Petition for Writ of Certiorari — Reginald Ward, Petitioner v. Scott Crow, Director, Oklahoma Department of Corrections

Appellate Case: 19-5060

Document: 010110250484

Date Filed: 10/25/2019 Page: 1

FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

October 25, 2019

Elisabeth A. Shumaker

Clerk of Court

REGINALD WARD,

Petitioner - Appellant,

No. 19-5060

(D.C. No. 4:16-CV-00602-JHP-PJC)

(N.D. Okla.)

v.

JOE ALLBAUGH, Director,

Respondent - Appellee.

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Before HARTZ, PHILLIPS, and EID, Circuit Judges.

Applicant Reginald Ward, an Oklahoma prisoner proceeding pro se, was sentenced to

life imprisonment for first-degree murder. The victim was shot between seven and

eleven times in both his front and back. At trial Applicant argued that he shot the victim

in self-defense and that he at most committed manslaughter. After being instructed on

first-degree murder, the lesser charge of manslaughter by heat of passion, and selfdefense, the jury found him guilty of first-degree murder. The Oklahoma Court of

Criminal Appeals (OCCA) affirmed on direct appeal and denied postconviction relief.

Applicant then filed in the United States District Court for the Northern District of

Oklahoma an application for relief under 28 U.S.C. § 2254, which the district court

denied. See Wardv. Allbaugh, No. 16-cv-00602, 2019 WL 2422487, at *1, 9 (N.D. Okla.

June 10, 2019). Applicant now requests a certificate of appealability (COA) from this

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court to enable him to appeal on the following grounds: (1) insufficient evidence to

convict him of first-degree murder, (2) failure to properly instruct the jury, (3) ineffective

assistance of counsel, and (4) error in responding to the jury during deliberations. See 28

U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of relief under § 2254). We

deny a COA and dismiss the appeal.

A COA will issue “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that. . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that

when a claim has been adjudicated on the merits in a state court, a federal court can grant

habeas relief only if the applicant establishes that the state-court 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). As we have explained:

Under the “contrary to” clause, we grant relief only if the state court arrives

at a conclusion opposite to that reached by the Supreme Court on a question

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of law or if the state court decides a case differently than the [Supreme] Court

has on a set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation

marks omitted). Relief is provided under the “unreasonable application” clause only 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. Id.

(internal quotation marks omitted). Thus, a federal court may not issue a habeas writ

simply because it concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. See id.

Rather, “[i]n order for a state court’s decision to be an unreasonable application of this

Court’s case law, the ruling must be objectively unreasonable, not merely wrong; even

clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per

curiam) (internal quotation marks omitted). To prevail, “a litigant must show that the

state court’s ruling was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.”

Id. (ellipsis and internal quotation marks omitted).

In addition, AEDPA establishes a deferential standard of review for state-court

factual findings. “AEDPA ... mandates that state court factual findings are

presumptively correct and may be rebutted only by ‘clear and convincing evidence.’”

Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).

Further, the Supreme Court has held that review under § 2254(d)(1), just as under

§ 2254(d)(2), “is limited to the record that was before the state court that adjudicated the

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claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n.7.

“AEDPA’s deferential treatment of state court decisions must be incorporated into our

consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d

935, 938 (10th Cir. 2004).

Two eyewitnesses testified at trial about the murder. The victim’s sister gave the

following account: Applicant and the victim were arguing on the street outside the home

of victim’s mother. The victim never threatened to shoot Applicant, nor was he anned.

Applicant and the victim eventually ceased their conversation, and the victim turned to

walk away from Applicant. She also turned to walk away but within a second heard two

pops. Applicant had shot the victim in the back. After the victim fell backward onto the

ground, Applicant crossed the street and shot him three more times before fleeing in a

vehicle driven by another man. The driver, a friend of Applicant since grade school, also

testified that the two men had been arguing but said that the victim kept his right hand in

his pocket and threatened to kill Applicant before Applicant shot him. The friend agreed

with the sister that after the victim fell to the ground, Applicant walked up to him and

shot him at least two more times. Shortly after the shooting the friend had told a

detective that Applicant shot the victim after the victim was trying to walk back and was

calming down. The friend thought the victim had a gun but did not see one.

Applicant first argues that his due-process rights were violated because the State

presented insufficient evidence to support a conviction for first-degree murder.

According to Applicant, the evidence established that he acted in self-defense or that he

was guilty of at most first-degree manslaughter under a heat-of-passion theory or

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imperfect self-defense theory. The OCCA rejected these arguments, concluding that a

“rational trier of fact could have found [Applicant] was not acting in self defense and

further found each of the elements of Murder in the First Degree beyond a reasonable

doubt.” Ward v. State, No. F-2014-127, slip op. at 2 (Okla. Crim. App. Jan. 6, 2015).

