Verdin v. Bowen

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

RICK ADAM VERDIN, )

)

Petitioner, )

)

v. ) Case No. CIV-23-812-SLP

)

MICHAEL MILLER, Warden, )

)

Respondent. )

O R D E R

Petitioner Rick Adam Verdin, a state prisoner appearing with counsel, filed this

action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. [Doc. No. 1].

Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), this matter was referred for initial

proceedings to United States Magistrate Judge Amanda Maxfield Green. The Magistrate

Judge issued a Report and Recommendation (R&R) [Doc. No. 24] recommending denial

on all grounds. Petitioner timely filed an Objection [Doc. No. 25] to the R&R. Thus, the

Court must make a de novo determination of those aspects of the R&R to which Petitioner

objects, and the Court may 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).1 Review of all other issues

addressed by the Magistrate Judge are waived. See Moore v. United States, 950 F.2d 656,

659 (10th Cir. 1991); see also United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th

Cir. 1996).

1 Respondent did not file a response to Petitioner’s objection. See Fed. R. Civ. P. 72(b)(2)

(permitting a party to respond to another party’s objections within 14 days).

I. Background

In 2021, following a two-day trial, a jury in Comanche County, Oklahoma found

Petitioner guilty of first degree rape (Count One), assault with a deadly weapon (Count

Three), performing a lewd act in the presence of a minor (Count Four), child abuse (Count

Five), kidnapping (Count Six), assault with a deadly weapon (Counts Eight and Nine),

kidnapping (Counts Ten through Twelve), and possession of a firearm after former felony

conviction (Count Thirteen).2 The jury acquitted Petitioner of rape by instrumentation

(Count Two) and domestic assault and battery resulting in great bodily harm (Count

Seven). Petitioner appealed, and the Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed his judgment and sentence.

Petitioner brings two grounds for federal habeas relief. See Pet. [Doc. No. 1]. First,

Petitioner alleges his constitutional rights to due process and a fair trial were violated by

the OCCA’s application of Oklahoma law’s prohibition against multiple punishments

arising from the same conduct. [Doc. No. 10] at 13–18. 3 Second, Petitioner alleges

prosecutorial misconduct—in the form of improperly eliciting the sympathy of the jury and

vouching for the credibility of the State’s witnesses—rendered Petitioner’s trial

fundamentally unfair in violation of his federal due process rights. Id. at 18–26.

2 Petitioner does not object to the R&R’s detailed recitation of the facts, so the Court does not

repeat them here.

3 Citations to the parties’ briefing references the CM/ECF pagination.

II. Objection to the R&R

The Magistrate Judge recommends denial of the Petition. [Doc. No. 24]. Petitioner

timely objected to the R&R on two grounds. See [Doc. No. 25]. First, Petitioner argues

“the Magistrate was incorrect in her determination that the state court ruling was not

arbitrary and capricious” as to the applicability of Okla. Stat. tit. 21, § 11. See [Doc. No.

25] at 3. Second, Petitioner contends the “Magistrate did not consider whether the OCCA

conducted the contextual review of the alleged instances of prosecutorial misconduct . . .

[l]ikewise, the Magistrate did not engage in the contextual examination of the entire

proceeding required by Donnelly and its progeny.” Id. at 5–6. Upon de novo review of the

issues objected to by Petitioner, the Court agrees with the Magistrate Judge’s findings and

conclusions, as set forth below.

A. The OCCA’s Application of Okla. Stat. tit. 21, § 11.

At the outset, the Court notes Respondent’s argument that Petitioner failed to

exhaust this claim before the OCCA as the substance of the federal claim was not “fairly

presented” to the OCCA. See Resp. Br. [Doc. No. 18]; see also Appellant Br. [Doc. No.

18-2] at 10–11 (Petitioner explicitly choosing not to raise a federal double jeopardy claim

before the OCCA); Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (“A claim has

been exhausted when it has been ‘fairly presented’ to the state court . . . ‘Fair presentation’

means that the petitioner has raised the “substance” of the federal claim in state court.”)

