The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
BRIAN WAYNE CHESSER, )
)
Petitioner, )
)
v. ) Case No. CIV-24-891-HE
)
MICHAEL MILLER, Warden, )
)
Respondent. )
REPORT AND RECOMMENDATION
Petitioner Brian Wayne Chesser, proceeding pro se, filed a Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2254 (“Petition”) challenging his state court conviction
and sentence in Case No. CF-2020-741, District Court of Cleveland County, Oklahoma.
Doc. 1. United States District Judge Joe Heaton referred this matter to the undersigned
Magistrate Judge for proposed findings and recommendations consistent with 28 U.S.C.
§ 636(b)(1)(B)-(C). Respondent filed a Response (“Response”), Doc. 16, and the state
court record, Docs. 17, 18. Included in the state court record are the original record,
Doc. 18-1; the trial transcript (“Tr.”), Doc. 17-1; jury trial exhibits (“State’s Ex.”),
Docs. 18-2, 19; and the sentencing transcript, Doc. 17-1.1 Petitioner did not reply. For the
reasons set forth below, the undersigned recommends that the Court deny the Petition.
I. Underlying Facts and Relevant Procedural History
Petitioner was tried by jury in Cleveland County, Oklahoma, and convicted of first-
degree manslaughter (“Count I”) and leaving the scene of a fatality accident (“Count II”).
1 Page citations reference the Court’s electronic case filing pagination.
Doc. 16-1 at 1. He was sentenced to nineteen years’ imprisonment on Count I and ten
years’ imprisonment on Count II, to be served consecutively. Id. Petitioner filed a direct
appeal with the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed his
conviction and sentence on December 14, 2023. Docs. 16-1, 16-3.
On the night of March 21, 2020, Petitioner sent the following text: “don’t forget
when I say melt your off its because I’ve had 15 beers an[d] working on a apple rum when
I smoke it.” State’s Ex. 24. Approximately three hours later, the Norman Police
Department received a 911 call about a pedestrian-involved accident. Tr. at 444-45, 460-
61. Officers observed the victim lying on the roadway with serious bodily injuries
including disembowelment; the victim’s internal organs were on the roadway. Id. at 461-
62, 681. Law enforcement officers also observed debris from a red Ford F-150, resulting
in a “be on the lookout” alert (“BOLO”) issued for a vehicle matching this description with
front-end damage. Id. at 463-64, 570.
The next morning, Officer Jamie Crowe located a vehicle matching the BOLO’s
description. Id. at 571. The truck was parked in front of a residence, and a teenager
informed Officer Crowe that the truck belonged to his father who was not home. Id. at
574-75. Officer Crowe and two other officers returned to the residence later that day, and
Officer Brian Billie saw Petitioner approach the back of the residence. Id. at 596-97.
Petitioner cooperated with Officer Billie’s directions to stop and come towards him. Id. at
598. Unprompted, Petitioner said that someone had the keys to his car, and that he had
reported the car stolen to the Norman Police Department. Id. at 582, 598; State’s Ex. 75 at
0:33-0:55, 1:21-1:30. Petitioner was Mirandized and taken in for questioning. Tr. at 582-
83; State’s Ex. 75 at 1:39-2:29. En route to questioning, Petitioner stated “we have to catch
the guy behind the wheel of the collision.” Tr. at 600; State’s Ex. 75 at 7:04-7:08.
During questioning, Petitioner admitted to driving his truck the night of the incident,
colliding with something on the road, and failing to stop after the collision. State’s Ex. 76
at 45:30-51:02. He stated he believed he hit a deer. Id. at 47:20-48:50. Petitioner sent a
text message approximately 44 minutes after his first police interrogation, stating “some
bum walked out in front of my truck on the highway, and I splatted him dead.” State’s Ex.
24 (citation modified). Officer Joshua Hard testified that the police never told Petitioner
the victim was experiencing homelessness. Tr. at 746. Petitioner also admitted what he
hit was black and gray. Tr. at 738. The victim was wearing dark clothing, including a
black jacket. Id.