“[0]n habeas review, a federal court may not overturn a state court decision rejecting

a sufficiency of the evidence challenge simply because the federal court disagrees with

the state court. The federal court instead may do so only if the state court decision was

objectively unreasonable.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam)

(internal quotation marks omitted). The district court’s order thoroughly explains how

sufficient evidence existed to support Applicant’s conviction. See Ward, 2019 WL

2422487, at *4-5. For essentially the same reasons articulated by the district court, we

cannot say that the state-court decision was objectively unreasonable. We add one

comment in response to Applicant’s argument that the testimony from the medical

examiner was inconsistent with the victim’s being shot initially in the back (which would

negate a claim of self-defense). The medical examiner testified that his examination was

inconclusive as to whether the victim was initially shot in the back or front. He also

testified that some bullet wounds indicated that the bullet entered the victim’s body and

ricocheted into the backside of his right arm, which would be consistent with the victim’s

being shot in the front after falling to the ground. Thus, the physical evidence did not

conclusively negate the eyewitness testimony against Applicant. No reasonable jurist

could challenge the district court’s disposition of this claim.

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Next, Applicant argues that the state court violated his due-process rights by failing

to provide certain jury instructions: (1) under 21 Okla. Stat. § 1289.25 (2011), commonly

referred to as the “Stand Your Ground” law, and (2) on manslaughter by resisting

criminal attempt.

On the first instruction, Applicant argues that an instruction based on Oklahoma’s

“Stand Your Ground” statute was required because it is different from the self-defense

instruction that the jury received. But Applicant did not argue this proposition to the

district court in his § 2254 application. We decline to consider claims for relief not

presented to the district court. See Goode v. Carpenter, 922 F.3d 1136, 1149 (10th Cir.

2019). Therefore, we deny a COA on this ground.

As for an instruction on manslaughter by resisting criminal attempt, this court has

held that “a petitioner in a non-capital case is not entitled to habeas relief for the failure to

give a lesser-included offense instruction ‘even if in our view there was sufficient

evidence to warrant the giving of an instruction on a lesser included offense.’” Lujan v.

Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993) (quoting Chavez v. Kerby, 848 F.2d 1101,

1103 (10th Cir. 1988)). Accordingly, no reasonable jurist could challenge the district

court’s disposition of this claim.

Applicant next argues ineffective assistance of counsel for failing to request the jury

instructions discussed above. To prevail on claims of ineffective assistance of counsel, a

defendant must show both that his counsel’s performance was deficient—“that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment”—and that “the deficient performance prejudiced

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[his] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “Failure to make

the required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.” Id. at 700 (emphasis added). We need not consider Applicant’s

claim of ineffective assistance of counsel for failure to request a “Stand Your Ground”

instruction, because that claim was not raised in district court. See Goode, 922 F.3d at

1149. As for ineffective assistance of counsel based on failure to request a jury

instruction on manslaughter by resisting criminal attempt, the OCCA rejected this claim

on Strickland's prejudice prong, since “the evidence presented at trial would not permit a

rational jury to acquit [Applicant] of Murder in the First Degree in favor of finding him

guilty of the lesser offense.” Ward v. State, No. F-2014-127, slip op. at 3 (Okla. Crim.

App. Jan. 6, 2015); see Tryon v. State, 423 P.3d 617, 639 (Okla. Crim. App. 2018)

(“Mere words alone, or threats, menaces, or gestures alone ... do not constitute adequate

provocation.” (internal quotation marks omitted)). No reasonable jurist could challenge

the district court’s disposition of this claim.

Finally, Applicant argues that his due-process rights were violated when the trial

court (1) did not allow the jury to review videotaped police interviews, and (2) merely

referred the jury to the jury instructions in response to a question about the minimum and

maximum sentence for manslaughter. The OCCA upheld both actions as within the trial

court’s discretion. We agree with the district court that there is no Supreme Court

precedent requiring juries to have unfettered access to video evidence during

deliberations, and courts commonly refer the jury back to their instructions. See Ward,

2019 WL 2422487, at *7-8. Because no Supreme Court precedent shows that the state7

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court decisions were contrary to or an unreasonable application of clearly established

federal law, no reasonable jurist could challenge the district court’s disposition of this

claim.

We DENY a COA and DISMISS the appeal.

Entered for the Court

Harris L Hartz

Circuit Judge

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

OFFICE OF THE CLERK

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

(303) 844-3157

Elisabeth A. Shumaker

Clerk of Court

October 25, 2019

Chris Wolpert

Chief Deputy Clerk

Mr. Reginald Ward

Holdenville DCF

6888 East 133rd Road

Holdenville, OK 74848-9033

#692682

RE:

19-5060, Ward v. Allbaugh

Dist/Ag docket: 4:16-CV-00602-JHP-PJC

Dear Appellant:

Enclosed is a copy the court's final order issued today in this matter.