(citations omitted). The Court agrees this argument appears to be unexhausted. See Walker

v. Patton, 671 F. App'x 703, 704 (10th Cir. 2016) (“We have carefully examined [the

petitioner’s] arguments in the OCCA and find that they were limited to whether he received

multiple punishments for the same crime in violation of the Oklahoma statute—not the

Double Jeopardy Clause of the United States Constitution. He therefore failed to exhaust

his remedies.”).

Rather than address this argument, however, the Magistrate Judge chose to bypass

the procedural arguments to review the claim de novo on the merits. [Doc. No. 24] at 9,

n.3] (citing Revilla v. Gibson, 283 F.3d 1203, 1211 (10th Cir. 2002) (“We therefore invoke

our discretion to bypass complex issues of exhaustion and procedural bar to reject the claim

on the merits . . . .”) (internal citations omitted)); see also 28 U.S.C. § 2254(b)(2) (“An

application for a writ of habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the courts of the State.”); Mars

v. White, No. 24-6038, 2025 WL 702813, at *2 (10th Cir. Mar. 5, 2025) (“[A] court may

ignore the exhaustion requirement altogether and deny the petition on the merits if none of

the petitioner's claims has any merit.”); Brown v. Sirmons, 515 F.3d 1072, 1092–93 (10th

Cir. 2008) (“[In the interest of efficiency, we have held that we can avoid deciding

procedural bar questions where claims can readily be dismissed on the merits.”) (internal

citations and quotations omitted). Neither party objected to this choice of analysis, so the

Court similarly reviews the claim’s merits de novo given that there is no state court

adjudication to which Section 2254(d) applies. See Bland, 459 F.3d at 1010 (“The §

2254(d) standard does not apply to issues not decided on the merits by the state court.”);

see also Fontenot v. Crow, 4 F.4th 982, 1061 (10th Cir. 2021) (discussing circumstances

that support de novo review in habeas proceedings); Cuesta-Rodriguez v. Carpenter, 916

F.3d 885, 898 (10th Cir. 2019) (“Claims that the state court didn’t adjudicate on the merits,

we review de novo.”). Thus, this Court reviews whether the OCCA’s application of Okla.

Stat. tit. 28, § 11 constituted an independent due process violation. See Graham v. White,

101 F.4th 1199, 1205 (10th Cir. 2024) (“[I]n rare circumstances, a determination of state

law can be so arbitrary or capricious as to constitute an independent due process

violation.”).

Petitioner’s first objection to the R&R challenges the Magistrate Judge’s conclusion

that the OCCA’s application of Okla. Stat. tit. 21, § 11 was not arbitrary or capricious.

[Doc. 25] at 3 (“The Magistrate correctly acknowledged that a federal Due Process

violation could occur due to misapplication of state law . . . However, [Petitioner]

respectfully contends the Magistrate was incorrect in her determination that the state court

ruling was not arbitrary and capricious.”). But Petitioner does not cite to any additional

legal authority in his Objection to support his claim that the OCCA’s ruling was arbitrary

and capricious. See generally, [Doc. No. 25]. Further, Petitioner does not present any new

arguments or record citations that were not already presented to and analyzed by the

Magistrate Judge—in fact, Petitioner’s Objection repeatedly cites to and incorporates

arguments directly from his Brief in Support. See, e.g., Pet.’s Obj. [Doc. No. 25] at 3–4.

Petitioner’s conclusory statement that the OCCA’s “decision was unreasonable as to the

law and facts” followed by a citation to his Brief in Support does not constitute a proper

objection and is necessarily nonresponsive to the R&R. As such, the Court is not required

to consider this objection. See Hooper v. Stitt, No. CIV-22-988-D, 2023 WL 2432038, at

*1 (W.D. Okla. Mar. 9, 2023) (“In his objection, Plaintiff generally ignores Judge Erwin’s

analysis and repeats, verbatim, many of the arguments previously presented in his

complaint. . . . Plaintiff’s failure to identify any specific error in Judge Erwin’s analysis

prevents further review.”), aff’d, No. 23-6049, 2023 WL 5923920 (10th Cir. Sept. 12,

2023).

