1 (10th
Cir. Oct. 20, 2022), which involved a joint motion to remand where the parties agreed it
was plain error for the district court to constructively amend the indictment via a jury
instruction defining sexual contact. Id.9 But at no point in this action did Petitioner raise

constructive amendment like in Gibbs, let alone plain error due to constructive amendment.
Accordingly, any such argument has been waived. Chater, 75 F.3d at 1426; Garfinkle, 261
F.3d at 1031.
Ultimately, the Court agrees with the Magistrate Judge that the OCCA did not
unreasonably apply Neder/Chapman, and Petitioner has not shown OCCA made an

unreasonable determination of the facts nor rebutted its factual findings by clear and
convincing evidence. See Malone v. Carpenter, 911 F.3d 1022, 1032-33 (10th Cir. 2018)
(explaining that, although the OCCA had found an instructional error to be “plain,” the
OCCA had then made an “eminently reasonable” Chapman determination that the error

9 Although it is unclear what exactly Petitioner intends to assert regarding Gibbs, the Court
liberally construes his Objection as asserting that the OCCA or the Magistrate Judge should have
found the trial court’s failure to instruct on § 1123(A) was plain error due to constructive
amendment rather than harmless error under Neder/Champan. See [Doc. No. 32] at 4, 5.
was harmless beyond a reasonable doubt).10 In sum, the Court concurs with and fully
adopts the Magistrate Judge’s analysis of Petitioner’s first claim, and nothing in his
Objection alters that conclusion.11

B. Grounds II and III: Prosecutorial Misconduct

Petitioner also objects to the Magistrate Judge’s discussion of his second and third
claims for prosecutorial misconduct. [Doc. No. 32] at 29-31. He points to pages 19-33 of
the R&R and asserts that the Magistrate Judge was biased against him. Id. at 29. He states,
without citing to the record, that the Magistrate Judge “alleges that [he] never argued that
the ruling of the [OCCA on these issues] was contrary to law and/or unreasonable.” Id.
He argues the Court’s form for § 2254 petitions does not include a requirement or space
for an argument that the state court decision was contrary to law or unreasonable, therefore
the form itself was an unconstitutional impediment to presentation of his claims. See id.
Petitioner has not appropriately objected to the R&R as it pertains to these claims.

See United States v. One Parcel of Real Property, Known As: 2121 E. 30th St., 73 F.3d

10 The Magistrate Judge’s discussion of the issue as a harmless error analysis under
Neder/Chapman appears to be the “novel idea” Petitioner refers to. See Obj. [Doc. No. 32] at 4-
6, 10. But there is nothing novel about either of those cases or their application here, and the
record does not support his contention that the Magistrate Judge advocated for Respondent in
applying that standard: she merely discussed and analyzed the OCCA’s decision on that issue. See
[Doc. No. 31] at 9-17.

11 Petitioner also asserts § 1123(A) is an “unrelated statute in which [he] was not charged with nor
was it the Oklahoma [p]rosecution’s intent to charge him with § 1123(A) and including the jury
instructions. . . to supplement an unconstitutional statute that a criminal defendant was charged
and then properly and timely appealed to this Court.” But Petitioner did not object to OCCA’s
discussion of § 1123(A) as the underlying offense in his Petition or at any point before the R&R
was issued, and he has therefore waived this argument. Chater, 75 F.3d at 1426; Garfinkle, 261
F.3d at 1031. Moreover, to the extent this point relates to Petitioner’s void for vagueness argument,
that issue is addressed below. See section III(F)(3), infra.
1057, 1060 (10th Cir. 1996) (“[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.”). He cites to a range of approximately

fourteen pages, which discuss numerous legal principles and multiple different claims,
therefore it is entirely unclear which issue this objection relates to. See [Doc. No. 32] at
29; [Doc. No. 31] at 19-33; see also One Parcel, 73 F.3d at 1060 (explaining a proper
objection is one “that is sufficiently specific to focus the district court’s attention on the
factual and legal issues that are truly in dispute”).