Prisoners are reminded that to invoke the prison mailbox rule they must file with each

pleading a declaration in compliance with 28 U.S.C. Section 1746 or a notarized

statement, either of which must set forth the date of deposit with prison officials and must

also state that first-class postage has been prepaid. See Fed. R. App. P. 4(c) and United

States v. Ceballos-Martinez, 358 F.3d 732, revised and superseded, 371 F.3d 713 (10th

Cir.), reh'g denied en banc, 387 F.3d 1140 (10th Cir.), cert, denied, 125 S. Ct. 624

(2004). Prisoners should also review carefully Federal Rule of Appellate Procedure

4(c)(1), which was amended December 1, 2018.

Please contact this office if you have questions.

Sincerely,

Elisabeth A. Shumaker

Clerk of the Court

cc:

EAS/klp

Jennifer B. Miller

Case 4:16-cv-00602-JHP-PJC Document 22 Filed in USDC ND/OK on 06/10/19 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

REGINALD WARD,

Petitioner,

v.

JOE ALLBAUGH, Director,

Respondent.

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Case No. 16-CV-602-JHP-PJC

OPINION AND ORDER

Before the Court is Petitioner Reginald Ward’s habeas corpus petition under 28 U.S.C. §

2254 (Dkt. 1). Petitioner challenges his Tulsa County District Court conviction for first degree

murder, Case No. CF-2013-0121. Dkt. 1, Petition, at 1. He argues he was acting in self-defense;

his trial was tainted by instructional error and other due process violations; and trial counsel

rendered ineffective assistance. He asks the Court to vacate his life sentence and reduce the charge

to manslaughter. Respondent contends Petitioner shot the victim in the back as he walked away,

and that the trial was otherwise free from constitutional error. For the reasons below, the Court

will deny the petition.

I. Background

The above-mention shooting occurred on March 17, 2013.

Dkt. 12-5, Amended

Information in O.R., at 4. Petitioner, his girlfriend, and his friend Michael McConnell went to a

family member’s home to do laundry. Dkt. 12-3, Tr. Trial vol. II, at 63. For simplicity, the Court

will refer to that home as the “Ward Residence.” The Ward Residence was across the street, and

one lot over, from where victim Alonzo Stewart was staying. Dkt. 12-2, Tr. Trial vol. I, at 138139. The Court will refer to that home as the “Stewart Residence.” The Stewart Residence had

Case 4:16-cv-00602-JHP-PJC Document 22 Filed in USDC ND/OK on 06/10/19 Page 2 of 17

been “shot up,” and Stewart previously accused Petitioner of committing that crime. Id. at 151,

186-187. Stewart was in his yard on the phone when Petitioner arrived at the Ward Residence to

do laundry. Id. at 169-170; see also Dkt. 12-3, Tr. Trial vol. II, at 79. Petitioner entered the Ward

Residence without incident. Dkt. 12-3, Tr. Trial vol. II, at 78. He came back outside after a few

minutes, when Stewart was still in his yard. Id. at 79. Petitioner and Stewart engaged in a verbal

argument, and Petitioner shot Stewart between seven and eleven times. Dkt. 12-3, Tr. Trial vol. II,

at 83, 169-170. Stewart, who was unarmed, died in a third party’s driveway across from the Ward

Residence. Id. at 20.

The State charged Petitioner with first-degree murder (malice aforethought) in violation of

Okla. Stat. tit. 21, § 701.7. Dkt. 12-5, Amended Information in O.R., at 4. Petitioner’s theory

was that he shot Stewart in self-defense and, at most, he committed manslaughter. Dkt. 11-1, App.

Brief, at 17-22. The jury received instructions on first degree murder and the lesser charge of

manslaughter by heat of passion. Dkt. 12-6, Jury Instructions in O.R., at 64-67. On January 30,

2014, a jury convicted Petitioner of first-degree murder. Dkt. 12-3, Tr. Trial vol. II, at 262. The

jury recommended a punishment of life imprisonment, and the state court sentenced Petitioner

accordingly. Id.

Petitioner perfected a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”).

Dkt. 11-1, App. Brief, at 1. Appellate counsel raised six propositions of error relating to the

sufficiency of the evidence, the self-defense theory, ineffective assistance of trial counsel, and other

procedural defects. Id. at 3-4. By a Summary Opinion entered January 6,2015, the OCCA affirmed

Petitioner’s conviction and sentence. Dkt. 11-3, State v. Petitioner, No. CF-2014-127 (Okla. Crim.

App. 2015) (unpublished) (“OCCA Op.”), at 1. Petitioner then filed a state application for post-

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conviction relief, which was denied. Dkt. 11-4, P.C. Application; see also Dkt. 11-5, Order

Denying Application; Dkt. 11-7, OCCA Order Affirming Denial of Post-Conviction Relief.

Petitioner filed the instant § 2254 Petition (Dkt. 1) on September 21, 2016. He identifies

the following grounds for relief:

(Ground 1): The evidence supporting the conviction was insufficient.

(Ground 2): The state court failed to sua sponte instruct the jury on the lesser charge of

Manslaughter by Resisting Criminal Attempt.

(Ground 3): The state court improperly refused to replay video evidence for the jury.