Even so, the Court agrees with the conclusions in the R&R. Petitioner argues that

because “there was no additional evidence to support his convictions for kidnapping apart

from the evidence utilized by the state to secure the convictions for the child abuse and

assault with a deadly weapon offenses,” the OCCA’s ruling was “unreasonable, or

otherwise arbitrary and capricious, in that there was no additional conduct on the part of

[Petitioner] to constitute the kidnapping alleged in Counts 10 and 11, apart from the

evidence underlying his convictions for Counts 5, 8, and 9.” [Doc. No. 25] at 2–3.

The Court disagrees. Reviewing for plain error,4 the OCCA reasoned that while the

crimes of child abuse, assault with a deadly weapon, and kidnapping were related, “the

kidnapping crimes in Counts 10 and 11 involved separate victims and were separate,

distinct acts that required dissimilar proof.” [Doc. No. 18-1] at 4–5. The OCCA noted,

“[t]hat the fear of additional abuse and threats with the rifle played some role in the

children’s decision not to run away, that sort of overlap does not make the kidnapping

crimes indistinct from the actual abuse and assaults, i.e., part of a single act.” Id.

The OCCA’s conclusions are supported both in law and by the evidence presented

in trial. As set forth in the R&R, Oklahoma law requires different factual elements of proof

4 Because Petitioner did not object at trial on the grounds of Oklahoma’s prohibition against

multiple punishments arising out of the same conduct under Okla. Stat. tit. 21, § 11, the OCCA

reviewed Petitioner’s claim for plain error. [Doc. No. 18-1] at 2.

for the crimes of child abuse, assault with a deadly weapon, and kidnapping. See [Doc.

No. 24] at 12, n.4. Although these crimes may be “tangentially related,” that does not

necessarily rise to a Section 11 violation. See Dennis v. Poppel, 222 F.3d 1245, 1257-58

(10th Cir. 2000) (“While these two acts or offenses may have occurred during a continuing

course of conduct . . . the two acts are, at most, only tangentially related and thereby

insufficient to cause a § 11 violation . . . . Because § 11 does not apply, we also reject his

claim that the state’s failure to apply § 11 violated his due process and equal protection

rights.”). Further, Petitioner’s Objection points to testimony cited in his Brief in Support,

but that testimony reveals the children were indeed afraid of additional, and possibly more

severe, violence if they were to leave. See [Doc. No. 25] at 4 (citing [Doc. No. 10] at 15–

18). The OCCA reasonably concluded that this fear of additional abuse towards them, their

mother, or their siblings were separate and distinct from the abuse and assault with a deadly

weapon that “were complete the moment the blows landed and the threats were made.”

[Doc. No. 18-1] at 4–5.

Accordingly, the OCCA’s ruling as to Okla. Stat. tit. 21, § 11 was reasoned and was

not “so arbitrary or capricious” that it amounts to a due process violation or “shocks the

judicial conscious.” Aycox, 196 F.3d at 1180.

B. Prosecutorial Misconduct

Petitioner objects to the R&R on the basis that he claims the Magistrate Judge did

not consider whether the OCCA conducted a “contextual review of the alleged instances

of prosecutorial misconduct.” [Doc. No. 25] at 5. Petitioner further claims the Magistrate

Judge similarly did not engage in a contextual review. Id. at 6. Specifically, Petitioner

argues that the challenged statements “occurred against the backdrop of somewhat

conflicting and extraordinary allegations, as demonstrated by [Petitioner’s] acquittals as to

Counts 2 and 7.” Id. at 5. But Petitioner provides no detail, explanation, or citation as to

the purported “conflicting and extraordinary allegations” to which he refers.

“The review of a § 2254 petition from a state prisoner is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).” Tryon v. Quick, 81

F.4th 1110, 1140 (10th Cir. 2023) (internal quotation marks and citation omitted).

