Tafolla v. Farris

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

JESTIN TAFOLLA,

Petitioner,

v. Case No. 22-CV-0140-SEH-SH

DAVID ROGERS, Warden,1

Respondent.

OPINION AND ORDER

Petitioner Jestin Tafolla (“Tafolla”), an Oklahoma prisoner appearing

through counsel, seeks federal habeas relief under 28 U.S.C. § 2254,

asserting he is in state custody in violation of federal law pursuant to the

criminal judgment entered against him in Tulsa County District Court Case

No. CF-2016-2204. Specifically, Tafolla alleges: i) he was denied his Sixth

Amendment right to confrontation of a witness; ii) the prosecutor engaged in

misconduct; iii) he received ineffective assistance of appellate and trial

counsel; iv) the trial court permitted prejudicial evidence to be admitted in

violation of his Fourteenth Amendment right to due process; and v) his

1 Tafolla presently is incarcerated at the Joseph Harp Correctional Center in

Lexington, Oklahoma, and David Rogers is the current warden of that

facility. The Court therefore substitutes David Rogers, Warden, in place of

Jim Farris as party Respondent. See Rule 2(a), Rules Governing Section 2254

Cases in the United States District Courts. The Clerk of Court shall note on

the record this substitution.

sentence is excessive and violates the Eighth Amendment. ECF Nos. 2 and 3.

Having considered Tafolla’s Petition for Writ of Habeas Corpus [ECF No. 2]

and Brief in Support of Petition (“Brief”) [ECF No. 3], Respondent’s Response

to Petition for Writ of Habeas Corpus [ECF No. 9], Tafolla’s Reply [ECF No.

11], the record of state-court proceedings provided by Respondent [ECF Nos.

9-1 through 9-12 and ECF No. 10], and applicable law, the Court finds and

concludes that this matter can be resolved without an evidentiary hearing

and that the Petition shall be denied.

BACKGROUND

On June 9, 2017, a Tulsa County jury found Tafolla guilty of assault

and battery with a dangerous weapon and carrying a weapon unlawfully.

ECF No. 10-9 at 45-46.2 At trial, Tulsa Police Detective James Dawson

testified that on the afternoon of April 5, 2016, he and Officer Korey Scott

were driving back to the police station at the end of their shift. ECF No. 10-3

at 152-154. During this drive they observed a white male, Tafolla, straddling

a black male, Dennis Clayton (“Clayton”), and hitting him repeatedly in the

face. Id. at 154. The officers could see Clayton’s head bouncing off the

sidewalk with each hit. Id. at 154-156. The officers activated the lights on

their car and drove up to the two men. Id. at 156-157. When Tafolla noticed

2 The Court’s citations refer to the CM/ECF header pagination.

the officers approaching, he stood up, pulled brass knuckles off his hand, and

threw the weapon into the grass ten to fifteen feet away. Id. at 156-157. The

officers separated and handcuffed both men so they could decide what had

happened and determine if anyone needed medical attention. Id. at 157-159.

Dawson recovered the brass knuckles, which were covered in wet blood.

ECF No. 10-3 at 174; ECF No. 10-5 at 11-15. The weapon was distinctively

styled, with two wolf head carvings on each end and sharp edges protruding

from the top. Id. at 171-172; ECF No. 10-5 at 1, 11-15. No other weapons

were found at the scene. ECF No. 10-3 at 171. The officers observed soda on

the inside and outside of Tafolla’s vehicle. Id. at 171.

Clayton was bleeding profusely and had lacerations on the front and

back of his head. Id. at 159. The lacerations on the back of his head were

consistent with the shape of the wolves’ heads on the brass knuckles. Id. at

176; ECF No. 10-5 at 8-9, 16.

Over Tafolla’s objection,3 the trial court permitted Dawson to recount

Clayton’s description of events leading up to the officers’ arrival to the jury.

3 Tafolla filed a motion in limine as to hearsay. See ECF No. 10-2 at 59; see

also ECF No. 10-7 at 71-72. Tafolla contended Dawson’s statements

concerning what Clayton told him were inadmissible hearsay. The trial court

heard extensive argument and ruled that so long as the State laid the proper

foundation, the statements would be admissible as excited utterances. See

ECF No. 10-2 at 59-71. Tafolla renewed his objection during Dawson’s

testimony at trial, but the trial court ruled the State had laid the necessary

foundation. ECF No. 10-3 at 160-62.

ECF No. 10-3 at 160-168. Dawson testified that Clayton told him that

Tafolla’s vehicle cut him off on the freeway and he became “very upset” and

followed Tafolla to a parking lot. Tafolla exited his vehicle, and the two men

“had words.” Id. at 160-161. Clayton described it as a “heated discussion,”

and as a “road rage incident”. Id. Tafolla and Clayton were returning to

their vehicles when Lara Maloy (“Maloy”), Tafolla’s girlfriend who was a

passenger in Tafolla’s vehicle, called Clayton a n****r. Id. at 161, 166.

Clayton then “lost his cool” and grabbed a cup of soda from his car. He

approached Maloy with the cup as they yelled at each other, and then he

threw the cup at Tafolla’s vehicle. Id. at 167. After that, Tafolla “sucker

punched [Clayton] in the back of his head.” Id. at 168. Clayton did not

testify at trial. See ECF No. 10-3 at 2.

After speaking with Clayton, Dawson spoke with Tafolla. Id. at 168.

Dawson observed Tafolla in a white tank top that exposed his tattooed arms,

neck and chest. Id. at 157, 168; see also ECF No. 10-5 at 2-6. Dawson

observed cloverleaf tattoos on Tafolla’s body and asked if he “was Irish mob.”

ECF No. 10-3 at 169. Tafolla responded by pointing to one of his tattoos and

stating, “I am UAB. Do you see the fucking swastika?” Id. at 169. Tafolla

had several visible tattoos that Dawson recognized as being associated with

the United Aryan Brotherhood (“UAB”), including an iron cross on his throat,

an inscription of “white pride” on his right arm, and a swastika and

inscription of “white and wild” on the back of his neck. ECF No. 10-3 at 151,

178-180; see also ECF No. 10-5 at 2-6.

Dawson also observed blood around Tafolla’s mouth which indicated to

him that Clayton “had at least hit him one time at least in the mouth area.”

ECF No. 10-3 at 177. Tafolla’s recitation of the incident was “about 90

percent consistent” with Clayton’s. Id. at 169. Ultimately, Tafolla was

placed under arrest, and paramedics were summoned to treat Clayton. Id. at

180, 186. Clayton refused transport to the hospital for further treatment. Id.

at 186-187.

Tafolla testified he accidentally cut Clayton off on the freeway, Clayton

accelerated to catch up to Tafolla, honked his horn and drove up alongside

Tafolla’s vehicle on the one-lane exit ramp. Id. at 240-241. Tafolla pulled

into the parking lot, Clayton followed, they both exited their vehicles and

approached one another. Id. at 242. Clayton was screaming and “very

aggressive” until he got closer to Tafolla. Id. at 242. Tafolla apologized for

cutting Clayton off, and explained his girlfriend was pregnant and he did not

want problems. Id. at 242. Clayton calmed down, and the two shook hands

and returned to their vehicles. Id. at 242. Meanwhile, Maloy was standing

outside Tafolla’s vehicle, and Tafolla started “bickering” with Maloy because

she had not followed his direction to say in the vehicle with the doors locked.

Id. at 243. According to Tafolla, Clayton was driving by at this time and

interjected, “yeah, get your bitch, cuz.” Id. at 243-244. Tafolla associated the

reference to “cuz” as a slang term used by Crips gang members. Id. at 244.