In any event, at no point in the portion of the R&R Petitioner cites does the
Magistrate Judge decide an issue solely due to a failure by Petitioner to argue a ruling of
the OCCA was contrary to law or unreasonable. See [Doc. No. 31] at 19-33. Indeed, the
Magistrate Judge independently considered whether each finding was contrary to, or
involved an unreasonable application of, clearly established federal law. See id. Nothing

in that discussion indicates any degree of bias against Petitioner. See id. Moreover,
Petitioner did not actually use the Court’s form, see [Doc. No. 1], so his claim that the form
was an unconstitutional impediment is without merit.
Petitioner references a few specific pages in the R&R regarding Grounds II and III,
but he merely reasserts the merits of his claim for prosecutorial misconduct rather than

raising an objection to the R&R or any error by the Magistrate Judge—and he does not
contend that the OCCA’s findings on these issues were unreasonable. See [Doc. No. 32]
at 30-31. Upon review, the Court agrees with the Magistrate Judge that the OCCA was not
unreasonable in finding the prosecutor’s personal story during the first stage did not deny
Petitioner a fair trial, nor was the OCCA unreasonable in its determination that the
prosecutor’s comment about the victim not being able to “purge the memory of this” was
a reasonable inference from the evidence. See [Doc. No. 31] at 23-26. Accordingly, the

Court finds no error in the Magistrate Judge’s analysis or conclusion as to Grounds II and
III, and the Court adopts those conclusions in full.
C. Ground VI (Jury Note) and VII (Cumulative Error)
Petitioner briefly objects to the Magistrate Judge’s finding regarding Ground VI,
[Doc. No. 32] at 30-31, which relates to the procedure the trial court followed in handling

a note from the jury during the sentencing stage. See R&R [Doc. No. 31] at 32-34.12
Petitioner solely contends that the OCCA failed to “apply a Ninth (9th) Amendment
application to this claim.” [Doc. No. 32] at 30-31. He similarly asserts that the Magistrate
Judge failed to consider his cumulative error claim (Ground VII) under the Ninth
Amendment. See id. at 31-32.

As explained above, Petitioner did not raise a Ninth Amendment claim or issue prior
to the R&R, and he has therefore waived the issue. See Garfinkle, 261 F.3d at 1031;
Chater, 75 F.3d at 1426. In any event, Petitioner does not actually make a legal argument
regarding the Ninth Amendment or its application here, and the Court is unable to discern
any cognizable Ninth Amendment issue. See Obj. [Doc. No. 32] at 30-31. Accordingly,

12 The trial court correctly answered the legal question asked by the jury but did not follow the
procedure for handling a jury note under 22 Okla. Stat. § 894—though Petitioner’s trial counsel
agreed to the procedure the trial court followed. See R&R [Doc. No. 31] at 32-33. The Magistrate
Judge found it could not be said that the OCCA was unreasonable in determining that Petitioner
was not deprived of a fair trial due to that procedural deviation. Id. at 34.
the Court concurs with and adopts the Magistrate Judge’s findings regarding Grounds VI
and VII.
D. Ground VIII: Speedy Trial Claim

Petitioner objects to the Magistrate Judge’s conclusion that his claim for violation
of his right to a speedy trial (Ground VIII) is procedurally barred. Obj. [Doc. No. 32] at
32-40; R&R [Doc. No. 31] at 37-46. The Magistrate Judge quoted the OCCA’s finding
that Petitioner’s speedy trial claim was procedurally barred under 22 Okla. Stat. § 1086 for
failure to raise it on direct appeal. R&R [Doc. No. 31] at 38. The Magistrate Judge

ultimately found that the waiver rule the OCCA applied is an independent and adequate
procedural rule, and Petitioner had not established cause and actual prejudice or a
fundamental miscarriage of justice to overcome the procedural bar. See id. at 39-45.13
Petitioner argues his speedy trial claim is not procedurally barred because he “fairly
presented” ineffective assistance of counsel in his state court application for post-

conviction relief. See [Doc. No. 32] at 32-34. But Petitioner does not cite to any aspect of

13 The Magistrate Judge explained that Petitioner had not shown cause to overcome procedural
default because, inter alia, his argument regarding ineffective assistance of counsel for failure to
raise the speedy trial issue on direct appeal had not been presented to the state court as an
independent claim. See id. at 41 (quoting Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (“[T]he
exhaustion doctrine. . . generally requires that a claim of ineffective assistance be presented to the
state courts as an independent claim before it may be used to establish cause for a procedural
default.”)). Petitioner contends that “general” rule does not apply here, but he does not adequately
explain why. See [Doc. No. 32] at 40. In any event, more recent cases have reiterated that the rule
stated in Murray applies in this situation. See, e.g., Ponis v. Hartley, 534 F. App’x 801, 805 (10th
Cir. 2013) (“Because [petitioner] did not assert ineffective assistance of appellate counsel to the
state courts, he may not now avoid procedural bar on this basis.”); see also Welch v. Milyard, 436
F. App’x 861, 866 (10th Cir. 2011) (finding the petitioner was barred from asserting “ineffective
assistance as cause to excuse his procedural default” because he “did not present a separate and
independent claim of ineffective assistance of direct-appeal counsel to the state courts.”).
the state court record and therefore has not shown he raised the issue there. See id.; Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot
take on the responsibility of serving as the litigant’s attorney in constructing arguments.”