According to the AEDPA, this Court must defer to the OCCA’s adjudication unless it “was

contrary to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States” or “resulted in a decision that was

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

the state court proceeding.” 28 U.S.C. § 2254(d). The clearly established law governing

claims of prosecutorial misconduct at the habeas stage is “‘the narrow one of due process.’”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 642 (1974)). To establish a constitutional violation, “[i]t is not enough that the

prosecutors’ remarks were undesirable or even universally condemned.” Id. Instead, “[t]he

relevant question is whether the prosecutors’ improper comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Id. (quoting

Donnelly, 416 U.S. at 643). Factors the court may consider include: “whether the

comments were ‘invited by’ or ‘responsive’ to defense arguments; whether curative

instructions were given to the jury; and the weight of the evidence.” Id. Critical to this

analysis, the Supreme Court has noted that “the Darden standard is a very general one,

leaving courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’”

Parker v. Matthews, 567 U.S. 37, 48 (2012) (citing Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)).

A review of the OCCA’s ruling and the R&R demonstrate that both courts

considered the complained-of conduct in context of the proceedings. The OCCA’s ruling

acknowledged this requirement, stating: “We evaluate claims of prosecutorial error ‘within

the context of the entire trial, considering not only the propriety of the prosecutor’s actions,

but also the strength of the evidence against the defendant and the corresponding arguments

of defense counsel.’ Lee v. State, 2018 OK CR 14, ¶ 6, 422 P.3d 782, 785.” [Doc. 18-2]

at 6. In its review for plain error,5 the OCCA concluded the prosecutor’s closing arguments

were not improper “as the prosecutor’s argument was based on the evidence presented.”

Id. at 7. The OCCA further held that no improper vouching occurred when the prosecutor

elicited testimony and made closing arguments referencing the witnesses’ consistency in

their statements. Id.

Similarly, the R&R clearly demonstrates that the Magistrate Judge reviewed the

challenged statements in context of the entire proceedings. Indeed, the Magistrate Judge’s

R&R explicitly states, “[b]ased on the overall record, the OCCA’s decision that Detective

Malloy’s testimony and the prosecutor’s statements during his second closing argument

did not constitute vouching or bolstering is reasonable.” [Doc. No. 24] at 17 (emphasis

added). Moreover, in analyzing the claim regarding improper vouching, the Magistrate

5 Because Petitioner did not object to the challenged statements at the trial, the OCCA reviewed

Petitioner’s claim regarding prosecutorial misconduct for plain error. [Doc. No. 18-1] at 5.

Judge reviewed the statements of the prosecutor as well as those of defense counsel, finding

“the prosecutor’s statements during closing constituted a reasonable response to defense

counsel’s closing argument” wherein he referenced inconsistencies by the witnesses. [Doc.

No. 24] at 17. Similar findings were made regarding whether the prosecutor improperly

evoked sympathy. See [Doc. No. 24] at 19 (considering the responsiveness of the

prosecutor’s statements, the nature of the crimes, and mitigating jury instructions).

Thus, the Court finds nothing in the record to suggest that the OCCA or the

Magistrate Judge did not consider the context of the entire trial when analyzing potential

prosecutorial misconduct. The Court further agrees that the OCCA reasonably found the

prosecutor’s arguments did not amount to plain error, and thus did not violate Petitioner’s

due process rights. Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005)

(“Oklahoma's plain-error test is rooted in due process” and there is “no practical distinction

between [the OCCA’s formulation] of plain error . . . and the federal due-process

test . . . .”). Where the OCCA reasonably applies its plain error test, we must defer to its

ruling. Id.

III. Conclusion

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.

24] is ADOPTED in its entirety, and the Petition [Doc. No. 1] is DENIED. A separate

judgment of dismissal shall be entered.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 Cases, the Court must issue or deny a certificate of appealability (COA) when

it enters a final order adverse to a petitioner. A COA may issue only upon “a substantial

showing of the denial of a constitutional right.” 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 US.

473, 484 (2000). Upon review, the Court finds that Petitioner has not made the requisite

showing as to any of the grounds for relief raised. The Court therefore DENIES a COA.

The denial shall be included in the judgment.

IT IS SO ORDERED this 27" day of May, 2025.

Lez bop

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

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