Maloy “started screaming” at Clayton, and Tafolla yelled at Maloy to

get in the car. Id. at 245. Clayton then stopped his vehicle, backed it up,

jumped out a second time and said, “oh, yeah, bitch,” and reached into his car

as if to grab something. Id. At this point, Tafolla retrieved his brass

knuckles from inside his own vehicle. Id. As Clayton approached the front of

the Tafolla’s car towards Maloy, Tafolla said, “hey, bro, hold up.” Id. at 245-

46. Then, Clayton threw his drink and cup at Tafolla. Id. at 246. “[H]e

threw a drink on me and punched me in the mouth, and at that point the

fight pursued.” Id. According to Tafolla, the fight “probably lasted five or ten

seconds” and there was no time to retreat. Id. at 247. Tafolla testified, “we

were standing throwing blows all the way up until the cops pulled into the

scene.” Id. Tafolla testified he was defending himself, his wife and unborn

child from being attacked. Id. at 246, 249.

Tafolla testified on direct examination as follows:

Q: Mr. Tafolla, would you have reacted the same whether Mr.

Clayton had been black? White? Asian?

A: Yes, ma’am.

Id. at 249. His counsel also inquired if throwing a drink on a person was

“kind of a prison tactic or gang thing to throw something in someone’s eyes

before you attack them?” Id. at 246. Tafolla answered, “yeah, kind of. … I

have seen people take shirts and stuff like that and throw them at someone’s

face. And when they go to flinch from it, they catch him off guard.” Id.

Tafolla also testified, “any time I have ever been in a fist fight it is a fear for

my life. You know what I mean? Like any fight I have ever been in, it is a life

or death situation. I have seen what can proceed from beatings, you know.”

Id. at 249.

On cross-examination, Tafolla denied hitting Clayton from behind. Id.

at 250-251. Tafolla testified, “[w]hat I imagine happened in those photos [of

Clayton’s head injuries] is he probably got punched in his head and he

ducked his head and in the heat of battle I continued to punch and hit the

back of his head from the downward motion.” Id. at 250-251, 254. Tafolla

was further cross-examined:

Q: What does [sic.] the wolves mean on those brass knuckles?

A: I mean, the wolves are significant to UAB, I guess.

Q: And you are UAB?

A: Yes.

Id. at 256.

Q: What does UAB mean to you?

A: It means I did what I had to do to survive one of the worse

prisons in Oklahoma when I first got locked up.

Q: Because you have been to prison a few times, haven’t you?

A: Not a few times, sir.

Q: You have been convicted of three prior felonies before you

came to this courtroom, haven’t you?

A: Yes, sir.

Q: To include you have been convicted not once, but twice for

assault and battery with a dangerous weapon?

A: Yes, sir.

Id. at 256-257.

Q: Let me ask you, earlier you were telling Ms. Beach, you said, I

have been in fist fights and all of this, and I kind of did what I

had to do, and this is different, I was defend my – but you really

do like beating minorities with instruments, don’t you?

A: No, sir.

Q: Really?

A: Yes, sir.

Q: So this is the first time?

A: No, sir.

Q: It is not?

A: Well, I wouldn’t say I like it. I am not saying it is not the first

time, but I don’t enjoy it. I don’t get no pleasure out of it. I am

not happy about the situation.

Id. at 258.

Q: The first assault and battery with a dangerous weapon was a

minority, wasn’t it?

A: Yes, sir, it was my ex-girlfriend’s brother.

Q: What color was he?

A: He was black and so was she.

Q: Okay. The second assault and battery with a dangerous weapon,

what color was he?

A: I guess the guy was a Mexican.

***

Q: What was the weapon from the first one?

A: A knife.

Q: What was the weapon from the second one? The one that you were

railroaded on?

A: A knife.

Id. at 263-264. As noted, the jury found Tafolla guilty of assault and battery

with a dangerous weapon after former conviction of two or more felonies and

carrying a weapon unlawfully. ECF No. 10-9 at 45-46. As to the assault and

battery offense, he was sentenced to “LIFE[.]” ECF No. 10-14 at 38.

DISCUSSION

I. Legal Standards

A federal court has discretion to grant federal habeas relief to a

prisoner who is in state custody pursuant to a final criminal judgment if the

prisoner “is in custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 5

(2010) (“[I]t is only noncompliance with federal law that renders a State’s

criminal judgment susceptible to collateral attack in the federal courts.”).

But the federal habeas statutes, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) and as interpreted by the

United States Supreme Court, significantly limits a federal court’s discretion

to grant habeas relief to a state prisoner.

A. Exhausted Claims

“A state prisoner generally must exhaust available state-court remedies

before a federal court can consider a habeas corpus petition.” Bland v.

Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006); see 28 U.S.C. § 2254(b)(1)(A).

“Exhaustion requires that the claim be ‘fairly presented’ to the state court,

which ‘means that the petitioner has raised the “substance” of the federal

claim in state court.’” Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir.

2009) (quoting Bland, 459 F.3d at 1011). “[T]o be fairly presented, the state-

court claim must be the ‘substantial equivalent’ of its federal habeas

counterpart.” Grant v. Royal, 886 F.3d 874, 891 (10th Cir. 2018) (quoting

Picard v. Connor, 404 U.S. 270, 278 (1971)). “To satisfy exhaustion, then, the

habeas petition’s focus—as well as the alleged error that it identifies—cannot

depart significantly from what the petitioner had presented to the state

court.” Grant, 886 F.3d at 891. “[T]he 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.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (citing

Picard, 404 U.S. at 278).

When a state prisoner fairly presents a federal claim in state court and

the state court adjudicates that claim on the merits, a federal court cannot

grant habeas relief as to that claim unless the prisoner first shows that the

state court’s decision as to that claim either (1) “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “was based on

an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” Douglas v. Workman, 560 F.3d 1156, 1170

(10th Cir. 2009) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

As used in § 2254(d)(1), the phrase “clearly established Federal law”

means “the governing legal principle or principles” stated by “the holdings” of

the Supreme Court’s “decisions as of the time of the relevant state-court

decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v.

Taylor, 529 U.S. 362, 412 (2000)). Thus, when § 2254(d)(1)’s framework

informs a federal court’s analysis, the first question for the court is whether

the petitioner’s claim rests on law that was clearly established by Supreme

Court precedent at the time of the relevant state-court decision. House v.

Hatch, 527 F.3d 1010, 1015-18 (10th Cir. 2008). If such law exists, and the

state court has correctly identified that law, the only question under §

2254(d)(1) is “whether the decision ‘unreasonably applies that principle to the

facts of the prisoner’s case.’” Cullen v. Pinholster, 563 U.S. 170, 182 (2011)

(quoting Williams, 529 U.S. at 413). To establish that the state court’s

decision unreasonably applied the law, a petitioner “must show that the state

court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, “a petitioner

must persuade a federal court that no ‘fairminded juris[t]’ could reach the

state court’s conclusion under [the Supreme] Court’s precedents.” Brown v.

Davenport, 596 U.S. 118, 135 (2022) (quoting Davis v. Ayala, 576 U.S. 257,

269 (2015)).

Under § 2254(d)(2), a petitioner must show that the state court’s

decision rests on an unreasonable determination of the facts. But “a state-

court factual determination is not unreasonable merely because the federal

habeas court would have reached a different conclusion in the first instance.”

Wood v. Allen, 558 U.S. 290, 301 (2010). Instead, the reasonableness of a

state court’s factual determination also is measured by Richter’s fairminded-

disagreement standard. Dunn v. Madison, 583 U.S. 10, 13-14 (2017). And “if

[Richter’s] rule means anything, it is that a federal court must carefully

consider all the reasons and evidence supporting the state court’s decision”

and that the federal court may not disturb the state court’s decision “without

identifying—let alone rebutting—all of the justifications” that may support

that decision. Mays v. Hines, 592 U.S. 385, 391-92 (2021) (per curiam). In

addition, when § 2254(d) applies, the federal court’s review is limited to the

same record that was presented in state court unless and until the petitioner

satisfies § 2254(d)’s demanding preconditions to relief, Pinholster, 563 U.S. at

185, and the federal court must presume the correctness of any state-court

factual findings unless the petitioner presents clear and convincing evidence

to rebut that presumption, 28 U.S.C. § 2254(e)(1).