(citations omitted)); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in briefs.”), cited with approval in
United States v. Griebel, 312 F. App’x. 93, 97 (10th Cir. 2008).
In any event, upon review of the record, the Court concurs with the Magistrate Judge
that Petitioner did not raise ineffective assistance of counsel in his amended application for

post-conviction relief. See Am. App. [Doc. No. 22-18] at 1-14.14 Accordingly, the Court
agrees that Petitioner did not show cause sufficient to overcome the procedural bar of his
speedy trial claim, and the Court may not consider his arguments regarding the merits of
that claim. See [Doc. No. 32] at 34-36.
Petitioner next asserts there is a “positive conflict between” Logan v. State, 293 P.3d

969 (Okla. Crim. App. 2013)—cited by the Magistrate Judge in discussing Oklahoma’s
procedural bar of issues a party failed to raise on direct appeal—and a provision of the

14 Although not cited by Petitioner, the Court notes that the only reference to ineffective assistance
of counsel in the state court record appears in his first application for post-conviction relief, [Doc.
No. 22-16] which was unverified and therefore not properly filed. See 22 Okla. Stat. § 1081 (a
post-conviction “proceeding is commenced by filing a verified ‘application for post-conviction
relief’. . . Facts within the personal knowledge of the applicant and the authenticity of all
documents and exhibits included in or attached to the application must be sworn to affirmatively
as true and correct.” (emphasis added)); see also Dixon v. State, 228 P.3d 531, 532 (Okla. Crim.
App. 2010) (holding the petitioner’s application to appeal out of time due to a post-conviction
application in district court must be denied because the application for post-conviction relief had
not been verified); Millan v. Harpe, No. CIV-22-933-HE, 2023 WL 4485945, at *3 (W.D. Okla.
May 16, 2023), report and recommendation adopted, No. CIV-22-0933-HE, 2023 WL 4479288
(W.D. Okla. July 11, 2023) (“Oklahoma Courts have held that an application for post-conviction
relief which is not verified is not ‘properly filed’. . .”).
Oklahoma Post-Conviction Procedure Act that provides a cause of action for post-
conviction relief: 22 Okla. Stat. § 1080(6). [Doc. No. 32] at 36-40. But Petitioner did not
raise any issue regarding a conflict between the Oklahoma waiver rule and § 1080(6) prior

to the R&R—neither in response to Respondent’s argument regarding procedural bar due
to waiver, see [Doc. No. 27] at 3-11, or in challenging the OCCA’s finding that his claim
was barred for failure to raise it on direct appeal. See [Doc. No. 1]. Accordingly, Petitioner
has waived the issue. See Chater, 75 F.3d at 1426; see also Garfinkle, 261 F.3d at 1031.15
The same is true for his contentions regarding the Ninth Amendment, which he did not

raise until his Objection. See [Doc. No. 32] at 32. Accordingly, Petitioner has not properly
objected to the R&R, and the Court concurs with the Magistrate Judge’s analysis and
conclusion regarding his speedy trial claim.
E. Unexhausted Claims: Grounds X (Ineffective Assistance of Appellate Counsel)
and XI (Void for Vagueness Challenge)

Throughout his objection, Petitioner asserts various arguments regarding his last
two claims: ineffective assistance of counsel, and a void for vagueness challenge to 21
Okla. Stat. § 843.5. See [Doc. No. 32] at 11-21, 41-44. The Magistrate Judge found these
last two claims were unexhausted and subject to an anticipatory procedural bar because
Petitioner would be raising them in a second state court application for post-conviction
relief. See R&R [Doc. No. 31] at 47-51; see also 22 Okla. Stat. § 1086. The Magistrate

15 Even if he had raised the issue, Petitioner’s argument is without merit. The question properly
before the Magistrate Judge was whether the Oklahoma waiver rule was “independent and
adequate” for purposes of federal habeas review, and there is no doubt that it is. See R&R [Doc.
No. 31] at 39 (citing Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) and Banks v.
Workman, 692 F.3d 1133, 1145 (10th Cir. 2012)).
Judge further found that Petitioner had not shown cause and actual prejudice or a
fundamental miscarriage of justice to overcome the anticipatory procedural bar. R&R
[Doc. No. 31] at 51-54.