II. Petitioner’s Claims
Petitioner filed his Petition in this Court, asserting four grounds for relief. Pet. at 6-
35. The Petition appears to be taken largely from his direct appeal and does not present
arguments specific to the standards for habeas relief under 28 U.S.C § 2254(d). Compare
Pet., with Doc. 16-3 (Petitioner’s brief filed with the OCCA on direct appeal). The
undersigned liberally construes Petitioner’s grounds for relief because he proceeds pro se.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings
are to be construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers.”). However, a court will not act as a petitioner’s advocate. Id.
Accordingly, the undersigned construes Petitioner’s arguments to conform to § 2254
standards as appropriate.
Petitioner raises four grounds for relief:
• Ground One: The OCCA’s decision—that the prosecution’s filing of
the general charge of first-degree manslaughter instead of the more
specific charge of causing an accident without a valid driver’s license
did not violate Petitioner’s due process rights—was contrary to or an
unreasonable application of clearly established federal law.
• Ground Two: The OCCA’s decision—that counsel’s failure to
(1) challenge two jurors for cause and (2) object to certain evidence
did not constitute ineffective assistance under the Sixth
Amendment—was contrary to or an unreasonable application of
clearly established federal law.
• Ground Three: The OCCA’s decision—that Petitioner’s due process
rights were not violated by admission of evidence that constituted
other criminal acts and argument regarding that evidence—was
contrary to or an unreasonable application of clearly established
federal law.
• Ground Four: The OCCA’s decision—that the accumulation of errors
did not deprive Petitioner of a fair trial in violation of his due process
rights—was contrary to or an unreasonable application of clearly
established federal law and based on an unreasonable determination
of fact.
III. Standard of Review
A. Limited merits review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
circumscribes the Court’s review of claims that were adjudicated on the merits in state
court proceedings. 28 U.S.C. § 2254; Byrd v. Workman, 645 F.3d 1159, 1165-67 (10th
Cir. 2011). Where the state court adjudicated a claim on the merits, this Court may grant
habeas relief only if Petitioner can establish that the decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or was “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C
§ 2254(d)(1)-(2). “It is the petitioner’s burden to make this showing and it is a burden
intentionally designed to be difficult to meet.” Owens v. Trammell, 792 F.3d 1234, 1242
(10th Cir. 2015) (citation modified). “Section 2254(d) reflects the view that habeas corpus
is a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S.
86, 102-03 (2011) (citation modified). Review of a claim under § 2254(d) “is limited to
the record that was before the state court that adjudicated the claim on the merits.” Cullen
v. Pinholster, 563 U.S. 170, 180 (2011).
Clearly established federal law under § 2254(d)(1) refers to “the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-
court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A decision is “contrary to”
clearly established federal law if “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id.
at 412-13. “It is not enough that the state court decided an issue contrary to a lower federal
court’s conception of how the rule should be applied; the state court decision must be
‘diametrically different’ and ‘mutually opposed’ to the Supreme Court decision itself.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006) (quoting Williams, 529 U.S. at 406).
A decision is an “unreasonable application” of clearly established federal law if “the
state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413. A state court’s application of federal law is unreasonable only
if it was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. In other words, the state-court determination must have been
so lacking that “every fairminded jurist” would “reach a different conclusion.” Brown v.
Davenport, 596 U.S. 118, 144 (2022).
B. Exhaustion
AEDPA codifies the exhaustion doctrine, which is a matter of comity and requires
the Court to consider in the first instance whether Petitioner has presented his grounds for
relief to the OCCA. 28 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S. 722, 731
(1991) (“The States should have the first opportunity to address and correct alleged
violations of state prisoner’s federal rights.” (citation modified)). The doctrine provides
that, aside from two narrow exceptions, habeas relief shall not be granted unless the
remedies available in state court have been exhausted. Habeas relief may, however, be
denied notwithstanding a failure to exhaust state court remedies. 28 U.S.C. § 2254(b)(2).
C. Procedural bar
In addition to the issue of exhaustion, a federal habeas court must also examine the
state court’s resolution of the presented claim. “It is well established that federal courts
will not review questions of federal law presented in a habeas petition when the state
court’s decision rests upon a state-law ground that ‘is independent of the federal question
and adequate to support the judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting
Coleman, 501 U.S. at 729). This doctrine bars federal habeas relief “when a petitioner fails
to raise his federal claims in compliance with relevant state procedural rules, [as] the state
court’s refusal to adjudicate the claim ordinarily qualifies as an independent and adequate
state ground for denying federal review.” Id. (citing Coleman, 501 U.S. at 731).