If a petitioner satisfies § 2254(d)’s preconditions to relief, the federal

court may then review the petitioner’s federal claim de novo. Milton v.

Miller, 744 F.3d 660, 670-71 (10th Cir. 2014). But, even on de novo review, a

federal court must apply § 2254(e)(1)’s presumption of correctness to any

state-court factual findings relevant to the federal claim. Sumpter v. Kansas,

61 F.4th 729, 750 (10th Cir. 2023). Moreover, even if the federal court

determines that a constitutional error occurred, the court may not grant

federal habeas relief unless the petitioner also “show[s] that the error had a

‘“substantial and injurious effect or influence”’ on the outcome of his trial.”

Davenport, 596 U.S. at 126 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)).

B. Unexhausted Claims

Federal courts are precluded from “consider[ing] issues on habeas

review that have been defaulted in state court on an independent and

adequate state procedural ground, unless the petitioner can demonstrate

cause and prejudice or a fundamental miscarriage of justice.” McCracken v.

Gibson, 268 F.3d 970, 976 (10th Cir. 2001) (internal quotation marks

omitted). “To be independent, the procedural ground must be based solely on

state law.” Cole v. Trammell, 755 F.3d 1142, 1159 (10th Cir. 2014) (internal

quotation marks omitted). To be adequate, a state procedural ground “must

be strictly or regularly followed and applied evenhandedly to all similar

claims.” Id. (internal quotation marks omitted). When the state pleads the

affirmative defense of a state procedural bar, “the burden to place that

defense in issue shifts to the petitioner,” who must, at a minimum, provide

“specific allegations ... as to the inadequacy of the state procedure.” Hooks v.

Ward, 184 F.3d 1206, 1217 (10th Cir. 1999).

Generally, “a federal court should dismiss unexhausted claims without

prejudice so that the petitioner can pursue available state-court remedies.”

Bland, 459 F.3d at 1012; see 28 U.S.C. § 2254(b)(1)(A). “However, dismissal

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

the state court would now find the claims procedurally barred on independent

and adequate state procedural grounds.” Smallwood v. Gibson, 191 F.3d

1257, 1267 (10th Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 735

n.1 (1991)). “Where the relevant state courts ‘would now find those claims

procedurally barred, there is a procedural default for the purposes of federal

habeas review.’” Grant, 886 F.3d at 892 (quoting Bland, 459 F.3d at 1012).

“A petitioner may overcome the procedural bar only if he can ‘demonstrate

cause for the default and actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider the claims will result in

a fundamental miscarriage of justice.’” Id. (quoting Coleman, 501 U.S. at

750).

Applying these legal standards, the Court turns to Tafolla’s claims.4

II. Right to Confront Witness (Ground I)

First, Tafolla claims that his Sixth Amendment right to confrontation

was violated because Clayton was not called to testify at either the

preliminary hearing or trial, but Dawson was permitted to tell the jury what

Clayton said to him. ECF No. 3 at 2-4. Tafolla argues Clayton’s statements

were testimonial and admitting Clayton’s statements ran afoul of his Sixth

Amendment right to confrontation. Id. at 3-4.

4 Tafolla requests an evidentiary hearing as to all issues asserted in the

petition. ECF No. 3 at 10. But when § 2254(d)’s framework applies, as it

does in this case, a federal habeas court must consider whether the petitioner

has satisfied § 2254(d)(1)’s precondition to relief only by looking to the record

that was presented in state court proceedings. Pinholster, 563 U.S. at 181

(holding “that review under § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the merits”). In addition,

“[i]f a prisoner has ‘failed to develop the factual basis of a claim in State court

proceedings,’ a federal court ‘shall not hold an evidentiary hearing on the

claim’ unless the prisoner satisfies one of two narrow exceptions, see 28

U.S.C. § 2254(e)(2)(A), and demonstrates that the new evidence will establish

his innocence ‘by clear and convincing evidence,’ § 2254(e)(2)(B).” Shinn v.

Ramirez, 596 U.S. 366, 371 (2022). “In all but these extraordinary cases,

AEDPA ‘bars evidentiary hearings in federal habeas proceedings initiated by

state prisoners.’” Id. (quoting McQuiggin v. Perkins, 569 U.S. 383, 395

(2013)). For the reasons discussed next, Tafolla has not demonstrated, as to

any claim, that he can satisfy § 2254(d)’s preconditions to habeas relief. And

Tafolla does not argue, much less demonstrate, that he can make the

showings necessary to obtain an evidentiary hearing under § 2254(e)(2). For

these reasons, the Court denies Tafolla’s request for an evidentiary hearing.

A. The OCCA Decision

Tafolla’s counsel did not object to Dawson’s testimony as violating the

Confrontation Clause at trial. Therefore, on direct appeal, the Oklahoma

Court of Criminal Appeals (“OCCA”) reviewed for plain error. ECF No. 9-1 at

15. The OCCA concluded Tafolla’s Sixth Amendment right had been violated.

Id. at 18-20. Citing and applying Crawford v. Washington, 541 U.S. 36

(2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant,

562 U.S. 344 (2011), the OCCA noted the informal questioning of Clayton and

that “the situation had deescalated and was no longer an emergency.” Id. at

18. The OCCA also held the admission of Dawson’s testimony as to what

Clayton told Dawson was plain error. Id. at 19.

The OCCA continued its analysis to determine whether the error was

harmless beyond a reasonable a doubt. Id. at 19-20. Applying, Chapman v.

California, 386 U.S. 18, 24 (1967), the OCCA reasoned,

When the detectives arrived on the scene they saw Tafolla

standing over the victim and beating him on the sidewalk. Marks

left on the back of the victim’s head by the brass knuckles support

the finding that the victim was assaulted by Tafolla from behind.

Given the properly admitted evidence, we find that the violation of

the Confrontation Clause contributed neither to Tafolla’s

conviction nor to the punishment assessed; it was harmless beyond

a reasonable doubt.

Id. at 20.

B. Analysis and Conclusion

The Sixth Amendment of the United States Constitution guarantees an

individual accused of a criminal offense the right “to be confronted with the

witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington,

the Supreme Court limited the Confrontation Clause’s reach to “testimonial

statements.” 541 U.S. at 53–54. The Court held that in order for testimonial

statements to be admissible, the out-of-court witness must be unavailable,

and the defendant must have had a prior opportunity to cross examine the

witness. Id. In Davis v. Washington, 547 U.S. 813 (2006), and Hammon v.

Indiana, 547 U.S. 813 (2006), which were decided together, the Supreme

Court defined more precisely the distinction between testimonial statements

and nontestimonial statements. The Supreme Court explained:

Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance

to meet an ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal

prosecution.

Davis, 547 U.S. at 822.

In Michigan v. Bryant, the Supreme Court affirmed that when “the

primary purpose of an interrogation is to respond to an ‘ongoing emergency,’

its purpose is not to create a record for trial and thus is not within the scope

of the [Confrontation] Clause.” 562 U.S. at 358. To determine the primary

purpose of an interrogation, courts must “objectively evaluate the

circumstances in which the encounter occurs and the statements and actions

of the parties.” Id. at 359. In making this determination, the “existence of an

emergency or the parties’ perception that an emergency is ongoing is among

the most important circumstances.” Id. at 370. However, “the existence vel

non of an ongoing emergency is not the touchstone of the testimonial inquiry;

rather, the ultimate inquiry is whether the ‘primary purpose of the

interrogation [was] to enable police assistance to meet [the] ongoing

emergency.’” Id. at 374.

In his Reply, Tafolla states, “the OCCA’s harmless error analysis was

not objectively reasonable under the AEDPA.” ECF No. 11 at 4. Tafolla

takes issue with the OCCA’s reliance on the Officers’ observations. See id.