(Ground 4): The state court responded to a jury question via a written note, rather than on

the record, in violation of OKLA. STAT. tit. 22, § 894.

(Ground 5): Trial counsel provided ineffective assistance.

(Ground 6): Cumulative error.

Dkt. 1, Petition, at 5-14; Dkt. 11-1, App. Brief, at 3-4. i

Respondent filed a opposition Response (Dkt. 11), along with copies of the state court

record (Dkt. 12, 13). Respondent concedes, and the Court finds, that the Petition is timely and

Petitioner exhausted his state remedies. See 28 U.S.C. § 2244(d)(1); 28 U.S.C. § 2254(b)(1)(A).

The matter is ready for a full review on the merits.

II. Discussion

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court’s review

of petitioner’s habeas claims. See 28 U.S.C. § 2254. Relief is only available under the AEDPA

where the petitioner “is in custody in violation of the Constitution or laws or treaties of the United

l

At Petitioner’s request, the Court looked to his state appellate brief (Dkt. 11-1) to discern

his claims.

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States.” 28 U.S.C. § 2254(a). Further, because the OCCA already adjudicated petitioner’s claims,

this Court may not grant habeas relief unless he demonstrates that the OCCA’s ruling: (1) “resulted

in a decision that was contrary to . . . clearly established Federal law as determined by Supreme

Court of the United States,” 28 U.S.C. § 2254(d)(1);1 (2) “resulted in a decision that. . . involved

an unreasonable application of clearly established Federal law,” id.\ or (3) “resulted in a decision

that was based on an unreasonable determination of the facts” in light of the record presented to

the state court, id. at § 2254(d)(2).

“To determine whether a particular decision is ‘contrary to’ then-established law, a federal

court must consider whether the decision ‘applies a rule that contradicts [such] law’ and how the

decision ‘confronts [the] set of facts’ that were before the state court.” Cullen v. Pinholster, 563

U.S. 170, 182 (2011) (alterations in original) (quotations omitted). When the state court’s decision

“identifies the correct governing legal principle in existence at the time, a federal court must assess

whether the decision ‘unreasonably applies that principle to the facts of the prisoner’s case.” Id.

(quotations omitted). Significantly, an “unreasonable application of’ clearly established federal

law under § 2254(d)(1) “must be objectively unreasonable, not merely wrong.” White v. Woodall,

134 S. Ct. 1697, 1702 (2014) (quotations omitted). “[E]ven clear error will not suffice.” Id.

Likewise, under § 2254(d)(2), “a state-court factual determination is not unreasonable merely

i

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

legal principle or principles” stated in “the holdings, as opposed to the dicta, of [the Supreme

Court’s] decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade, 538

U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)); see also House v.

Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) (explaining that “Supreme Court holdings—the

exclusive touchstone for clearly established federal law—must be construed narrowly and consist

only of something akin to on-point holdings”).

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

Wood v. Allen, 558 U.S. 290, 301 (2010). The Court must presume the correctness of the OCCA’s

factual findings unless petitioner rebuts that presumption “by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).

Essentially, the standards set forth in § 2254 are designed to be “difficult to meet,”

Harrington v. Richter, 562 U.S. 86, 102 (2011), and require federal habeas courts to give state court

decisions the “benefit of the doubt.” Woodfordv. Visciotti, 537 U.S. 19,24 (2002). A state prisoner

ultimately “must show that the state court’s ruling ... 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.

A. Sufficiency of the Evidence

In Ground 1, Petitioner claims he was deprived of due process because the State’s evidence

is insufficient to support a first-degree murder conviction. Dkt. 1 at 5. He contends the State failed

to prove he was not acting in self-defense when he shot Stewart. Id. At most, he argues the

evidence established he was guilty of manslaughter, under either a heat of passion or “imperfect”

self-defense theory. Id.; see also Dkt. 11-1, App. Brief, at 21-22.

Under the Due Process Clause of the Fourteenth Amendment, a criminal defendant cannot

be convicted of a crime unless the state proves, beyond a reasonable doubt, every essential element

of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S.

358, 364 (1970). On federal habeas review, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.

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“Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers

of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). As the

Supreme Court explained:

First, on direct appeal, “it is the responsibility of the jury—not the court—to decide what

conclusions should be drawn from evidence admitted at trial. A reviewing court may set

aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact

could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 132 S.Ct. 2, 4, 181 L.Ed.2d

311 (2011) (per curiam). And second, on habeas review, “a federal court may not overturn

a state court decision rejecting a sufficiency of the evidence challenge simply because the

federal court disagrees with the state court. The federal court instead may do so only if the

state court decision was ‘objectively unreasonable.’” Ibid, (quoting Renico v. Lett, 559 U.S.

766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).

Id. The Court looks to state law to determine the substantive elements of the crime, “but the

minimum amount of evidence that the Due Process Clause requires to prove the offense is purely

a matter of federal law.” Coleman, 566 U.S. at 655.