IV. Analysis
A. Ground One: Filing the first-degree manslaughter charge
In Ground One, Petitioner argues his due process rights were violated when he was
prosecuted under “the general provision of misdemeanor manslaughter” rather than a more
“specific provision of law.” Pet. at 7-15. Specifically, Petitioner alleges he should have
been prosecuted under Okla. Stat. tit. 47, § 11-905(C), which carries a maximum sentence
of five years for causing an accident without a valid driver’s license. Pet. at 7-8. In ruling
on Petitioner’s direct appeal, the OCCA (1) recited state law controlling a prosecutor’s
discretion and how the legislature can curtail the discretion and (2) concluded Okla. Stat.
tit. 47, § 11-905 makes “it clear that the acts committed by [Petitioner are] not limited to
prosecution under” that statute. Doc. 16-1 at 3-4.
1. Exhaustion
Respondent argues this claim is unexhausted because Petitioner presented only
state-law arguments to the OCCA, and now Petitioner presents the claim as a due process
violation. Resp. at 18-20. In his direct appeal, however, Petitioner stated the prosecution’s
charge violated his “constitutional rights under the Due Process Clause of the United States
Constitution.” Doc. 16-3 at 20. Moreover, even if the Court were to determine Petitioner
did not adequately present his claim to the OCCA, “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.” 28 U.S.C. § 2254(b)(2) (citation
modified). Here, the undersigned recommends denial of relief as to Ground One.
2. Discussion
a. Reliance on state law
Petitioner’s allegation that the OCCA’s reliance on Okla. Stat. tit. 47, § 11-905(D)
conflicts with Okla. Stat. tit. 21, § 11 questions only the OCCA’s application of state law.
Petitioner does not cite any federal law supporting this allegation, but only urges a different
interpretation of the state statute. Pet. at 9-10. “Whether a prosecutor must proceed under
one statute rather than another is a matter of state law.” Haney v. Addison, 275 F. App’x
802, 805 (10th Cir. 2008) (citation modified); accord Hamburger v. Allbaugh, No. CIV-
13-921-F, 2016 WL 3675877, at *8 (W.D. Okla. May 24, 2016) (R&R), adopted, 2016
WL 3676794 (W.D. Okla. July 6, 2016). “Federal habeas corpus relief does not lie for
errors of state law,” and “it is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (citation modified). Federal habeas relief is not appropriate.
b. Application of federal law
Further, even assuming an error of state law, charging Petitioner with misdemeanor
manslaughter does not warrant habeas relief. For a state law violation to constitute a denial
of due process, “the deprivation occasioned by the state’s failure to follow its own law
must be ‘arbitrary in the constitutional sense’; that is, it must shock the judicial
conscience.” Aycox v. Lytle, 196 F.3d 1174, 1180 (10th Cir. 1999) (quoting Collins v. City
of Harker Heights, 503 U.S. 115, 129-30 (1992)). “So long as the prosecutor has probable
cause to believe that the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file . . . generally rests entirely in his
discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (citation modified). While
a “prosecutor may be influenced by the penalties available upon conviction, [this alone]
does not give rise to a violation of the . . . Due Process Clause.” United States v. Batchelder,
442 U.S. 114, 125 (1979). The record reflects that the prosecution had probable cause to
charge Petitioner with misdemeanor manslaughter.2 Petitioner has not established that the
OCCA’s decision that he could be charged with misdemeanor manslaughter was contrary
to or an unreasonable application of clearly established federal law.
While Petitioner relies on Hicks v. Oklahoma, 447 U.S. 343 (1980), the principle in
Hicks is not triggered in his case. In Hicks, a statute used to impose a mandatory prison
term for the petitioner was later declared unconstitutional by the OCCA. 447 U.S. at 344-
45. The Court held that a defendant “has a substantial and legitimate expectation that he
will be deprived of his liberty only to the extent determined by the jury in the exercise of
its statutory discretion.” Id. at 346. Because the statute imposing the mandatory sentence
was later found unconstitutional, reliance on that statute was outside of the jury’s statutory
discretion, and the resulting “arbitrary disregard of the petitioner’s right to liberty [was] a
denial of due process.” Id. Petitioner has not established the jury acted outside of its
2 Petitioner does not argue that the charge was selected “based upon an unjustifiable
standard such as race, religion, or other arbitrary classification.” Hayes, 434 U.S. at 364
(citation modified).
statutory discretion or that the state arbitrarily disregarded his liberty right. Nor does
Petitioner’s reliance on Hicks otherwise establish a violation of due process.