Respondent contends Clayton’s statement to Dawson was nontestimonial5

and the OCCA’s harmless error determination was not contrary to clearly

5 Respondent argues the OCCA was incorrect to find the Sixth Amendment

error. ECF No. 9 at 18-27. However, this Court will assume error and focus

on the OCCA’s harmless error ruling. See Lockyer, 538 U.S. at 71 (“AEDPA

does not require a federal habeas court to adopt any one methodology in

deciding the only question that matters under § 2254(d)(1) – whether a state

court decision is contrary to, or involved an unreasonable application of,

clearly established federal law. In this case, we do not reach the question of

whether the state court erred and instead focus solely on whether § 2254(d)

forecloses habeas relief[.]”).

established Supreme Court precedent or an unreasonable application of the

Chapman standard. ECF No. 9 at 18-30.

This Court must determine whether the OCCA’s adjudication was

unreasonable under the AEDPA. Id. at 135 (“When a state court has applied

Chapman, § 2254(d)(1) requires a habeas petitioner to prove that the state

court’s decision was unreasonable.”). The Court determines it was not

unreasonable.

After finding the existence of a Sixth Amendment error, the OCCA

correctly identified the Supreme Court’s review standard: harmless beyond a

reasonable doubt. See ECF No. 9-1 at 19. It then determined the trial court’s

error was harmless beyond a reasonable doubt because the properly admitted

evidence (Tafolla standing over Clayton beating him on the sidewalk and

marks from Tafolla’s brass knuckles on the back of Clayton’s head indicating

Clayton was assaulted from behind) supported the verdict and punishment.

ECF No. 9-1 at 20.

As noted by the OCCA, there is substantial evidence of Tafolla’s guilt

even eliminating Clayton’s statements as recounted by Dawson. Dawson

testified he observed Tafolla “straddling or mounted on top of a black male

who was laying on the back of a sidewalk. He was striking him repeatedly in

the face and we could see his head was impacting the sidewalk when we

observed this.” ECF No. 10-3 at 154. Dawson further testified he witnessed

Clayton’s “head coming up from the impact and striking the sidewalk

numerous times.” Id. at 155. Dawson also witnessed Tafolla throw

something into the grass and, subsequently, recovered brass knuckles wet

with blood. Id. at 157. Clayton had lacerations on the back of his head in the

shape of a wolf’s head, consistent with the shape of the brass knuckles. Id. at

176. Tafolla testified the brass knuckles were his and admitted to engaging

in a physical altercation with Clayton, albeit he claimed it was self-defense.

Id. at 246-247, 249, 256, 261. A fairminded jurist could agree with the OCCA

that any constitutional error was harmless beyond a reasonable doubt. See

Davenport, 596 U.S. at 120. Therefore, the OCCA’s decision applying this

standard was reasonable under the AEDPA. Habeas relief as to this claim is

denied.

III. Gang Affiliation Evidence (Ground V)

Tafolla also challenges the admission of his gang affiliation as violating

his Fourteenth Amendment right to due process. ECF No. 3 at 9-10. Tafolla

contends the prosecutors “repeatedly presented argument and testimony

regarding [his] status as a member of a gang, the UAB” and “repeatedly tried

to elicit information from [Tafolla] about the underlying fact of his prior

felony convictions.” Id. at 9. Tafolla believes the information was elicited to

“prejudice the jury against [Tafolla][.]” Id. Tafolla claims the admission of

such evidence “was both contrary to and involved an unreasonable

application of federal law.” Id.

A. Additional Facts

The State provided pretrial notice of intent to admit res gestae evidence

and/or evidence of other crimes and/or bad acts which specifically

contemplated Tafolla’s UAB membership. ECF No. 10-7 at 74-92. The State

also filed a Motion to Display Defendant’s Tattoos. ECF No. 10-8 at 38-39.

The trial court ruled the evidence admissible. The trial court preliminarily

ruled Tafolla’s gang affiliation was admissible to show his attitude and

feeling of malice against blacks [ECF No. 10-2 at 96-97, 99], was relevant to

motive and absence of mistake [Id. at 97, 99] and Tafolla “injected his

membership in the UAB into the incident itself[.]” [Id. at 97].6 The trial court

further concluded the UAB symbolism of Tafolla’s tattoos and brass knuckles

were res gestae. See id. at 97-98. After the Jackson v. Denno hearing, the

trial court further ruled the gang affiliation evidence was relevant to

establish intent in light of Tafolla’s self-defense theory. ECF No. 10-3 at 125-

26. The trial court concluded the evidence was not unduly prejudicial

rendering it admissible at trial. Id. at 126-27.

6 After hearing testimony and argument at a Jackson v. Denno hearing, the

trial court also ruled Tafolla’s statement to Dawson, “I am UAB” was

admissible. ECF No. 10-3 at 119 (“I will allow that question and that

statement made by the defendant.”); see also id. at 105-119.

At trial, Dawson was permitted to testify about his experience with the

Tulsa Police Department’s Organized Gang Unit and his knowledge of the

UAB. Id. at 145-146, 151-152. Dawson testified the UAB is a white

supremacy gang, tattoos can be indicative of devotion to a gang and symbols

such as swastikas, iron crosses, SS, bolts and Nazi symbolism are images

that communicate UAB gang affiliation. Id. at 145-147; 149-151. Further,

Dawson testified to the significance of wolves to the UAB. See id. at 173.

Pertinent to this claim, upon separating Tafolla and Clayton, Dawson

observed Tafolla was heavily tattooed and noted a clover leaf tattoo. Dawson

testified:

A: And I observed that he had numerous cloverleaf tattoos on his

body.

Q: Did you inquire about the cloverleaf tattoos?

A: I did. I made a note to him that I saw the cloverleaf tattoo

and I asked if he was Irish Mob because we had seen an increase

in Irish Mob recently.

Q: What was his response when you asked him if he was Irish

Mob?

A: He was almost angered by the question. You could tell that it

upset him. And his response was something along the line of I

am UAB. Do you see the fucking swastika, and then pointed to a

tattoo.

Id. at 169.

Beyond the swastika, Tafolla was tattooed in images of an iron cross,

the words “white pride” and “white and wild.” Id. at 178-180. Additionally,

Dawson recovered brass knuckles with wolf heads that he observed Tafolla

throw when the detectives arrived on the scene. Id.at 171-173. Dawson’s

testimony regarding the UAB was not objected to by the defense at trial.

Tafolla was subsequently cross-examined regarding his affiliation with

the UAB and his tattoos. Id. at 256-257, 259-262, 264-266. The trial court

instructed the jury that the evidence related to UAB’s beliefs, symbolism,

defendant’s association with that group, and his tattoos related to his

association of that group could not be considered as proof of the charged

offense. Id. at 199-200; ECF No. 10-9 at 20. Rather, the evidence was

received solely on the issue of defendant’s alleged motive, intent and/or

absence of mistake or accident and was to be considered for only those limited

purposes. ECF No. 10-3 at 199-200; ECF No. 10-9 at 20.

B. OCCA Decision

On direct appeal, Tafolla challenged the admission of his gang

affiliation as violating his due process right to a fair trial. See ECF No. 9-2 at

21. In its Opinion, the OCCA noted “the gang related evidence about which

Tafolla complains in this proposition was not met with objection when it was

introduced at trial. Accordingly, we review the admission of this evidence for

plain error only.” ECF No. 9-1 at 7. The OCCA then distinguished Tafolla’s

case from Dawson v. Delaware, 503 U.S. 159 (1992). ECF No. 9-1 at 8-9. In

contrast to Dawson, where the evidence of gang affiliation was irrelevant, the

OCCA held “evidence that Tafolla was a member of the UAB and evidence

about the UAB gang was relevant and admissible.” Id. at 10. The OCCA

concluded, “[t]here was no error, plain or otherwise, in the admission of this

evidence.” Id. at 10.