Petitioner challenges his murder conviction under OKLA. Stat. tit. 21, § 701.7. To obtain

this conviction, the State had to show: (1) the unlawful death of a human; (2) caused by the

defendant; and (3) with malice aforethought. See OKLA. CRIM. JURY INSTRUCTION No. 4-61; OKLA.

STAT. tit. 21, § 701.7(A). Self-defense can negate the first and/or third elements if “a reasonable

person in [the defendant’s] circumstances and from his viewpoint would reasonably have believed

he was in imminent danger of death or great bodily harm.” Mack v. State, 428 P.3d 326, 327-328

(Okla. Crim. App. 2018). If self-defense does not negate liability entirely, a homicide may qualify

as “manslaughter in the first degree when perpetrated without a design to effect death, and in a heat

of passion, ... by means of a dangerous weapon.” Tryon v. State, 423 P.3d 617, 638 (Okla. Crim.

App. 2018) (quoting Okla. STAT. tit. 21, § 711(2)).

The OCCA considered and rejected Petitioner’s arguments regarding self-defense and

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manslaughter. Although the opinion does not cite Jackson v. Virginia, 443 U.S. 307, 316 (1979),

the analysis is consistent with that case. The OCCA noted:

Reviewing the evidence in a light most favorable to the prosecution, we find that a rational

trier of fact could have found [Petitioner] was not acting in self defense and further found

each of the elements of Murder in the First Degree beyond a reasonable doubt.

Dkt. 11 -3, OCCA Op., at 2.

In light of the deferential standard under § 2254, the Court agrees. Petitioner’s friend

McConnell testified that, on the day of the shooting, Stewart was on a phone call in his yard when

he observed Petitioner outside. Dkt. 12-3, Tr. Trial vol. II, at 79. Stewart started an argument with

Petitioner, although McConnell admitted both Petitioner and Stewart were “talking crap.” Id. at

69. Stewart’s wife - who was on the phone with him during the entire incident - recalled hearing

one of the men refer to a gun. Dkt. 12-2, Tr. Trial vol. I, at 140. She then heard Stewart say “I see

those every day, all day.” Id. Stewart’s sister, who came outside after she heard yelling, gave

similar testimony. She heard Stewart say: “I don’t care about your four-five, I see those all day

long, I’m telling you, it’s done, I don’t want to deal with this anymore.” Dkt. 12-2, Tr. Trial vol.

I, at 187. She testified Stewart then turned his back on Petitioner to walk away. Id. at 173, 187.

This testimony is consistent with McConnell’s initial statement to police that “somehow [Stewart]

tries to walk back, I think he was calming down.” Dkt. 12-3, Tr. Trial vol. II, at 69.2

There is also evidence that Petitioner shot Stewart in the back as he walked away and

continued shooting at close range to ensure a fatality. Stewart’s sister testified that after Stewart

began walking away, she heard two pops and saw Stewart facing her (and away from Petitioner).

2

Although McConnell’s testimony later changed, the original initial statement was

introduced as impeachment testimony. Id.

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Dkt. 12-2, Tr. Trial vol. I, at 174-176. She recalled that Stewart had his hands in the air, with

gritted teeth and wide open eyes. Id. She further testified that when Stewart fell to the ground in

a driveway, Petitioner crossed the street and shot him several more times while he lay on the

ground. Id. The record also reflects McConnell initially told police: “after the first few shots,

[Stewart] went down,” and McConnell then saw Petitioner “point [the gun] down and shoot

[Stewart].” Dkt. 12-3, Tr. Trial vol. II, at 71. This testimony is consistent with bullets found in the

driveway under Stewart’s body. Id. at 98-101. Police determined Stewart was unarmed and that

he sustained between seven and eleven bullet wounds. Id. at 172-173.

Notwithstanding these facts, Petitioner argues the verdict was unreasonable because

contradictory evidence exists in the record. Dkt. 11-1, App. Brief, at 19. He points to McConnell’s

testimony that: (a) Stewart threatened to kill Petitioner; and (b) Petitioner shot Stewart while he

was advancing towards Petitioner with his hand in his pants, clutching what looked like a gun. Id.

Stewart’s wife, who was on the phone, also testified that at one point she heard what sounded like

wind or a wrestling match, indicating there could have been a physical fight. Id. Petitioner also

points out the physical evidence was inconclusive as to when and how Stewart sustained gunshot

wounds to his back, and how Stewart fell to the ground in the driveway. Id. These facts, according

to Petitioner, would demonstrate he acted in self-defense or, alternatively, he committed

manslaughter under an imperfect self-defense or heat-of-passion theory.

The Supreme Court “unambiguously instructs that a reviewing court faced with a record of

historical facts that supports conflicting inferences must presume-even if it does not affirmatively

appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution,

and must defer to that resolution.” Cavazos v. Smith, 565 U.S. 1, 7 (2011) (quotations omitted). In

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this case, the jury chose to believe Stewart’s sister rather than McConnell.