In different sections of his Objection, Petitioner raises a few arguments regarding
Ground X, XI, or both: (1) that exhaustion of Ground XI would have been futile because
Oklahoma’s Post-Conviction Procedure Act prevented him from bringing his claim, see
[Doc. No. 32] at 41-44; (2) that page limitations applicable in state court were an
unconstitutional impediment to assertion of Ground X, id. at 11-15; and (3) that the

Magistrate Judge “misconstrued and mischaracterized [his] Ground XI and while doing
such created a novel concept of law” that 21 Okla. Stat. § 1123 is an “underlining [sic]
offense” to the statute under which he was convicted: 21 Okla. Stat. § 843.5. See id. at 15-
19. Although Petitioner raises these arguments in a different order, and at both the
beginning and end of his Objection, the Court discusses them in the order listed above

consistent with the analysis for exhaustion and anticipatory procedural bar.
1. Futility (Ground XI)
Petitioner contends the Magistrate Judge should not have found his constitutional
challenge (Ground XI) procedurally barred because “the exhaustion remedy is not required
when a statute prevent(s) him from raising this claim.” [Doc. No. 32] at 41. Although he

does not cite to any particular statute, Petitioner discusses Oklahoma’s procedural bar of
“issues that could have been raised in a previous direct appeal proceeding but were not,”
id., which is found in 22 Okla. Stat. § 1086. See Logan, 293 P.3d at 973 (citing § 1086 for
this proposition). The Court liberally construes this as an argument regarding futility of
exhaustion as to Ground XI. See Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011)
(“[F]ederal courts ordinarily will not entertain an application for a writ of habeas corpus
unless exhaustion would have been futile because either ‘there is an absence of available

State corrective process’ or ‘circumstances exist that render such process ineffective to
protect the rights of the applicant.’” (quoting 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii))); see also
Fontenot v. Crow, 4 F.4th 982, 1020 (10th Cir. 2021) (same).16
Petitioner’s argument regarding Ground XI is without merit. He fails to
acknowledge that his constitutional challenge could have been brought on direct appeal,

and he provides no explanation for why he was unable to do so. Cf. Shores v. Dennis, No.
22-6133, 2022 WL 17175570, at *2 (10th Cir. Nov. 23, 2022) (“a constitutional challenge
to a statute . . . is a legal argument that has been available to [the petitioner] since the time
of his conviction, regardless of whether [he] understood such legal argument.”). As such,
Petitioner has not shown an “absence of available State corrective process” or that the

circumstances rendered such process ineffective to protect his rights. See 28 U.S.C. §§

16 Petitioner expressly connects this futility argument to his constitutional claim, Ground XI. See
Obj. [Doc. No. 32] at 41. Nevertheless, to the extent Petitioner contends this argument relates to
Ground X (ineffective assistance of appellate counsel), see [Doc. No. 32] at 42, he does not explain
why that issue could not have been raised in his initial state court application for post-conviction
relief. See Logan, 293 P.3d at 973 (“Claims of ineffective assistance of appellate counsel may be
raised for the first time on post-conviction, because it is usually a petitioner’s first opportunity to
allege and argue the issue.”). Under these circumstances, the Magistrate Judge correctly found
any such claim, if raised in a second state court application for postconviction relief, would be
procedurally barred. See Lay v. Royal, 860 F.3d 1307, 1316 (10th Cir. 2017) (ineffective assistance
of appellate counsel claim raised for the first time in a second post-conviction application was
procedurally barred under Oklahoma law); Cummings v. Sirmons, 506 F.3d 1211, 1222-23 (10th
Cir. 2007) (“readily” concluding an unexhausted ineffective assistance of trial counsel claim was
barred: “[a]lthough the claim is technically unexhausted, it is beyond dispute that, were [petitioner]
to attempt to now present the claim to the Oklahoma state courts in a second application for post-
conviction relief, it would be deemed procedurally barred”).
2254(b)(1)(B)(i)-(ii).17 To the extent the list of five cases Petitioner includes are intended
to show constitutional challenges to § 843.5 are futile in state court, the cases he cites do
not support his argument. See [Doc. No. 32] at 42].18 Accordingly, the Court concurs with

and adopts the Magistrate Judge’s findings regarding exhaustion and anticipatory
procedural bar of Ground XI.
2. The State Court Page Limit (Ground X)
Petitioner objects to the Magistrate Judge’s rejection of his argument regarding the
twenty-page limit for motions in Oklahoma County District Court as cause to overcome

anticipatory procedural default of his claim for ineffective assistance of counsel, Ground
X. See Obj. [Doc. No. 32] at 11-15; see also R&R [Doc. No. 31] at 51-53. The Magistrate
Judge explained that Petitioner used only sixteen of the twenty pages available and did not