C. Analysis and Conclusion

“In a habeas proceeding claiming a denial of due process, ‘[a federal

court] will not question the evidentiary ... rulings of the state court unless

[the petitioner] can show that, because of the court's actions, his trial, as a

whole, was rendered fundamentally unfair.’” Maes v. Thomas, 46 F.3d 979,

987 (10th Cir. 1995) (quoting Tapia v. Tansy, 926 F.2d 1554, 1557 (10th Cir.

1991)); Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (habeas relief

is appropriate only 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”). “[W]e approach the fundamental fairness analysis with

‘considerable self-restraint.’” Jackson v. Shanks, 143 F.3d 1313, 1322 (10th

Cir. 1998) (quoting United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir.

1990) (en banc)). A proceeding is fundamentally unfair under the Due

Process Clause only if it is “shocking to the universal sense of justice.”

United States v. Russell, 411 U.S. 423, 432 (1973) (internal quotation

omitted).

This Court’s review of the trial court record reveals Tafolla was not

denied due process. First, the trial court conducted multiple hearings

regarding the admission of Tafolla’s gang affiliation and information

regarding the UAB before determining the challenged evidence was not only

relevant and admissible but also more probative than prejudicial. See, supra

section III.A. Further, Tafolla testified on direct examination to his

familiarity with gangs. ECF No. 10-3 at 244. Finally, the trial court

provided the jury with a cautionary instruction on two occasions. Id. at 199-

200; ECF No. 10-9 at 20.

Additionally, separate and apart from Tafolla’s gang affiliation, the

evidence of Tafolla’s guilt was strong. Johnson v. Martin, 3 F.4th 1210, 1231

(10th Cir. 2021) (“Where evidence against a defendant is strong, the

likelihood that erroneously admitted evidence will have an unduly prejudicial

impact is lessened.”). Dawson observed Tafolla repeatedly striking Clayton

in the face while Clayton was laying on the sidewalk. ECF No. 10-3 at 154.

Dawson observed Tafolla throw something into the grass and recovered wolf-

head brass knuckles wet with blood. Id. at 157. Clayton had lacerations on

the back of his head consistent with the shape of the wolf’s head. Id. at 176.

And Tafolla testified the brass knuckles were his and admitted to engaging in

a physical altercation with Clayton. Id. at 246-247, 249, 256, 261.

Tafolla has not demonstrated how the challenged evidence fatally

infected his trial and rendered the whole proceeding fundamentally unfair.

Nor has he shown that the OCCA’s decision on his due process claim was

objectively unreasonable. Habeas relief as to this claim is denied.

IV. Excessive Sentence (Ground IV)

Tafolla also presents a claim to this Court which was not previously

presented to a state court. Concerning his fourth claim for habeas relief,

Tafolla argues “the life sentence imposed for Count One is grossly

disproportionate to the severity of the criminal conduct at issue here to the

point it violates the Eighth Amendment prohibition against cruel and

unusual punishment.” ECF No. 3 at 8. Tafolla represents this ground was

raised on direct appeal and through a post-conviction proceeding. ECF No. 2

at 10. Respondent retorts this representation is incorrect. ECF No. 9 at 61.

Respondent states Tafolla previously raised a Sixth Amendment ineffective

assistance of appellate counsel claim premised upon his appellate counsel’s

failure to raise the Eighth Amendment claim on direct appeal, not an Eighth

Amendment excessive sentence claim. Id. Therefore, Respondent contends

this claim is procedurally defaulted. Id. In his Reply, Tafolla contends the

issue was raised to the district court because, while addressing Tafolla’s

Sixth Amendment ineffective assistance of appellate counsel claim, the state

court remarked, “[Tafolla’s] sentence is within the permissible range and is

appropriate given his conduct, his history and the facts of the case.” ECF No.

11 at 10 (quoting ECF No. 9-7 at 11). However, Tafolla contends the OCCA

did not address the claim on the merits rendering de novo review appropriate.

See id.

A. Analysis and Conclusion

Prior to the instant Petition, Tafolla did not fairly present an Eighth

Amendment excessive punishment claim to the state court. A review of

Tafolla’s instant Petition reveals he claimed, through his post-conviction

proceeding, that “appellate counsel [was] ineffective for failure to raise

excessive punishment/ Eighth Amendment issue.” ECF No. 2 at 3. The

district court concluded appellate counsel was not ineffective for failing to

raise this issue. ECF No. 9-7 at 10-12. To reach this conclusion, the state

court considered whether the sentence shocked the conscience necessitating a

modification. Id. at 11.7 Considering the permissible range, Tafolla’s

conduct, his history and the facts of the case, the district court concluded the

sentence did not shock the conscience. Id. The district court continued its

analysis finding Tafolla’s appellate counsel was not ineffective for “failing to

raise an obviously losing proposition on appeal[.]” Id. Nowhere in the

7 “[I]n certain circumstances, appellate counsel’s omission of an issue may

constitute ineffective assistance under Strickland. In analyzing such claims,

the court must consider the merits of the omitted issue.” Malicoat v. Mullin,

426 F.3d 1241, 1249 (10th Cir. 2005) (citing Smith v. Robbins, 528 U.S. 259,

288 (2000) and Cargle v. Mullin, 27 F.3d 1196, 1202 (10th Cir. 2003)).

district court’s analysis was there any consideration of the Eighth

Amendment. See ECF No. 9-7.

Subsequently, the OCCA concluded, “[w]e find no merit in the claim

that Petitioner was denied effective assistance of appellate counsel as alleged

in his post-conviction application.” ECF No. 9-10 at 4. The OCCA affirmed

the district court’s denial of Tafolla’s application for post-conviction relief. Id.

at 4-5.

This Petition is the first time the substance of Tafolla’s Eighth

Amendment claim has been presented to any court. “A constitutional claim

of ineffective assistance of counsel does not preserve a federal constitutional

challenge ‘to the underlying legal rules that the allegedly ineffective counsel

should have invoked.’” Rucker v. Norris, 563 F.3d 766, 769 (8th Cir. 2009)

(quoting Ford v. Norris, 364 F.3d 916, 918 (8th Cir. 2004)); see also Lewis v.

Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (“an assertion that one’s counsel

was ineffective for failing to pursue particular constitutional issues is a claim

separate and independent of those issues.”). The Eighth Amendment claim

departs significantly from the Sixth Amendment claim presented to the state

courts and the state courts have not had a “‘fair opportunity’ to apply

controlling legal principles to the facts bearing upon [Tafolla’s Eighth

Amendment] claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982). Accordingly,

this claim is not exhausted.

The Court finds that the OCCA would apply a procedural bar if Tafolla

were to return to state court to exhaust this claim through an application for

post-conviction relief because he could have, but did not, raise the Eighth

Amendment claim on direct appeal. See Grant, 886 F.3d at 891-92. Tafolla,

resting on his assertion that the claim is not procedurally barred, does not

attempt to show why this Court should review his procedurally barred claim.

See ECF. No. 11 at 10-11. Therefore, Tafolla has not overcome the procedural

bar, and habeas relief as to this claim is denied.

V. Prosecutorial Misconduct (Ground II)

Tafolla’s remaining claims rely upon a mix of exhausted and

unexhausted bases. The Court now untangles the web of claims asserted by

Tafolla.

Tafolla’s second claim for habeas relief is prosecutorial misconduct in

violation of the Fourteenth Amendment. ECF No. 2 at 7. Tafolla alleges, the

“Prosecutor made repeated statements in closing argument and in evidence

presentation which referred to Petitioner’s prior convictions, stating he

stabbed a Black man, made improper references to probation, raised other

improper subjects and speculation, and engaged in name-calling.” Id. In his

Brief, Tafolla expands, “[i]n closing argument, the prosecutor impermissibly

implored the jurors to protect society from [Tafolla], inflaming the passions of

the jury.” ECF No. 3 at 5. “The prosecutors also repeatedly mentioned Mr.