3. Conclusion
Petitioner’s Ground One fails because (1) federal habeas relief is not available for
challenges related only to a state court’s application of state law, and (2) he has not
established the OCCA’s decision was contrary to or an unreasonable application of clearly
established federal law. The undersigned recommends that the Court deny relief as to
Ground One.
B. Ground Two: Ineffective assistance of counsel
In Ground Two, Petitioner alleges his trial counsel was ineffective for failing to
(1) object to the admission of the text message he sent before the incident; (2) object to
irrelevant testimony; and (3) challenge Juror T.R. and Potential Juror J.B. for cause. Pet.
at 17-25. Respondent asserts the first two claims related to the text message and allegedly
improper testimony are unexhausted and subject to an anticipatory procedural bar. Resp.
at 26, 35. Respondent also argues all claims fail on the merits. Id. at 29-34, 36-49.
1. Unexhausted claims subject to an anticipatory procedural bar
To properly exhaust his claim, a petitioner must fairly present the claim to the state
court. Grant v. Royal, 886 F.3d 874, 890 (10th Cir. 2018). “In order to be fairly presented,
the state-court claim must be the ‘substantial equivalent’ of its federal habeas counterpart.”
Id. at 891 (citation modified) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). A
claim is not substantially equivalent when “in a significantly different and stronger posture
than it was when the state courts considered it.” Id. (citation modified). The focus and
alleged error identified by petitioner “cannot depart significantly” from what was presented
to the state court. Id.
Though Petitioner raised before the OCCA other claims regarding his trial counsel’s
alleged ineffectiveness, he failed to raise his claims regarding counsel’s alleged failure to
object to (1) the admission of the text message, and (2) irrelevant testimony. Compare Pet.
at 17-25, with Doc. 16-3 at 34-41. “The Petitioner bears the burden of proving either that
state remedies were exhausted or that exhaustion would have been futile.” Fontenot v.
Crow, 4 F.4th 982, 1020 (10th Cir. 2021). Petitioner has not shown that he exhausted these
claims or that exhaustion would have been futile. Therefore, these portions of Ground Two
are unexhausted.
When a claim is unexhausted, a federal habeas court can apply an anticipatory
procedural bar. An anticipatory procedural bar appropriately bars a federal habeas claim
when the relevant state courts would now find the unexhausted claim procedurally barred.
Grant, 886 F.3d at 892. Oklahoma law would procedurally bar Petitioner from now
pursuing these subclaims in an application for post-conviction relief because (1) the filing
limitations period has passed, and (2) he could have previously raised them. Okla. Stat.
tit. 22, §§ 1080.1, 1086. Petitioner does not argue that he can overcome the procedural bar:
he does not challenge the independence or adequacy of Oklahoma’s rule nor does he allege
cause and prejudice or a fundamental miscarriage of justice. See Tryon v. Quick, 81 F.4th
1110, 1139 (10th Cir. 2023) (noting methods to overcome a procedural bar). The
unexhausted portions of Petitioner’s ineffective assistance of counsel claim are subject to
an anticipatory procedural bar.
2. The exhausted jury selection claims fail on the merits
Petitioner alleges his counsel was ineffective for failing to challenge Juror T.R. and
Prospective Juror J.B. for cause. Pet. at 22-24. This was raised as Proposition V of his
direct appeal. Doc. 16-3 at 34-41. The OCCA denied the proposition, determining the
“jurors in question were statutorily qualified to serve” and Petitioner had “not met his
burden to show that counsel was ineffective by selecting a jury that deprived him of a fair
trial.” Doc. 16-1 at 11.
a. Clearly established federal law
To succeed on his claim of ineffective assistance of counsel, Petitioner must satisfy
the two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984). A petitioner
must show that his attorney’s performance was both deficient and prejudicial—that is,
1) his attorney’s performance fell “outside the wide range of professionally
competent assistance” and
2) “counsel’s errors were so serious” that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”
Id. at 687, 690, 694. On habeas review, the Court must apply a “doubly deferential standard
of review that gives both the state court and the defense attorney the benefit of the doubt.”