Her testimony

demonstrated Petitioner was not acting in self-defense and intended to “effect death” when he shot

Stewart. See Tryon, 423 P.3d at 638 (heat of passion manslaughter is only available when the

defendant acted “without a design to effect death”). Highlighting inconsistencies in the evidence

merely shows why a “juror might not accept [her] testimony; it doesn’t show that a rational juror

could not accept it, which is the question on which a sufficiency challenge necessarily must focus.”

Matthews v. Workman, 577 F.3d 1175, 1185 (1 Oth Cir. 2009). See also United States v. Cardinas

Garcia, 596 F.3d 788, 794 (10th Cir. 2010) (“[W]e will overturn ajury’s credibility determination

and disregard a witness’s testimony only if the testimony is inherently incredible-that is, only if the

events recounted by the witness were impossible under the laws of nature or the witness physically

could not have possibly observed the events at issue”).

On this record, the Court cannot disturb the OCCA’s conclusion that sufficient evidence

exists to support Petitioner’s first-degree murder conviction. Habeas relief is not available as to

Ground 1.

B. Instructional Error and Corresponding Error by Counsel

In Ground 2, Petitioner contends the state court failed to sua sponte instruct the jury on the

lesser charge of Manslaughter by Resisting Criminal Attempt. Dkt. 1, Petition, at 6; see also Dkt.

11-1, App. Brief, at 27-28. He argues the trial evidence supported the instruction, which should

have been issued based on his theory of self-defense (or imperfect self-defense). Id. Ground 5

raises ineffective assistance of counsel based on the failure to.request the instruction. Dkt. 1,

Petition, at 12; see also Dkt. 11-1, App. Brief, at 38-39.

The OCCA rejected both arguments on appeal. It found no plain error “in the trial court’s

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failure to instruct the jury on th[e] lesser offense.” Dkt. 11-3, OCCA Op., at 2-3. The OCCA

noted:

In part, [Petitioner] urges us to adopt the position that Manslaughter by Resisting Criminal

Attempt encompasses ‘imperfect self-defense,’ and further adopt a bright-line rule that a

trial court must always instruct the jury on this lesser offense where a defendant claims selfdefense to a charge of Murder in the First Degree. We [have] rejected such an inflexible

approach ... in favor of a case-by-case analysis that focuses on whether the evidence was

sufficient to warrant an instruction on the lesser included offense.... The proper inquiry is

whether primafacie evidence of the lesser offense was presented. ... Sufficient evidence to

warrant a lesser included offense is evidence which would allow a jury rationally to find

the accused guilty of the lesser offense and acquit him of the greater ...We find ... the

evidence presented at trial would not permit a rational jury to acquit [Petitioner] of Murder

in the First Degree in favor of finding him guilty of the lesser offense.

Id. Because the OCCA found no instructional error, it determined Petitioner “cannot show resulting

prejudice” to support an ineffective assistance of counsel claim. Id. at 6.

1. Ground 2: Instructional Error

Federal habeas courts have a limited role in evaluating jury instructions. Relief is only

available if instructional errors “had the effect of rendering the trial so fundamentally unfair as to

cause a denial of a fair trial in a constitutional sense.” Shafer v. Stratton, 906 F.2d 506, 508 (10th

Cir. 1990) (quotations omitted). Petitioner’s burden under this test is “greater than the showing

required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

“The question is not whether the instruction^] [were] undesirable, erroneous, or even universally

condemned, but whether the instruction^] so infected the trial that the resulting conviction violates

due process.” Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995) (quotations omitted). “[B]ecause

a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in

such an endeavor a federal court must tread gingerly and exercise considerable self-restraint.”

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (quotations omitted). Further, where the

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petitioner relies on the omission of instructions rather than the provision of an erroneous

instruction, the burden is especially heightened. Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir.

1999).

“[A]n omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of the law.” Id. (quoting Maes, 46 F.3d at 984) (remaining citations omitted).

The omitted instruction at issue Oklahoma Uniform Instruction No. 4-102, which

establishes the manslaughter elements as follows:

First, the death of a human;

Second, perpetrated unnecessarily (while resisting an attempt by the deceased to commit a

crime) / (after an attempt by the deceased to commit a crime had failed);

Third, perpetrated by the defendant(s).

Okla. Crim. Jury Instruction No. 4-102 OUJI-CR (2d).

Having reviewed the record, the Court finds Petitioner received a fair trial despite the

absence of that instruction. It is not clear Stewart committed any crime, or that he even made

contact with Petitioner before the shooting. At most, it appears Stewart walked towards Petitioner

with his hand in his pants. Dkt. 11-1, App. Brief, at 10. To the extent Stewart made verbal threats,

words alone are not adequate provocation to justify a homicide. See Tryon v. State, 423 P.3d 617,

639 (Okla. Crim. App. 2018). The Court therefore agrees with the OCCA that the evidence did not

mandate the instruction.