Clayton by stating that ‘this victim, Mr. Clayton, would have been killed by

this defendant’s attack had these officers not intervened.’ They said that Mr.

Clayton was afraid to appear and testify.” Id. at 6. Finally, Tafolla asserts,

“the prosecutor brought up gang-affiliation evidence and inquired about the

underlying facts of [Tafolla’s] previous convictions, to imply that race was a

factor in the altercation with Mr. Clayton.” Id.

Respondent counters Tafolla’s second claim is a made up of: i)

propositions previously presented to the OCCA and properly decided; and ii)

new propositions which were not fairly presented to the state courts

rendering the new bases procedurally defaulted. ECF No. 9 at 31-32. The

Court will first address underlying instances of alleged prosecutorial

misconduct which were previously presented to the OCCA.

A. Presented on Direct Appeal: Prosecutor’s Closing

Arguments

On direct appeal, Tafolla claimed, “[t]he prosecutor engaged in

misconduct which deprived the Appellant of his right to a fair trial and

sentencing and was a violation of his rights to Due Process and Fundamental

Fairness guaranteed by the Fourteenth Amendment[.]” ECF No. 9-2 at 42.

Specifically, Tafolla challenged the prosecutor’s: i) arguments to the jury to

protect society; ii) speculation that Clayton would have been killed had the

detectives not intervened and that Clayton was afraid to testify; and iii)

name-calling by referring to Tafolla as a predator. Id. at 43-47. Tafolla and

the OCCA recognized these alleged instances of prosecutorial misconduct

were not met with objection at trial. See ECF No. 9-2 at 47; ECF No. 9-1 at

22-23. Therefore, the OCCA reviewed for plain error. ECF No. 9-1 at 23-26.

The OCCA concluded, “[t]he argument at issue here did not appeal to

societal alarm and was not error, plain or otherwise.” Id. at 24. Regarding

the prosecutor’s statements about Clayton, the OCCA ruled, “[t]he comments

at issue were based upon the evidence and certainly, if bordering upon

impropriety, did not rise to the level of plain error.” Id. at 25. Concerning

the prosecutor’s speculation, the OCCA concluded, “[t]his questioning was

proper impeachment” and “[t]he prosecutor’s questions were not improper nor

were his comments on the witness’s responses in closing.” Id. at 26. Finally,

regarding the name-calling, the OCCA held, “[w]hile the prosecutor should

have refrained from name-calling, the argument at issue was largely proper

and certainly not plain error.” Id. The OCCA denied Tafolla’s prosecutorial

misconduct claim raised on direct appeal. Id.

i. Analysis and Conclusion

Accordingly, these instances of alleged prosecutorial misconduct were

fairly presented to the state court and this Court will review applying the

requisite § 2254(d) deference. Tafolla must demonstrate the OCCA’s decision

was an unreasonable application of clearly established federal law.

Workman, 560 F.3d at 1170.

“To prevail on a claim based on improper remarks by the prosecutor, a

petitioner generally must demonstrate that the remarks ‘so infected the trial

with unfairness as to make the resulting conviction a denial of due process.’”

Bland, 459 F.3d at 1014 (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974), and citing Le v. Mullin, 311 F.3d 1002, 1013, 1018 (10th Cir.

2002)). A reviewing court evaluating a prosecutorial-misconduct claim must

consider the alleged misconduct in the context of the “entire proceedings,

including the strength of the evidence against the defendant.” Hanson v.

Sherrod, 797 F.3d 810, 843 (10th Cir. 2015).

The Court finds that § 2254(d) bars relief as to this prosecutorial-

misconduct claim. First, the OCCA correctly identified the controlling legal

principle from Donnelly to evaluate Tafolla’s allegations of misconduct. See

ECF No. 9-1 at 23. The OCCA cited its own decision for the proposition that

reversible prosecutorial misconduct requires a showing that “the prosecutor’s

flagrant misconduct so infected the defendant’s trial that it was rendered

fundamentally unfair.” ECF No. 9-1 at 23 (citing Jones v. State, 354 P.3d

997, 998 (Okla. Crim. App. 2011)); see also Bland 459 F.3d at 1024 (noting

since the standard applied by the state court was the same as that under

federal law, the AEDPA deferential standard of review was applicable).

Thus, the OCCA’s decision, as to Tafolla’s allegations of prosecutorial

misconduct raised on direct appeal, was not contrary to clearly established

federal law.

Second, Tafolla’s arguments do not suggest, much less show, that the

OCCA unreasonably applied the fundamental-fairness test when it evaluated

each alleged instance of misconduct. Furthermore, as noted above, there was

strong evidence of Tafolla’s guilt. Considering this evidence, the OCCA’s

decision was not an unreasonable application of clearly established federal

law. Therefore, habeas relief as to this claim is denied.

B. Raised in Application for Post-Conviction Relief:

Additional Instances

In his application for post-conviction relief, Tafolla alleged, “additional

instances of prosecutorial misconduct not raised on direct appeal, nor

objected to by trial counsel deprived the Defendant/Petitioner of a fair trial[.]”

ECF No. 9-5 at 7. To support this claim, Tafolla stated, “[t]his case was rife

with repeated instances of prosecutorial misconduct, some of which were

raised on direct appeal, but some were not. The combination of all of the

instances of misconduct contributed to denial of due process.” Id. at 8. The

district court denied relief noting, Tafolla “fail[ed] to identify what additional

incidents were not raised in Petitioner’s direct appeal with anything other

than a broad general statement that he was denied due process.” ECF No. 9-

7 at 6.

On appeal of the denial of the application, the OCCA noted, “[e]xcept as

related to his ineffective assistance of appellate counsel claim, consideration

of Petitioner’s claims for relief are procedurally barred.” ECF No. 9-10 at 2.

The OCCA cited Logan v. State, which provides, “[i]ssues that were

previously raised and ruled upon by this Court are procedurally barred from

further review under the doctrine of res judicata; and issues that were not

raised previously on direct appeal, but which could have been raised, are

waived for further review.” Logan v. State, 293 P.3d 969, 973 (Okla. Crim.

App. 2013); see also ECF No. 9-10 at 2-3.

i. Analysis and Conclusion

Tafolla does not dispute the independence or adequacy of the state

procedural ground on which the OCCA denied his claim. See ECF No. 3 at 4-

6. Tafolla requests this Court give “this issue closer scrutiny” and urges the

additional instances of prosecutorial misconduct “should not be summarily

brushed aside.” Id. at 5, ECF No. 11 at 6. Having reviewed the state

appellate rules and opinion cited by the OCCA as the grounds for denial, the

Court finds no indication that they implicate federal law or that the OCCA’s

decision was otherwise based on federal law. Further, Respondent provided

argument and authority supporting a finding of independence and adequacy,

and Tafolla failed to provide “specific allegations” concerning either. Hooks,

184 F.3d at 1217.

Thus, to overcome the procedural bar, Tafolla must demonstrate either

“cause for the default and actual prejudice,” or a fundamental miscarriage of

justice. Coleman, 501 U.S. at 750. Tafolla has neither asserted cause and

prejudice excusing his procedural default nor provided argument suggesting

that his claim must be reviewed on the merits to prevent a fundamental

miscarriage of justice. See Spears v. Mullin, 343 F.3d 1215, 1252-53 (10th

Cir. 2003) (finding claim procedurally barred where petitioner did not allege

cause and prejudice or a fundamental miscarriage of justice).

To the extent Tafolla requests this Court grant federal habeas relief

based upon the additional grounds of prosecutorial misconduct he urged in

his post-conviction relief application, the Court finds that Tafolla’s claim is

procedurally barred from federal habeas review. Therefore, habeas relief as

to this claim is denied.