Burt v. Titlow, 571 U.S. 12, 15 (2013) (citation modified). So “the pivotal question is
whether the state court’s application of the Strickland standard was unreasonable” or its
decision contrary to Strickland, and not “whether defense counsel’s performance fell below
Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation modified).
b. Discussion
i. Juror T.R.
Petitioner alleges Juror T.R. was “clearly sympathetic to the prosecution’s
objective” and counsel was ineffective for failing to question her to determine any
prejudice against him. Pet. at 22. To prove juror bias, the petitioner “must show that the
juror had such a fixed opinion that he or she could not judge impartially.” Hale v. Gibson,
227 F.3d 1298, 1319 (10th Cir. 2000). Further, “an attorney’s actions during voir dire are
considered to be matters of trial strategy. A strategic decision cannot be the basis for a
claim of ineffective assistance unless counsel’s decision is shown to be so ill chosen that it
permeates the entire trial with obvious unfairness.” Id. at 1317 (citation modified). Here,
T.R. recounted that her cousin died from an accident caused by a driver under the influence
and the driver received parole, but she also stated the driver “changed his life around from
that. He’s learned from it.” Tr. at 272-73, 339. Further, T.R. stated she could be fair and
impartial. Id. at 362-63.
Considering T.R.’s responses—including viewing parole as a positive outcome for
the intoxicated driver who killed her family member, Petitioner has not shown how defense
counsel’s failure to further question T.R. resulted in the entire trial being permeated with
obvious unfairness. See Hale, 227 F.3d at 1317. Not all reasonable minds reviewing the
record would agree that the OCCA was wrong in deciding counsel was not ineffective for
failing to challenge T.R. for cause or further question her. As such, Petitioner has not
established the OCCA’s decision was contrary to or an unreasonable application of
Strickland.
ii. Juror J.B.
Petitioner alleges that while defense counsel did use a peremptory challenge to
remove Potential Juror J.B., counsel’s failure to have J.B. removed for cause constituted
ineffective assistance of counsel. Petitioner’s argument is flawed. First, Petitioner has
failed to show that J.B. “had such a fixed opinion that he . . . could not judge impartially.”
Hale, 227 F.3d at 1319. J.B. was a retired law enforcement officer, but he had not worked
directly with either of the prosecutors during his law enforcement career. Tr. at 239-40,
328-29. While he did initially indicate that he would “be more apt to lean” toward the
prosecution’s perspective, he also stated that he understood the burden of proof was on the
government and he would hold them to that standard. Id. at 365-66. Second, “there is no
freestanding constitutional right to peremptory challenges.” Rivera v. Illinois, 556 U.S.
148, 157 (2009). So, losing a peremptory challenge by using it on J.B. did not per se violate
Petitioner’s constitutional rights. Instead, because J.B. did not sit on the jury, “any claim
that the jury was not impartial . . . must focus not on [J.B.], but on the jurors who ultimately
sat.” Ross v. Oklahoma, 487 U.S. 81, 85-86 (1988). Petitioner does not argue that any
impaneled jurors, other than T.R. discussed above, were legally inadequate.
Not all reasonable minds reviewing the record would agree that the OCCA was
wrong in deciding counsel was not ineffective for failing to challenge J.B. for cause. As
such, Petitioner has not established the OCCA’s decision was contrary to or an
unreasonable application of Strickland.
c. Conclusion on juror claims
The OCCA considered Petitioner’s claims that his trial counsel was ineffective
during jury selection and determined Petitioner had not established ineffectiveness under
Strickland. Doc. 16-1 at 8-11. Petitioner has not demonstrated the OCCA’s decision was
contrary to or an unreasonable application of clearly established federal law.
3. Conclusion on Ground Two
Petitioner’s Ground Two fails because (1) portions of the claim are subject to an
anticipatory procedural bar, and (2) he has not established the OCCA’s decision regarding
ineffective assistance of counsel was contrary to or an unreasonable application of clearly
established federal law. The Court should deny relief as to Ground Two.