Even if the Court concluded otherwise, the absence of Instruction No. 4-102 would not

amount to a due process violation. Under federal law, Oklahoma state courts need not instruct

juries on the charge of Manslaughter by Resisting a Criminal Attempt where, as here, the court

issued a heat-of-passion manslaughter instruction. See Bland v. Sirmons, 459 F.3d 999 (10th Cir.

2006). Bland is nearly identical to the instant case. The habeas petitioner there argued he killed

the victim to prevent an assault, but there was conflicting evidence that he shot the victim in the

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back of the head. Id. at 1016. The habeas petitioner argued the state court should have issued both

manslaughter instructions (heat of passion and resisting criminal attempt) based on his own

testimony about the victim’s attempted assault. Id. In denying habeas relief, the Tenth Circuit

noted the state court “instruct[ed] the jury on one lesser included offense supported by the evidence,

even if instructions on other lesser included offenses might have been warranted.” Id. The jury

here received the heat of passion manslaughter instruction, and was not “forced into an all-ornothing choice between ... murder and innocence.” Id.

Accordingly, this Court concludes

Petitioner received a fair trial in the absence of an instruction on Manslaughter by Resisting

Criminal Attempt. Habeas relief is unavailable on Ground 2.

2. Ground 5: Ineffective Assistance of Counsel

Petitioner also argues that trial counsel was ineffective for failing to request the second

manslaughter instruction. Dkt. 1, Petition, at 12; see also Dkt. 11-1, App. Brief, at 38-39. The

OCCA rejected this claim under the two-prong test announced in Strickland v. Washington, 466

U.S. 668 (1984).

Under Strickland, a defendant must show that his counsel’s performance was

deficient and that the deficient performance was prejudicial. 466 U.S. at 687. To satisfy the second

prong, the “defendant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. Standing alone,

the Strickland standard is “highly deferential.” Knowles v. Mirzayance, 556 U.S. Ill, 124 (2009).

Under § 2254(d)(1), this Court’s review of whether the OCCA unreasonably applied Strickland is

“doubly deferential.” Id. at 123.

Applying double deference, the the OCCA ruling is not unreasonable. As discussed above,

there was insufficient evidence to warrant Instruction No. 4-102, and the jury had a manslaughter

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option available, if they wished to convict Petitioner of a lesser charge. See Supra, Section 1.

Petitioner therefore cannot establish prejudice stemming from counsel’s failure to request

Instruction No. 4-102, and Ground 5 fails.

C. Error in Handling the Jury

In Ground 3, Petitioner raises a due process violation based on the jurors’ inability to re­

watch videotaped police interviews featuring Petitioner and McConnell. Dkt. 1, Petition, at 8; see

also Dkt. 11-1, App. Brief, at 33. The jurors requested a television and DVD player to re-watch

the videos, but the state court instructed them to rely on their “own recollection of those events”

because the DVDs contained “other matters upon them which [were] not properly before [the

jury].” Dkt. 11-1, App. Brief, at 33-34. However, Petitioner notes the prosecutor urged the jurors

to re-watch the video in closing, and argues the outcome might have been different had the state

court granted the jury’s request. Id. Ground 4 raises a related claim. Petitioner contends that in

denying the jury’s request, the state court failed to return to open court as required by Okla. Stat.

tit. 22, § 894. Id. at 36. Petitioner further argues the state court sent a note referring the jurors back

to the instructions when they asked about the minimum and maximum sentence for manslaughter.

Id.

The above arguments were considered and rejected on appeal. Dkt. 11-3, OCCA Op. The

OCCA noted that under Oklahoma law, courts have discretion in allowing juries to review video

interviews. Id. at 4. The OCCA then concluded that the “trial’s court’s decision was neither an

unreasonable or arbitrary action ... nor one which was clearly erroneous.” Id. To resolve Ground

4, the OCCA analyzed Okla. Stat. tit. 22, § 894, which provides:

After the jury have retired for deliberation, if there be a disagreement between them as to

any part of the testimony or if they desire to be informed on a point of law arising in the

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cause, they must require the officer to conduct them into court. Upon [entering] ... court,

the information required must be given in the presence of, or after notice to the district

attorney and the defendant or his counsel, or after they have been called.

Id. at 4-5 (quoting Okla. Stat. tit. 22, § 894). Because the DVD request “did not pertain to a

disagreement as to any part of the testimony,” the OCCA concluded Section 894 had “no

application” and could not provide the basis for any error. With respect to the question concerning

sentencing ranges, the OCCA determined it was harmless to direct the jurors back to their

instructions. Id. at 4, n. 1.

The OCCA’s decision was based entirely on state law principles. Generally, a federal

habeas court has no authority to review a state court’s interpretation or application of its own state

laws. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). When conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States. Id. at 68. Therefore, to challenge an evidentiary ruling or other discretionary

decision on due process principles, the petitioner must 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) (quotations omitted). As noted above, habeas courts must “approach the fundamental

fairness analysis with considerable self-restraint.” Jackson v. Shanks, 143 F.3d 1313, 1322 (10th

Cir.1998). A proceeding is fundamentally unfair under the Due Process Clause only if it is

“shocking to the universal sense ofjustice.” United States v. Russell, 411 U.S. 423, 432 (1973).