C. Allegations Presented for First Time: Prosecutor’s

Closing Arguments

Finally, in his Petition, Tafolla contends the “prosecutor made repeated

statements in closing argument and in evidence presentation which referred

to [Tafolla’s] prior convictions, stating he stabbed a Black man, [and] made

improper references to probation[.]” ECF No. 2 at 7; see also ECF No. 3 at 6

(“the prosecutor brought up gang-affiliation evidence and inquired about the

underlying facts of [Tafolla’s] previous convictions, to imply that race was a

factor in the altercation[.]”).8 Tafolla also asserts, “in cross-examination of

[Tafolla], the prosecutor brought up gang-affiliation evidence[.]” ECF No. 3

at 6.

Importantly, on direct appeal, Tafolla challenged the admission of this

evidence. Specifically, Tafolla argued,

The State was improperly permitted to present evidence of the

underlying facts of the prior felony convictions used for

enhancement, and improper prosecutorial evidence and argument

concerning probation deprived the Appellant of his right to Due

Process and Fundamental Fairness guaranteed by the Fourteenth

Amendment and Article II, Section 7 of the Oklahoma

Constitution.

ECF No. 9-2 at 40 (emphasis added). Tafolla specified, “Trial Counsel for the

Appellant permitted the State to ask about the details of Appellant’s prior

crimes[.]” Id. at 41. “The State emphasized Appellant’s prior crimes against

minorities in his closing argument[.]” Id. Tafolla also challenged the State’s

mention of probation and the admission of evidence related to Tafolla’s gang

affiliation. See ECF No. 9-2 at 41-42, 22-37. However, Tafolla did not

8 These are different closing argument statements than the ones Tafolla took

issue with on direct appeal. Compare ECF No. 9-2 at 43-47 (challenging

prosecutor’s arguments to the jury to protect society, speculation that Clayton

would have been killed and Clayton was afraid to testify, and name-calling)

with ECF No. 2 at 7 (challenging prosecutor’s closing argument statements

concerning Tafolla’s prior convictions and improper references to probation).

challenge these instances as prosecutorial misconduct, only as erroneously

admitted. See id. at 40-42.

i. Analysis and Conclusion

Prior to the instant Petition, Tafolla did not fairly present a

prosecutorial misconduct claim as to these instances to the state court. The

current claim departs significantly from his prior claim challenging the

admission of certain evidence, and the state courts have not had a “‘fair

opportunity’ to apply controlling legal principles to the facts bearing upon

[the prosecutorial misconduct] claim.” Anderson, 459 U.S. at 6. Accordingly,

this claim is not exhausted.

The Court further finds that the OCCA would, once again, apply a

procedural bar if Tafolla were to return to state court to exhaust this claim

through an application for post-conviction relief because he could have, but

did not, raise this prosecutorial misconduct claim on direct appeal. See

Grant, 886 F.3d at 891-92. Tafolla does not attempt to show why this Court

should review his procedurally barred claim. Therefore, Tafolla has not

overcome the procedural bar, and habeas relief as to this claim is denied.

VI. Ineffective Assistance of Trial Counsel (Ground III)

Tafolla contends his trial counsel was ineffective “in multiple respects,

most notably by her failure to offer exculpatory evidence – a dash camera

video, which was provided to her by the State in discovery.” ECF No. 3 at 6.

Tafolla further argues trial counsel was ineffective for failing “to object to

numerous instances of prosecutor misconduct, trial court evidentiary rulings

and other deficient conduct.” Id. (referencing three (3) pages of trial counsel’s

failures listed in direct appeal). Tafolla summarily argues, “the state court’s

dismissiveness of[] the ineffective assistance of counsel claims – on direct

appeal and post-conviction – was unreasonable.” Id.

A. The OCCA’s Decision: Trial Counsel’s Failure to Object

As noted, on direct appeal, Tafolla pointed to numerous instances in

which his trial counsel failed to object claiming these failures established

deficient performance by his counsel which was prejudicial to him. See ECF

No. 9-2 at 51-53. Relying on Strickland v. Washington, 466 U.S. 668 (1984),

the OCCA held, “Tafolla has not shown on the record that but for counsel’s

actions the result of his trial would have been different. Because he has

failed to establish prejudice from his attorney’s actions, Tafolla’s ineffective

assistance of counsel claim is denied.” ECF No. 9-1 at 33.

In his application for post-conviction relief, Tafolla claimed his trial

counsel was ineffective because she failed to object to the prosecutor’s

misconduct. See ECF No. 9-5 at 7-8. The district court held, “[e]rrors related

to Proposition IV, insofar as they related to [Tafolla’s] trial counsel failing to

object to prosecutorial misconduct, were raised in his appeal and ruled on by

the Oklahoma Court of Criminal Appeals. To the extent that they were not

raised on direct appeal, but could have been, they are barred by the doctrine

of waiver.” ECF No. 9-7 at 5. On post-conviction appeal, the OCCA held

Tafolla’s claims for ineffective assistance of trial counsel were procedurally

barred. ECF No. 9-10 at 2.

i. Analysis and Conclusion

Under clearly established federal law, the Sixth Amendment

guarantees a criminal defendant “the right to the effective assistance of

counsel.” Strickland, 466 U.S. at 685-86 (quoting McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970)). “The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686. And the

framework for assessing any such claim requires a reviewing court to

consider (1) whether counsel performed deficiently and, if so, (2) whether

counsel’s deficient performance prejudiced the defendant. Id. at 687. A

defendant can demonstrate deficient performance by showing that counsel’s

alleged acts or omissions were objectively unreasonable “under prevailing

professional norms.” Id. at 687-88. To establish prejudice, “[t]he defendant

must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

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

undermine confidence in the outcome.” Id.

Because the OCCA applied Strickland, Tafolla must establish the

OCCA unreasonably applied Strickland. On the record presented, Tafolla

cannot show that the OCCA’s adjudication of his claim involved an

unreasonable application of Strickland or was based on an unreasonable

determination of the facts. Both detectives testified as to their observations

of Tafolla beating Clayton [ECF No. 10-3 at 154, 202], Tafolla throwing an

item into the grass upon the detectives’ arrival and brass knuckles being

recovered [id. at 157], the injuries Clayton sustained to his face and back of

his head [id. at 176] and Tafolla testified he did hit Clayton using the brass

knuckles [id. at 246-47, 249, 256, 261]. The jury rejected Tafolla’s self-

defense theory, possibly due to the injuries to the back of Clayton’s head.

Tafolla cannot show that the OCCA’s rejection of his Sixth Amendment claim

for failure to show prejudice “was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

Therefore, as to Tafolla’s ineffective assistance of trial counsel claim

premised upon his trial counsel’s failures to object to certain evidence and

arguments, habeas relief as to this claim is denied.

B. The OCCA’s Decision: Trial Counsel’s Failure to Admit

the Dash Cam Video

Tafolla also contends his trial counsel was ineffective for failing to

introduce dash cam video evidence at trial. ECF No. 2 at 8, ECF No. 3 at 6.

Tafolla believes the video contradicts the detectives’ testimony. ECF No. 2 at

8, ECF No. 3 at 6. Tafolla did not raise the failure to admit the dash cam

video as a basis of his ineffective assistance of counsel claim on direct appeal.

See ECF No. 9-2.

In his application for post-conviction relief, Tafolla argued for the first

time his trial counsel was ineffective for failing to use the dash cam video.

ECF No. 9-5 at 6. He claimed the issue was not raised on direct appeal

because “the record was silent regarding the existence of the ‘dash-cam’

video, so this could not have been raised on direct appeal.” ECF No. 9-5 at 7.9

The district court ruled,

Errors related to his … trial counsel’s utilization of video evidence

she had, could have been raised by [Tafolla] in his direct appeal,

but was [sic.] not. This Court finds that [Tafolla] failed to meet his

burden to show that an external impediment prevented him or his

appellate counsel from raising this claim. Accordingly, this Court

concludes that this claim is barred by the doctrine of waiver.

ECF No. 9-7 at 4. The OCCA affirmed the district court’s ruling and held

this claim was procedurally barred. ECF No. 9-10 at 2-3.