C. Ground Three: Evidence of other criminal acts
Ground Three relates to the text message Petitioner sent approximately three hours
before the accident that indicated he was partaking in drugs and alcohol and later driving
under the influence at the time of the accident. Pet. at 28-31. He urges that the text message
was highly prejudicial and offered little probative value. Id. at 29.
Petitioner further argues the prosecution’s reference in her closing argument to him
driving under the influence was “prosecutorial misconduct” that violated his “14th
Amendment right to a fair trial.” Id.; see also id. at 31 (arguing because the trial court
denied a mistrial on the issue, he was denied “the opportunity to have a fair trial, . . . [which
is] a basic requirement of due process.” (citation modified)); id. (arguing the prosecutor’s
reference to him driving under the influence during her closing argument was an “outright
violation of Petitioner’s due process”).
a. Exhaustion
Respondent argues this claim is unexhausted because when presented in
Proposition II of Petitioner’s direct appeal it was based on a state-law violation, and now
he presents the issue as a federal due process violation. Resp. at 49-51. With respect to
admission of the text message, Petitioner raises the same claim before this Court that he
raised on direct appeal: that the text message should not have been admitted. As discussed
below, this is not a cognizable claim in federal habeas. Because Petitioner “alleges no
deprivation of a federal right, § 2254 is simply inapplicable.” Engle v. Isaac, 456 U.S. 107,
120 n.19 (1982). As such, exhaustion of this claim is unnecessary. Id.
With respect to the prosecution’s closing argument, however, Petitioner presents
this Court with a due process claim. And in Proposition III of his direct appeal, Petitioner
argued he was denied a fair trial due to the prosecution’s closing argument inferring he was
driving under the influence. Doc. 16-3 at 28-31. The portion of Ground Three requiring
exhaustion is exhausted.
b. Clearly established federal law
“Federal habeas review is not available to correct state law evidentiary errors; rather
it is limited to violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257,
1275 (10th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
Generally, “allegations of prosecutorial misconduct are reviewed under a due
process analysis.” Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (citation
modified). The question is whether the prosecutor’s actions or remarks “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974). “The ultimate question is whether the jury
was able to fairly judge the evidence in light of the prosecutors’ conduct.” Bland v.
Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006). “Inquiry into fundamental fairness requires
examination of the entire proceedings, including the strength of the evidence against the
petitioner.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citation modified).
c. Discussion
The OCCA denied Petitioner’s claim based on the admissibility of the text message
under Okla. Stat. tit. 12, § 2404(B), and because the prosecutor’s “argument was properly
based on the evidence.” Doc. 16-1 at 4-7. Petitioner’s text states “don’t forget when I say
melt your off its because I’ve had 15 beers an[d] working on a apple rum when I smoke
it.” State’s Ex. 24. In closing, the prosecution referenced the text message and stated:
Ladies and gentlemen, is that evidence that he was under the influence that
night? You betcha. And that’s the why. That’s the willfulness of why he
left the scene. Because he knows darn good and well that he’s going to get
in trouble. Because you know what? He is DUI. Under the influence of
alcohol and drugs. You can reasonably infer that.
Tr. at 880.
i. Text message
The OCCA concluded evidence of the text message was “admissible to show
[Petitioner] had a motive to leave the scene” and “was not mistaken in the fact that he left
the scene after hitting a person, instead of a deer as he initially told police.” Doc. 16-1 at
5-6. Though he asserts the prosecution’s closing argument violated his due process rights
to a fair trial, he does not present that argument regarding the text message. Instead,
Petitioner’s arguments for habeas relief center on debating the relevance of the text
message under state law. Pet. at 28-30. However, “it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at
67-68. Federal habeas relief is not appropriate for this claim.
ii. Prosecution’s closing argument
Petitioner further claims that contrary to the OCCA’s opinion, the prosecutor’s
closing statements infused the trial with unfairness because they (1) had no purpose other
than to “create prejudice,” (2) were a “misdirection” because no evidence corroborated the
argument, and (3) were “the last thing the jury heard.” Pet. at 30-31. However, the record
does not support Petitioner’s allegations.
First, in closing argument Petitioner’s counsel contested the “willful” element of the
charge for leaving the scene of a fatality by arguing Petitioner did not know he hit a person.