Nothing in the record demonstrates Petitioner’s trial was fundamentally unfair. As the state

court correctly noted, only a portion of Petitioner’s taped police interview was admitted into

evidence. Dkt. 12-3, Tr. Trial vol. II, at 139-140. Granting the jurors unfettered access to the

DVDs, as they requested, would likely have been inappropriate. Moreover, as one federal court

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pointed out, there is no Supreme Court precedent that requires juries to have unfettered access to

video evidence during deliberations. See Parlin v. Holmes, 2015 WL 3448194, at *4 (D.N.J. May

29, 2015) (rejecting a similar claim and noting relief is only available under § 2254 based on an

unreasonable application of clearly established Supreme Court law).

It is also not clear that the taped interviews were particularly helpful to Petitioner’s defense.

For example, in closing argument the prosecutor invited the jurors to re-watch Petitioner’s

explanation as to why he did not retreat from Stewart if Petitioner feared for his safety:

Is he really scared? Easy answer, because he answers it himself in his interview, and you

have that interview as evidence.... The defendant is asked, and I quote, ‘why aren’t you

backing up yourself?’ And his response: ‘Because I have a gun myself, I’m trying to explain

to that man, I’m not scared of you, I’ve got a son that’s going to be bom, I’m not running.’

Self defense? He just now told you he’s not scared. ...

Dkt. 12-3, Tr. Trial vol. II, at 233. The police interviews also contained some of the more damning

evidence by McConnell. Although McConnell’s trial testimony was very favorable for Petitioner,

McConnell admitted in the police interview that Stewart tried to walk “back,” (i.e., away), and that

Petitioner continued to shoot Stewart after he fell to the ground. Id. at 69-71 (statements used for

impeachment). On this record, the Court cannot disturb the OCCA’s ruling regarding the jury’s

DVD request, and Ground 3 fails.

Similarly, habeas relief is not warranted based on the state court’s written responses to the

jury’s inquiries. Federal law does not incorporate Okla. Stat. tit. 22, § 894 or otherwise require

all jury communications to take place on the record. In the Court’s experience, it is common for

the jury to inquire about the evidence, punishment, or legal standards in a case. More often than

not, courts refer the jury back to their instructions, as the state court did here. See, e.g., United

States v. Frias, 893 F.3d 1268, 1275 (10th Cir.), cert, denied, 139 S. Ct. 466 (2018) (finding no

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abuse of discretion based on the “district court’s decision to refer the jury back to the instructions”).

The state court’s written responses did not fundamentally taint the trial, and habeas relief is

unavailable on Ground 4.

D. Cumulative Error

In Ground 6, Petitioner alleges the cumulative effect of the trial errors alleged in Ground 15 deprived him of a fair trial. Dkt. 1, Petition, at 14; see also Dkt. 11-1, App. Brief, at 38. Finding

no errors to accumulate, the OCCA rejected this claim. Dkt. 11-3, OCCA Op., 6.

“[I]n the federal habeas context, a cumulative-error analysis aggregates all constitutional

errors found to be harmless and analyzes whether their cumulative effect on the outcome of the

trial is such that collectively they can no longer be determined to be harmless.” Alverson v.

Workman, 595 F.3d 1142, 1162 (10th Cir. 2010) (quotations omitted). A cumulative-error analysis

is warranted “only if there are at least two errors.” Lott v. Trammell, 705 F.3d 1167, 1223 (10th

Cir. 2013) (quoting Hooks v. Workman, 689 F.3d 1148, 1194-95 (10th Cir. 2012)). The Court

considers prejudice that has already been assessed in denying claims, such as claims of ineffective

assistance of counsel that incorporate a prejudice component in determining whether a right has

been violated. See Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003). Relief is only available

when the errors had an “inherent synergistic effect” on the outcome. Id. at 1121.

Like the OCCA, the Court has not found two or more harmless constitutional errors, nor is

the Court convinced any alleged error had a synergistic effect on the jury’s verdict. The Court

therefore denies habeas relief Ground 6.

Based on the foregoing, the Court concludes Petitioner’s conviction does not violate federal

law. See 28 U.S.C. § 2254(a). The Petition must therefore be denied.

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III. Certificate of Appealability

Habeas Corpus Rule 11 requires “[t]he district court [to] . . . issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” A certificate may only issue “if

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). When the district court rejects the merits of petitioner’s constitutional claims, he must

make this showing by “demonstrating] that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). The Court finds reasonable minds could not differ as to the outcome of this case. The

Court will therefore deny a certificate of appealability on all claims.

ACCORDINGLY, IT IS HEREBY ORDERED that:

1.

The petition for a writ of habeas corpus (Dkt. 1) is denied.

3.

A certificate of appealability is denied.

4.

A separate judgment will be entered herewith.

ORDERED this 10th day of June, 2019.

United States District Judge

Northern District of Oklahoma

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