17 Additionally, as noted, the Tenth Circuit has long held that Oklahoma’s waiver rule is
independent and adequate for purposes of federal habeas review. See Cole, 755 F.3d at 1159;
Banks, 692 F.3d at 1145.

18 Among the cases Petitioner cites, the only similar case is McPhail v. Oklahoma, where the
OCCA found Petitioner’s claim procedurally barred for the same reason: failure to explain why he
could not have asserted the issue on direct appeal. PC-2021-1082, 2-3 (Okla. Crim. App. Jan. 24,
2022). Again, this does not show absence of corrective process, or that the process was ineffective
to protect the rights of the applicant, but rather an unexplained failure to follow the process
available. On the other hand, the OCCA did address a constitutional challenge on direct appeal in
one of the cases Petitioner cites, which further illustrates that there was a process available, and
the state court process was not ineffective to protect Petitioner’s rights. See Markham v.
Oklahoma, Case No. F-2019-718, 24-26 (Okla. Crim. App. Jan. 14, 2021) (holding on direct
appeal that §§ 843(E), (F) were constitutional as applied to the Defendant.). None of the other
cases he cites dealt with the waiver principle. See A.O. v. State, 447 P.3d at 1182 (holding that the
State must prove the elements of the underlying offense, 21 Okla. Stat. § 1123, and to find
otherwise would risk rendering § 843.5 unconstitutional “for over-breadth and vagueness.”); see
also Shores, 2022 WL 17175570, at *1-2 (denying a certificate of appealability where the
petitioner’s § 2254 petition was untimely under 28 U.S.C. § 2244(d)(1)); Armstrong v. Rankins,
No. 22-CV-0248-CVE-SH, 2023 WL 158907, at *1-4 (N.D. Okla. Jan. 11, 2023) (finding the §
2254 petition was time barred without any discussion of the § 1086 procedural bar).
ask for leave to file additional pages, therefore he “failed to show that some external
impediment prevented him from raising [Ground X] in his initial post-conviction
application” sufficient to overcome the anticipatory procedural default. See [Doc. No. 31]

at 52-53. Petitioner asserts that the twenty-page limit is a “specific designed impediment
that bars indigent and/or destitute inmate(s) from exhausting their claim(s) prior to filing
habeas corpus.” [Doc. No. 32] at 11.19
Petitioner’s argument is without merit. As the Magistrate Judge points out, he did
not exceed the twenty-page limit, and he only used about fifteen of the twenty pages

available to him. See [Doc. No. 22-18]. Moreover, Petitioner could have sought leave to
exceed the page limit, and he did not do so. See Okla. Cty. Dist. Ct. R. 37(B) (permitting
lengthier filings with “prior permission of the assigned judge”). Accordingly, Petitioner
has not shown the Oklahoma County District Court page limit posed any impediment to
assertion of Ground X (or Ground XI).

Petitioner relies solely on an unpublished district court case, Cyr v. Crow, No. CIV-
19-1029-HE, 2020 WL 2549971 (W.D. Okla. May 19, 2020), which is not binding on this
Court. In any event, that case did not hold, as Petitioner contends, “that the Oklahoma
Court Rule(s) governing page limit(s) to a post-conviction [application] are an