Tr. at 861-83, 874-75. Counsel stated the government “knew they had to prove at the time
of the accident that [Petitioner] knew that what he had hit was a person.” Id. at 862.
Counsel ended his closing stating “because if he didn’t know if it was a person that he had
hit, he could not have willfully left the scene of a fatality accident involving a person.” Id.
at 875 (citation modified). Petitioner argued that he thought he hit a deer or did not know
what he hit. Id. at 863, 874-75.
A habeas court must consider a prosecutor’s comments in light of the argument
made by the defense, and “if the prosecutor’s remarks were invited, and did no more than
respond substantially in order to right the scale, such comments would not warrant
reversing a conviction.” United States v. Young, 470 U.S. 1, 12-13 (1985) (citation
modified). Part of Petitioner’s legal strategy was to place why he left the scene of the
accident directly at issue. It is reasonable to conclude the prosecution’s argument was in
response to Petitioner’s argument—to explain that he left the scene of the accident to
prevent law enforcement from assessing his intoxication near the time of the accident
because he knew he hit a person while under the influence.
Second, evidence corroborated Petitioner’s impairment at the time. He confessed
that he left the scene because he was afraid responding officers would smell beer on his
breath. State’s Ex. 27, State’s Ex. 76 at 2:39:00-2:39:12, 3:27:40-3:30:45, 3:34:40-
3:36:30. While Petitioner claims the text message could be interpreted in ways other than
as proof of his intoxication during the accident, his own admissions to police undercut this
argument. It was not unreasonable for the OCCA to conclude the prosecutor’s argument
was based on the evidence.
Further, the judge instructed the jury on how to consider evidence tending to show
offenses other than those charged. Tr. at 823. In closing argument, defense counsel
reiterated that instruction and explicitly called out the text message at issue as such
evidence and stated the prosecution “want[ed]” the jury to believe Petitioner was “drinking
and driving” and “to think of [him] as a bad person, deserving of punishment.” Id. at 857.
Counsel further stated that “there’s no evidence, zero evidence, that [Petitioner] was under
the influence of any of those at the time of this incident.” Id. at 858. The record reflects
(1) the court instructed the jury on how to properly consider the evidence and
(2) Petitioner’s counsel challenged the text message’s veracity and implications. It is
reasonable to conclude the jury was equipped to fairly consider the evidence even if the
prosecutor’s argument was the last iteration of the issue heard before deliberations.
Finally, considering the evidence presented by the State at trial, the OCCA’s
conclusion that the prosecutor’s remarks did not deprive Petitioner of a fair trial is
reasonable. As such, Petitioner has not established the OCCA’s decision was contrary to
or an unreasonable application of clearly established federal law.
d. Conclusion
Petitioner’s Ground Three fails because (1) federal habeas relief is not available for
challenges related only to a state court’s application of state law, and (2) he has not
established the OCCA’s decision was contrary to or an unreasonable application of clearly
established federal law. The undersigned recommends that the Court deny relief as to
Ground Three.
D. Ground Four: Cumulative error
In his final ground for relief, Petitioner argues that even if individual errors were
harmless, the combined effect of the errors deprived him of a fair trial. Pet. at 33-35.
Petitioner raised this claim on direct appeal, and the OCCA denied relief after concluding
there were no errors warranting reversal or modification. Doc. 16-1 at 12.
The cumulative error analysis addresses the possibility that two or more individually
harmless errors might have a “cumulative effect on the outcome of the trial . . . such that
collectively they can no longer be determined to be harmless.” Workman v. Mullin, 342
F.3d 1100, 1116 (10th Cir. 2003). To obtain habeas relief, a court must find that “the
cumulative effect of the errors determined to be harmless had a ‘substantial and injurious
effect or influence in determining the jury’s verdict.’” Hanson v. Sherrod, 797 F.3d 810,
852 (10th Cir. 2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The
undersigned has not found error. Therefore, the cumulative error analysis is unwarranted.
The Court should deny relief as to Ground Four.
V. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY the
Petition. Doc. 1. The parties are advised of their right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of
Court not later than September 15, 2026. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
Failure to object timely waives the right to appellate review of the factual and legal issues
addressed in this Report and Recommendation. See Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 25" day of August, 2026.
UNITED STATES MAGISTRATE JUDGE
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