9 The record does not support this assertion. Tafolla’s trial counsel filed a

motion in limine concerning the dash cam video. See ECF No. 10-7 at 70.

i. Analysis and Conclusion

Tafolla argues “the state court’s dismissiveness of[] the ineffective

assistance of counsel claims --- … post-conviction --- was unreasonable.” ECF

No. 3 at 7. However, since the OCCA ruled the claim was procedurally

barred, Tafolla must establish the OCCA’s decision did not rest on a state law

ground that is independent of the federal question and adequate to support

the judgment. See Coleman, 501 U.S. at 729.

This Court finds no indication that the OCCA’s ruling implicated

federal law or that the OCCA’s decision was otherwise based on federal law.

See ECF No. 9-10 at 2. Therefore, the OCCA’s decision rests on an

independent state law ground. The Court also concludes the OCCA’s

procedural default doctrine is firmly established and regularly followed.

Accordingly, this Court will not address this procedurally defaulted claim

unless Tafolla can demonstrate cause and resulting prejudice or a

fundamental miscarriage of justice. Harmon, 936 F.3d at 1060.

Tafolla summarily states, he “can show cause and actual prejudice for

his default.” ECF No. 11 at 9. However, Tafolla fails to demonstrate any

such cause and actual prejudice. See Grant, 886 F.3d at 889-90. Therefore,

to the extent Tafolla asks this Court to grant federal habeas relief based upon

his trial counsel’s failure to admit the dash cam video, the Court finds that

Tafolla’s claim is procedurally barred from federal habeas review.

VII. Ineffective Assistance of Appellate Counsel (Ground III)

Lastly, Tafolla claims his appellate counsel was ineffective “for failing

to raise [the dash cam video evidence] among other issues on direct appeal.”

ECF No. 2 at 8. In his Brief, Tafolla expands, “the failure to raise the Eighth

Amendment claim and the additional instances of prosecutorial misconduct

by appellate counsel resulted in prejudice to [Tafolla]. Plus, appellate counsel

neglected to raise the issue of error in failure of the trial court to give a

lesser-included jury instruction.” ECF No. 3 at 8. Tafolla’s allegations

include a mix of exhausted and unexhausted bases for this claim. The Court

will address Tafolla’s exhausted bases first.

A. Raised in Application for Post-Conviction Relief:

Eighth Amendment, Lesser Included Offense

Instruction and Prosecutorial Misconduct

In his application for post-conviction relief, Tafolla argued his appellate

counsel was ineffective for failing to raise: i) the Eighth Amendment/

excessive punishment claim; ii) the trial court’s failure to instruct the jury of

the lesser included offense of assault and battery; and iii) additional

instances of prosecutorial misconduct. ECF No. 9-5. The district court

applied Strickland and analyzed Tafolla’s claim. ECF No. 9-7 at 5-12. The

district court noted Tafolla’s sentence was within the statutory range and

was appropriate given Tafolla’s conduct, history and the facts of the case. Id.

at 11. Therefore, the district court concluded Tafolla’s appellate counsel was

not ineffective for failing to raise an “obviously losing proposition on

appeal[.]” Id. Further, the district court ruled Tafolla was not entitled to the

lesser included offense instruction because “there was an entire absence of

evidence to negate the use of brass knuckles, a dangerous weapon[.].” Id. at

10. The district court also concluded Tafolla failed to adequately support his

claim for ineffective assistance of appellate counsel based upon appellate

counsel’s failure to raise additional incidents of prosecutorial misconduct. Id.

at 6-8. Tafolla appealed the district court’s decision. ECF No. 9-9 at 9-10.

Relying on the Strickland test, the OCCA concluded, “we find no merit in the

claim that [Tafolla] was denied effective assistance of appellate counsel[.]”

ECF No. 9-10 at 4.

i. Analysis and Conclusion

The OCCA correctly identified the Strickland test. See ECF No. 9-10 at

3; see also Malicoat v. Mullin, 426 F.3d 1241, 1248 (10th Cir. 2005) (noting

Strickland is the appropriate test to apply to an ineffective assistance of

appellate counsel claim). The OCCA then determined Tafolla’s claim was

meritless. Id. at 4.

Thus, Tafolla must establish the OCCA unreasonably applied

Strickland. See Upchurch v. Bruce, 333 F.3d 1158, 1167 (10th Cir. 2003).

Under Strickland, a defendant must show (1) his counsel’s performance was

deficient and that (2) the deficient performance was prejudicial. Strickland,

466 U.S. at 687. When a habeas petitioner alleges that his appellate counsel

rendered ineffective assistance by failing to raise an issue on direct appeal,

the Court first examines the merits of the omitted issue. Cargle v. Mullin,

317 F.3d 1196, 1202 (10th Cir. 2003). The Tenth Circuit has consistently

held that “[w]hile counsel should not omit ‘plainly meritorious’ claims,

counsel need not raise meritless issues.” Smith v. Workman, 550 F.3d 1258,

1268 (10th Cir. 2008) (citation omitted). To prevail, a petitioner must “show

an ‘objectively unreasonable’ decision by the appellate counsel as well as a

‘reasonable probability that the omitted claim would have resulted in relief.’”

Id. (citation omitted).

After reviewing the record and the merits of the omitted claims, even if

appellate counsel raised these three (3) instances on direct appeal, Tafolla

cannot demonstrate that the result of his appeal would have been different.

Considering Tafolla’s two (2) prior felony convictions, the sentence imposed

was within the statutory range. Okla. Stat. tit. 21, §§ 645, 51.1(B), Okla.

Stat. tit. 57, § 571. The evidence also established Tafolla utilized a deadly

weapon to assault Clayton. ECF No. 10-3 at 154, 157, 176. Furthermore, in

light of the strong evidence of Tafolla’s guilt, raising additional instances of

prosecutorial misconduct would not have established the trial was

fundamentally unfair. It follows, Tafolla cannot establish the prejudice prong

of Strickland and the OCCA’s adjudication of this claim is not contrary to or

an unreasonable application of clearly established federal law. Habeas relief

as to this claim is denied.

B. Allegations Presented for the First Time: Dash Cam

Video

Concerning the dash cam video, Tafolla did not present his argument

that his appellate counsel was ineffective for failing to raise his trial counsel’s

ineffectiveness as it relates to the dash cam video in his application for post-

conviction relief. See ECF No. 9-5. Accordingly, this claim was not fairly

presented to the state court. Fairchild, 579 F.3d at 1151. Further, the

OCCA would apply a procedural bar if Tafolla were to return to state court to

exhaust this claim through an application for post-conviction relief because

he could have, but did not, raise this claim in his initial application for post-

conviction relief. Smallwood, 191 F.3d at 1267. Tafolla does not demonstrate

why this Court should review his procedurally barred claim. Therefore,

Tafolla has not overcome the procedural bar, and habeas relief as to this

claim is denied.

CONCLUSION

The Court finds and concludes that Tafolla has not made the necessary

showings to obtain federal habeas relief under 28 U.S.C. § 2254. The Court

therefore denies the Petition as to all five (5) claims raised therein. The

Court further concludes that no certificate of appealability shall issue

because reasonable jurists would not debate the correctness of this Court’s

assessment of Tafolla’s constitutional claims or its determination that some

claims, in whole or in part, are procedurally barred. 28 U.S.C. § 2253(c);

Slack v. McDaniel, 529 U.S. 478, 484 (2000).

IT IS THEREFORE ORDERED that the Petition [ECF No. 2] is

denied; a certificate of appealability is denied; and a separate judgment

shall be entered in this matter.

IT IS FURTHER ORDERED that the Clerk of Court shall note on the

record the substitution of David Rogers, Warden, in place of Jim Farris as

party Respondent.

IT IS SO ORDERED this 18th day of March, 2025.

Sara E. He

UNITED STATES DISTRICT JUDGE

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