19 The Magistrate Judge noted that Petitioner only raised this argument regarding the state-court
page limit as to his ineffective assistance of counsel claim, Ground X, and he did not assert cause
for failure to raise Ground XI. R&R [Doc. No. 31] at 52 & n. 16. Petitioner does not contend the
Magistrate Judge misconstrued his argument, or that she should have considered it as applicable
to Ground XI as well. See Obj. [Doc. No. 32] at 11-15. Even if his argument did pertain to both
claims, however, the Magistrate Judge’s reasoning applies with equal force: Petitioner has not
shown the page limitation posed an impediment to presentation of these claims.
unconstitutional impediment specifically designed to prevent a prisoner from raising any
and/or all claim(s) before the court for exhaustion.” Obj. [Doc. No. 32] at 12. Instead, the
court in Cyr specifically “conclude[d] that petitioner would have been able to sufficiently

allege his bases for post-conviction relief within the pages allowed and that the state court
processes were not ineffective to protect his rights.” See 2020 WL 25499671 at *1.20
For all these reasons, the Court finds Petitioner’s objection regarding the Oklahoma
County District Court page limit is without merit, and it concurs with and adopts the
Magistrate Judge’s finding that Grounds X and XI are unexhausted and subject to an

anticipatory procedural bar.21
3. Argument Regarding the Merits of Ground XI
Petitioner asserts that the Magistrate Judge “misconstrued and mischaracterized
[his] Ground XI and while doing such created a novel concept of law that exist[s] nowhere.
. .” [Doc. No. 32] at 15-16. Petitioner provides a lengthy argument that it was “novel” and

incorrect for the Magistrate Judge to consider 21 Okla. Stat. § 1123 as an “underlining [sic]
offense” to § 843.5, and she thereby advocated on behalf of Respondent. See id. at 16-17.
He also contends that, in discussing § 1123 as an underlying offense, the Magistrate Judge
“legislated from the bench” and acted outside the scope of Article III powers. Id. at 20-21.

20 Petitioner omits this portion of the decision in his block quote from Cyr. [Doc. No. 32] at 13.

21 Petitioner also asserts that the Oklahoma County District Court page limitation is
unconstitutional because it was not included within the Oklahoma Post-Conviction Procedure Act
passed by the Legislature. Obj. [Doc. No. 32] at 14. But he cites no authority for the proposition
that local court rules are unconstitutional for not being part of a statutory scheme, nor does he
otherwise explain the legal significance of this contention. See id. Accordingly, the Court finds
Petitioner’s argument without merit. See Garrett, 425 F.3d at 840 (“[T]he court cannot take on
the responsibility of serving as the litigant’s attorney in constructing arguments.”).
Petitioner’s argument is not a proper objection to the R&R. As explained above,
the Magistrate Judge found habeas relief should be denied as it pertains to the void for
vagueness challenge because that claim was unexhausted and subject to an anticipatory

procedural bar. [Doc. No. 31] at 46-54. Aside from his arguments regarding exhaustion
and the state-court page limit, discussed above, Petitioner does not actually challenge any
aspect of that conclusion. See [Doc. No. 32] at 15-16; see also One Parcel, 73 F.3d at 1060
(“[A] party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court.”).22 His

argument regarding § 1123 as the underlying offense is geared toward the merits of the
void for vagueness challenge, which is barred from review for the reasons set forth in the
R&R and discussed in this Order. Accordingly, the Court fully concurs with and adopts
the Magistrate Judge’s findings regarding Grounds X and XI.
IV. Conclusion

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
31] is ADOPTED in its entirety, and the Petition [Doc. No. 1] is DENIED.

22 Instead, Petitioner appears to zero in on another portion of the R&R where the Magistrate Judge
summarizes the OCCA’s discussion of § 1123(A) as the underlying crime, which actually pertains
to the jury instruction issue discussed above. See [Doc. No. 31] at 11-17. But even if properly
considered, Petitioner’s argument is meritless. Both the OCCA and the Magistrate Judge correctly
refer to § 1123 as the relevant “underlying” crime for the version of § 843.5 in effect when
Petitioner was convicted. See A.O. v. State, 447 P.3d at 1182 (holding the State was required to
“prove each element of the underlying crime, [§ 1123], in addition to the elements of [§ 834.5].”).
Finally, it was the State who contended § 1123 was the underlying offense, see [Doc. No. 31] at
13, and the OCCA discussed it as such, see id., so Petitioner’s contention that the Magistrate Judge
was biased, employed novel reasoning to assist Respondent, or “legislated from the bench” is
plainly without merit.
IT IS FURTHER ORDERED that Petitioner’s Motion to Strike [Doc. No. 35] is
DENIED.
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.” 28 U.S.C. § 2253(c)(2). To satisfy this
standard, a petitioner must show “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). Upon review, the Court finds that Petitioner has not made the requisite
showing. The Court therefore DENIES a COA.
IT IS SO ORDERED this 4" day of February, 2025.

SCOTT L. PALK
UNITED STATES DISTRICT JUDGE

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10793643. Public record. Not legal advice.